author: HATCHETT, Justice. SUNDBERG, Justice OVERTON, Chief Justice

text:
    Lucy Ware MORGAN, Petitioner, v. STATE of Florida, Respondent.
    No. 48555.
    Supreme Court of Florida.
    July 30, 1976.
    Rehearing Denied Oct. 27, 1976.
    William C. Ballard, Baynard, Lang & Ballard, St. Petersburg, and Talbot D’Alem-berte, Steel, Hector & Davis, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., for respondent.
    C. Gary Williams, Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Florida Society of Newspaper Editors, amicus curiae.
    Eugene T. Whitworth, Gainesville, and James H. Gillis, Tallahassee, for Florida Prosecuting Attys. Ass’n, Inc., amicus curiae.
    Parker D. Thomson and James D. Spa-niolo, Paul & Thomson, Miami, for The Miami Herald Publishing Co., amicus curiae.

      Larry L. Simms, Miami, for The Reporters Committee for Freedom of the Press, amicus curiae.
    Sanford L. Bohrer, Miami, for The American Civil Liberties Union Foundation, Inc., amicus curiae.
   HATCHETT, Justice.

This case raises questions about the relationship between journalists and persons who give them information for publication, hoping to remain anonymous. Petitioner invokes our conflict certiorari jurisdiction, pursuant to art. V, § 3(b)(3) of the Florida Constitution (1975) and Rule 4.5(c)(6), Florida Appellate Rules, 1962 Revision. Conflict is alleged to exist between the decision below affirming petitioner’s conviction, reported at 325 So.2d 40 and various other Florida appellate decisions. E. g., Tracey v. State, 130 So.2d 605 (Fla.1961); Gibbs v. Mayo, 81 So.2d 739 (Fla.1955); Penny v. State, 140 Fla. 155, 191 So. 190 (1939).

Petitioner is a newspaper reporter. She seeks to overturn her second contempt conviction for refusal to disclose the source of certain information published in a newspaper article. Under her byline, on November 1, 1973, the Pasco Times published a synopsis of a sealed presentment, returned by a grand jury, which was investigating charges of official corruption in Dade City. The day the article was published the state attorney questioned petitioner as to the source of her information and, when she declined to answer, secured a contempt conviction and five month jail sentence, all within twelve hours of the article’s publication. On appeal to the District Court of Appeal, Second District, the conviction was reversed.

Even before the Second District reversed petitioner’s first contempt conviction, she had been convicted a second time, for failure to answer the same questions, asked this time in the presence of the grand jury. The second contempt prosecution began with an order to show cause which was met by a motion to dismiss on First Amendment grounds, and also on the ground that the show cause order did not specify the nature of the grand jury proceedings, during which petitioner was questioned. After the parties stipulated as to the nature of the grand jury proceedings, the motion to dismiss was denied and petitioner was convicted. On appeal, the Second District affirmed the conviction and, on rehearing, upheld petitioner’s 90 day sentence. Morgan v. State, 325 So.2d 40 (Fla.App. 2nd 1975). The District Court distinguished the present ease from the initial contempt prosecution on the ground that the state attorney had conducted the second interrogation on behalf of the grand jury, rather than on his own behalf.

When last faced with the question of reportorial privilege, we decided that journalists had no “privilege of confidential communication, as between themselves and their informants.” Clein v. State, 52 So.2d 117, 120 (Fla.1950) (reh.den.1951). We adopted as our own the position “stated in Re Wayne, 4 Haw.Dist.Ct.R. 475,” id:

Though there is a canon of journalistic ethics forbidding the disclosure of a newspaper’s source of information, — a canon worthy of respect and undoubtedly well founded, it is subject to a qualification — it must yield when in conflict with the interests of justice, — the private interest involved must yield to the interests of the public.
Id.

Events in intervening years suggest that important public interests, as well as private interests, may be served by publication of information the press receives from confidential informants. The United States Supreme Court has now sanctioned the view that the First Amendment affords “some protection for seeking out the news.” Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972). Because of these developments, the District Court of Appeal reached the conclusion that “it is probable that the ruling in Clein is no longer the law.” Morgan v. State, 325 So.2d at 43. The attorney general’s office also took the position, both in its brief and at oral argument, that Branzburg v. Hayes, supra, and companion cases, have superseded the Clein decision.

The reporters in the Branzburg trilogy were brought before grand juries to testify as to “traffic in illegal drugs . . .assassination attempts on the President, and . [it was assumed] violent disorders endangering persons and property,” 408 U.S. at 701, 92 S.Ct. at 2666, 33 L.Ed.2d at 651, after published accounts concerning such criminal activity appeared, purportedly based on the subpoenaed reporters’ personal observation. The journalists objected on the ground that requiring them to testify would “driv[e] a wedge of distrust and silence between the news media” and their confidential informants, with the result that certain information would eventually become unavailable to the public. In one case, it was argued that merely requiring a reporter to appear, in response to a subpoena, jeopardized the free flow of information in a manner incompatible with the First Amendment. Deciding the cases adversely to the journalists, the Court rejected

the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof . . . [because] . crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not.
408 U.S. at 692, 92 S.Ct. at 2662, 33 L.Ed.2d at 646.

In an opinion by Mr. Justice White, writing for four members of a five man majority, the Court limited its holding to grand juries’ good faith investigations of crime.

The present case differs from Branzburg in that the grand jury before whom petitioner appeared was not investigating a crime. A grand jury is ordinarily under no obligation to announce the purpose of any investigation it undertakes, but here the prosecution stipulated in the trial court that the contempt charge was predicated on petitioner’s refusal to answer questions asked in the course of an- investigation of a violation of Section 905.24, Florida Statutes (1975). In keeping with the stipulation, we are bound to conclude that the grand jury was not investigating a criminal matter because Section 905.24, Florida Statutes (1975), does not make criminal the conduct it proscribes. Morgan v. State, 309 So.2d 552 (Fla.App. 2nd 1975). It was the substance of the grand jury’s presentment, moreover, that was prematurely disclosed. “The only ‘crime’ set forth in Ch. 905, supra, relates to revealing the testimony of a witness before the grand jury, and there is no contention made here that such was the nature of the° leak under investigation.” Morgan v. State, 325 So.2d at 43.

Mr. Justice Powell, in casting the deciding vote against the reporters in Branzburg, “emphasize[d] . . . the limited nature of the Court’s holding.” 408 U.S. at 709, 92 S.Ct. at 2671, 33 L.Ed.2d at 656. In an “engimatic concurring opinion,” 408 U.S. at 725, 92 S.Ct. 2646 (Stewart, J., dissenting), Mr. Justice Powell wrote:

If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman . . . has . reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court . . . . The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.
408 U.S. at 709, 92 S.Ct. at 2671, 33 L.Ed.2d at 656.

Although the plurality opinion rejected even a qualified reportorial privilege in terms, Mr. Justice Powell agreed with the dissenting justices that a reportorial privilege should be recognized in some circumstances. See generally Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514; Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Unlike Mr. Justice Powell, the four dissenting justices would have found the privilege applicable in Branzburg, notwithstanding the serious nature of the crimes under investigation there.

The Branzburg dissenting and concurring opinions recognize news gathering as an essential precondition to dissemination of news, and the plurality opinion also conceded that “without some protection for seeking out the news, freedom of the press could be eviscerated.” Branzburg v. Hayes, 408 U.S. at 681, 92 S.Ct. at 2656, 33 L.Ed.2d at 639. Of course, no such privilege can amount to an absolute right to an unimpeded flow of information in all places and at all times. Application of the privilege in a given case involves “the striking of a proper balance.” 408 U.S. at 709, 92 S.Ct. at 2671, 33 L.Ed.2d at 656. As was pointed out in Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), almost any governmental restriction on action could “be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen’s opportunities to gather information . . . .” 381 U.S. at 17, 85 S.Ct. at 1281, 14 L.Ed.2d at 190.

In deciding whether petitioner was privileged to refuse to disclose her source in the present case, we first consider the governmental interest sought to be advanced, in compelling disclosure of the confidential informant’s identity. The District Court found that “preservation of the rule of secrecy in grand jury proceedings and [thereby] preservation of the integrity of the grand jury as an arm of the judicial branch of government [are] of compelling public interest,” outweighing any First Amendment considerations. We cannot accept the view that a generalized interest in secrecy of governmental operations should take precedence over the interest in assuring public access to information that comes to the press from confidential informants. Cf. Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731, 739 (1969) (An “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression”) Various governmental operations may be hampered by publicity, but the desirability of secrecy varies greatly, depending on the particular governmental function, and its sensitivity to publicity. A nonspecific interest, even in keeping the inner workings of the Pentagon secret, has been held insufficient to override certain First Amendment values. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). The “preservation of the rule of secrecy” in which some governmental activity has traditionally been enshrouded, is not the specific, substantial governmental interest necessary to defeat a reportorial source privilege.

Secrecy in the work of the grand jury is moré than a tradition, however. Grand jury secrecy serves several specific governmental purposes. When a grand jury investigation culminates in indictment, the indictment is customarily sealed until the arrest of the accused can be effected. See Section 905.26, Florida Statutes (1975). Secrecy serves in this context to prevent the flight of accused persons. Witnesses appearing before the grand jury must be free to tell what they know, without fear of having to answer elsewhere for their testimony. See Section 905.27(2), Florida Statutes (1975) (“unlawful for any person knowingly to publish . . . testimony of a witness examined before the grand jury . ”). Likewise grand jurors must be free in their deliberations to express their opinions without fear of retribution. See Sections 905.24-.25, Florida Statutes (1975). In the present case, however, no indictment was returned. The grand jurors’ deliberations, like their voting, remain secret to this day, as far as the record shows. There is no indication that any grand jury witness’ testimony has ever been disclosed.

One interest recognized by statute may have been defeated, in the present case, but this interest was a private interest in reputation. Section 905.28, Florida Statutes (1975), forbids disclosure of presentments critical of unindicted persons “until the individual concerned has been furnished a copy . . . and given 15 days to file . a motion to repress.” See State ex rel. Brautigam v. Interim Report of Grand Jury, 93 So.2d 99 (Fla.1957). Here criticism of Norris R. Nixon, Dade City’s Chief of Police, was published before he had an opportunity to apply to a court for repression of the criticism. The loss to Mr. Nixon of this opportunity was the only specific interest compromised by premature disclosure of the grand jury’s presentment in this case. There was never any showing that Mr. Nixon could have prevailed on a motion to repress, so it is only a matter of speculation whether he suffered any harm at all. On this record, the balance must be struck in favor of the .public interest in unencumbered access to information from anonymous sources. Cf. Harris v. Blackstone Developers, 41 Fla.Supp. 176 (4th Cir. 1974) (Gooding, J.)

If the mere possibility of injury to private reputation justified a court in requiring that a reporter divulge sources, in what circumstances would a reporter not have to give up the names of confidential informants? The authorities would presumably never have learned of the breach of confidentiality as regards the grand jury’s presentment, if they had not read the presentment’s contents summarized in the newspaper. The First Amendment is clearly implicated when government moves against a member of the press because of what she has caused to be published. These contempt proceedings were not brought to punish violation of a criminal statute and were not part of an effort to obtain information needed in a criminal investigation. Their purpose was to force a newspaper reporter to disclose the source of published, information, so that the authorities could silence the source. The present case falls squarely within this language in the Branzburg plurality opinion: “Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification.” 408 U.S. at 707-8, 92 S.Ct. at 2670, 33 L.Ed.2d at 655.

The decision of the District Court of Appeal, Second District, is quashed, petitioner’s conviction is reversed, and this case is remanded for proceedings consistent with this opinion.

ADKINS and BOYD, JJ., concur.

SUNDBERG, J., concurs with an opinion.

ENGLAND, J., concurs in result only.

OVERTON, C. J., dissents with an opinion.

SUNDBERG, Justice

(concurring).

I concur generally with the views expressed by Mr. Justice Hatchett in the majority opinion. I construe his opinion basically to embrace the limited or conditional First Amendment privilege to confidentiality of news sources which was recognized by a majority of the Court in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Quoting United States v. Liddy, 155 U.S.App.D.C. 382, 478 F.2d 586 (1972), and Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972), the District Court of Appeal, Second District, explicated this privilege as follows:

“ . . . As we read Branzburg, as have other courts construing it, there is to some degree a recognizable limited or conditional First Amendment privilege to confidentiality of news sources which, nonetheless, must yield when outweighed by a more compelling public interest. Branzburg, as here, was concerned with a grand jury setting, and it was determined there that a valid inquiry into criminal activity was of sufficient compelling nature as to override whatever conditional privilege was vested in the press. Additionally, it has been suggested that Branzburg may also require that a determination be made that society’s interest is ‘immediate, substantial, and subordinating’; that there be a ‘substantial connection’ between the information desired of the witness and the interest of society in the subject matter of the investigation; ‘and that the means of obtaining the information is not more drastic than necessary to forward the asserted governmental interest.’ . . ” (Footnotes omitted; emphasis supplied)
Morgan v. State, 325 So.2d 40, 43, (Fla.2d DCA 1975).

In fact, the parties in their briefs tend to be in accord that the test with respect to confidentiality of sources is as delineated in Morgan’s interpretation of Branzburg, supra, although counsel for petitioner in oral argument were reluctant to concede any limitation on her asserted First Amendment right to protect confidentiality of sources. The balancing test enunciated by the court below, however, makes eminent good sense to me.

The problem, of course, lies in applying the standard to the facts and procedure of this case. Frankly, the problem does not pose much difficulty when the procedural posture of the case before the trial court and the District Court of Appeal is analyzed in conjunction with the applicable provisions of Chapter 905, Florida Statutes (1975), respecting grand juries. Essentially, I see it as a matter of Ms. Morgan’s having been found guilty of an offense which is not supported by the evidence in the record. The probata simply did not meet the allega-ta. Relevant portions of the newspaper report asserted by the state to support the grand jury inquiry under Section 905.24, Florida Statutes (1975), are set forth in footnote 1 to the majority opinion. By stipulation the issues were confined to those concerning Section 905.24, Florida Statutes (1975). Petitioner explicitly pleaded “not guilty to the charge of contempt of a proceeding of the grand jury investigating a violation of Section 905.24, Florida Statutes.” See footnote 8 to the majority opinion. Counsel for petitioner took great pains in both written and oral motions to clarify precisely the charge against his client.

Section 905.24, Florida Statutes (1975), provides:

“Grand jury proceedings are secret, and a grand juror shall not disclose the nature of or substance of the deliberations or vote of the grand jury.” (Emphasis supplied)

On the other hand, Section 905.28(1), Florida Statutes (1975), provides in pertinent part:

“No report or presentment of the grand jury relating to an individual which is not accompanied by a true bill or indictment shall be made public or be published until the individual concerned has been furnished a copy thereof and given 15 days to file with the circuit court a motion to repress or expunge the report or that portion which is improper and unlawful.” (Emphasis supplied)

It is apparent that the allegedly offending matters contained in the newspaper report relate only to the report or presentment of the grand jury and not to their deliberations or vote. It is clear from the statutory scheme of Sections 905.24 through 905.28, Florida Statutes (1975), that the several functions of the grand jury system are dealt with separately and explicitly, and varying prohibitions are imposed with respect to each, i. e., deliberations or vote of grand jurors (Section 905.24); testimony in court by a grand juror as to the vote of jurors or opinions expressed by them (Section 905.25); disclosure of the finding of an indictment by anyone privy to the grand jury proceedings prior to the arrest of the person indicted (Section 905.26); disclosure of testimony of any witness examined before the grand jury or other evidence received by it (Section 905.27); and publication of the report or presentment (Section 905.28). Consequently, it clearly is not proper to find one guilty of contempt for failure to respond to questions concerning the report or presentment when the basis of the grand jury inquiry, as charged, was disclosure of the nature or substance of the deliberations or vote of the grand jury. See Aaron v. State, 284 So.2d 673, 677 (Fla.1973).

The foregoing may appear an overly technical view of the matter, but it is submitted that in so sensitive an area as balancing First Amendment rights against an assertedly more compelling public interest, the issue must be precisely framed so that the newsperson may make an initial assessment of his or her position with respect to disclosure. In this case, Ms. Morgan’s counsel insisted on precision so as to admeasure the risk involved to his client in refusing to disclose her sources. He very well could have concluded that, based on the finely-honed issue as ultimately framed by stipulation, the test of compulsion could not be met, and therefore the proper course for his client was to insist upon primacy of the First Amendment guarantee.

Subject to the foregoing observations, I concur with the majority opinion.

OVERTON, Chief Justice

(dissenting).

I dissent. I am deeply concerned that the decision by the majority will allow individual grand jurors, prosecutors, court reporters, or other grand jury staff to divulge to the press with immunity the contents of secret grand jury proceedings. Leaks in effect will be condoned, and the oath of secrecy will be unenforceable. In my opinion the facts and circumstances establish a criminal proceeding within the Branzburg rule. The grand jury and its staff are expressly sworn to secrecy by the trial court or the grand jury itself. The intentional violation of that oath is, in my opinion, a crime.

The offense strikes at the very integrity of the grand jury.

It is unrefuted that these facts establish there was a breach of the oath of secrecy. A trial judge cannot just ignore that violation. The grand jury may be considering other unrelated causes. The fact that there is a breach of secrecy affects the very existence of that specific grand jury. I generally agree with the opinion of Mr. Justice Powell in the Branzburg decision, but those views are not applicable to the circumstances of this cause.

The secrecy of the grand jury has as its purpose the protection of jurors from retribution, assuring the grand jury’s independence from outside influence, and the protection of the innocent from unjustified charges. If we are going to compromise the secrecy of its deliberations, it would be better to open them up entirely.

      . The newspaper report was based on information from several sources, but this passage was identified by petitioner as being based on confidential information:
      [The grand jury] reportedly criticizes [officials]
      But the jurors did level strong criticism at Nixon and other Dade City officials, The Times was told.
      The jurors reportedly also decided to keep a close eye on the Pasco County building department during the next 90 days, and will meet again in the future to review the department’s progress.
      The unusual sealed presentment reportedly was sealed at Williams’ request because it identified individuals who were criticized, but not indicted.
      Grand jurors reportedly were promised that its contents will be released within a week.
      (R. 100).

      . Mrs. Morgan argued that the state attorney had no authority to ask the questions she had not answered, and that she was therefore within her rights in refusing. The state attorney took the position that the questions were proper, because asked in the course of a criminal investigation, namely, into apparent violations of Section 905.24, Florida Statutes (1975). This section provides as follows:
      Grand jury' proceedings are secret, and a grand juror shall not disclose the nature or substance of the deliberations or vote of the grand jury.
      The District Court reasoned that Section 905.-24, Florida Statutes (1975) failed to define a crime, under the established Florida rule that a criminal statute, which does not specify a penalty, must either denominate as unlawful the conduct it proscribes, or designate the misconduct a misdemeanor, in order to be effective. Taulty v. Hobby, 71 So.2d 489 (Fla.1954). Citing Barnes v. State, 58 So.2d 157 (Fla.1951) (reh. den. 1952) the District Court concluded that “the subject matter of [a state attorney’s] interrogation [conducted pursuant to Section 27.04, Florida Statutes (1975)] must be confined to violations of criminal law”, at 553, and reversed Mrs. Morgan’s conviction. Morgan v. State, 309 So.2d 552 (Fla.App. 2nd DCA 1975).

      . Compulsory self-incrimination is not an issue in this case. Petitioner would have been immunized from prosecution for any transaction as to which she might have testified.

      . The Clein case is distinguishable from the present case, because the newspaper in Clein reported grand jury witnesses’ testimony, while here the newspaper published a summary of a presentment.

      . See concurring opinion of Mr. Justice Brennan in Hynes v. Mayor and Council of Borough of Oradell, - U.S. -, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 539, 4 L.Ed.2d 559, 563 (1960) (“Even the Federalist Papers . . were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.”)

      . In general “a District Court of Appeal does not have authority to overrule a decision of the Supreme Court of Florida.” Hoffman v. Jones, 280 So.2d 431, 440 (Fla.1973). Within their sphere, however, District Courts of Appeal are courts of last resort. See Johns v. Wainwright, 253 So.2d 873 (Fla.1971); Lake v. Lake, 103 So.2d 639 (Fla.1958). As such, they draw for precedent on their own prior decisions and on decisions this Court handed down before they were in existence. The present case is distinguishable from Hoffman v. Jones, supra, because there a District Court of Appeal “overruled” decisions this Court had handed down after the District Courts of Appeal were created. Here the District Court’s tentative rejection of Clein was obiter dicta, and the decision in Clein antedates creation of the District Courts of Appeal.

        . In re Pappas and United States v. Caldwell, were considered with Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

      . This statute is set out in full ante p. 952 n. 2. The prosecutor stated on the record, “If we wish to confine the issues to those concerning 905.24, the State is prepared to do so at this time and will proceed within that frame of reference.” (R. 48-49) Petitioner pleaded “not guilty to the charge of contempt of a proceeding of the Grand Jury investigating a violation of Section 905.24, Florida Statutes.” (R. 49)

      . The judiciary, a branch of government coequal with the executive and the legislature, is no less subject to constitutional strictures against governmental interference with First Amendment rights. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).

      . The District Court observed:

        Branzburg may also require that a determination be made that society’s interest is “immediate, substantial, and subordinating”; that there be a “substantial connection” between the information desired of the witness and the interest of society in the subject matter of the investigation; “and that the means of obtaining the information is not more drastic than necessary to forward the asserted governmental interest.” If this be so, and we take it to be so, . . .325 So.2d at 43.
      Although we would be unable to conclude on this record “that society’s interest is ‘immediate, substantial, and subordinating’ ” or that less drastic means were unavailable to the authorities, we do not reach these questions because no significant “interest of society” in requiring petitioner to disclose her sources(s) was demonstrated in these proceedings.

      . Although the presentment was to “be released within a week,” the grand jury “decided to keep a close eye on the Pasco County building department during the next 90 days,” according to the newspaper account. Such surveillance might be thought to depend on secrecy for its effectiveness, but the same source gives as the only reason for sealing the presentment the fact that it “identified individuals who were criticized but not indicted,” and petitioner testified under oath that the prosecutor himself “confirmed in conversations that [the presentment] would be released in a very short time.” According to petitioner, the prosecutor also disclosed personally that the grand jury “looked into business transactions by Dade City Mayor Ed Starling and several city commissioners. . . The investigation centered around a land purchase. . . . Starling was one of six East Pasco residents who bought a 13‘/2-acre tract south of Dade City for a motel, and then approached the city for sewer and water services.” These disclosures by the prosecutor to the press would surely have alerted anybody concerned, who was not already aware of the investigation.

      . We express no view on appropriate sanctions, if any, in an action for libel against a newspaper, where the newspaper declines to reveal its sources for the allegedly libelous material.

      . See ante p. 952, n. 2.

      . My interpretation of the Branzburg trilogy is this: While the plurality opinion expressing the views of four members of the Court explicitly rejects any newsman’s privilege short of the case in which there is “[official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources,” the other five members of the Court recognize a privilege of at least the dimension outlined by Mr. Justice Powell in his concurring opinion:
      “ . . . The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”

      . The following is the oath generally given to grand jurors:
      “You, as Grand Jurors for the body of this county of_do solemnly swear (or affirm, as the case may be) that you will diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge; the counsel of the State of Florida, your fellows and your own, you shall keep secret, unless required to disclose the same by some competent court.
      “I charge you now that you shall not, under any circumstances, discuss these matters unless you are released by some competent court. Your vote shall never be made known — the opinion expressed by any of you on any matter shall never be made known— and the testimony given before you shall not be made known, unless you are released by some competent court. This is binding upon you for all times.
      “You shall present no man for envy, hatred, or malice, neither shall you leave any man unpresented for love, fear, favor, affection, reward, or the hope thereof, but you shall present things truly as they come to your knowledge, according to the best of your understanding. So help you God.”
      A similar but shorter oath of secrecy is given to the grand jury staff.


source: Caselaw Access Project

author: BY THE COURT.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Gordon STRICKLAND, Appellee.
    No. 45161.
    Supreme Court of Florida.
    Sept. 23, 1976.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellant.
    James A. Gardner, Public Defender, and Durand J. Adams, Asst. Public Defender, for appellee.
   BY THE COURT.

Pursuant to Article V, Section 3(b)(1) of the Florida Constitution, the state appeals an order of the Manatee County Circuit Court granting a motion to dismiss on the ground that Section 856.021, Florida Statutes (1975), is unconstitutionally vague. This same statute was upheld in the face of an identical challenge in State v. Ecker, 311 So.2d 104 (Fla.1975), which was then followed in Brown v. State, 314 So.2d 129 (Fla.1975), and in State v. Williams, 315 So.2d 449 (Fla.1975). There being no basis in the record or in the arguments of counsel for reconsideration of those decisions, the judgment entered below is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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


author: ADKINS, Justice.

text:
    Richard James ELSON, Petitioner, v. STATE of Florida, Respondent.
    No. 47342.
    Supreme Court of Florida.
    Sept. 23, 1976.

      David J Busch and Ron K. Zimmet, Asst. Public Defenders, and Jerold Arthur Caughey, Sp. Asst. Public Defender, Tacoma, Wash., for petitioner.
    Robert L. Shevin, Atty. Gen., and Carolyn M: Snurkowski, Asst. Atty. Gen., for respondent.
   ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, First District (Elson v. State, 310 So.2d 450), which allegedly conflicts with prior decisions of this Court (State v. Leveson, Fla., 151 So.2d 283, and Church v. State, 151 Fla. 24, 9 So.2d 164) on the same point of law. Fla.Const. art. V, § 3(b)(3), F.S.A.

Petitioner Elson, hereinafter referred to as defendant, and co-defendant Chesher borrowed a U-Haul van from co-defendant Conn, the lessee of the van. Late at night the truck became stuck in a ditch and a deputy sheriff, responding to a report of a stranded truck, arrived at the scene. Upon learning the names of defendant and Chesher, the officer ordered a check of records which revealed that Chesher had been arrested for possession of dangerous drugs and concealed weapons.

According to the officer, the back of the truck was open and the dome light was on. He could see in plain view the interior of the truck and a plastic bottle of different colored pills. Also, several watches were lying on the floor of the truck. The officer entered the truck, picked up the pills, and arrested defendant and Chesher for possession of dangerous drugs.

When defendant and Chesher were taken to jail, a motel room key was produced. It was ascertained that defendant and another man had rented the motel room. The sheriff and a highway patrolman proceeded to the motel, and were accompanied by the manager to the room which was registered in the name of co-defendant Chesher. The sheriff knocked on the door and Gary Conn, who was occupying the room, opened the door. The sheriff entered. He testified that he was making an inventory search so as to protect any property defendant and Chesher might have had at the motel and obtain any money which might be available for bond purposes.

After entering the motel room the sheriff seized a bank bag, as well as a number of watches, and some silver coins which were on a table. The sheriff was not searching for any particular property, claiming he was making an “inventory” of the property of the two men who were in jail.

In considering an appeal from an order denying the motion to suppress, the District Court of Appeal held that defendant did not have standing to question the search as “[h]e was not registered in the motel, and therefore he did not have any constitutional inhibition against a search of the motel room.”

In State v. Leveson, 151 So.2d 283 (Fla.1963), a lottery conviction, the trial court denied motions to suppress evidence on the ground that Leveson had no standing to attack the search warrants. The facts were discussed as follows:

“It appears that Leveson had arranged for the occupancy of the apartment by his ‘girl friend.’ Although the lease was technically taken in the name of the ‘girl friend’ it is perfectly obvious that the arrangement was made for the convenience and accommodation of Leveson, as well as the technical lessee. Leveson had fulltime possession of a key to the apartment and occupied the same at will. He kept articles of clothing there and frequently spent the night. On occasions he had occupied the apartment for as many as five nights consecutively. He paid the rent for the first and last months, as well as for intervening periods. The execution of the lease in the name of the ‘girl friend’ was merely to accommodate his meretricious arrangement to the fact that he had a wife and a home at another location.” 151 So.2d at 284.

On appeal two District Court judges concluded that the search warrant was fatally defective. For different reasons they concluded that Leveson had standing to question the search. One judge felt that Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960), was not applicable in Florida. The consequence was that two judges held the search invalid and two held that Jones v. United States, supra, was not applicable in Florida. In holding that Leveson had standing to attack the search and seizure, this Court said:

“Our examination of the record leads us to conclude that, under the long-established Florida rule existing prior to Jones v. United States, supra, Leveson had a sufficient interest in the property searched to enable him to attack the validity of the search. We, therefore, do not reach the question of the applicability of the rule of Jones v. United States, supra. By that decision the Supreme Court of the United States apparently has eliminated the former technical requirements of ownership or right of occupancy. The federal rule now appears to be that anyone legally on the premises which are subjected to the search can attack the validity of the search if the proceeds of the search are offered in evidence against him. This rule, however, is still in its formative stages and remains subject to numerous potential ramifications.”
* * * * * *
“In reaching our conclusion we lay aside any concern regarding technical distinctions relating to rights of occupancy and possession, as defined by the great body of private property law. Our consideration of the instant problem is limited entirely to the question of standing to assert the constitutional right to be free from unreasonable searches and seizures.” 151 So.2d at 285.

In the instant case defendant possessed the motel room key. Although the room was registered in the name of Chesher, it contained defendant’s property. There is conflict and we have jurisdiction.

The search of the motel room was not incident to an arrest nor was it conducted on premises within defendant’s immediate control. There was no emergency, for defendant was in custody and no one having access to the premises could have had knowledge that the police were interested in the premises. There was no evidence of motive on the part of the occupants to destroy evidence. The lack of a search warrant cannot be justified on the ground that there was insufficient time to obtain one.

The State argues that the search was an inventory search made for the protection of defendant. The inventory search concept can validate a warrantless search only where the police have some valid reason or right for taking á defendant’s property into custody. It is well settled, of course, that the search of a vehicle is not unreasonable when the search is a routine inventory of the car which is taken into custody. Gagnon v. State, 212 So.2d 337 (Fla.App.3d 1968); Urguhart v. State, 261 So.2d 535 (Fla.App.2d 1971). After an abandoned automobile is placed in protective custody, the officers would be bound to inventory the car and its contents both for the preservation thereof and to insulate themselves and the garage owner acting under their direction from possible responsibility in the event of theft or destruction. Under such circumstances gaining access to the interior of the car and making an inventory of its contents would not be an unreasonable search. Godbee v. State, 224 So.2d 441 (Fla.App.2d 1969).

The distinction between an inventory search and an exploratory search is a delicate one which depends upon the totality of the circumstances in each case. The most that can be said for the State’s position is that for the convenience and protection of the defendant, the motel, and the sheriff’s department, the officers should follow the inventory procedure of taking into custody the property of a defendant residing in a motel so as to protect it while he is in jail. There are no facts which can be construed to place any responsibility on the sheriff’s department for the eare of defendant’s property located in the motel room and, thus, making the sheriff’s department liable for claims regarding such property. The search had no relation to the crime for which defendant was arrested. The innkeeper was adequately protected by statutory provisions limiting the liability of an innkeeper for loss of guests’ property. Fla.Stat. § 509.111, F.S.A.

It is only natural that the circumstances of this arrest created general suspicion on the part of the investigating officer. Under such circumstances it would be incumbent upon the officer to show by positive evidence that the search was “inventory” and not “exploratory.” To state that it is standard procedure to inventory the motel rooms does not lift the search into the classification of “inventory.”

The court in State v. Jenkins, 319 So.2d 91, 93 (Fla.App.4th 1975), said:

“Regardless of the resort to a play on semantics suggesting that a distinction exists between an ‘inventory’ and a ‘search’ an ‘inventory’ search is a ‘search’ within the Fourth Amendment prohibition against unreasonable searches and seizures—A rose by any other name would smell as sweet—Shakespeare.”

Courts considering the inventory concept do not always agree as to whether the inventory is a search within the Fourth Amendment since some courts say that a search implies an examination of premises or persons with a view to the discovery of evidence of guilt. See United States v. Blackburn, 389 F.2d 93 (6th Cir. 1968). Other courts, including ours, hold that the Fourth Amendment governs all intrusions on personal security by agents of the public. If there is an intrusion upon personal security by an officer, there is a search. See Gagnon v. State, supra, and Godbee v. State, supra.

Defendant should have been given the choice of leaving his belongings in the motel room or requesting the sheriff to take them into custody for him. He should not be required without his consent to have his personal belongings stored by the sheriff during the time that he is in jail.

That portion of the decision of the District Court of Appeal holding that defendant had no standing to object to the search of the motel room is quashed and the cause is remanded for the purpose of having same remanded to the trial court with instructions to suppress the evidence seized by the sheriff’s department in the search of the motel room.

It is so ordered.

ROBERTS, BOYD, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.

OVERTON, C. J., dissents.


author: SUNDBERG, Justice.

text:
    Joseph DEMSHAR, Sr., and Liberty Mutual Fire Insurance Company, a Foreign Corporation doing business in Florida, Petitioners, v. AAACon AUTO TRANSPORT, INC., for the use and benefit of Aetna Casualty & Surety Company, a Foreign Corporation doing business in Florida, Respondent.
    No. 47551.
    Supreme Court of Florida.
    Sept. 23, 1976.

      Frank E. Maloney, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioners.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for respondent.
   SUNDBERG, Justice.

This case is here on petition for writ of certiorari to the District Court of Appeal, Fourth District. We have jurisdiction under Article V, Section 3(b)(3), Florida Constitution.

The facts and applicable conclusions of law in this case are well expressed in the opinion of the District Court of Appeal, which we adopt in its entirety:

“OWEN, Chief Judge.
“Essentially, this suit is between two automobile liability insurance carriers to determine the extent of coverage, if any, provided under the policy issued by appel-lee to the owner of the automobile. Concisely stated, the primary question is whether the automobile was ‘used by a person in the automobile business’ within an exclusion in the owner’s policy; if coverage was not thus excluded, there is also presented the question of whether the coverage under the owner’s policy is primary.
“Appellee-DemShar insured his 1966 Pontiac automobile under a liability insurance policy issued by Appellee-Liberty Mutual Fire Insurance Company. That policy excluded liability coverage when the automobile was used by any person employed or otherwise engaged in the automobile business.
“Appellant was in the business of transporting automobiles. Mr. Demshar contracted with appellant to have his automobile transported from south Florida to Ohio. A part of the contract price was for liability insurance furnished by the Aetna Casualty & Surety Company whose policy expressly provided liability coverage ‘with respect to any automobile while being delivered to a specific location’ by appellant.
“In furtherance of the contract, appellant employed one Snyder for the purpose of driving the car to Ohio. Before getting out of Broward County Snyder had negligently operated the vehicle so as to cause bodily injury and property damage to others. Aetna settled these claims under its policy. The present suit was filed by appellant for the use and benefit of Aetna to recover the amount of the settlement plus costs and attorneys fees.
“We turn first to the question of whether Mr. Demshar’s automobile was being used in an automobile business within the meaning of the exclusion. The case of Midwest Mutual Insurance Company v. Federal Insurance Company of New Jersey, Fla.App.1974, 289 So.2d 760, involved an identically worded policy as here. There the court, reasoning that the business of transporting automobiles was a ‘business’, exclusively concerned with ‘automobiles’, held it was an ‘automobile business’ within the meaning of the exclusion.
“With due deference to our sister court, we disagree with the conclusion reached in the cited case for a simple but cogent reason. The policy issued by appellee, Liberty Mutual Fire Insurance Company, (as did the policy in the Midwest Mutual case, supra) defined ‘automobile business’ as meaning ‘the business or occupation of selling, repairing, servicing, storing or parking automobiles.’ Exclusionary clauses in liability insurance policies are always strictly construed. Liberty Mutual undertook to state with specificity which activities only were included within its definition of ‘automobile business’. Transporting automobiles is simply not included within such definition. The exclusion was not applicable in this case.
“The policy issued by Aetna Casualty & Surety Company and the policy issued by Liberty Mutual Fire Insurance Company each contained a standard ‘other insurance’ clause which, in essence and simply stated, provided that the coverage of the policy would be pro rata with any other valid and collectible insurance where the loss arose out of the use of an owned vehicle, but would be excess insurance over any other valid and collectible insurance where the loss arose out of the use of a non-owned vehicle. The loss here arose out of the use of Mr. Demshar’s 1966 Pontiac automobile, an owned vehicle under the Liberty Mutual policy, but a non-owned vehicle under the Aetna Casualty & Surety Company policy. Thus, under the terms of the respective policies, the pro rata clause applied under the Liberty Mutual policy and the excess clause applied under the Aetna Casualty & Surety policy.
“Where two separate insurance policies cover a particular loss and each contains ‘other insurance’ clauses which purport to restrict or limit liability, if one of the policies contains a ‘pro rata’ clause and the other contains an ‘excess insurance’ clause, effect is given to the latter clause. Allstate Insurance Company v. American Casualty Company of Reading, Pa., Fla.App.1967, 200 So.2d 587; 8 Appleman, Insurance Law and Practice, § 4914 (1962); 18A Fla.Jur., Insurance, § 941; Annot., 76 A.L.R.2d 502 (1961). In this case and on these facts, the policy of appellee, Liberty Mutual Fire Insurance Company, provided primary coverage and the policy issued by Aetna Casualty & Surety Company provided excess coverage.
“The judgment is reversed and this cause remanded for further proceedings not inconsistent herewith.
“REVERSED AND REMANDED.
“MAGER and DOWNEY, JJ., concur.”

We agree with the opinion of the Fourth District Court of Appeal, reported at 312 So.2d 479, and resolve in its favor the conflict between that decision and the Midwest Mutual case, supra.

In addition to making the contentions rejected in the opinion quoted above, petitioners Demshar and Liberty Mutual argue that Snyder was AAACon’s agent as a matter of law, and therefore no liability could vicariously attach to Demshar in the first instance under the dangerous instrumentality doctrine. The case authority upon which they base this contention is not persuasive, given the facts of this case. The bill of lading signed by Demshar expressly stated that the driver was not to be the auto transport company’s agent but an independent contractor. Our view is that AAACon was acting more in the nature of a transportation broker, and therefore this case more nearly resembles King v. Young, 107 So.2d 751 (Fla.2d DCA 1968), than the cases cited by petitioners. In Petitte and Patrick, footnote 1 supra, the automobile was being operated by a person under the direction and control of the service facility operator. In the instant, case, there was evidence only of Snyder’s being an independent contractor; hence he was not under the direction or control of AAACon.

The factual setting of this case as recorded in the trial transcript and developed at oral argument in this Court suggests to us that Snyder’s use of Demshar’s car was permissive, and any result other than to hold the owner and his carrier liable under circumstances such as these would vitiate the dangerous instrumentality doctrine which is thoroughly embedded in the law of this State. See Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255 (1920); Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353 (1940).

The petition for writ of certiorari is denied, and the judgment of the District Court of Appeal, Fourth District, is affirmed.

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

      . Petitte v. Welch, 167 So.2d 20 (Fla.3d DCA 1964) (owner of automobile held not responsible for injuries to third party occasioned by negligent operation of automobile by person acting under direction and control of filling station operator to whom owner delivered automobile for service); Patrick v. Faircloth Buick Co., 185 So.2d 522 (Fla.2d DCA 1966) (owner of automobile held not responsible for injuries to third party occasioned by negligent operation of automobile by employee of service garage acting under direction and control of garage operator to whom owner delivered automobile for service).


author: ENGLAND, Justice.

text:
    CITY OF PLANT CITY et al., Petitioners, v. William T. MAYO et al., Respondents.
    Nos. 47713, 47727, 47728, 48475 and 48489.
    Supreme Court of Florida.
    Sept. 23, 1976.

      Paul S. Buchman, Plant City, for City of Plant City.
    Lawrence Braisted, Braisted & Hill, Winter Haven, for City of Winter Haven.
    Henry E. Williams, Jr., City Atty., William T. Keen, Matías Blanco, Jr., Jack W. Crooks and Stann W. Givens, Asst. City Attys., for City of Tampa.
    John S. Lloyd, City Atty. and Mikele S. Carter, Asst. City Atty., Miami, for City of Miami, and John C. Chew, Frank B. Gum-mey, III, and Gregory J. McDole.
    J. Kermit Coble, Coble, McKinnon, Reynolds & Rothert, Daytona Beach, for City of Daytona Beach.
    William L. Weeks, Prentice P. Pruitt and Donald R. Alexander, Tallahassee, for respondents.
    Woodie A. Liles, Public Counsel, C. Earl Henderson, Associate Public Counsel, and Donald W. Weidner, Deputy Public Counsel, Tallahassee, for the Citizens of the State of Florida.
    D. Fred McMullen, Lee L. Willis and James D. Beasley, Ausley, McMullen, McGe-hee, Carothers & Proctor, Tallahassee, for Tampa Elec. Co.
    Ralph A. Marsicano, Tampa, and Burton M. Michaels, Tallahassee, for Florida League of Cities, Inc.
    Carl R. Linn, St. Petersburg, for City of St. Petersburg.
    George H. Salley, Salley, Barns & Pajón, Miami, for Maulé Industries, Inc.
    John S. Lloyd, City Atty., and Mikele S. Carter, Asst. City Atty., Miami, for City of Miami, amicus curiae.
   ENGLAND, Justice.

By petitions for writ of certiorari to the Public Service Commission we are asked to review a decision of the Commission that municipal franchise fees paid by electric utility companies in Florida should no longer be considered as a general operating expense payable by all of the utilities’ customers, but rather should be separately billed by the utility to the customers of the municipalities which impose the fees.

Procedural Background

In 1974 Tampa Electric Company petitioned the Commission to increase its electric rates throughout its system. By direction of the Commission, customers and the general public were notified of the proposed rate increases in newspapers of general circulation and by inserts placed in each billing sent by Tampa Electric to its customers. None of these notices referred specifically to the treatment of franchise fees in the company’s rate structure, or in any manner suggested that a new treatment for these fees would be considered.

During hearings on the proposed rate increase, the Commission’s staff questioned two of Tampa Electric’s officers concerning the nature of franchise fees. Evidence adduced through these witnesses showed that eleven municipalities served by Tampa Electric had negotiated franchise agreements at various dates in the past under which the company was granted permission to use municipal rights-of-way in return for a “fee” of 6% of the gross receipts obtained by the company from within municipal boundaries. Testimony was also developed to the effect that each municipality allows the franchise fees paid by Tampa Electric to be credited against property and other taxes owed by the utility to the city. None of the eleven franchise agreements were introduced into evidence during the proceeding, and no other evidence on the subject of franchise fees was developed during the proceeding.

The Commission approved a rate increase for Tampa Electric on May 21, 1975 in its Order No. 6681. Among several other matters set out in the order, the Commission abolished the traditional method of treating municipal franchise fees as a general operating expense for purposes of computing Tampa Electric’s new rate charges. Instead, the Commission ordered Tampa Electric to bill customers within each city a 6% surcharge as a separate item on each bill. The effect of this directive was to place the financial burden for these franchise fees directly on the residents of the municipalities which imposed the fees, rather than spreading that cost among all customers of the utility system.

After Commission Order No. 6681 became final, the cities of Plant City, Winter Haven and Tampa filed petitions with this Court requesting that we review the franchise fee portion of the order. None of the three had been parties to the rate proceeding before the Commission, and Plant City and Winter Haven had been denied permission to intercede on the basis of late-filed requests for reconsideration. The three petitions were consolidated here, and we granted Tampa Electric and Public Counsel for the State of Florida permission to intervene. We also granted the cities of Miami and St. Peters-burg, and the Florida League of Cities, Inc., permission to file briefs as a friend of the Court.

Following the entry of its order No. 6681, and as a direct consequence of reconsideration requests filed by cities which had not participated in the Tampa Electric rate proceeding, the Commission instituted a separate proceeding to determine whether it had the legal authority to require utility companies to charge franchise fees solely to customers within city limits as had been done in Order No. 6681 (and in three other orders approving rate increases for other investor-owned utility companies in the state). In that proceeding the Commission heard oral argument and considered briefs filed by interested parties (not including all of the cities now before us), but it did not permit the introduction of any evidence. On November 4, 1975 the Commission entered its Order No. 6990, declaring that it indeed had the power to treat franchise fees as it had. Three days later, during our oral argument on the petitions of Plant City, Winter Haven and Tampa in this case, the existence of Order No. 6990 was brought to our attention by public counsel, who moved to supplement the record here with the record upon which Order No. 6990 was based. Shortly after oral argument the cities of Daytona Beach and Miami filed timely petitions for a writ of certiorari to the Commission, seeking to have us review Order No. 6990. (It is alleged that both cities have franchise agreements with Florida Power & Light Company, an investor-owned electric utility which in April 1975 had also been directed by the Commission to charge franchise fees to customers within municipal limits rather than system-wide.) Having denied public counsel’s motion, we determined that the second Commission proceeding involves the same legal issue as that brought to us on review of Tampa Electric’s rate increase order, and consolidated the petitions seeking review of Order No. 6990 with those seeking review of Order No. 6681.

Discussion of Legal Issues

1. Standing to obtain review of Commission Order No. 6681. The first issue we must decide is whether Plant City, Winter Haven and Tampa have standing to obtain review of an order entered by the Commission in a proceeding to which they were not parties. The municipalities argue that they are “persons in interest” under Section 366.-10, Florida Statutes (1973), which provides:

“Any public utility or any person in interest dissatisfied with any order of the commission may have it reviewed by the supreme court by certiorari.”

The Commission disagrees, cautioning that we should not construe “person in interest” to include those who have not been a party to a proceeding or else the jurisdiction of this Court will be expanded infinitely by indiscriminate and unpredictable demands to review Commission orders. In our view, the right to seek review of Commission orders is no longer governed solely by Section 366.10, and the Legislature has by more recently-enacted legislation expressly and clearly delineated the class of “persons” who may seek judicial review of the Commission’s final orders.

Effective January 1, 1975, the Legislature adopted a new Administrative Procedure Act which in relevant part provides:

“The intent of the legislature in enacting this complete revision of chapter 120, Florida Statutes, is to make uniform the rulemaking and adjudicative procedures used by the administrative agencies of this state. To that end, it is the express intent of the legislature that the provisions of this act shall replace all other provisions in the Florida Statutes, 1973, relating to . judicial review of administrative action . . ..”

Under this directive, the “judicial review” provisions found in Section 366.10, Florida Statutes (1973), as well as those found in Part III of Chapter 120, Florida Statutes (1973), were “replaced” by Section 120.68, Florida Statutes (1975) to the extent of the procedural inconsistencies. That section specifically confines the right of judicial review to a “party who is adversely affected by final agency action . . ..” The statutory reference to “party” appears to have been advertent, thereby confining the right of review to a class of persons defined precisely (for purposes of the act) in Section 120.52(10), Florida Statutes (1975). It is undisputed that the municipalities seeking review of Commission Order No. 6681, as customers of the utility, were within that definition and entitled to participate in the rate proceeding. If these provisions of the new act apply to the petitions filed in this case, and if the cities received adequate notice of the rate proceeding, they cannot here complain that they did not avail themselves of the right to appear in the proceeding.

(a) Applicability of new Act. The new Administrative Procedure Act generally became effective on January 1, 1975. Section 120.72(2), Florida Statutes (1975), however, directs that Florida’s former Administrative Procedure Act will govern “administrative adjudicative proceedings” begun prior to January 1, 1975 unless all parties agree to use the newer act. The Commission proceeding on Tampa Electric’s rate increase request began in 1974. In Lewis v. Judges of the District Court of Appeal, 322 So.2d 16 (Fla.1975), we held that the quoted term derives its definition from the former act, and in particular from Part II of that Act. Judicial review under the former act was controlled by Part III of that act. In light of the narrow definition contained in Section 120.72(2) of the new act, and consistent with the legislative directive for implementation of almost all other provisions of the new act effective on January 1, 1975, it seems clear that the provision of the new act pertaining to judicial review was intended to apply to appellate court proceedings commenced after January 1, 1975.

(b) Adequacy of notice. The Commission’s notice of public hearings on Tampa Electric’s proposed rate increase was in what might be called its standard or traditional form. The notice set forth the time, place, prescribed procedures, and general purpose of the hearings, and it recited the new amount and rate of return Tampa Electric was seeking. The notice also contained this statement under the caption “Tariff Revisions”:

“Although the Petitioner has proposed certain revisions to its existing tariff in order to generate the additional revenues, the Commission is not bound by such proposals and will give consideration to applying said increases, if any are authorized, in the manner it deems fair, reasonable and proper.”

The cities argue to us that they had no way of anticipating from the Commission’s notice that the Commission would adopt a cataclysmic change from the historic treatment of municipal franchise fees. The Commission argues, essentially, (i) that rate design is and always has been an open issue in any rate proceeding, (ii) that the notices here were adequate in any event because they warned customers that increases, if any, would be spread among users in any manner the Commission found to be “fair, reasonable and proper”, and (iii) that the complexities of rate-making make it impossible to give notice of all matters which a final rate order might encompass.

While we are inclined to view the notice given to customers in this case as inadequate for actual notice of the precise adjustment made, we must agree with the Commission that more precision is probably not possible and in any event not required. To do so would either confine the Commission unreasonably in approving rate changes, or require a pre-hearing proceeding to tailor the notice to the matters which would later be developed. We conclude, therefore, that the Commission’s standard form of notice for rate hearings imparts sufficient information for interested persons to avail themselves of participation.

Our conclusion that the Commission’s original notice was adequate is dispositive of the petition filed here by the City of Tampa. Since Tampa at no time attempted to intervene in the rate proceeding or to seek reconsideration of Commission Order No. 6681, it has absolutely no standing to obtain review of that order here. The same is not true of Plant City and Winter Haven, however, since both endeavored to have the Commission reconsider its new treatment of franchise fees shortly after Order No. 6681 was entered. The adequacy of the Commission’s notice does not resolve the issue of these cities’ standing.

The reconsideration and intervention petitions filed with the Commission by Plant City and Winter Haven were both denied as untimely. Winter Haven cannot here complain of that denial. Its petitions were filed with the Commission on June 24, 1975, more than one month after the entry of Order No. 6681 and six days after the Commission formally denied the reconsideration requests of all active intervenors and Plant City. Under the Commission’s rules, Winter Haven’s petitions were simply filed too late to be considered.

Plant City, on the other hand, responded to Order No. 6681 more promptly. It filed requests for intervention and reconsideration on June 5, only 15 days after Order No. 6681 was entered and during the pendency of timely reconsideration requests filed by active intervenors. Plant City argues with some force that the application of procedural rules to deny its petitions is extremely harsh when significant, unanticipated rate design changes were first announced in a final rate order, and that even the Commission itself was obviously sensitive to the injustice. Under these circumstances, Plant City suggests that the technical rules of appellate, review should not be applied (as were the technical rules of Commission review) to bar their first and only opportunity to challenge the legal foundation for the Commission’s action.

As we view these proceedings, we need not now decide whether the Administrative Procedure Act, due process, neither, or both are abridged when persons not a party to a proceeding in which a major policy change occurs unexpectedly and for purely procedural reasons are denied an opportunity to express their views before the Commission. In this case, despite its formal denial of Plant City’s petitions, the Commission in fact created a forum for the presentation of views on the legal issues which Plant City had raised. We therefore treat the separate investigative docket created by the Commission as a continuation of Plant City’s request for reconsideration, and the order closing that proceeding as the Commission’s denial of all reconsideration requests.

2. Review of Commission Order No. 6990. In light of the way we view the Commission’s second proceeding, we grant the petitions of Miami and Daytona Beach for review of Order No. 6990.

3. Analysis of franchise fee treatment. The cities argue to us that the direct assignment of franchise fees to city customers is improper for essentially three reasons:

(a) the fee is not a local “tax” as the Commission first said, but rather a form of consideration for a contract right to use municipal rights-of-way, and to that extent it is like all other general business expenses incurred in one locale for the operation of a far-flung utility system;
(b) the direct assignment of franchise fees impairs the cities’ contracts with Tampa Electric, in violation of the federal and Florida Constitutions; and
(c) the Commission lacked an evidentiary basis on which to change pre-existing treatment of this expense.

The Commission disputes these suggestions, stating that the characterization of these fees as “taxes” or as consideration is inconsequential, that contract amounts and terms have not been altered in any manner so that no aspect of the contracts between the cities and the utility have been legally “impaired”, and that sufficient evidence was presented to support the policy change. Tampa Electric principally argues that the Commission’s adjustment is merely one aspect of “rate design”, a step necessary any time new rates have been approved and one peculiarly within the authority and responsibility of the Commission. Public Counsel essentially supports the Commission’s authority to make the adjustment, although preferring that major changes like this be accomplished in a rule-making rather than in a rate proceeding. We will analyze each of the major contentions individually.

(a) “Tax” or “considerationIn Order No. 6681 the Commission inappropriately described the cities’ franchise fees as “taxes”, causing unnecessary arguments here on the impropriety of treating taxes in isolation for rate-making. Although the label most appropriately assigned to the payments at issue is not determinative of the treatment or legal effect attendant to these costs, we have absolutely no difficulty in holding that the franchise fees payable by Tampa Electric are not “taxes”. The cities would lack lawful authority to impose taxes of this type and, unlike other governmental levies, the charges here are bargained for in exchange for specific property rights relinquished by the cities. The fact that fees are offset or reduced by taxes owed by the utility goes to the computation of their amount and not their character.

(b) Impairment of contract. The amount paid by Tampa Electric to each city under its franchise fee contract is the same whether the utility collects the sum from some or all of its customers. Customers of Tampa Electric in each city have always paid some part of the amount the utility collects; the new procedure merely increases their burden. Nothing has changed as between the cities and the utility. We must conclude that the cities’ contracts are no more impaired in the constitutional sense by the Commission’s new collection procedure than they would be if rates were redesigned in other ways to increase their burden, for example by shifting rate levels among residential and industrial or commercial users. The fact that the cities themselves are consumers and subject to higher charges does not “impair” their contract; it merely reduces the benefit of their bargain as any rate increase or rate design shift might do.

(c) Commission authority. Whether the adjustment approved in Order No. 6681 is characterized as “rate design” or rate-making, it is clearly an element of rate setting which is within the exclusive authority of the Commission.

(d) Evidentiary basis for change. In Order No. 6681, the Commission expressed as the bases for its change in the treatment of franchise fees two grounds: technical advances in billing which make the change feasible, and the inequity of system-wide payments from customers outside municipal limits who receive no benefits from the cities’ fees. No one contests the present feasibility of billing municipal customers differently from other customers. The record basis for the Commission’s “no-benefit” theory is vigorously challenged, however.

The test to be applied on our review is the presence of substantial and competent evidence to support the Commission’s finding. Although we do not have a complete record to review, no one in this proceeding disputes the representation that only two utility company witnesses in the rate proceeding commented on the subject of franchise fees, and that their testimony went in general terms to the source, legal basis, nature and prior treatment of franchise fees in utility regulation. The municipalities suggest that this generic evidence is insufficient, as a matter of law, to support the change of policy brought about in Order No. 6681, and we agree.

The Commission chose to ground its new policy on new billing technology and the absence of benefits to non-municipal electric customers, two “facts” which wholly lack evidentiary support in this record. As to the former, the evidentiary deficiency is not significant because (1) no one has raised the issue here as a problem and (2) the ultimate fact on which the Commission relied is in any event well within the Commission’s “expertise” as an administrative agency As to the latter, however, competent and substantial evidence is not available to support the Commission’s finding. Most of the parties here have extensively briefed the Commission’s “no-benefit” conclusion, suggesting economic, technological and geographical reasons for and against the Commission’s result.. The arguments are persuasive of one thing only—the issue is capable of fact-gathering on both sides and therefore properly requires an eviden-tiary hearing.

By way of clarifying our action in this case, we further state that we neither condone nor condemn the change of a traditional rate-making practice of general state-wide effect, such as treatment of municipal franchise fees as a system-wide cost of doing business, in an individual rate case filed by one utility company. We are aware that the Commission has on occasion used more broad-based rule-making proceedings for changes in the treatment of utility company expenses, and as we have indicated that method appears to be superi- or for that purpose. But we see no statutory or constitutional impediment to implementations of change in the way it was attempted here, so long as interested and affected parties have a forum in which to challenge any change and the basis on which the action is taken is supported by the record.

For the foregoing reasons, we grant the petitions for certiorari. Order No. 6681, insofar as it relates to franchise fees imposed by municipalities, is set aside in that it is not supported by competent substantial evidence in the record. Section 120.68(10), Florida Statutes (1975). The Commission shall direct Tampa Electric to treat franchise fees charged by municipalities within its service area as general operating expenses chargeable to all customers of the utility, rather than to municipal customers alone.

We previously stated that we consider Order No. 6990 as a denial of the cities’ petitions for reconsideration. On that basis, and because it would cause confusion to allow that order to remain outstanding in light of our disposition here, we also set aside Order No. 6990 on the authority of Section 120.68(9)(a), Florida Statutes (1975).

ROBERTS, Acting C. J., and ADKINS, BOYD and SUNDBERG, JJ., concur.

      . Section 120.72(1), Fla.Stat. (1975).

      . Nothing in the Administrative Procedure Act purports to alter the legislative directive in Section 366.10 that review of Commission orders is had in the Supreme Court rather than in the district courts of appeal. In fact, the Act makes it clear that no such shift in the place of review was intended. See Section 120.68(2), Fla.Stat. (1975). See also, Citizens of Florida v. Mayo, 324 So.2d 35 (Fla.1975).

      . In Lewis v. Judges of the District Court of Appeal, 322 So.2d 16 (Fla.1975), we discussed the evolution of the new Administrative Procedure Act. In fn. 6, we identified source documents from which the act was developed. These documents are revealing on this issue. The fourth draft statute (dated Feb. 4, 1974) prepared by the Law Revision Council’s Reporter would have authorized “persons” adversely affected by agency action to obtain judicial review. (See Sup.Ct.Libr. file No. 15). The reporter’s notes of the Council’s meeting of Feb. 8, 1974 show a directive to change “person” to “party” as defined in the act. (See . Sup.Ct.Libr. file No. 16). The reporter’s final draft statute (dated Mar. 1, 1974) reflected the change. (See Sup.Ct.Libr. file No. 17). The statute as enacted contained virtually the identical provision on judicial review which appeared in the final draft statute.

      . Contrast Section 120.52(11), Fla.Stat. (1975) which defines “person” for purposes of the act.

      . See Section 120.52(10)(b), Fla.Stat. (1975).

      . Chapter 74-310, § 6, Laws of Florida.

      . Sections 120.20-.28, Fla.Stat. (1973).

      . Sections 120.30-321, Fla.Stat. (1973).

      . Section 120.68, Fla.Stat. (1975).

      . We note that the 1976 Legislature, acting after this proceeding was initiated here, specifically directed an opposite result, saying that judicial review of pre-1975 proceedings should be governed by the old act. Ch. 76-207, Laws of Florida. The effective date of the 1976 legislation, however, is June 20, 1976. That legislation cannot apply retroactively to matters then pending in appellate courts. Whatever its effect in future cases, the 1976 statute has no applicability to this proceeding.

      . Fla.Admin.Code Rules 25-2.34, 25-2.64.

      . In its order denying Plant City’s petitions the Commission expressly held: “A review of our procedural rules leads us to conclude that the Petitions should be denied.” The Commission then ruled that intervention is inappropriate after a final order is entered (Fla.Admin. Code Rule 25-2.34) and that reconsideration is prohibited to non-parties (Fla.Admin.Code Rule 25-2.64).

      . In the order denying Plant City’s petitions (Order No. 6718) the Commission considered the legal issues raised by Plant City “of material importance to not only Petitioner, but all other municipalities” served by electric utilities, indicating that it would consider these issues in a separate investigatory proceeding.

      . Plant City correctly observes that the Commission had given it a forum to argue its views in which a victory would have absolutely no financial or practical benefit. In its Order No. 6752 initiating the separate proceeding referred to in fn. 13 and which culminated in Order No. 6990, the Commission “emphasized” that its action in that proceeding “should in no way be construed as receding at this time from the positions set forth in Order . . . 6681 . nor will any change, if any is ultimately made, be applied in a retroactive fashion. Rather, any change in policy, if such is determined to be legally necessary, will be applied on a prospective basis.”

      . Whenever the Commission utilizes the forum of an individual rate proceeding, for which non-specific notice is given, to effect a major change in rate-making policy, obviously some means should be provided to grant the persons directly affected an opportunity to be heard by the Commission. The Commission could, if it chooses, grant all affected persons a reasonable time to request reconsideration in light of the fact that changes of this type are completely unexpected and those who had not participated in the proceeding would have had no access to the alleged evidentiary foundation for the change. (In the present case, the Commission allowed only its customary seven calendar days for reconsideration petitions.) Preferably, the Commission could decide issues of statewide significance in rule-making proceedings under the Administrative Procedure Act, to avoid the lightning-like effect of adopting major policy shifts in select rate proceedings. Other alternatives may also exist, but whatever means are selected affected persons should not be notified for the first time in an announcement of imminent new utility charges that traditional billing practices or cost allocations have been replaced with procedures wholly new. Absent some reasonable way of allowing affected persons to test policy changes before they become effective, utility customers can always protect themselves by requesting intervention in all rate proceedings and thereby assure their right of judicial review as “parties”. The toll in effort and paperwork for the Commission and for the courts suggests that this option should be avoided.

      . It is difficult to view the investigative proceeding as anything else. An agency such as the Commission acts through rules in a rule-making proceeding or orders in a proceeding which does not result in a statement of general applicability. See Sections 120.52(2), (9) and (14), Fla.Stat. (1975). The separate proceeding of the Commission in this case produced no “rule” or “order”, but simply declared the validity of previously-asserted legal authority. Unless the proceeding was the last inquiry into legal issues raised in the Tampa Electric rate proceeding, it was (as public counsel suggested at the one hearing the Commission held) “totally unnecessary, wasteful of Commission time and energy, and injurious to the citizens of Florida in that said docket is imposing on them an unnecessary and unreasonable expense.”

      . Public counsel also suggests that all costs identifiable separately by geographical source within a utility system should be isolated in the same manner. That policy view is not one which properly relates to the issues raised by the cities. The cities do not attack the correctness of a policy which assigns cost burdens to particular sources. Rather they argue that franchise fees do not constitute an expense which benefits only municipal consumers since out-of-city customers benefit from access lines through the cities.

      . Article VII, Section 9(a) of the Florida Constitution limits municipal taxation to ad valo-rem and other statutorily authorized taxes. No authority has been provided for “utility revenue taxes”.

      . The Attorney General of Florida viewed these fees in essentially the same way. Op. Att’y. Gen. 075-231.

      . ror the same reasons, we see no violation of Section 366.11, Fla.Stat. (1975), which prevents the Commission from affecting a city’s right to “continue to receive revenue from any public utility as is now provided ... in any franchise.”

      . There is some suggestion in the briefs that some or all of the franchise contracts expressly recognize the possible variations in rate payments by the cities, stating that the parties recognize the paramount authority of the Commission to set rates which will affect the cities’ net revenues. As no contracts were introduced into either proceeding, we have no way to verify this suggestion and we give it no significance. We necessarily reject attempts by one of the parties here to introduce the franchise contracts into evidence, for the first time, before this Court. § 120.68(4), Fla.Stat. (1975). See also Dade County v. Marca, S.A., 326 So.2d 183 (Fla.1976).

      . Sections 366.04(1), 366.05(1), 366.06(3), Fla. Stat. (1975).

      . In its brief the Commission suggests a number of other reasons for relieving non-municipal customers of franchise fee burdens. These suggestions provide some insight into the philosophy undergirding the Commission’s action, but they are legally irrelevant to support the reasons recited in Order No. 6681. Section 120.68(4), Fla.Stat. (1975).

      . The Commission summarizes its “no-benefit” analysis on p. 44 of its brief as follows: “The Commission simply cannot see how people who live in unincorporated areas in the far extremes of a company’s service area (e. g., Wakulla County, for example) can derive a benefit from a charge imposed by a distant city (e. g., St. Petersburg). While it is true that the electric systems of this state are interconnected, the benefit of lines extending through St. Petersburg is still quite remote and speculative for the people of Wakulla County.”

      . Gainesville Bonded Warehouse, Inc. v. Carter, 123 So.2d 336 (Fla.1960); Section 120.-68(10), Fla.Stat. (1975).

      . In its brief the Commission observes that other utilities under its jurisdiction, such as gas companies, have directly assigned certain municipal costs for years without technological problems. Inasmuch as the Commission is necessarily familiar with Tampa Electric’s technology (Section 366.05(1), Fla.Stat. (1975)), the agency’s expertise would be adequate in lieu of evidence produced at a hearing. Cf., Sections 120.57(1)(b)(5)(c), 120.57(1)(b)(7) and 120.61, Fla.Stat. (1975), as to the authority for considering matters within the Commission’s expertise in proceedings which commence after December 31, 1974.


author: PER CURIAM.

text:
    PLYMOUTH HARBOR, INCORPORATED, a Florida Corporation not for profit, Petitioner, v. John W. MIKOS, as Tax Assessor of Sarasota County, Florida, et al., Respondents.
    No. 48068.
    Supreme Court of Florida.
    Sept. 23, 1976.
    John Patterson, Icard, Merrill, Cullis, Timm & Furen, Sarasota, for petitioner.
    John C. Dent, Jr., Dent & Pflugner, Sarasota, for respondents.
    Robert L. Shevin, Atty. Gen., and Stephen E. Mitchell, Asst. Atty. Gen., for the State of Florida, amicus curiae.
   PER CURIAM.

We issued a writ of certiorari in this cause based upon an alleged conflict between the decision in this case reported at 316 So.2d 627 and Presbyterian Homes v. Wood, 297 So.2d 556 (Fla.1974). Upon reviewing the briefs filed on the merits and the record and after hearing argument, we are of the judgment that there is no conflict in decision, and, accordingly, certiorari should not have been granted.

The writ is hereby discharged.

It is so ordered.

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

BOYD, J., dissents.


author: BOYD, Justice.

text:
    STATE of Florida, DEPARTMENT OF REVENUE, Petitioner, v. Peter E. SWINSCOE and Chloe M. Swinscoe, his wife, Respondents.
    No. 48298.
    Supreme Court of Florida.
    Sept. 23, 1976.
    Robert L. Shevin, Atty. Gen., and Stephen E. Mitchell, Asst. Atty. Gen., for petitioner.
    Gaylord A. Wood, Jr. of Wood & Cohen, Fort Lauderdale, for respondents.
   BOYD, Justice.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ. Upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

OVERTON, C. J., and ROBERTS, ENGLAND and SUNDBERG, JJ., concur.


author: BOYD, Judge.

text:
    Karen LANE, Appellant, v. STATE of Florida, Appellee.
    No. 48355.
    Supreme Court of Florida.
    Sept. 23, 1976.
    Ron K. Zimmet, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   BOYD, Judge.

Appellant was charged by an information filed August 27, 1975, with uttering a worthless check on January 15, 1974, in the amount of $24.86, a misdemeanor in the second degree. Although the information was filed within the two-year period of the Statute of Limitations in existence at the time the crime was alleged to have been committed, appellant moved to dismiss the charge on the ground that it was barred by the one-year Statute of Limitations, Section 775.15(2)(d), Florida Statutes (1975). Subsequent to the time the crime was alleged to have been committed, that section was enacted as part of the Florida Criminal Code, Chapter 775, Florida Statutes, and became effective on July 1,1975. The trial court denied the motion and appellant was convicted.

In its order denying the motion the trial court stated, “. . . to interpret the statute in favor of the Defendant would be in violation of Article 10, Paragraph 9 of the Florida Constitution, the effect of this provision being that the repeal or amendment of an existing criminal statute does not become effective as to offenses committed prior to the effective date of the repealing or amending law (See Raines v. State [42 Fla. 141], 28 So. 57; Shields v. State [78 Fla. 524], 83 So. 391; and Plummer v. State [83 Fla. 689], 92 So. 222). ...”

By virtue of the above statement this Court has jurisdiction of this direct appeal even though we dispose of the appeal on a non-constitutional ground.

The Florida Criminal Code provides for its applicability to antecedent offenses in Section 775.011, Florida Statutes (1975):

“(2) Except as provided in subsection (3), the code does not apply to offenses committed prior to July 1, 1975, and prosecutions for such offenses shall be governed by the prior law. For the purposes of this section, an offense was committed prior to July 1, 1975, if any of the material elements of the offense occurred prior thereto.
“(3) In any case pending on or after October 1, 1975, involving an offense committed prior to such date, the provisions of the code involving any quasi-procedural matter shall govern, insofar as they are justly applicable, and the provisions of the code according a defense or mitigation or establishing a penalty shall apply only with the consent of the defendant.”

The issue here, then, is whether the application of a Statute of Limitations is a quasi-procedural matter, so as to permit the charge against appellant to be governed by the revised Statute of Limitations. In State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974), this Court held that the application of a Statute of Limitations is a substantive matter. Consequently, this case falls within Section 775.011(2), Florida Statutes (1975), rather than Section 775.-011(3), Florida Statutes (1975) and, therefore, is governed by the Statute of Limitations in effect at the time of the crime. We note that counsel for appellant, the Public Defender, Seventh Judicial Circuit, filed an Anders brief in this cause because it was recognized that in light of Manucy the appeal is frivolous.

The trial court’s denial of the motion was correct. Appellant’s conviction is affirmed.

It is so ordered.

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

      . Art. V, § 3(b)(1), Fla.Const.; See Ogle v. Pepin, 273 So.2d 391 (Fla.1976).

      . Metropolitan Dade County Transit Authority v. State, 283 So.2d 99 (Fla.1973).