author: SMITH, Judge.

text:
    STATE of Florida ex rel. DEPARTMENT OF GENERAL SERVICES et al., Relators, v. Ben C. WILLIS, Circuit Judge, Second Judicial Circuit of Florida, and Shannon R. Ginn Construction Co., et al. (real parties in interest), Respondents.
    No. DD-104.
    District Court of Appeal of Florida, First District.
    March 29, 1977.
    Rehearing Denied May 2, 1977.

      John A. Barley, Gen. Counsel, Dept, of Gen. Services, and Daniel S. Dearing and Donna H. Stinson, Daniel S. Dearing Law Offices, Tallahassee, for relators.
    Henry P. Trawick, Jr., Millican, Trawick & Griffis, P.A., Sarasota, and Anthony J. McNicholas, III, Holland & Knight, Tallahassee, for respondents Ginn and others, real parties in interest.
   SMITH, Judge.

This suggestion for writ of prohibition questions the jurisdiction of Florida’s circuit courts to entertain suits to enjoin allegedly illegal governmental action for which a remedy is provided by the Administrative Procedure Act, Chapter 120, Florida Statutes (Supp.1976). Relators are the Department of General Services and the Governor and Cabinet, as head of the Department, an agency subject to the Act. Sections 20.-22(1), 120.52(1). They seek to prevent the respondent circuit judge from entertaining the complaint of respondents Shannon R. Ginn Construction Co. and others, who demand an injunction restraining the Department from completing bidding and contract procedures devised to obtain “uniform interior components” — doors, ceilings, carpeting, partitions, air distribution systems and lighting fixtures — for several regional service centers to be constructed by the Department in major Florida cities.

Ginn and the other respondents in interest are licensed general contractors engaged in the business of constructing public buildings. Their complaint alleges that:

“Heretofore the State has always obtained interior components for its public buildings in the course of their original construction by the bid of the general contractor selected for the project.”

Relator Department has now determined to vary the usual bidding and award procedure by adopting separate specifications and inviting separate bids for uniform interior components desired for each of the widely scattered construction projects. Ginn and the others do not allege specifically that the Department’s bidding and contract procedure violates statutory law, only that in several respects the procedure violates usual and acceptable standards for the award of contracts for public works, will result in increased cost to the State and taxpayers and will deprive respondents and their potential subcontractors and material suppliers of opportunities to bid. Respondents assert entitlement to injunctive relief not only as general contractors directly affected by the agency action but also as citizens and taxpayers of Florida. The respondent circuit judge denied the Department’s motions to dismiss the action for lack of jurisdiction and for failure to state a cause of action.

In considering the appropriateness of a writ of prohibition to prevent assumption of jurisdiction by the circuit court, we give no great significance to the complaint’s failure to allege in terms that the Department’s action is illegal. We are concerned here with the circuit court’s power to act at all in the controversy, not with any error in the court’s failure to dismiss the complaint for failure to state a cause of action. See State ex rel. Hill v. Hearn, 99 So.2d 231 (Fla.1957); White v. State ex rel. Johnson, 160 Fla. 965, 37 So.2d 580 (1948). We therefore treat the complaint as though it alleges or is amendable to allege the Department’s bidding and contract procedure violates Section 255.29, Florida Statutes (1975), requiring adoption of rules achieving awards of State work to “the lowest qualified bidder,” or violates the Department’s rules, or violates other law.

The Department’s issuance of specifications for uniform interior components for the public buildings was agency action as that term is understood in the 1974 Administrative Procedure Act. That action affects the substantial interests of the respondent general contractors as prospective bidders for the public work under consideration. It is of no consequence to today’s decision whether the Department’s action thus far is a recognizable rule or an order, or incipiently a rule or order. Whatever its present state, the Department’s action is or upon challenge will mature into a rule or order concerning which the Act assures respondents an opportunity to be heard according to 120.57(1) or (2) procedures and, if the result is adverse, judicial review: “[W]ith only a few exceptions clearly spelled out in the statute, all agency action is covered in one way or another, either as a rule, or as an order.” Sections 120.57, 120.68, Florida Statutes (Supp.1976); Lewis v. Judges of the District Court of Appeal, 322 So.2d 16, 19 (Fla.1975); Broward Co. v. Admin. Comm’n, 321 So.2d 605 (Fla.1st DCA 1975); Bert Rogers School of Real Estate v. Florida Real Est. Comm’n, 339 So.2d 226 (Fla.4th DCA 1976). The respondent contractors have not invoked Chapter 120 procedures to protect their substantial interests, but rather have elected to submit the controversy to the general equity jurisdiction of the circuit court. The question is whether the law affords respondents that election.

Thus we are led to consider what judicial remedies for allegedly excessive administrative action existed by statute before the 1974 Act, which of those remedies the 1974 Act intended to replace, which of those the 1975 Legislature restored, and what remedies were and are now incident to the constitutional powers of the judiciary, whether or not endorsed by statute.

Judicial Remedies Before the 1974 Act

The 1961 Administrative Procedure Act provided three methods- for judicial review of administrative action, two of which were in the circuit courts: First, with an exception not here pertinent, a party affected by an administrative “rule” was authorized to seek a circuit court declaration pursuant to Chapter 86, Florida Statutes, “as to the validity, meaning or application of any rule . .” Section 120.30(1), Florida Statutes (1973). Second, as an alternative to judicial review by statutes particularly applicable to specified agencies, a party affected by an administrative “order” was entitled to certiorari review in a district court of appeal of “final orders of an agency entered in any agency proceeding, or in the exercise of any judicial or quasi-judicial authority,” or to appellate review in the Supreme Court as otherwise provided by statute. Section 120.31(1), Florida Statutes (1973). And third,

“When appropriate, a party may attack an adverse order by mandamus, prohibition or injunction. . . . ” Section 120.31(4), Florida Statutes (1973).

Jurisdiction to enjoin administrative action was vested exclusively in the circuit courts. Williams v. Ferrentino, 199 So.2d 504, 513 (Fla.2d DCA 1967). But see Charbonier v. Wynne, 282 So.2d 171, 173 (Fla.2d DCA 1973) (dictum), cert. den., 292 So.2d 18 (Fla.1974), suggesting “mandamus, prohibition or injunction proceedings may be brought to the District Court of Appeal.”

Judicial interpretation of the terms “rule” and “order” as used in the 1961 Act produced rulings that “quasi-executive or quasi-legislative” administrative action was not reviewable by petition for certiorari in a district court of appeal, Section 120.31, but only by action for an injunction or other relief in a circuit court. Bay Nat’l Bank and Trust Co. v. Dickinson, 229 So.2d 302, 306 (Fla.1st DCA 1969); Dickinson v. Judges of the District Court of Appeal, 282 So.2d 168, 169 (Fla.1973); Bloomfield v. Mayo, 119 So.2d 417 (Fla.1st DCA 1960); DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957); West Flagler Amusement Co., Inc. v. State Racing Comm’n, 122 Fla. 222, 165 So. 64 (1935). See also Levinson, supra n.3, at 628; Note, Rulemaking and Adjudication Under the Florida Administrative Procedure Act, 27 U.Fla.L.Rev. 755, 758 n. 25 (1976). Contra, Charbonier, 282 So.2d at 175.

Judicial Remedies Under the 1974 Act

The 1974 Administrative Procedure Act committed to the district courts of appeal all judicial power to review agency action “[ejxcept in matters for which judicial review by the supreme court is provided by law. . . .” Chapter 74-310, Section 1, Laws of Florida; Section 120.68(2), Florida Statutes (Supp.1974). The Act made no reference to circuit court review of administrative orders by proceedings for extraordinary writs, nor to circuit court declarations concerning rules. The 1974 Act thus repealed former Section 120.31(4), which authorized review of administrative orders “by mandamus, prohibition or injunction,” and evidenced a purpose to remove rule disputes from the circuit courts, where declaratory relief had been available under former Section 120.30. The 1974 Act provided that independent hearing officers should determine, subject to review in a district court of appeal, whether a rule invalidly exercises validly delegated legislative authority or exercises invalidly delegated legislative authority. Compare Section 120.30, Florida Statutes (1973), with Section 120.56, Florida Statutes (Supp.1974).

By Section 120.72(1), the 1974 Act gave notice that the judicial remedies it provided were to be regarded as comprehensive and exclusive:

“[I]t 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 rulemaking, agency orders, administrative adjudication, or judicial review . . . (emphasis added). Section 120.72(1), Florida Statutes (Supp.1974) and (1975).

Effect of the 1975 Amendment

The ink was scarcely dry on the 1974 codification of Chapter 120, Florida Statutes (Supp.1974) when the 1975 Legislature, by Chapter 75-191, amended Chapter 120 to add Section 120.73:

“Nothing in this chapter shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in the circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86. . .

We have no occasion in this case to determine the extent to which the “undi-vested” statutory jurisdiction of circuit courts to render declaratory judgments under Chapter 86 is nevertheless to be judicially restricted when coercive relief, not a declaration of some doubtful right or status, is plaintiff’s real objective, or when uninvoked administrative remedies are available. E. g., Florida Motel and Rest. Comm’n v. Marseilles Hotel Co., 84 So.2d 567 (Fla.1956); Bowden v. Seaboard Air Line R. R. Co., 47 So.2d 786 (Fla.1950); Pest Control Comm’n v. Ace Pest Control, Inc., 214 So.2d 892 (Fla.1st DCA 1968); Florida State Board of Med. Exam. v. James, 158 So.2d 574 (Fla.3d DCA 1964). In the present case Ginn and the other respondents in interest forthrightly seek coercive relief against the Department and make no pretense that their complaint is justiciable under the Declaratory Judgments Act, Chapter 86.

It remains to be considered whether the 1975 legislative expression that “[njothing in this chapter shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in the circuit courts in lieu of an administrative hearing” operates to preserve circuit court jurisdiction to enjoin administrative action. Chapter 75-191, Laws of Florida, Section 120.73, Florida Statutes (1975).

It must first be recognized that Chapter 75-191 did not reenact former Section 120.31(4), which provided in 1973 that “a party may attack an adverse [administrative] order by mandamus, prohibition or injunction. . . . ” That statute was explicitly repealed by a clause of the 1974 Act which, being simply a repealer, was not published among the permanent and general laws in Chapter 120, Florida Statutes (Supp.1974). Chapter 74-310, Section 4; Section 11.242, Florida Statutes (1973). The 1975 Act did not purport to repeal the repealer section of the 1974 session law, but only to prevent substantive provisions “in this chapter [as compiled in Florida Statutes (Supp.1974)]” from being “construed to repeal” any Florida Statute creating circuit court jurisdiction of proceedings in lieu of administrative proceedings. Nothing in Chapter 120 need or may be “construed” for or against repeal of former Section 120.-31(4), Florida Statutes (1973). The 1974 session law explicitly repealed that statute, and no construction in the judicial sense of the word is necessary or appropriate. Cf. Rojas v. State, 288 So.2d 234 (Fla.1974), cert. den., 419 U.S. 851, 95 S.Ct. 93, 42 L.Ed.2d 82 (1974); Armstrong v. City of Tampa, 106 So.2d 407 (Fla.1958).

Neither may it be supposed that, by enacting Chapter 75-191, the legislature preserved from repeal the baffling array of disparate statutes which, before the 1974 Act, provided for review of action by certain agencies, but not others, by various means in various courts. Those statutes provided for certiorari review of licensing or other orders of the Board of Medical Examiners or the Board of Osteopathic Medical Examiners, in the appellate district where the hearing was held, Sections 458.-123,459.141, Florida Statutes (1973); certio-rari review of a license revocation order of the Board of Podiatry Examiners in the circuit court where the license was recorded, Section 461.10; review of an unspecified character of disciplinary orders of the Board of Nursing in the circuit court of Leon County, Section 464.21(6); certiorari review of license revocation orders of the Board of Professional Engineers and Land Surveyors in the circuit court where the Board maintains its headquarters, Section 471.28; review of an unspecified character of orders of Department of Insurance pertaining to liquified petroleum gas, in the District Court of Appeal, First District, Section 527.17; and so on. General statutes of that sort were “replaced” if not repealed by the 1974 Act, which provides:

“. . . 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 rule-making, agency orders, administrative adjudication, or judicial review . . . . ” Section 120.72(1), Florida Statutes (Supp. 1974), (1975) (emphasis added).

Chapter 75-191 did not purport to revive the multifarious provisions of Florida Statutes (1973) for circuit court review of certain agency orders. The 1975 Act provided only that Chapter 120 should not be construed as repealing any statute “which grants the right to a proceeding in the circuit court in lieu of an administrative hearing” (emphasis added). The replaced statutes pertained to judicial review of final administrative orders, not to circuit court jurisdiction “in lieu of an administrative hearing.”

Thus it is seen that Chapter 75-191 neither reenacted repealed Section 120.-31(4), Florida Statutes (1973), nor restored replaced statutes which previously gave certain courts jurisdiction to review adjudicative orders of certain agencies. But the 1975 legislation was effective to preserve the effect of statutes granting circuit courts jurisdiction of proceedings “in lieu of an administrative hearing.” Such statutes abound, and they are entirely different from the statutes, replaced by the 1974 Act, which provided for judicial review of adjudicative orders. Thus, certain agencies are authorized by statute to seek circuit court injunctions against violation of statutory standards of administrative regulations pertaining to citrus, tobacco, cattle, poultry and other agricultural and business enterprises, and the injunction remedy is plainly in lieu of other administrative remedies that may be available. The public records act, Chapter 119, and the public meetings act, Section 286.011, plainly authorize suits for injunction in circuit courts in lieu of administrative remedies. Chapter 75-191 made clear that those statutes should not be considered as replaced or repealed by Section 120.72(1) of the 1974 Act. Yet no statute of that type authorizes a circuit court injunction suit against the Department of General Services on account of the matters complained of by Ginn and the other respondents in this case.

We thus conclude that, except insofar as it emphasized the continuing availability of judicially-restricted Chapter 86 remedies, the 1975 amendment of Chapter 120 did not directly or indirectly authorize circuit court proceedings to enjoin administrative action. It remains to be considered whether such power is vested directly by the Constitution.

Constitutional Powers of Circuit Courts

The only power affecting administrative action which is specifically reserved by the Constitution to circuit courts is jurisdiction, subject to change by general law, to entertain and decide “all cases involving legality of any tax assessment or toll.” Article V, Section 20(c)(3), Constitution of Florida. See also Section 26.-012(2)(e), Florida Statutes (1975). By virtue of the constitutional grant, circuit court jurisdiction of such cases is unaffected by remedies under Chapter 120. Department of Revenue v. University Square, Inc., 336 So.2d 371 (Fla.1st DCA 1976); Department of Revenue v. Crisp, 337 So.2d 404 (Fla.2d DCA 1976).

The Constitution does not itself define, but reserves for legislative definition, circuit court “power of direct review of administrative action.” Article V, Section 5(b), Constitution of Florida. A similar constitutional reservation is made in favor of the district courts of appeal. Article V, Section 4(b)(2). By the Administrative Procedure Act the legislature has vested such “direct review” powers in the district courts of appeal. “Direct review” as so employed connotes judicial review of administrative action taken after agency compliance with the notice, hearing and other requirements of general law, now Chapter 120.

The Constitution does not, by so limiting the circuit court’s “direct review” powers to those prescribed by general law, necessarily restrict what may be termed “collateral review” in circuit courts by virtue of their constitutional powers “to issue injunctions” and “writs of mandamus, quo warranto, certiorari prohibition and all writs necessary or proper to the complete exercise of their jurisdiction.” Article V, Sections 5(b) and 20(c)(3), Constitution of Florida. Using historic injunction powers the Constitution commits to them as courts of equity, circuit courts had and exercised jurisdiction to enjoin administrative action long before the power to enjoin was endorsed by the 1961 Administrative Procedure Act. E.g., Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912); Sparkman v. County Budget Comm’n, 103 Fla. 242, 137 So. 809 (1931); Perry v. Monarch Orange Co., 142 Fla. 176, 194 So. 320 (1940); Port Everglades Terminal Co. v. Williams, 148 Fla. 439, 4 So.2d 522 (1941).

The general power to enjoin thus continues, but it continues subject to judicial restrictions upon its use which require prior resort to and exhaustion of administrative remedies when they are available and adequate. Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla.1961); Northeast Airlines, Inc. v. Weiss, 113 So.2d 884 (Fla.3d DCA 1951). The companion doctrines of primary jurisdiction and exhaustion of remedies are not statutory creatures but judicial, together constituting “a doctrine of self limitation which the courts have evolved, in marking out the boundary lines between areas of administrative and judicial action.” 2 F. Cooper, State Administrative Law 573 (1965). The one counsels judicial abstention when claims otherwise cognizable in the courts have been placed within the special competence of an administrative body; the other, when available administrative remedies would serve as well as judicial ones. Even though the legislative power may not presume to characterize an adequate administrative remedy as “exclusive,” courts will so regard it. Whitney Nat’l Bank v. Bank of New Orleans, 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386, 395 (1965), quoted with approval, concerning Florida’s Administrative Procedure Act, in Shevin ex rel. State v. Public Serv. Comm’n, 333 So.2d 9, 12 (Fla.1976).

There is of course a wealth of Florida precedent requiring judicial deference to administrative remedies. E.g., Florida Welding and Erection Serv., Inc. v. American Mut. Ins. Co. of Boston, 285 So.2d 386 (Fla.1973); Pest Control Comm’n of Fla. v. Ace Pest Control, 214 So.2d 892 (Fla.1st DCA 1968); Board of Pub. Instr. of Taylor Co. v. State ex rel. Reaves, 171 So.2d 209 (Fla.1st DCA 1964); Pushkin v. Lombard, 279 So.2d 79 (Fla.3d DCA 1973); Marx v. Welch, 178 So.2d 737 (Fla.3d DCA 1965).

Forceful as those authorities are, they weighed administrative processes and remedies which were primitive in comparison to those available under the Administrative Procedure Act of 1974. Those decisions could not have calculated the adequacy, as we must, of an administrative process which subjects every agency action to immediate or potential scrutiny; which assures notice and opportunity to be heard on virtually every important question before an agency; which provides independent hearing officers as fact finders in the formulation of particularly sensitive administrative decisions; which requires written findings and conclusions on impact issues; which assures prompt administrative action; and which provides judicial review of final, even of interlocutory, orders affecting a party’s interests.

The Act’s impressive arsenal of varied and abundant remedies for administrative error requires judicial freshening of the doctrines of primary jurisdiction and exhaustion of remedies, and greater judicial deference to the legislative scheme. It is not that the power of circuit courts has been lessened, nor that their historic writs have been surrendered. Rather, the occasions for their intervention have lessened. As stated in the usual trenchant prose of Alto Adams and George John Miller,

“A new remedy created by statute does not infringe upon the extraordinary writs; it merely reduces the demand for them. Cutting into the scope or nature of the extraordinary writs by statute is one thing; creating an adequate remedy for a sector of the right-enforcement front formerly protected by these writs is another. This latter process merely brings up an ordinary weapon to cover an area formerly within extraordinary range only; it does not alter the extraordinary implement. The writs are always ready to take over if the range of the new statutory cannon proves too short, because their own range cannot be varied otherwise than by amendment to the Florida Constitution.” Adams and Miller, “Origins and Current Florida Status of the Extraordinary Writs,” 4 U.Fla.L.Rev. 421, 464-65 (1951).

We recognize, of course, that some agency errors may be so egregious or devastating that the promised administrative remedy is too little or too late. In that case equitable power of a circuit court must intervene. 3 K. Davis, Administrative Law Treatise 69 (1958).

We have acknowledged that the Administrative Procedure Act does not and cannot displace circuit court jurisdiction to enjoin enforcement of facially unconstitutional agency rules. Department of Revenue v. Young American Builders, 330 So.2d 864, 865 (Fla.1st DCA 1976). See also Department of Revenue v. Crisp, 337 So.2d 404, 406 (Fla.2d DCA 1976). That jurisdiction remains unimpaired, a necessary concomitant of the judicial power vested in circuit courts by Article V, Sections 1 and 5 of the Constitution. The 1974 Act initially provided for administrative determination of constitutional attacks on a rule as “an exercise of invalidly delegated legislative authority.” Section 120.56(1)(b), Florida Statutes (1975). The 1976 Legislature withdrew that seeming incursion into the judicial function. Chapter 76-131, Laws of Florida, Section 120.56(1), Florida Statutes (Supp.1976).

Does the complaint of the respondent contractors demonstrate some compelling reason why the Administrative Procedure Act does not avail them in their grievance against the Department, and why the circuit court must therefore intervene? We think it does not. No lack of general authority in the Department is suggested; nor is it shown, if that is the case, that the Act has no remedy for it. No illegal conduct by the Department is shown; nor, if that is the case, that the Act cannot remedy the illegality. No departmental ignorance of the law, the facts or the public good is shown; nor, if any of that is the case, that the Act provides no remedy for it. No claim is made the Department ignores or refuses to recognize relators’ substantial interests, or refuses to afford a hearing, or otherwise refuses to recognize that relators’ grievance is cognizable administratively. The respondent contractors have made no showing that remedies available under the Act are inadequate.

There is yet a question whether traditional judicial deference to administrative remedies is lessened by certain language in subsections of 120.54 and 120.56. Those sections authorize proceedings for the invalidation of agency rules, be they regularly adopted or merely proposed, which invalidly exercise delegated legislative authority. Subsections 120.54{4)(d) and .56(4) provide that “failure to proceed under [those sections] shall not constitute failure to exhaust administrative remedies.” If the quoted provisions are to be construed as qualifying the exclusivity of the entire Act or its most fundamental remedies, they surprisingly tend to dissolve the judiciary’s self-imposed restriction on intervention by extraordinary writ even as the Act makes such intervention less necessary and desirable.

The double entry of those provisions in the rulemaking and rule-challenging sections and their conspicuous omission elsewhere make clear that the Act intends no general cession of concurrent jurisdiction to the courts. There is no comparable language in 120.57, the core section which both provides the mechanism for rule challenges and is the Act’s wider point of entry for those with more varied or general complaints concerning agency action: those against whom the agency has instituted adjudicatory proceedings, those whose impending injury is not wholly and precisely traceable to a rule invalidly exercising delegated legislative authority, those whose substantial interests are threatened by several agency causes or simply by agency action which is proceeding arbitrarily, imperiously, or obliviously.

We are accustomed to think that the principal use of hearings is to develop records for “adjudicatory” or “quasi-judicial” decisions. See, e.g., Bay Nat’l Bank and Trust Co. v. Dickinson, 229 So.2d 302 (Fla.1st DCA 1969); National Bank of Tampa v. Green, 175 So.2d 545 (Fla.1st DCA 1965). That was the limited role of administrative hearings in years past, when the “universe of administrative law was hierarchical, with the judiciary at its apex,” Current understanding of the administrative process, as embodied in Florida’s 1974 Act, recognizes that a hearing independently serves the public interest by providing a forum to expose, inform and challenge agency policy and discretion. Section Í20.-57 is central to the Act’s purpose to provide:

“ . . . basic fairness which should surround all governmental activity, such as the opportunity for adequate and full notice of agency activities, the right to present viewpoints and to challenge the view of others, the right to develop a record which is capable of court review, the right to locate precedent and have it applied, and the right to know the factual bases and policy reasons for agency action . . .

The proper way for a substantially affected person to invoke a formal or informal 120.-57 hearing is simplicity itself: he asks the agency for it. Fla.Admin.Code Rule 28-5.-15 (model rule); Section 120.54(10), Florida Statutes (Supp.1976).

An understanding of 120.57’s centrality makes clear that the questioned provisions of subsections 120.54(4)(d) and .56(4)— “Failure to proceed under [those sections] shall not constitute failure to exhaust administrative remedies” — enhance remedies available under the Act rather than encourage circuit court intrusion into the administrative process. The quoted provisions are addressed not to circuit courts but to district courts of appeal, which might otherwise rebuff rule challenges by petitions to review 120.57 proceedings because petitioner did not “exhaust” the rule-challenge remedies of 120.54 and .56. See Atlantic Coast L. R. Co. v. Carter, 66 So.2d 480 (Fla.1953). The legislative purpose is simply to avoid any appearance of requiring a substantially affected party to initiate du-plicative 120.54 or .56 proceedings if his rule challenge is regularly presented with other grievances under 120.57, resulting in final agency action and a petition for judicial review.

We conclude that adequate remedies are available under the Act to the respondent contractors and that the circuit court’s jurisdiction is correspondingly limited.

The Writ of Prohibition

Although the circuit courts do not completely lack jurisdiction “over the class of suit involved,” that is, suits for injunction, yet no special circumstances are shown by the complaint which would bring the case “under some recognized head of equity jurisdiction warranting the relief prayed for.” Prohibition is therefore appropriate here, as it was in State ex rel. Smith v. Gomez, 131 Fla. 385, 398, 179 So. 651, 657 (1938), to stop further proceedings by the chancellor. In Gomez, the respondent circuit judges were held to have exceeded their power by entertaining a bill for restraining order and other relief against the Comptroller’s liquidator of an insolvent banking company. Citing authorities supporting the integrity of the administrative process, the Supreme Court prohibited the continued assumption of jurisdiction when it appeared an interlocutory appeal would not afford a plain, speedy and adequate remedy.

Upon the institution of this cause here, we determined that relators’ amended suggestion for a writ of prohibition makes a prima facie case that the circuit court is “exceeding its jurisdiction in matters over which it has cognizance.” See State ex rel. Turner v. Earle, 295 So.2d 609, 611 (Fla.1974). We issued a rule to show cause why the writ should not issue. Thereby the jurisdiction of the circuit court was superseded. Fla.App.R.4.5d. We must now take care that we not “permit a writ which proceeds upon the ground of an excess or usurpation of jurisdiction to become an instrument itself of usurpation, or to be confounded with the writ of error, which proceeds upon the ground of error in the exercise of a jurisdiction which is conceded.” State ex rel. Rheinauer v. Malone, 40 Fla. 129, 132-33, 23 So. 575, 576 (1898).

The circuit court proceeding is one formerly cognizable in equity, so the court’s refusal to dismiss the complaint was remediable by interlocutory appeal to this court. Fla.App.R.4.2. No such appeal was taken, and the time for it had long expired when relators’ suggestion was filed. We are not at liberty to employ an extraordinary remedy to assist a litigant who has foregone an ordinary one which would have served adequately. Shevin ex rel. State v. Public Serv. Comm’n, supra, 333 So.2d at 12. See also State ex rel. Boyles v. Eastmoore, 287 So.2d 333 (Fla.1st DCA 1974), cert. dism., 293 So.2d 713 (Fla.1974).

While the ordinary remedy available to the relators was plain and speedy, it would not have been adequate. An interlocutory appeal could only have redressed the court’s error in denying rela-tors’ motion to dismiss the complaint, and could not directly have prevented an excessive exercise of jurisdiction to entertain further proceedings. Indeed, absent super-sedeas, the circuit court would have retained jurisdiction during the interlocutory appeal to proceed in any way not destructive of our own jurisdiction. Waltham A. Condominium Ass’n v. Village Management, Inc., 330 So.2d 227 (Fla.4th DCA 1976); McLean v. McLean, 340 So.2d 493 (Fla.1st DCA 1976); Fla.App.R.5.1. The office of the writ of prohibition, as the effect of our order to show cause indicates, “is to prohibit the doing of something that has not been done rather than to compel the undoing of something already done.” State ex rel. Shailer v. Booher, 241 So.2d 720, 722 (Fla.4th DCA 1970).

The circuit court’s lack of jurisdiction is not remedied by the allegation that Ginn and the others sue to vindicate not only their private substantial interests but also their interests as citizens and taxpayers. The substantial private interests of the contractors affected by the Department’s action are adequately protected by Sections 120.54, 120.56, and 120.57, Florida Statutes (Supp.1976), and those private interests predominate respondents’ asserted interests as good citizens in the formulation of good bidding and contract procedures within the Department of General Services. See Donovan v. Schott, 58 So.2d 847, 849 (Fla.1952).

The prayer of the suggestion is GRANTED and the writ will issue.

McCORD, Acting C. J., and MILLS, J., concur.

      .
      “(a) Omission of the requirement that the lowest qualified bidder be awarded the bid;
      (b) The refusal to divulge the contents of the contract documents for the acquisition of the components;
      (c) The failure to prepare the architectural and preliminary drawings and specifications for the regional service centers;
      (d) The failure to obtain approval of the Division of Building Construction and Property Management Maintenance;
      (e) The use of ‘closed’ specifications so that only certain manufacturers of the components can bid;
      (f) The failure to require that all component manufacturers be registered as vendors with the Division of Purchasing;
      (g) Permit the selection of the components by an ‘evaluation team’ that has no prescribed standards for determining acceptance, but allows the ‘evaluation team’ arbitrarily to exercise discretion in accepting a bid;
      (h) The specifications on which bids are to be made are ‘minimum’ specifications and are not standard specifications so that a prospective bidder cannot know when he bids that his product will comply with the final standards followed by defendants in accepting the bid;
      (i) The specifications are a disguise to permit defendants to negotiate the purchases of components rather than require competitive bids for the components.”

      . Levinson, “A Comparison of Florida Administrative Practice under the Old and the New Administrative Procedure Acts,” 3 Fla.St.L. Rev. 72, 73 (1975); “The Florida Administrative Procedure Act: 1974 Revision and 1975 Amendments,” 29 U. Miami L.Rev. 617, 628 (1975): “The new Act covers all final agency actions.”

      . The availability of declaratory judgments under the 1961 Act was restricted not only by the distinctive nature of declaratory relief, see text at n.6 infra, but also by the availability of certiorari to review quasi-judicial agency action. Declaratory relief was held “not a substitute” for certiorari, the “sole remedy” for review of quasi-judicial administrative action. Carol City Util., Inc. v. Dade Co., 143 So.2d 828, 829 (Fla.3d DCA 1962), cert. disch., 152 So.2d 462 (Fla.1963).

      . Charbonier required the Division of Beverage of the Department of Business Regulation to conduct a judicial-type hearing before making an “executive decision” in a license revocation proceeding. 282 So.2d at 172. Although support for the court’s action was found in § 561.29, Fla.Stat. (1973), a special statute pertaining to certiorari review of such decisions of the Division, the court stated that the 1961 Administrative Procedure Act “also permits review of the final orders of an agency entered in any agency proceeding without the necessity that the proceeding be judicial or quasi-judicial in nature.” 282 So.2d at 175. A dissenting judge expressed the more conventional view that cer-tiorari was unavailable to review an executive administrative decision and that it could be attacked only by injunction or other appropriate remedy in the circuit court. 282 So.2d at 176.

      . At the Attorney General’s December 1974 conference on the 1974 Act, one of those responsible for formulating the 1974 Act stated: “Although some of those making presentations today disagree, in my view, the circuit courts have lost their prior jurisdiction to render declaratory judgments on the validity of the administrative rules. The prior forms of action appear to have given way to a simple petition for review . . . Levinson, A Comparison of Florida Administrative Practice Under the Old and New Administrative Procedure Acts, 3 F.S.U.L.Rev. 72, 79 (1975).

      . For the same reason that § 120.31(4), Fla. Stat. (1973), was not reenacted by the 1975 Legislature’s expression of intention not to “repeal” any statutory provision “securing the right to a proceeding in the circuit court,” text infra, the legislative caveat that “[n]othing in this chapter shall be construed ... to divest” the circuit courts’ declaratory judgment jurisdiction did not revive repealed § 120.31, Fla.Stat. (1973). Thus, while § 120.31 limited declaratory relief to questions of “the validity, meaning or application of any rule,” that limitation no longer exists. The effect of § 120.73, Fla.Stat. (1975), is therefore that chapter 120 shall not “be construed to repeal” any statutory authority given circuit courts by chapter 86 to render declaratory judgments affecting agency action.
      While it may appear at first blush that the circuit courts’ jurisdiction to grant relief was enlarged by repealing § 120.30(1), Fla.Stat. (1973), it must be noted that declaratory relief under chapter 86 was unavailable as a substitute for statutory review of “quasi-judicial orders.” Pest Control Comm’n, 214 So.2d at 894. See n.4 supra. In a sense, all agency action affecting substantial interests of parties is now “quasi-judicial,” because agency compliance with § 120.57 of the 1974 Act, pertaining to decisions affecting substantial interests, satisfies the definition of quasi-judicial action consistently applied under the 1961 Act, viz., a decision “made in an adversary hearing pursuant to due and proper notice in which the rights of the parties affected are adjudicated by the agency having statutory supervision over the subject matter of the proceeding.” Bay Nat’l Bank and Trust Co., supra, 229 So.2d at 306.

      . We held in Alford v. Duval County School Board, 324 So.2d 174 (Fla.1st DCA 1975), that § 120.72, Fla.Stat. (1974), did not purport to replace special acts of the legislature providing certiorari review by circuit courts of final administrative action.

      . Comprehensive bills to repeal such statutes by explicit reference have been introduced in succeeding Legislatures, but none has yet passed. The “replaced” provisions for judicial review of adjudicatory orders therefore remain in Florida Statutes (1975). The 1976 Legislature eased transitional procedures for judicial review of “administrative adjudicative proceeding[s]” begun under the 1961 Administrative Procedure Act before January 1, 1975, by directing reinstatement on motion before August 19, 1976, of actions seeking judicial review pursuant to any statute considered repealed or replaced by chapter 74-310. Sec. 120.72(2)(b), Fla.Stat. (Supp.1976).

      .E.g., §§ 573.76(6), regulating foliage plant marketing; 573.882(6), regulating flue-cured tobacco marketing; 573.909(6), regulating peanut marketing; 573.856(6), regulating soybean marketing; 574.131, regulating sales of leaf tobacco; 575.08, certification seed law; 576.171, regulating agricultural fertilizers;. 580.121(3), the Florida Seed Law; 581.201, regulating the plant industry; 583.20(2), regulating classification and sale of eggs and poultry; 585,37, regulating the animal industry; 601.73, authorizing circuit court injunctions to prevent violations of the Florida Citrus Code notwithstanding other administrative remedies in 601.66 and .67; and 604.30(2), regulating agricultural products.

      . Professor Davis there cites three “key factors” which should influence the judicial decision whether to intervene by extraordinary writ or defer to the administrative remedy: “extent of injury from pursuit of administrative remedy, degree of apparent clarity or doubt about administrative jurisdiction, and involvement of specialized administrative understanding in the question . . .” See also Lone Star Cement Corp. v. FTC, 339 F.2d 505, 510 (9th Cir.1964). Davis is skeptical of the general use of extraordinary remedies, recommending instead the sort of review enacted by § 120.68, Fla.Stat. (Supp.1976):
      “To make the scope of review depend on fortuities about technical remedies is obviously unsound.
      “The cure is easy. Establish a single, simple form of proceeding for all review of administrative action. Call it ‘petition for review.’ Get rid of extraordinary remedies as a means of review. Focus attention then on the problems having significance — whether, when, and how much to review.” Id. at 389.

      . Rosenblum, “On Davis on Confining, Structuring, and Checking Administrative Discretion,” 37 Law and Contemp. Prob. 49, 50, 58 (1972): “[W]e need to go beyond seeking better checks and controls. We need equally to determine ways to stimulate imaginativeness, creativity, and efficiency in the performance of administrative functions in the delivery of services.” See also Stewart, “The Reformation of American Administrative Law,” 88 Harv.L.Rev. 1669, 1670 (1975): “Increasingly, the function of administrative law is . . . the provision of a surrogate political process to insure the fair representation of a wide range of affected interests in the process of administrative decision.”

      . Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, p. 5 (3/9/74); Lewis v. Judges of the District Court of Appeal, 322 So.2d 16, 19 (Fla.1975).


source: Caselaw Access Project

author: McNULTY, Judge.

license: Public Domain

text:
    ST. JUDE HARBORS, INC., a Florida Corporation, et al., Appellants, v. James H. KEEGAN, Jr. and Nina J. Hines, Appellees.
    No. 76-597.
    District Court of Appeal of Florida, Second District.
    March 30, 1977.
    Rehearing Denied May 3, 1977.

      Harold N. Hume, Jr. of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, P. A., Fort Myers, for appellants.
    Hugh E. Starnes of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   McNULTY, Judge.

In this appeal from a final judgment in favor of plaintiffs-appellees, Keegan and Hines (counterdefendants below), on the grounds that defendants-appellants (coun-terclaimants) were guilty of laches, we revisit a case which we reversed on a prior appeal and remanded for further proceedings. We hold that the lower court misapprehended our prior opinion and reverse.

This cause originally commenced when Keegan and Hines filed an action for foreclosure of two purchase money mortgages on which appellants were the mortgagors. Appellants answered and filed a counterclaim alleging a deficiency in the acreage and praying for a refund of the amount allegedly overpaid by them to plaintiffs. Plaintiffs filed affirmative defenses to the counterclaim, including laches. The case was tried and the trial court entered its first final judgment herein in favor of plaintiffs for foreclosure of the mortgages and against appellants on their counterclaim.

Appellants then took an appeal to this court which reversed and remanded, holding that the purchase price should be rat-ably reduced at the rate of $475 per acre and that the final judgment of foreclosure should be set aside. The opinion stated that “[tjhere is no dispute as to the acreage within each of the boundary lines . . ” since appellants’ proofs at trial had established that approximately 179 acres, or about 40% of the property sought to be conveyed, were owned by the State of Florida. We determined, therefore, that “the sellers [Keegan and Hines] attempted to sell a substantial tract of land which they did not own” and that the purchasers, appellants, ought not be required to pay the full purchase price. We remanded with directions to the lower court to “enter such further judgment concerning refund as shall seem just . . ..”

On remand, the trial court took no additional testimony; but he entered final judgment denying appellants’ counterclaim for the refund, finding that appellants were not entitled to any refund because of “laches” in failing to take action when first told that a discrepancy in the acreage might exist. This appeal ensued. Keegan and Hines have filed certain cross-assignments.

We are of the view that the issues raised by the instant appeal and the cross-appeal were fully presented and determined by this court’s decision in the earlier appeal. The trial court misconstrued that opinion and the mandate which, in effect, merely required computation of the refund due appellants by multiplying the true acreage by the per acre price and the entry of a final judgment in favor of appellants on their counterclaim in that amount. The issue of laches, which the trial court ruled on in entering final judgment in favor of appel-lees on remand, was no longer an open question at that time.

In any case, assuming arguendo that laches was properly triable on remand, the record affirmatively shows that Keegan and Hines were paid in full as to all sums legally due them at the time of the alleged dereliction on the part of appellants. That is to say, while the two mortgages were indeed in default, the installments already paid at the time of the foreclosure exceeded the amount really due when the true purchase price for the acreage actually sold is ratably computed. It follows, therefore, that the failure of appellants to take action when first told of a possible discrepancy in the acreage could not possibly have injured Keegan and Hines. Stated otherwise, they suffered no change of position to their detriment, a prerequisite to a laches defense.

The cross-appeal is without merit.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN, C. J., and HOBSON, J., concur.

      . St. Jude Harbors, Inc. v. Keegan, 295 So.2d 141 (Fla.2d DCA 1974).

      . Id.


author: SCHEB, Judge.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v. Floyd L. FONCK, Appellee.
    No. 76-703.
    District Court of Appeal of Florida, Second District.
    March 30, 1977.
    Rehearing Denied May 5, 1977.
    Donald M. Spangler of Marlow, Mitzel, Ortmayer & Shofi, Tampa, for appellant.
    William J. Terry, Tampa, for appellee.
   SCHEB, Judge.

This case presents the question of whether a person insured under his employer’s automobile policy solely because of his occupancy of his employer’s vehicle is entitled to recover under his employer’s uninsured motorist coverage where the tortfeasor is uninsured because of a fellow employee exclusion in the employer’s policy. After a non-jury trial, the court entered judgment for the appellee, plaintiff below. Defendant Hartford appeals. We reverse.

Plaintiff Fonck was injured while in the course of his employment. The accident involved a truck owned by his employer and equipped with a hydraulic lift, the purpose of which was to elevate the truck bed to the level of a roof under construction so as to facilitate the unloading of roofing materials from the truck to the roof. Fonck was thrown off the elevated truck bed when the truck toppled over due to the negligent manner in which the truck had been parked by William Wise, a fellow employee of Fonck.

The truck owned by Fonck’s employer, Carl’s Roofing and Siding Co., was insured by Hartford for both liability and uninsured motorist coverage. Fonck first sued Wise and Hartford for damages he sustained as a result of Wise’s negligence. Summary Judgment was entered on behalf of Hartford in that first action because coverage for Wise was excluded under the fellow employee exclusion of the Hartford policy. Fonck’s suit against Wise was then voluntarily dismissed.

Fonck then sued Hartford in the instant case, alleging he was entitled to coverage under the uninsured motorist provision of the policy issued to his employer. Reasoning that since Wise did not qualify for liability coverage under the Hartford policy and had no liability insurance of his own, the court held that Fonck was entitled to uninsured motorist benefits under the Hartford policy and entered judgment for $53,-000 against Hartford. We disagree.

Since Fonck comes within the definition of an insured under the Hartford policy, the question before us is whether the employer’s truck which was negligently parked by Wise was an uninsured vehicle so as to permit Fonck to recover under the uninsured motorist provisions of his employer’s policy.

At the outset, we point out that this is not a case where the insurance company has attempted to reduce the scope of coverage mandated by the Uninsured Motorist Law as was the case in Mullis v. State Farm Mutual Automobile Ins. Co., 252 So.2d 229 (Fla.1971); Salas v. Liberty Mutual Fire Ins. Co., 272 So.2d 1 (Fla.1973); and Johns v. Liberty Mutual Fire Ins. Co., 337 So.2d 830 (Fla.2d DCA 1976). The reason why Fonck could not recover in his first suit against Wise is because of the fellow employee exclusion in the liability section of the policy. Limitations such as this upon liability coverage have been upheld by the courts. General Ins. Co. of America v. Reid, 216 So.2d 41 (Fla. 4th DCA 1968). With a valid exclusion to coverage in respect to liability, it seems incongruous that this same exclusion would not also apply to the uninsured motorist protection in this instance where Fonck was an insured solely by virtue of his status as an employee and was claiming under his employer’s policy.

The situation here is also distinguishable from that in Lee v. State Farm Mutual Auto Ins. Co., 339 So.2d 670 (Fla. 2d DCA 1976), decided while this appeal was pending. In Lee a teenager was injured in a one car accident while a passenger in an automobile owned and operated by his brother. The teenager was permitted to recover under the uninsured motorist provision of his father’s policy after his brother’s liability carrier denied coverage under the household exclusion. In Lee this court was dealing with two separate policies. There, the teenager’s father had purchased the uninsured motorist protection for himself and his family, and we held the son must be afforded that protection. Here, we are dealing with Fonck’s claim under the uninsured motorist provision of the same policy under which the liability coverage was validly excluded — a policy which made Fonck an insured solely because of his status of occupying the vehicle as an employee and not because of any coverage he purchased. Cf. Travelers Ins. Co. v. Pac, 337 So.2d 397 (Fla. 2d DCA 1976).

A case closely in point to the case now before us is Taylor v. Safeco Ins. Co., 298 So.2d 202 (Fla. 1st DCA 1974). There, William Taylor had borrowed an automobile from Robert Henry. William went on a fishing trip with his brother, Earl, and permitted Earl to drive. An accident occurred ostensibly through Earl’s negligence as a result of which both Earl and William were killed. Neither Earl nor William had insurance. William’s estate claimed uninsured motorist coverage under Henry’s policy on the theory that although Henry, as the automobile owner, would not be liable to the estate for the negligence of Earl, nevertheless, Earl as an uninsured motorist would be liable to the estate and thereby Henry’s uninsured motor vehicle coverage on the vehicle should inure to the estate’s benefit. While admitting that William qualified as an insured under the policy, the court rejected the claim and pointed out the paradox in which the estate was seeking uninsured motorist coverage under the very same policy which insured the vehicle in which William was killed. Contra, Allison v. Imperial Casualty and Indemnity Co., 222 So.2d 254 (Fla. 4th DCA 1969).

Hartford cites Centennial Ins. Co. v. Wallace, 330 So.2d 815 (Fla. 3d DCA 1976), in support of the contention that where a vehicle is covered as required by law, it does not become an uninsured vehicle simply because the coverage may not be available to an injured party under particular circumstances. We do not fully concur with that rationale. Lee did not accept that principle when recovery was allowed in a situation where there was an insured vehicle. Moreover, to accept the principle completely would even foreclose the claim of a party injured, for example, by one operating a stolen but yet insured vehicle. In such an instance where the owner’s coverage may not be available to the injured party, that party would have slight comfort in knowing that the negligent thief was operating an insured vehicle. See also Boulnois v. State Farm Mutual Auto Ins. Co., 286 So.2d 264 (Fla. 4th DCA 1973).

Nevertheless, we hold that the coverage was not available under the Hartford policy. Since Fonck was an insured under the Hartford coverage solely by reason of his status as an employee, he was not entitled to a recovery under the uninsured coverage in the policy which expressly excluded him from recovering under the direct liability coverage. Since liability insurers are required to offer uninsured motorist coverage, to hold otherwise would effectively nullify the fellow employee exclusion.

Accordingly, the judgment entered below is vacated and the court is directed to enter judgment in favor of Appellant Hartford.

McNULTY, Acting C. J., and GRIMES, J., concur.


author: MILLS, Judge.

text:
    Frank Howard BAKER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. DD-13.
    District Court of Appeal of Florida, First District.
    April 1, 1977.
    Rehearing Denied May 3, 1977.
    Richard W. Ervin, III, Public Defender; and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen.; and Patti Englander, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Pursuant to plea bargaining, Baker pled guilty to a charge of uttering a forged instrument. When accepting the plea, the trial court failed to advise Baker the maximum sentence for the offense. Although Williams v. State, 316 So.2d 267 (Fla.1975), suggests this be done, it is dictum.

The Williams case holds that the violation of a rule of procedure does not require reversal of a conviction unless the record discloses that noncompliance resulted in prejudice. The burden is on the defendant to clearly prove prejudice. No prejudice is shown by the record presented to us. In fact, it appears that defendant received less than the maximum sentence. What difference would it have made if he had known what the maximum sentence was?

We affirm.

BOYER, C. J., and McCORD, J., concur.


author: PER CURIAM.

text:
    Artemio CRESPO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-634.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    See also, 344 So.2d 601.

      Mark King Leban, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., BARKDULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant Artemio Crespo, herein referred to as the defendant, and one Manuel Ortega were informed against, charged with unlawful sale or delivery of a controlled substance (cocaine), and charged with conspiring to commit said offense. On trial by jury the appellant was found not guilty on the conspiracy charge. He was found guilty of the charge of sale or delivery of cocaine. His motion for new trial was denied. Judgment was entered on the verdict, and the appellant was sentenced to imprisonment for a term of ten years and a fine of $5000.00. The defendant Crespo has appealed, and contends a number of errors were committed.

The court did not commit error in admitting testimony of a prior crime of the defendant. The collateral criminal action revealed in evidence showed a modus operandi which was substantially and strikingly similar of that employed in the transaction constituting the criminal offense involved in the instant case. The evidence thereof was relevant to show a common scheme or plan. Williams v. State, 110 So.2d 654 (Fla.1959); Baker v. State, 241 So.2d 683, 686 (Fla.1970).

One of such claimed errors was the ruling of the trial court during cross-examination of a state witness, sustaining an objection by the State to a question to the witness to reveal his present address. In the circumstances, and for the reasons set out below, we hold that ruling was not error. Arthur Moore, a confidential informant, was a key witness for the prosecution. There was no concealment of his identity. The ruling related only to his present address. Here the withholding of the present address of the witness Moore was not without some basis therefor in the interest of the witness and the State. Those factors may not have been of the kind sufficient to have justified the ruling, if disclosure of Moore’s address had been essential in order for him to be properly placed in his environment. However, in this instance revelation of the then present address of the witness was not needed for that purpose. The defendant Crespo had known the witness Moore in Key West for seven or eight years. Moore and the defendant Ortega had lived and grown up together in the community of Key West, in which the trial was held. Thus, without his present address disclosed, the witness was sufficiently placed in his environment for the purpose of cross-examination, and as his environment might avail the jury in weighing his general credibility. See Hassberger v. State, 321 So.2d 557 (Fla.4th DCA 1975); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). The non-disclosure of the present address of the witness Moore was of minimal effect in this case, and, in the circumstances presented, under the applicable authority in Hassberger and the decisions relating to the matter which are reviewed in that case, that challenged ruling of the trial court was not basis in law to require the granting of a new trial.

No error was committed by the trial court in sustaining objection of the State to questions on cross-examination of the witness Moore by which it was sought to reveal a prior proceeding by which Moore, while a juvenile, had been adjudged delinquent on a petition which alleged he had sworn falsely on some prior occasion. The court noted that the delinquency adjudication was not a conviction of a crime, and held the delinquency proceedings were not admissible by reason of Section 39.12(6) Florida Statutes 1975. The attempt to introduce that prior proceeding was not to show bias or prejudice of the witness, but to present such evidence for the purpose of impeaching the general credibility of the witness. That ruling of the trial court thereon was correct. See Kelly v. State, 311 So.2d 124 (Fla.3d DCA 1975). Davis v. Alaska, 415 U.S. 308, 321, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) shows that such a statute, interdicting introduction of such records, should yield to the right by cross-examination to show a delinquency proceeding of a witness in order to establish his bias or prejudice, but not for general credibility impeachment purposes.

Prior to the time that Moore was presented as a witness, the State produced officer Rogue. On cross-examination of that witness, after he had testified that he had not employed Moore, he was asked to state who had employed Moore. Objection by the State was sustained. Appellant argues that ruling was error. We cannot agree. The fact as to who had employed Moore would not be relevant unless it should become basis for impeachment of Moore, if and when Moore should later testify, and in event Moore should testify differently. The State argues, and we agree, that the ruling of the court precluding the effort to impeach a witness in advance of this testimony, was not error.

The appellant presents the further contention that the court committed reversible error by a ruling which precluded defendant from cross-examining the state’s witness Moore with regard to a criminal charge or prosecution then pending against him. That contention of the appellant has merit, and we hold the challenged ruling was error for which the judgment must be reversed. In the course of cross-examining the witness Moore, defendant’s attorney asked: “Do you have a charge presently against you now for carrying a concealed weapon?” After the court sustained an objection thereto by the state, defendant’s attorney asked the court: “Can I proffer something to the court?” That request was denied. In the course of discussion thereof the court stated: “I’m not going to permit you to proffer anything along that line.”

The right of the defendant to so cross-examine the prosecution witness, in order for the jury to have the benefit of such evidence as it might bear on bias or self-interest of the witness with relation to the testimony given by him, appears to be firmly established by the more recent decisions. Morrell v. State, 297 So.2d 579, 580 (Fla.1st DCA 1974); Lee v. State, 318 So.2d 431 (Fla.4th DCA 1975); Fulton v. State, 335 So.2d 280, 283-284 (Fla.1976).

In Morrell the court said:

“However, it is clear that if a witness for the State were presently or recently under actual or threatened criminal charges or investigation leading to such criminal charges, a person against whom such witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination or otherwise so that the jury will be fully apprised as to the witness’ possible motive of self-interest with respect to the testimony he gives. Testimony given in a criminal case by a witness who himself is under actual or threatened criminal investigation or charges may well be biased in favor of the State without the knowledge of such bias by the police or prosecutor because the witness may seek to curry their favor with respect to his own legal difficulties by furnishing biased testimony favorable to the State.”

In Fulton, the Supreme Court said:

* * * * * *
“When a prosecution witness is under criminal charges at the time he testifies, the defense is entitled to bring this fact out.
‘[I]t is clear that if a witness for the State were presently or recently under actual or threatened criminal charges or investigation leading to such criminal charges, a person against whom such witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination’ .
Morrell v. State, 297 So.2d 579, 580 (Fla.App.1st 1974).
“See also Lee v. State, 318 So.2d 431 (Fla.App.4th 1975). Similarly the Court in Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), stated:
‘Even if the witness were charged with some other offense by the prosecuting authorities, petitioner was entitled to show by cross examination that [the witness’] testimony was affected by fear or favor growing out of his detention. Id. at 693, 51 S.Ct. at 220.’”

For the reason stated the judgment is reversed, and the cause is remanded for new trial.


text:
    Artemio CRESPO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-772.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Joe N. Unger and Mark King Leban, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by a defendant below from his conviction on a charge of unlawful sale or delivery of a controlled substance (cocaine). The trial was before a jury.

Appellant presents a number of contentions of error. The appeal has merit, requiring reversal and remand for a new trial.

One Arthur Moore, a paid confidential informant, who was involved in the transaction, was a principal witness for the State. During the cross-examination of that witness, at a side-bar conference out of the hearing of the jury the attorney for the defendant announced intention to question the witness with reference to charges pending against him. To that, the court stated: “You cannot go into that. The question is have you been convicted of a crime”, and the court further stated: “I am not going to permit you to go into that. I ruled”. Thereupon, as authority for the cross-examination he proposed, the attorney for the defendant cited to the court 297 So.2d 579 [Morrell v. State (Fla. 1st DCA 1974)], following which the court stated: “I am not going to permit it”. With consent of the State, defendant’s attorney was allowed to ask the witness if the State Attorney’s office or any law officer had promised him help of any kind if he should cooperate in making cases and testifying thereon. The witness answered in the negative. However, that question was not made with reference to any charge or prosecution pending against the witness, as inquiry relating to that subject had been precluded by the ruling of the court.

The State argues that the ruling above referred to should not be held to constitute error because the defendant made no proffer of proof with relation to the matter. We cannot agree. A proffer of evidence there was a criminal charge or prosecution pending against the witness was not essential here, where the discussion of the matter in the record indicates the attorneys and the court were proceeding on the basis of the existence of a pending charge or prosecution against the witness. The concern was with whether inquiry should be made with reference thereto. During the discussion the prosecutor stated the witness had not been promised anything. That circumstance would have no significance unless some charge was pending against the witness, since it had been brought out that he was a paid confidential informant.

Crespo v. State, 344 So.2d 598 (Fla. 3d DCA 1977), opinion filed on this date, was an appeal by this defendant from a separate conviction for a like offense, in which a similar ruling was made during the trial. In that case we reversed the judgment and remanded the cause for a new trial, holding such ruling constituted reversible error under the authority of Morrell v. State, 297 So.2d 579, 580 (Fla. 1st DCA 1974); Lee v. State, 318 So.2d 431 (Fla. 4th DCA 1975); and Fulton v. State, 335 So.2d 280, 283-284 (Fla.1976).

On the authority of those decisions, we hold it was error to rule in this case that the defendant could not cross-examine this key witness for the State with reference to the existence of a charge or prosecution pending against him. On thus disposing of this appeal, we omit discussion of other contentions presented by the appellant.

The judgment is reversed, and the cause is remanded for new trial.


text:
    John M. KOTOWSKI, Appellant, v. The STATE of Florida, Appellee.
    No. 76-789.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Bennett H. Brummer, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and David S. McLeod, Legal Intern, for appellee.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The question posed by this appeal is whether the trial court abused its discretion by revoking defendant’s probation and thereupon sentencing defendant to three years in the state prison.

In March, 1974, defendant was found guilty of uttering worthless checks and he was placed on probation for a period of five years. One of the conditions of defendant’s probation was that he not change his residence without consent of his probation supervisor. In March, 1975, defendant was charged with and thereafter found guilty of violation of probation for failure to obtain the necessary consent of his supervisor prior to moving from his approved residence which he occupied in 1974. At the revocation of probation hearing, the uncontrovert-ed evidence was that the defendant and his family were removed from their residence by a writ of possession issued in December, 1974, pursuant to a final judgment for removal of tenant obtained by the defendant’s landlord.

We agree with the defendant’s contention that his failure to obtain prior consent to change his residence was explained away in that to seek prior consent would have been a useless act. Cf. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947). While the record reflects that the defendant was not cooperative in notifying his supervisor before or after he moved, we find that the trial court abused its discretion in revoking defendant’s probation for his failure to obtain the necessary consent prior to removing himself from his approved residence.

The order of revocation of probation and sentence are vacated and the defendant’s probation is reinstated.

Reversed.


author: HENDRY, Chief Judge.

text:
    STONEWALL INSURANCE COMPANY, Appelant, v. Mario VALBUENA, Appellee,
    No. 76-1917.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and G. Ware Cornell, Jr., Miami, for appellant.
    Lawrence F. Kaine, Miami, for appellee.
    Before HENDRY, C. J., and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Chief Judge.

This is an interlocutory appeal to review a final order setting forth equitable distribution of a personal injury protection lien pursuant to Section 627.736, Florida Statutes (1975).

Appellee, petitioner below, filed a petition for equitable distribution against appellant, respondent below. The petition alleged that appellee had settled a third party action for $5,000.00 and had paid his attorney forty percent of the settlement as attorney’s fees. The record before the court did not contain any other facts, affidavits, or other proofs relating to the existence of any equitable considerations.

At the hearing, the court asked the attorneys for the respective parties what they thought was a fair figure. Appellee’s attorney replied “fifteen percent” while counsel for appellant argued that from the record before the court, no ground for deviation from the guidelines set forth in Williams v. Gateway Ins. Co., 331 So.2d 301 (Fla.1976), was present and that pursuant to the Williams formula, appellant was entitled to a sixty percent recovery of the benefits paid to appellee.

Notwithstanding the above, the court ruled that twenty percent recovery was sufficient and this appeal follows.

In Williams, supra, the Florida Supreme Court set forth a formula to be followed in determining the correct amount an insurer is entitled to be reimbursed for the personal injury protection benefits it has paid an insured, once that insured recovers his damages from a third party tortfeasor. The formula is to be followed, “absent other equitable considerations,” supra, at 305. After reviewing the record of the proceedings below, we find no evidence of “other equitable considerations” entitling the chancellor to deviate from the Williams formula, which is set forth fully in that opinion and need not be repeated here.

We also note, however, that the chancellor failed to inquire of the parties as to the existence of any “equitable considerations” that would permit a deviation from the aforementioned Williams formula.

Accordingly, the order appealed is reversed and remanded with directions to conduct an inquiry as to the existence of any “equitable considerations” and if none are present, to enter an order of equitable distribution pursuant to the guidelines set forth in Williams v. Gateway Ins. Co., supra.

Reversed and remanded with directions.


author: ERVIN, Judge.

text:
    Sonny Jack HARRELL, Appellant, v. Hugh William BRANSON, Appellee.
    No. DD-66.
    District Court of Appeal of Florida, First District.
    April 6, 1977.
    Rehearing Denied May 2, 1977.

      W. Paul Thompson and Clayton J. M. Adkinson, Thompson & Adkinson, Defuniak Springs, for appellant.
    E. Allan Ramey and Lewis R. Lindsey, Defuniak Springs, for appellee.
   ERVIN, Judge.

This is an appeal from a final judgment rescinding and vacating a warranty deed. Plaintiff-appellee Branson brought an action against defendant-appellant Harrell seeking rescission of a deed conveying ten acres to Harrell and Jeanette Parker Harrell as husband and wife, reserving unto himself a life estate. Branson’s niece, Jeanette, and Harrell, although living together, were not married. The conveyance occurred in 1972 at the county tax collector’s office. Jeanette had accompanied her uncle to the office and was present when the deed was executed — although Harrell was not. Branson testified the only reason he named Harrell as grantee was his belief that his niece and Harrell were married. This belief was not based upon any representations made to him by Harrell, rather by Jeanette, and since Harrell and Jeanette were living together, he simply assumed them married. Branson was paid $600.00 for the property conveyed, a sum far less than the actual value of the property which had a house on it.

The following year Mr. Branson left his home in Walton County which adjoined the property he deeded, and sometime later Jeanette and Harrell parted company; Jeanette repenting the deception she perpetrated, specifically disavowing any interest conveyed to her in the property.

It is not necessary that a direct statement be made to the representee in order to give rise to the right to rely upon the statement, for it is immaterial whether it passes through a direct or circuitous channel in reaching him, provided it be made with the intent that it shall reach him and be acted on by the injured party. 14 Fla. Jur. Fraud and Deceit section 36. Regardless of the method of communication it is obvious that Branson relied upon the deception carried out by Jeanette to his injury since the deed was conveyed to both parties, and upon the payment of a grossly inadequate sum by both parties. Harrell and Jeanette had on several occasions prior to the conveyance unsuccessfully importuned Branson to sell them the property. When Branson at last acquiesced, Harrell provided one-half the amount of the purchase, $300.00. While inadequacy of consideration is not per se regarded as a basis on which a court may grant rescission, inadequacy of consideration when coupled with other inequitable circumstances may afford a basis to warrant relief. 5 Fla. Jur. Cancellation, Reformation and Rescission of Instruments section 27.

Clearly the deception practiced by Jeanette would have been sufficient ground for cancellation of the deed insofar as her interests were concerned. In McElroy v. Gay, 155 Fla. 856, 22 So.2d 154 (1945), Ms. Gay promised to marry one McElroy and in consideration of the promise of marriage, McElroy deeded to Gay an undivided one-half interest in certain real property owned by him. Gay then refused to marry McEl-roy or to deed back the property to him. In reversing an order dismissing the amended bill of complaint, the Florida Supreme Court stated:

“If the allegations of the bill are true the defendant has acquired an interest in plaintiff’s real property without consideration given and by means of deceit and fraud. Having failed and refused to marry plaintiff, and having never intended to do so, equity and good conscience requires that she reconvey the property to plaintiff.” 22 So.2d at 154.

Regardless of whether there existed any direct misrepresentation to Bran-son from Harrell, the question necessarily arises: Should we apply the principle of constructive fraud to the situation involved here? Constructive fraud may exist independently of an intent to defraud. It is a term which is applied to a great variety of transactions that equity regards as wrongful, to which it attributes the same or similar effects as those that follow from actual fraud and for which it gives the same or similar relief. Thus constructive fraud is deemed to exist where a duty under a confidential or fiduciary relationship has been abused. Douglas v. Ogle, 80 Fla. 42, 85 So. 243 (1920). A confidential or fiduciary relationship was clearly shown to exist between Branson and his niece. Branson was dependent upon his niece to assist him in his daily needs. She had not only aided him in the past but promised to continue to do so in the future. Their relationship was very close. A fiduciary relation may result from an offer of assistance where the nature of the proposal is one that is naturally calculated to repose confidence and trust in the one making the proposal. Dale v. Jennings, 90 Fla. 234, 107 So. 175 (1925); Harris v. Zeuch, 103 Fla. 183, 137 So. 135 (1931). The relation and correlative duties need not be legal but may be moral, social, domestic or merely personal. Dale v. Jennings, supra. A misrepresentation in a fiduciary or confidential relationship which would not be actionable in an arms-length transaction can be considered the basis for relief. 14 Fla. Jur. Fraud and Deceit section 5.

In effect, Jeanette may be assumed the agent of Harrell in the deception carried out upon Branson. While an agency relationship between principal and agent ordinarily arises from consent or agreement of the parties to the existence of such relation, it is not necessary that there be an express contract of appointment. The agency may be inferred from the related facts of the case or implied from the course of dealings. With respect to third persons an agency may arise by necessity, as in the case of purchase of necessaries by a wife, or it may rise from facts which lead others to believe that such a relationship has been created, as by estoppel. 1 Fla. Jur. Agency section 6. Moreover it is well settled that one who accepts the fruits of a transaction consummated by one who acts within the apparent scope of the owner’s authority as agent, and who has ratified the acts of the apparent agent by consummating a contract, cannot be heard to deny the authority of the apparent agent in acting for the owner in that transaction. Peace River Phosphate Min. Co. v. Thomas A. Green, Inc., 102 Fla. 370, 135 So. 828 (1931).

In Logan v. Chastang, 207 Ala. 52, 91 So. 867 (1921), an action was filed by Chastang against Logan and Reichert to cancel a deed conveyed to Reichert which was allegedly based upon the fraudulent representation made by Logan, acting as agent for Reichert. In affirming the order granting rescission of the deed, the Alabama Supreme Court stated:

“Nor can it avail defendant that he did not actually participate in the fraud imputed by the testimony to his agent. In both law and equity he is responsible therefor so long as he stands as grantee and beneficiary under the fraudulent deed.” Id. at 868.

In 1 Fla. Jur. Agency section 79 it is stated:

“One who puts an agent in a position that enables the agent, while apparently acting within his authority, to commit a fraud upon third persons, is liable to such person for the fraud, and he is not relieved from liability by the fact that the apparent agent acts entirely for his own purposes, unless such third persons have notice of such fact. A principal is liable for the fraud of his agent from which he benefited, although the fraud was not personal to the principal.”

Finally, independent of any consideration of a principal-agency relationship, suppressing the truth may constitute fraud provided it is material to the transaction. Thus in a case which involves active — as opposed to passive — concealment, a duty to reveal the fact concealed exists. This duty arises where there is a purpose or design motivating the nondisclosure and usually involves circumstances where the person responsible for the concealment has superior knowledge, or acts in a confidential or fiduciary capacity. 14 Fla. Jur. Fraud and Deceit section 28.

The rule which makes Harrell responsible for the nondisclosure of a material fact must be tempered by the exception that had Branson equal opportunity to discover the truth, the nondisclosure would not be tantamount to a fraudulent concealment. E. g., Hirschman v. Hodges, O’Hara and Russell Co., 59 Fla. 517, 51 So. 550 (1910); Robson Link and Co. v. Leedy Wheeler and Co., 154 Fla. 596, 18 So.2d 523 (1944). Under the circumstances, however, Branson had no opportunity to discover the truth. Admittedly a search of the county records would not have revealed on file any certificate of marriage. Nevertheless even had he undertaken to do so, such inquiry would not have negated Branson’s reasonable belief that the marriage could have occurred elsewhere. Nor did Branson delay for an unreasonable length of time his action for rescission since he left Florida for Alabama in 1973, did not discover the fraudulent concealment until two years later, then brought his action in 1976.

Branson sustained by the greater weight of the evidence, required in fraud actions, his entitlement to rescission of the deed. Rigot v. Bucci, 245 So.2d 51 (Fla.1971). The judgment is AFFIRMED.

BOYER, C. J., and MILLS, J., concur.


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    FLORIDA DEPARTMENT OF OFFENDER REHABILITATION, Petitioner, v. Robert A. DUNLAP et al., Respondents.
    No. DD-482.
    District Court of Appeal of Florida, First District.
    April 6, 1977.
    Rehearing Denied May 3, 1977.

      Raymond W. Gearey, Tallahassee, and Earl H. Archer, III, for petitioner.
    Robert L. Shevin, Atty. Gen., Betty J. Steffens, Asst. Atty. Gen., Jerry G. Trayn-ham and Ben R. Patterson, III, Tallahassee, for respondents.
   ERVIN, Judge.

This is a petition for writ of certiorari directed to an opinion and order of the Career Service Commission reinstating respondents Dunlap and Tetstone to their former class of positions retroactive to the date of their dismissal and reimbursing them for any loss resulting from their dismissal. On March 15, 1976, Dunlap, Tet-stone and two other correctional officers escorted an inmate of the Florida State Prison back to his housing wing. Upon their arrival, Dunlap, in the presence of the other officers, counseled the inmate, one Sloan, about his disrespectful attitude. During the comments, according to Dunlap’s testimony, the inmate suddenly lunged forward and was then struck by one of the officers. Shortly afterward, within a period of thirty seconds, he was subdued. The inmate, who had the reputation as a troublemaker and for highly unpredictable behavior, was taken to the prison clinic, examined, and when it was determined he was uninjured, returned to his cell.

Dunlap admitted during the hearing before the Commission that he deliberately falsified his initial report about the incident in which he stated that the inmate had attempted to run to the second floor “pipe alley” and it became imperative to employ minimum force in order to subdue him. Approximately ten days later Dunlap filed an amended report in which he stated that he found it necessary to counsel Sloan because of the arrogant disrespectful attitude Sloan had displayed to the officers. The report stated that during his lecture, Sloan was struck by one of the officers present. The second report said nothing about the inmate lunging prior to the blow inflicted.

Both Dunlap and Tetstone conceded during their testimony that at all times during the incident the inmate was handcuffed with his hands behind him. Dunlap also admitted that he and the other three officers had all agreed to submit initially false reports of the occurrence.

Tetstone also acknowledged that he had filed, as did Sergeant Dunlap, a false incident report. His amended report, like Dunlap’s, made no reference to the inmate lunging prior to the use of physical force. While Tetstone’s second report stated that he had struck Sloan with his open fist in the back and stomach, as well as kicking him while he was down, he denied at the hearing that he struck any blows but admitted that he kicked Sloan once while he was on the floor. Shortly following the filing of the second amended reports, all four officers involved were dismissed by the superintendent for (1) treating an inmate in a cruel or inhuman manner, (2) falsification of reports and records, and (8) unnecessary use of physical force.

The Career Service Commission reversed the dismissals by order dated August 25, 1976. In the portion of the order designated “Conclusions of Law,” the following statement is made: “. . . the appellants may have lacked proper training in preparing reports. . . . ”

Initially the Commission argues this court has no jurisdiction to review the final order from which certiorari is sought since more than thirty days expired before petition for writ of certiorari was filed. The decision to reinstate was made immediately following the hearing on July 22, 1976. The formal order was published August 25, 1976. Motion for rehearing was filed before the order of August 25, 1976 was issued. On October 1, 1976, denial of rehearing was entered and on October 29, 1976, petition for writ of certiorari was filed to review both the August 25, 1976 order and the order denying the motion for rehearing. The Commission additionally argues that as an administrative agency it is without statutory rule making power and therefore is governed by the Model Rules of Procedure, Chapter 28, Florida Administra-five Code. It further states that since there is no provision which permits petitions for rehearing to be filed before administrative tribunals, only the finality of a Section 120.59 order may be reviewed under the Administrative Procedure Act. We consider this argument without merit. Section 120.57(1)(b)(4), Florida Statutes (Supp.1976), provides in part:

“All parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders, to file exceptions to any order or hearing officer’s recommended order. . . . ” (Emphasis added.)

We deem the order of August 25, 1976, was not “final agency action” as contemplated by Section 120.68(1), Florida Statutes (1975), for the purpose of review since there was a motion for rehearing pending before the Commission prior to the entry of such order. Consequently, the order entered on August 25, 1976 did not become final until the order denying rehearing was entered.

The Department’s dismissals were based upon violations of its own rules, the infraction of any one of which being tantamount to dismissal. Without considering whether the evidence was sufficiently competent and substantial to support the dismissals for grounds one and three, relating to the degree of force applied, it is clear from this record that both Dunlap and Tet-stone falsified their incident reports. Both correctional officers admitted during the hearing that they had done so. The Commission sought to excuse the officers’ failure to file truthful reports since they “may have lacked proper training in preparing reports. . . . ” In our view it requires no departmental training for a correctional officer to know how to prepare a truthful report.

The Commission’s order of reinstatement appears to be concerned with the harshness of the sanction imposed by the employer. This is not the Commission’s responsibility. As this court has stated on previous occasions:

“. . . sole discretion to determine whether the employee is to be dismissed or suspended is vested in the agency, the only limitation being that the disciplinary action must be for just cause. The role of the Career Service Commission on appeal is to determine whether there existed competent substantial evidence to sustain the action taken by the agency and whether the facts establish ‘just cause’.” State Department of Pol. Conv. v. State Career Serv. Com’n., 320 So.2d 846, 848 (Fla. 1st DCA 1975). Cf., State, Dept. of Adm., Office of Adm. Serv. v. Hunter, 323 So.2d 24 (Fla. 1st DCA 1975).

We hold under the facts of this case petitioner was within its authority to dismiss Dunlap and Tetstone, and that the Commission, finding no error of fact nor of law in the actions of petitioner, erred in ordering reinstatement with full back pay.

Certiorari is granted and the order of the Career Service Commission dated August 25, 1976, as well as the order denying motion for rehearing, are quashed. The cause is remanded with directions that the petitioner’s orders of dismissal be reinstated.

BOYER, C. J., and MILLS, J., concur.

      . Rule 10B-13.02(9) of the Department of Health and Rehabilitative Services prohibits an employee from willfully treating an inmate in a cruel or inhuman manner.

      . Rule 10B-13.02(13) prohibits employees from falsifying reports and records.

      . Rule 10B-13.02(15) permits employees to apply physical force upon inmates only to the degree it appears necessary in self-defense, to prevent escape, to quell a disturbance, etc. The Rule also provides that when force becomes necessary, a detailed written report shall be made by the employee to the superintendent who shall cause an investigation to be made.

      . The order’s findings of fact state in part:
      “5. Although each of the four officers involved gave a written statement, certain of these statements appeared to be erroneous.

      This Commission in its findings has relied upon the testimony presented to it and the demeanor of the witnesses.
      * * * * * *
      8.This Commission finds that very little formal training is given to a correctional officer when he is employed by the Agency and leaves much to be desired in the way of training. This Commission recognizes that the Agency has limited funds with which to train employees but finds that a more extensive training program could eliminate many of the problems faced by the Agency in keeping qualified correctional officers.
      9. The testimony of both of the appellants confirmed that they were afraid of the inmate as he had been known to work his way out of handcuffs before. This Commission finds that Appellant Tetstone was frightened when he responded to a lurch made by Inmate Sloan; that he considered him dangerous; and felt that he was properly'assisting his sergeant when he struck the inmate. Testimony revealed that he was more than willing to take his share of blame for the incident. Although it was evident that Appellant Dunlap assisted in restraining the inmate, no evidence was presented to corroborate that he did, in fact, beat an inmate.
      10. This Commission finds that the circumstances which brought on what the Agency has termed ‘excessive force’, justified the action taken by the Appellants on March 15, 1976, in connection with the restraining of Inmate Sloan, and finds no competent, substantial evidence to support the action of the Agency.” (Emphasis added.)

      . Rule 10B-13.03, relating to the range of disciplinary actions, provides that violations of the rules may result in such disciplinary sanctions as oral reprimand, written reprimand, reassignment, suspension, reduction in pay, demotion or dismissal.