author: McCORD, Judge.

text:
    STATE of Florida, DEPARTMENT OF ADMINISTRATION, Petitioner, v. J. Richard STEVENS and Department of Health and Rehabilitative Services, Respondents. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. J. Richard STEVENS, Respondent.
    Nos. CC-101, CC-156.
    District Court of Appeal of Florida, First District.
    April 6, 1977.
    David V. Kerns, Tallahassee, for State of Florida, Dept, of Administration (petitioner in No. CC-101).

      Douglas E. Whitney, Tallahassee, for State of Florida, Dept, of Health and Rehabilitative Services (petitioner in No. CC-156 and respondent in No. CC — 101).
    Howell L. Ferguson, of Macfarlane, Ferguson, Allison & Kelly, Tallahassee, for J. Richard Stevens (respondent in Nos. CC-101 and CC-156).
   McCORD, Judge.

These are two consolidated petitions for review of administrative action taken from a final order of Kenneth G. Oertel, Director of the Division of Administrative Hearings (as hearing officer) entered on the petition of J. Richard Stevens (one of the respondents herein) for administrative determination of rule-invalidity under the provisions of § 120.56, Fla.Stat. (1975). (We have removed from the captions of these review proceedings State of Florida Department of Administration, Division of Administrative Hearings as it is not a proper party hereto.) After a full hearing pursuant to the statute, the hearing officer, by his final order, ruled that a Directive of the Department of Health and Rehabilitative Services (hereafter referred to as HRS) and Guidelines (upon which the directive was based) promulgated by the Department of Administration are rules as that term is defined by § 120.52(14), Fla.Stat. (1975); that they were not adopted pursuant to the dictates of Ch. 120, Fla.Stat. (1975), and in addition are in conflict with § 110.061(1), Fla.Stat. (1975). Petitioners here, DOA and HRS, contend primarily that the hearing officer was without authority to make a judicial determination that the DOA Guidelines and HRS Directive are rules because such determination involves the exercise of a judicial power which may only be exercised by a court. Petitioners further contend that if the Guidelines and Directive were rules, the hearing officer operated beyond the scope of his delegated authority in determining there was no valid adoption of them. We disagree with the contentions of petitioners and affirm.

Respondent, Dr. J. Richard Stevens, was laid off from his position as a research associate with permanent career service status with the Division of Aging of HRS on July 21, 1975. Another employee, Dr. James H. Williams, at that time held a position with the Bureau of Alcoholic Rehabilitation of HRS. The legislature, through the Appropriation Act of 1975 [Ch. 75-280, Laws of Florida (1975)], specifically abolished and did not fund the position held by Dr. Williams. As a result of the abolishment of his position, Dr. Williams was reassigned by HRS to Dr. Stevens’ position because Dr. Williams had a greater number of “retention points” under the lay-off policy of HRS than did Dr. Stevens. The lay-off policy is set forth in the aforesaid directive entitled “Department of Health and Rehabilitative Services Directive No. 8-98, effective date July 9,. 1974, Subject: Lay-off and Re-employment of Personnel.” The “bumping” lay-off was based upon the purported authority of such HRS Directive and DOA Guidelines. Together they set forth a mixed seniority and merit system by which “retention” points are calculated on the basis of years of service and evaluations received during those years of service. This system in essence provides that when a lay-off is to be made, an employee with greater retention points can “bump” or usurp the job of another employee in the same class.

When Dr. Stevens was notified that he was going to be “bumped” and laid off, he filed a petition under § 120.56(1), Fla.Stat. (1975), with the Division of Administrative Hearings by which he sought to have the HRS Directive and the DOA Guidelines declared invalid. § 120.56, Fla.Stat. (1975), provides:

“(1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground:
(a) That the rule is an invalid exercise of validly delegated legislative authority.
(b) That the rule is an exercise of invalidly delegated legislative authority.
(2) The petition seeking an administrative determination under this section shall be in writing and state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the grounds on which the rule is alleged to be invalid, which may be stated in the alternative. The petition shall be filed with the division. Within 10 days after receiving the petition, the division director shall, if he determines that the petition complies with the above requirements, assign a hearing officer who shall conduct a hearing within 30 days thereafter, unless the petition is withdrawn.
(3) Within 30 days after the hearing, the hearing officer shall render his decision and state the reasons therefor in writing. The hearing officer may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires or at a later date specified in the decision.
(4) Hearings held under this provision shall be conducted in the same manner as provided in s. 120.57 except that the hearing officer’s order shall be final agency action. The petitioner and the agency whose rule is attacked shall be adversary parties. Other substantially affected persons may join the proceedings as parties or intervenors on appropriate terms which shall not unduly delay the proceedings. Failure to proceed under this section shall not constitute failure to exhaust administrative remedies.”

Following the administrative determination under the above statute, judicial review may be had pursuant to § 120.68, Fla.Stat. (1975).

HRS admitted that its Directive has never been adopted as a rule nor filed with the Department of State for publication in the Florida Administrative Code in accordance with § 120.041, Fla.Stat. (1973), or § 120.54, Fla.Stat. (1975). Also, DOA admitted that its memorandum has never been adopted as a rule nor filed with the Department of State pursuant to said statutes.

The final order of the hearing officer from which the petition for review has been filed concluded that the HRS Directive and the DOA Guidelines were rules under § 120.52(14), Fla.Stat. (1975); that they had not been lawfully adopted under Ch. 120, Fla.Stat. (1975), and were therefore invalid. The hearing officer further found that the Directive and Guidelines were additionally invalid because they violate § 110.061(1), Fla.Stat. (1975).

The primary questions raised by DOA and HRS are whether or not the hearing officer had authority to make the determination that the Guidelines and Directive are rules, and, if so, whether he had authority to determine that they were invalid because they were not adopted pursuant to the statutory procedures. They contend that these are judicial questions which only a court can answer and that the hearing officer’s ruling invades the exclusive judicial power of the court. We disagree.

Article V, Section 1, Florida Constitution, provides that the judicial power shall be vested in a Supreme Court, District Courts of Appeal, Circuit Courts, and County Courts. In addition it states:

“Commissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices.”

There is no well-defined line of demarcation between judicial and quasi-judicial functions. The Supreme Court in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967), said:

“If the affected party is entitled by law to the essentially judicial procedures of notice and hearing, and to have the action taken based upon the showing made at the hearing, the activity is judicial in nature. If such activity occurs other than in a court of law, we refer to it as quasi-judicial.”

We find the following pertinent general statements as to the exercise of quasi-judicial power by an administrative officer or agency in American Jurisprudence 2d:

“Many administrative agencies have and exercise powers and functions which are quasi-judicial or judicial in nature and some statutes expressly vest them with quasi-judicial power. The federal courts and the courts of some states, particularly where the constitution expressly so permits, recognize that administrative agencies unquestionably possess certain judicial powers and functions, the term ‘quasi-judicial’ being regarded merely as the designation of approval for the necessary exercise of a part of the judicial power by an agency not a part of the judiciary and to distinguish the powers exercised by such agencies from those exercised by the judiciary.” 1 Am.Jur.2d, Administrative Law, § 138.
“Merely because a board or commission is a body belonging to the executive or administrative body of the government, it by no means follows that it may not perform functions which are, in their nature, judicial, and possess and exercise quasi-judicial powers. Statutes conferring quasi-judicial powers and duties upon administrative agencies have been held not to be unconstitutional as encroachments upon the judicial branch of government, especially where such powers and duties relate to matters which are peculiarly affected with public interest or are subject to regulation under police powers, or where provision is made for appeal from decisions of such agencies to the courts.” 1 Am.Jur.2d, Administrative Law, § 145.
“Determinative power may be conferred upon an administrative agency so long as there is an opportunity to be heard and for judicial review which satisfies the demands of due process and the courts in upholding particular statutes or ordinances vesting determinative or adjudicatory powers in administrative agencies against a contention of denial of due process of law frequently note or emphasize that the act makes the determination only prima facie proof, makes provision for judicial review, or that judicial review is otherwise available.” 1 Am.Jur.2d, Administrative Law, § 154.
“With few exceptions the courts do not consider of moment the fact that determinative or adjudicatory powers are vested in a single individual rather than in a multiple-member agency.” 1 Am.Jur.2d, Administrative Law, § 157.
“In speaking of a power or function which pertains more to the administrative than to the judicial, yet partakes of the judicial, the courts refer to it as ‘quasi-judicial,’ or ‘judicial in nature’ or ‘adjudicatory.’ The term ‘quasi-judicial’ is also used to designate a judicial function, but to indicate that it is exercised by a person other than a judge. However, the fact remains that in this connection the function of any particular act must be either administrative or judicial, and there can in reality be no middle or halfway ground between them. The use of such terms is simply a convenient way of approving the exercise of a judicial power by an administrative agency or approving review by the courts of the exercise of powers by administrative agencies. Aside from such approval the terms ‘quasi-judicial’ or ‘judicial in nature’ are used to designate the character of particular proceedings or powers the exercise of which must be accompanied with certain formalities and safeguards characteristic of the judicial process.” 1 Am.Jur.2d, Administrative Law, § 161.

In the case sub judice the Constitution has authorized the grant of quasi-judicial power to commissions established by law or administrative officers or bodies in matters connected with the functions of their offices. The legislature has, by Ch. 120, Fla.Stat. (1972), provided a procedure for administrative determination of the validity or invalidity of a rule of an administrative agency by a hearing officer of the Division of Administrative Hearings of the Department of Administration. It has thereby vested in such hearing officer quasi-judicial power to determine whether or not a rule which has been brought into question by a person substantially affected thereby is a valid or an invalid exercise of delegated legislative authority to promulgate such a rule. The procedure which the legislature has established for such adjudication fully complies with due process of law requirements [§ 120.56(2), (3), (4), Fla. Stat. (1975)] and further provides for judicial review of such determination [§ 120.68, Fla.Stat. (1975)]. We are unable to agree with petitioners’ contention that the making of such a determination by a hearing officer to whom the legislature has delegated such authority is a judicial determination which such officer cannot make under the doctrine of separation of powers. We find it to be a quasi-judicial function authorized by the Constitution and the legislature which provides for full due process and judicial review.

§ 120.52(14), Fla.Stat. (1975), defines “rule” as follows:

“ ‘Rule’ means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes the amendment or repeal of a rule. The term does not include:
(a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public,
(b) * * *
(c) * * * ”

If, as a threshold question, the hearing officer must determine whether or not the particular directive or guideline is a rule under the above definition before he can arrive at the question of whether or not it has been validly adopted as a rule, we do not consider that such act does violence to the doctrine of separation of powers when the ruling complies with the due process requirements set forth in the statute with judicial review available as provided therein. We find such to be a quasi-judicial function.

Kenneth Culp Davis in his “Administrative Law Treatise,” in discussing the doctrine of separation of powers in relation to the administrative process, said:

“In the organic arrangements that we have been making in recent decades in the establishment and control of administrative agencies, the principle that has guided us is the principle of check, not the principle of separation of powers. We have had little or no concern for avoiding a mixture of three or more kinds of powers in the same agency; we have had much concern for avoiding or minimizing unchecked power. The very identifying badge of the modern administrative agency has become the combination of judicial power (adjudication) with legislative power (rule making). But we have taken pains to see that the agencies report to and draw their funds from our legislative bodies, that the personnel of the agencies are appointed and reappointed by the executive, and that the residual power of check remains in the judiciary. As long as we continue to emphasize the principle of check, we may safely continue our increasingly deep-seated habit of allowing the blending of three or more kinds of power in the same agency.” K. Davis, Administrative Law Treatise, Vol. 1, p. 68 (1958).

We have considered the opinion of the Supreme Court in Otto v. Harlee, 119 Fla. 266, 161 So. 402 (1935), cited by petitioners. There, the court held that a statute could not empower a circuit court clerk to make an ex parte determination that a tax sale certificate is invalid. The court said:

“A tax sale certificate is the evidence of a lien and confers upon its holder valuable rights of which he may not be involuntarily deprived without due process of law and judicial determination. The construction of a tax certificate and the determination of whether or not it is void is a question of law and can be validly determined only by the judiciary.”

The court went on to say that the legislature cannot delegate the exercise of judicial functions to ministerial officers.

Otto dealt only with a legislative grant of power to a ministerial officer to make an ex parte adjudication of the invalidity of a tax sale certificate. The case sub judice does not relate to an ex parte adjudication by a ministerial officer without provision for due process and judicial review, as did Otto. Here the legislature has delegated quasi-judicial authority to administrative hearing officers to determine the validity or invalidity of rules of administrative agencies.

The statute granting the authority here questioned made full provision for due process in the exercise of such authority and provided for judicial review. Such legislation is a logical step in the continuing evolution of administrative law designed to cope with the rapid mushrooming of state boards, commissions and agencies, all engaged in adopting rules to carry out their legislatively delegated functions. In 1939, three years after Otto, the Supreme Court in South Atlantic S.S. Co. of Delaware v. Tutson, 139 Fla. 405, 190 So. 675 (1939), said:

“Authority conferred and duties imposed upon the ‘Florida Industrial Commission’ by chapters 17481 and 18413, Laws of Florida, are essentially administrative in their nature, even though some portions of the authority so conferred may be regarded as quasi judicial, involving official judgment, which is not forbidden by the constitution to be exercised by administrative officers with appropriate statutory authority and limitations in order to effectuate duly authorized governmenal [sic] administrative functions. Some governmental functions that are not essentially legislative or judicial powers may by statute be conferred upon administrative officers, boards or commissions, to be exercised within appropriate statutory limitations, even though such governmental functions may also by statute be assigned to judicial or other proper officials who under the constitution are vested with governmental powers. See State v. Atlantic C. L. R. Co., 56 Fla. 617, 47 So. 969, 32 L.R.A.,N.S., 639; State ex rel. Young v. Duval County, 76 Fla. 180, 79 So. 692. See also 71 C.J. 290.
The constitution permits some judgment and discretion to be exerted by the legislature in enacting statutes authorizing administrative functions to be performed by administrative officers, boards or commissions when no provision of organic law is violated in making or administering such provisions. See Art. II; secs. 17, 20, Art. IV; secs. 1, 35, Art. V; sec. 30, Art. XVI.”
* * * * * *
Such a State policy with reference to administrative determinations, is becoming more and more essential to efficient government, since the processes of the legislative and judicial departments are not designed to perform the constant and expeditious functions necessary to administrative governmental regulations of expanding business, commercial, industrial, and social relations in the rapid progress and development of a great and growing State.”

More recently the Supreme Court in Canney v. Board of Pub. Instruction of Alachua Cty., 278 So.2d 260 (Fla.1973), said:

“The true meaning of the separation doctrine is that the whole power should not be exercised by the same hands which possess the whole power of either of the other departments. See Administrative Law by Forkosch, § 36, p. 36. Except in the comparatively rare cases where a combination of powers in a single agency was deemed to threaten, in some measure, the restrictive primacies of the Legislature or of the courts, the states have sustained the statutory delegation of combined legislative, prosecutory, and judicial powers to agencies. See State Administration Law by Cooper, Vol. 1, § 2(B), p. 25.
* * * * * *
Once the Legislature transforms a portion of a board’s responsibilities and duties into that of a judicial character so that the board may exercise quasi-judicial functions, the prerogatives of the Legislature in the matter do not cease. The Administrative Procedure Act (Fla.Stat. § 120.20 et seq. F.S.A.), establishes minimum requirements for the adjudication of any party’s legal rights, duties, privileges or immunities by state agencies . A board exercising quasi-judicial functions is not a part of the judicial branch of government.”

Much water, in the numerical growth and expansion of administrative agencies and in the development of administrative law, has run over the dam since Otto. The delegation of authority there (judicial authority granted to a ministerial officer which was wholly lacking in due process) was so widely different from that granted by § 120.56, Fla.Stat. (1975), that we do not consider Otto to be controlling authority on the question here before us.

Finding as we do that the hearing officer had power to make the foregoing adjudications, we turn now to the question of whether or not his determination was correct. We find that it was. The Guidelines and Directive set forth procedures for “bumping” or laying off an employee whose position has not been terminated upon termination by the legislature of another employee’s position through the use of a point system set up by the Guidelines and Directive. Under the questioned Guidelines and Directive, the employee whose position is terminated is shifted to the position of another employee who has less points and the latter is laid off. These two documents clearly are agency policy statements of general applicability which were applied and were intended to be applied with the force of a rule of law. They are not internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public. They do not fall within any of the other exceptions to the statutory definition. The procedures established by the Directive and Guidelines very definitely affect the private interests of the employees involved as well as procedures that are important to the public. The Directive purports in and of itself to create certain rights and adversely affect others. It was promulgated for prospective application sometime before this immediate exigency arose and was issued by the agency head for implementation by subordinates with little or no room for discretionary modification. This Directive states that the prescribed point system determines “retention rights” and states that

“Permanent employees shall be entitled to retain employment in the class within the department by the exercise of superi- or retention rights as determined above . . .”

The Directive and Guidelines not having been legally adopted and promulgated as rules are therefore void and of no effect.

The examiner also concluded that the Directive and Guidelines were invalid due to conflict between them and § 110.061, Fla.Stat. (1975), which states:

“(1) Any employee who has permanent status in the career service may only be terminated for cause by the agency or officer by whom he is employed.”

The hearing officer concluded that “cause” does not encompass the bumping procedure attempted to be established by the Directive and Guidelines. We neither agree nor disagree with this additional reason cited by the hearing officer for his ruling. It is unnecessary to the adjudication of the present case, and we leave it for future determination in the event rules on this subject matter are later adopted under Ch. 120., Suffice it to say that one laid off because of the operation of invalid rules is not laid off for cause.

We have considered the other points raised by petitioners and find them to be without merit.

AFFIRMED.

RAWLS, Acting C. J., and SMITH, J., concur.

      . Ch. 76-131, Laws of Florida, substantially rewrote § 120.56 and § 120.56(1), Fla.Stat. (Supp. 1976), now states:
      “(1) Any person substantially affected by a rule may seek an administrative determination of the [invalidity] of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.”

      . We have previously held, however, that the power to adjudicate that a rule is unconstitutional is a judicial power rather than quasi-judicial and such adjudication may not be made by an administrative officer or agency. State, Dept. of Adm., etc. v. State, Dept. of Adm., etc., 326 So.2d 187 (Fla. 1 DCA 1976). Also, it should be noted, as we have heretofore pointed out, that the Legislature by Chapter 76-131, Florida Statutes, withdrew from the hearing officer authority to determine the invalidity of a rule on the ground that the rule is an exercise of invalidly delegated legislative authority — a constitutional question.


source: Caselaw Access Project

license: Public Domain

text:
    DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, v. LEON COUNTY et al., Respondents.
    No. BB-459.
    District Court of Appeal of Florida, First District.
    April 7, 1977.
    David Gluckman, Crescent City, for petitioner.

      F. E. Steinmeyer, III, of Folson & Stein-meyer, J. Lewis Hall, of Hall & Booth, J. Marshall Conrad and Michael Pearce Dodson, of Ausley, McMullen, McGehee, Caroth-ers & Proctor, Robert M. Ervin, Joseph C. Jacobs and Robert J. Angerer of Ervin, Varn, Jacobs & Odom, Tallahassee, George Levine, M. Julian Proctor, Jr., of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for respondents.
   McCORD, Judge.

The Department of Environmental Regulation (hereafter referred to as DER) petitions to review interlocutory orders of a hearing officer of the Division of Administrative Hearings denying motions of petitioner to dismiss and to strike and overruling petitioner’s objections to discovery. We entertain the petition because we find that later review of final agency action will not provide an adequate remedy to petitioner. § 120.68(1), Fla.Stat. (Supp.1976).

We confine our interlocutory review, however, to the questioned power of the hearing officer to rule upon the motions and the objections presented to him. Petitioner contends that a ruling upon the questions raised by such motions and objections constitutes an unconstitutional exercise of judicial power prohibited to the executive branch of government by Art. V, § 1, of the Florida Constitution; that under the doctrine of separation of powers as mandated by Art. II, § 3; Art. III, § 1; and Art. V, § 1, of the Florida Constitution, the hearing officer does not have judicial power, such power being vested only in the courts. We disagree that such is the exercise of judicial power. We fully resolved this question by our opinion in State of Florida, Department of Administration v. Stevens, Fla.App., 344 So.2d 290, opinion filed April 6, 1977. We will, therefore, not reiterate here the analysis we made there. Suffice it to say that such power is quasi-judicial power which the legislature has legally vested in the hearing officer under Ch. 120.

There is in this case, however, an additional element which was not involved in State v. Stevens. There we said that a hearing officer does not have power to adjudicate the constitutionality of a rule, such power being a judicial rather than a quasi-judicial power. In the case sub judice, we are concerned with a proposed rule rather than a rule. This proceeding is one brought by DER under § 120.53, Fla.Stat. (Supp.1976), to adopt a proposed rule as a rule of that Department. The hearing officer, in the exercise of quasi-judicial authority in furtherance of the administrative rule-making process, can determine whether or not a proposed rule violates the Florida Constitution if adopted, such determination being subject to judicial review. The hearing officer’s determination is similar to a determination by the legislature or a legislative committee that it will not favorably report or enact proposed legislation because it considers that if enacted the legislation would be unconstitutional. Once a statute or rule has been enacted or adopted, however, the determination of the constitutionality or unconstitutionality thereof requires exercise of judicial power which is vested only in the courts.

Previously the courts have declined to entertain actions brought to test the validity of proposed rules because until a rule has been finally adopted by an administrative agency and has become effective, there has been no final agency action and thus no exhaustion of administrative remedies by an interested party. See Atlantic Coast Line Railroad Company v. Carter, 66 So.2d 480 (Fla.1953). Under the old Administrative Procedure Act [Ch. 120, Fla.Stat.(1973)], the procedure for rule adoption was reposed entirely within the particular agency proposing to adopt the rule. Now, however, under the new Administrative Procedure Act [Ch. 120, Fla.Stat. (1975) as amended by Fla.Stat. (Supp.1976)] the legislature has, by § 120.54, established rule-making procedure by which a hearing officer of the Division of Administrative Hearings of the Department of Administration is assigned to determine the validity or invalidity of an agency’s proposed rule (if it contains any provision not relating exclusively to organization, practice or procedure) upon the request of any substantially affected person. Thus, unlike the old Administrative Procedure Act, under the new Administrative Procedure Act a hearing officer can strike down as invalid an agency’s proposed rule, but in conjunction with this new authority granted to hearing officers, the legislature has specifically made the hearing officer’s order “final agency action” [§ 120.54(3)(d)] which is subject to judicial review under § 120.68.

Petitioner also contends that orders of a hearing officer pursuant to § 120.54(3) are an unconstitutional delegation and exercise of legislative power by the executive branch of government prohibited by Art. Ill, § 1, of the Florida Constitution; that is that the provisions of § 120.54(3), in permitting hearing officers to declare a proposed rule or any portion thereof void, gives hearing officers the apparent power to make rules for all agencies (negatively) in a manner previously exercised only by the legislature. In this connection petitioner contends that granting to one division the authority to promulgate rules for all agencies violates the Florida Constitution. We disagree. Here the legislature has merely established a check on the rule-making authority to state agencies by a separate and specialized agency to assure that an agency in adopting a rule does not exceed and complies with the authority granted by the legislature. This is nothing more than legislative constraint upon the exercise of quasi-legislative authority which the legislature has specifically made subject to judicial review.

Petitioner contends further that, by overruling its objections to discovery and thereby compelling discovery for the purpose of reviewing petitioner’s estimate of the economic impact of the proposed rule, the hearing officer exceeded his statutory authority. While § 120.54 does not specifically relate to an alleged erroneous economic impact statement to validity or invalidity of a rule, it does require the promulgation of such a statement by the agency as one of the steps in the rule-making procedure. Thus, the failure to give such an economic impact statement would constitute an invalid exercise of delegated legislative authority. By the same token, the giving of a false or erroneous economic impact statement could also constitute an invalid exercise of delegated legislative authority. Thus, the hearing officer has authority to inquire into the validity of the economic impact statement, and he was correct in overruling petitioner’s objections to discovery.

Affirmed.

RAWLS, Acting C. J., and SMITH, J., concur.


author: HOBSON, Judge.

text:
    PARADISE SHORES APARTMENTS, INC., etc., et al., Appellants, v. PRACTICAL MAINTENANCE CO., INC., a Florida Corporation, Appellee.
    No. 76-72.
    District Court of Appeal of Florida, Second District.
    April 6, 1977.

      Leslie D. Franklin, St. Petersburg, for appellants.
    Howard P. Ross, Battaglia, Ross & Stol-ba, St. Petersburg, for appellee.
   HOBSON, Judge.

In this interlocutory appeal defendants/appellants attack the order of the lower court denying their seven motions to dismiss, the object of which was, inter alia, to assail the maintenance of this cause as a class action. We think the trial court erred in holding the allegations of the complaint made out a defendant’s class and reverse.

Plaintiff, Practical Maintenance, had a maintenance agreement with defendant, Paradise Shores Apartments, a non-profit association whose membership, according to the complaint below, consists of all condominium owners in the complex. This contract, entered into in November of 1970, allegedly benefitted all the remaining defendants, named and unnamed in the instant case. The remaining named defendants, some seventeen directors of the defendant Paradise Shores Association, represent each of the buildings in the complex (13) with four-at-large directors. The complex contains some 325 units.

It was alleged that on April 30, 1975, seventy-five percent (75%) of the members of the association voted to break the maintenance contract with the plaintiff. It was further alleged that thereafter members of the association, unit owners, failed to make payments required by contract. Subsequently, on June 13, 1975, Practical Maintenance filed the instant case in four counts including ten points alleging maintenance of this cause as a class action against defendants. Count I of the complaint sought damages of $100,000 for breach of the maintenance contract. Count II sought compensatory damages in the same amount for interference with contractual relation. Counts III and IV were directed at granting equitable relief by way of specific performance and injunction. Since maintenance of this cause as to the latter two counts is dependent upon resolution of the class action issue, we need not reach the allegations under those counts.

On July 7, 1975 defendants responded by filing seven (7) motions, primarily attacking the propriety of plaintiff bringing its action as a class action. Following oral argument and review of memoranda submitted by the parties, the judge below entered his order denying the motions to dismiss and found the complaint stated a cause of action against both defendant entities.

With respect to Count II, alleging interference with contractual relation, we hold that no cause of action could be maintained under this theory. Although questions exist as to whether defendants as a purported class were obligated under the maintenance contract, plaintiff’s allegations in its complaint demonstrate that any actions by members of the alleged class were in the name of and intertwined with that of the defendant association. In fact, plaintiff stated in part in paragraph 2 of its complaint,

“Defendant, PARADISE SHORES APARTMENTS, INC., is a Florida nonprofit corporation whose membership is limited to and presently comprised of all of the owners of condominium units at Paradise Shores Apartments, Inc. . .” (emphasis supplied)

Such a statement, together with all the information contained in the record, strongly suggests, for purposes of Count II, that the association and the purported class of all condominium owners have the same identity. Because courts in this state recognize a cause of action for interference of contractual relation only where the interference is caused by a third party, this count is dismissed with prejudice as to defendants herein. Days v. Florida East Coast Railway Company, 165 So.2d 434 (Fla.3d DCA 1964); Roberts Co., Inc. v. P. B. O. Ltd., 322 So.2d 633 (Fla.3d DCA 1975).

As to maintenance of a class action on the alleged breach of contract, we think that plaintiff’s complaint, memoranda, and briefs facially set out all the necessary elements required under the statute and pertinent case law. However, certain inconsistencies in the complaint and record show that questions as to the certainty of the class and coextensiveness of interest among the purported class defendants and their representatives still remain. We would note at the beginning that the relief accorded plaintiff in defendants class actions is often disparate as opposed to that which generally accrues in plaintiff-initiated actions. Paulino v. Hardister, 306 So.2d 125 (Fla.2d DCA 1975). Therefore, a careful inquiry into the seven prerequisites for maintenance of a class action can be more onerous than those situations involving plaintiffs classes. Cf. City of Lakeland v. Chase National Co., 159 Fla. 783, 32 So.2d 833 (1947). Here review of the record reveals several procedural flaws which could bar maintenance of this cause as a class action.

Patently obvious from the allegations in Count I is the assertion that defendants breached the contract by voting out the maintenance contract by a vote of seventy-five percent (75%) of the members of the defendant association. In addition, paragraphs two and three of that part of the complaint designated “Class Action Allegations,” allege in substance that the defendant association is comprised of all owners in the complex and that the individuals designated as class representatives represent all owners in the complex. Without more, the record is deficient in that nowhere in the order appealed from or in the pleadings and briefs is there any indication that the judge below made a proper determination of the class “with some degree of certainty.” Harrell v. Hess Oil and Chemical Corp., 287 So.2d 291 (Fla.1973). Plaintiff did assert that this certainty requirement was met by the allegation in the complaint that some 325 units are involved. However, where other parts of the complaint and record show that only three-quarters of the purported class voted to terminate the contract, then it was improper to allow the class action to proceed without efforts to ascertain the definable group of defendants.

Failure to identify the purported class with some certainty also raises further procedural questions in allowing this cause to proceed as a class action. First, defendants assert that the class representatives may or may not adequately represent their positions in that some directors may or may not have equity in their particular units which is subject to judgment and lien. Thus, defendants posit, the directors without such interests will be less than zealous in defending such actions. We disagree. There is no evidence in the record before us to suggest that with or without equity in their units these directors, representatives of each building in the complex, with four members elected at large, will be anything but diligent in their defense of this action. In fact, there is no evidence whatsoever as to that portion of the units owned by the directors which would be considered as subject to lien in the event a judgment adverse is rendered against these officers.

A second, more troublesome, question involves mixed questions of procedural and substantive law with respect to the coex-tensiveness of interests of the members of the purported class. The substantive problem, which the court below has not yet passed upon, involves the binding effect, if any, on the purported class of the maintenance contract entered into between the plaintiff and defendant association in 1970. Specifically, Practical Maintenance maintains that this contract binds all unit owners in the complex because paragraph 10 of the Declaration of Condominium provides, in part,

“10. Maintenance Agreement — Paradise Shores Apartments, Inc., the condominium association, has entered into an agreement with Practical Maintenance Co., Inc., . . . Each unit owner, his heirs, successors and assigns, shall be bound by said maintenance agreement to the same extent and effect as it [sic] he had executed said agreement. . . .”

Although it appears that this provision would bind all unit owners at Paradise Shores, and while plaintiff alleged that it did so, we decline to pass .on its obligatory effect in light of the lack of certainty and demonstrated coextensiveness between members of the purported class. Defendants contend that since some unit owners purchased their condominiums from the developer and others acquired their interest by resale, a lack of coextensiveness is apparent. Defendants also posit that because the damages sought here will be personal, coextensiveness is lacking. We disagree with both contentions. After a determination of the proper class, the issue of the binding effect of the maintenance contract will be in order. We note that the complaint on the issue of the substantive binding effect of the maintenance agreement was sufficient to withstand the motion to dismiss. The only error in denying the motion to dismiss was with respect to whom the complaint should be directed.

On remand the trial judge should hold a hearing in which he can determine whether or not the procedural defects noted herein will bar maintenance of this cause as a class action. Cf. Paulino v. Hardister, 306 So.2d 125 (Fla.2d DCA 1975). This hearing should be aimed initially at determining whether a definable class or classes exist with respect to the alleged breach of contract. Although the complaint did allege the existence of a class, it did not do so with some degree of certainty. Harrell, supra. Numerosity alone does not create the existence of a class. 3B Moore’s Federal Practice ¶ 23.04.

The judge should also satisfy himself that members of this class or classes have in fact failed to pay the assessed maintenance fees for the time periods covered by the complaint. Moreover, a determination as to the existence of sub-classes may be in order if the judge finds that purchasers from the original developers have different rights, liabilities, and defenses than those unit owners who acquired their interests from resale. See generally Fed.R.Civ.P. 23(c)(4); 3B Moore’s Federal Practice ¶ 23.65. It may be that he will have to make a preliminary finding as to the binding nature of the maintenance contract as it is incorporated into the condominium documents. Such a finding, however, should be limited to ascertaining the definable class.

If the judge decides that a definable class or classes exists with some certainty, he should go further to find that the named representatives of the class have an interest which is coextensive with that of the unnamed members. Again, this finding may depend upon a preliminary analysis of the maintenance contract and condominium documents. If the documents bind all without regard to how the condominium was acquired then all unit owners, who have failed to pay, will be adequately represented by the named class representatives who are similarly obligated. However, if the court finds that some named representatives have interests similar to those unit owners who have paid, if any, then those named representatives surely lack the requisite community of interest with the unit owners who have defaulted.

In summary, we think the allegations of the complaint state a cause of action against the association. However, the complaint and record in this cause are deficient in that a possibility exists for joining in this suit all unit owners of the Paradise Shores complex as a defendant class where the complaint and record does not show whether or not the remaining 25%, or any of them, have paid under the contract. The obvious nature of this procedural inconsistency also affects the prerequisites of the coextensiveness of interest and adequacy of representation by the named representatives to the unnamed members of the class. Nevertheless, the complaint may be sufficient on its face to state a substantive cause of action against the class. It should be emphasized that the motion to dismiss in the instant case is not a typical motion to dismiss. The motion to dismiss in the case sub judice attacks the class allegations. Since the motion is unique in that sense, as opposed to attacking the cause of action itself, we think, on remand, that appellees should be afforded the right to file an amended complaint setting forth with greater specificity allegations which show in more detail those members of the purported class who have not paid. Following submission of this amended complaint we feel it is incumbent on the trial judge in these types of ■ situations to evaluate the class allegations in a proper proceeding. By so doing the trial judge will avoid the absurd result of waiting until after a motion to dismiss, answer, or possibly even trial, to evaluate the proper class.

Accordingly, this case is remanded for a determination as to whether the suit can properly proceed as a class action. In determining whether the class action may proceed, the trial court must not only confirm that the parties named actually represent the class or classes but must clearly demonstrate that the class encompasses the necessary community of interest. Federated Department Stores, Inc. v. Pasco, 275 So.2d 46 (Fla.3d DC A 1973); Costin v. Hargraves, 283 So.2d 375 (Fla.1st DCA 1973). The proceeding should also conform to the standards enunciated by this court in Pauli-no, supra, with respect to notice.

REVERSED and REMANDED.

BOARDMAN, C. J., and GRIMES, J., concur.

      . Count III, seeking specific performance of the maintenance contract, and Count IV, requesting mandatory and prohibitory injunctive relief are supported by reallegations of the same factors found in Counts I and II. No new basis of liability is alleged. Both plaintiff and defendants concede that determination of the points in Counts III and IV will be disposed of by this court’s ruling on the class-action question as it relates to Counts I and II.

      . In Harrell v. Hess Oil and Chemical Corp., 287 So.2d 291 (Fla.1973) the Supreme Court enumerated the following prerequisites which a complaint in a class action must contain to withstand a motion to dismiss:
      (1)Show the necessity for bringing the action as a class suit;
      (2) Show plaintiffs right to represent the class;
      (3) Allege that plaintiff brought suit on behalf of himself and all others similarly situated;

      (4) Allege the existence of a class, described with some degree of certainty;

      (5) Allege that the members of the class were so numerous as to make it impracticable to bring them all before the court;
      (6) Make it clear that plaintiff adequately represents the class; and
      (7) Show that the interests of the plaintiff were coextensive with the interests of the other members of the class.
      287 So.2d at 293-94.

      . This does not preclude the court from weighing the binding effect of the maintenance contract as referred to in the Declaration of Condominium in its assessment of the prospective class, i. e., to find a common liability on the part of all unit owners who have not paid.

      . Id.


author: OTT, Judge.

text:
    Donald J. PAULK, Appellant, v. STATE of Florida, Appellee.
    No. 76-313.
    District Court of Appeal of Florida, Second District.
    April 6, 1977.
    Rehearing Denied April 28, 1977.
    John L. Riley of Riley, Schowe & Salts-man, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of grand larceny in violation of Section 812.021(l)(a), Florida Statutes. The lower court found the evidence sufficient to support the conviction of larceny by fraud or “trick.” We agree and therefore affirm.

On March 24, 1975, appellant — a pest exterminator — came uninvited to the home of an 83 year old lady and offered to inspect it for termites. Upon learning that the lady had an existing pest control contract with “Company A”, appellant (who worked for “Company B”) represented that he not only was employed by “Company A”, but also that he had taken over her particular contract. Then, while purportedly inspecting her attic for infestation, appellant planted termites in order to impress upon her the need for a termite treatment. Moreover, he warned that there would be no house left in two years unless properly treated. Appellant clinched the deal by agreeing to reduce the price of the treatment from $280 to $200 and by doing the job in his own name rather than in “Company A’s” name so long as she not inform “Company A” of the reduced rate.

The applicable statute, Section 812.-021(l)(a), Florida Statutes, provides in relevant part:

(1) A person who with intent unlawfully to deprive or defraud the true owner of his property .
(a) Takes from the possession of the true owner, or of any other person; or obtains from such person possession by color or aid of fraudulent or false representations or pretense, . . . shall, upon conviction, be guilty of larceny.

Section 812.021, Florida Statutes— the omnibus larceny statute — is a consolidation of the former separate offenses of larceny, embezzlement, and obtaining property by false pretenses. See Williams v. State, 239 So.2d 127 (Fla. 4th DCA 1970).

In Finlay v. State, 152 Fla. 396, 12 So.2d 112, 113 (1943), the court outlined the elements of the crime of obtaining property by false pretenses:

False representation of a past or existing fact; knowledge of its falsity; intent to defraud; reliance on the misstatement by the other party; and surrender by the other party of property because of the representation. . . . See Clifton v. State, 76 Fla. 244, 79 So. 707, 711 (1918); See Green v. State, 190 So.2d 614 (Fla. 3d DCA 1966).

The instant case satisfies all of the above elements.

In State v. Mills, 96 Ariz. 377, 396 P.2d 5 (1965), the court affirmed a conviction for obtaining money by false pretenses. The defendant contended that where actual consideration is exchanged, there can be no crime of obtaining money by false pretenses. The court held that “there is no requirement that the victim suffer a pecuniary loss so long as he has parted with his property” and that “once the victim has parted with his property in reliance on a false representation, it is immaterial whether whatever he got in return is equal in exchange value to that with which he parted.” 396 P.2d at 8. Moreover, the Mills court cited with approval Judge Learned Hand’s statement in United States v. Rowe, 56 F.2d 747, 749 (2d Cir. 1932), that “[a] man is none the less [sic] cheated out of his property when he is induced to part with it by fraud, because he gets a quid pro quo of equal value.” The language of Section 812.021(1)(a), Florida Statutes, does not suggest to us that the crime turns on whether or not there was value received by the victim.

In the instant case, it is undisputed that the actual treatment given by the appellant (a preventive treatment for dry-wood termites) was a bona fide treatment and that the price charged was fair. This, however, cannot insulate the appellant from criminality otherwise established.

In Collins v. State, 319 So.2d 135 (Fla. 2d DCA 1975), the state was not able to prove the element of deception in the inducement since they showed no “trick” in the inducement. The only trick or deceptive inducement suggested by the state’s evidence pri- or to the agreement between the parties (for the appellant to fertilize the victim’s lawn) related to the amount of buckets of fertilizer needed. Appellant made no representation as to a given number of buckets needed and the victim’s own testimony was that she agreed with appellant that not “too many” buckets appeared necessary. Thus, in the first instance there was no reliance on any representation of appellant.

In contrast, the instant case is replete with false representations occurring prior to the agreement between the parties. Not only did appellant misrepresent the presence of termites in the victim’s attic, but he also misrepresented the identity of his employer and that he had the victim’s contract when in reality he did not. Thus, there was clearly “trick.” See Williams v. State, 239 So.2d 127 (Fla. 4th DCA 1970).

In Collins, the appellant’s representation of the fertilizer as being good quality was held to be mere “dealer puffing” which is not condemned by the criminal law. See Criner v. State, 92 Fla. 483, 109 So. 417 (1926); 14 Fla.Jur., False Pretenses § 5 (1957).

As phrased by Collins, the issue in that case boiled down to the following:

however reprehensible appellant’s business practices may be in the eyes of the Better Business Bureau, and however amenable he may be to revocation of whatever local business licenses he may have, his actions ... do not constitute a crime or an attempt to commit a crime under the laws of this state. 319 So.2d at 137-38.

Likewise, in Mehr v. State, 59 So.2d 259, 261 (Fla.1952), the court stated “. the conduct of [the defendant] cannot be condoned from any ethical standard, but the question is its criminal character.”

Nothing we say herein should be construed as a departure from or softening of these considerations. It is submitted that as well as being reprehensible and unethical, appellant’s conduct in this ease fell within the ambit of Section 812.021, Florida Statutes.

This court realizes that in cases of this nature the civil side of the court may afford more appropriate relief to the victim. And, while this set of facts could give rise to civil liability through which the lady’s money could be recovered, we feel that a criminal sanction is equally appropriate in the instant case.

We find no merit with appellant’s other assignments of error.

Affirmed.

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

      . In Anglin v. Mayo, 88 So.2d 918 (Fla.1956), the court held that § 811.021, Fla.Stat. (the predecessor of 812.021) superceded § 817.01, Fla.Stat. which defined the crime of obtaining property by false pretenses. Sec. 817.01, Fla. Stat., repealed in 1957, provided in part as follows:
      Whoever designedly by a false pretense, or by a privy or false token, and with intent to defraud, obtains from another person any property, or obtains with such intent the signature of any person to a written instrument, the false making whereof would be punishable as forgery, shall be punished by imprisonment in the state prison not exceeding ten years, or by fine not exceeding five hundred dollars.

      . Cf. Rosengarten v. State, 171 So.2d 591 (Fla. 2d DCA 1965) where this court upheld a conviction for grand larceny. In dicta, the court stated that “[a] man is defrauded if, by intentionally false representations of fact he has been induced to . pay money or to deliver property upon receipt of something quite different from what he understood he was getting . . .” 171 So.2d at 595.

      . In Youngker v. State, 215 So.2d 318, 323 (Fla. 4th DCA 1968), the Fourth District Court of Appeal stated.
      A promise to do something in the future, even though it be a false promise, is not a representation of a past or existing fact and will not support a conviction for false pretenses. See Scarlett v. State, 25 Fla. 717, 6 So. 767 (1889); Abernathy v. State, 333 So.2d 42 (Fla. 4th DCA 1976); Colangelo v. State, 320 So.2d 826 (Fla. 4th DCA 1975); Waterman v. State, 317 So.2d 469 (Fla. 4th DCA 1975).


author: HOBSON, Acting Chief Judge.

text:
    Bruce W. PITZER, Appellant, v. Morton Z. LEVINE and Arnold B. Simon, d/b/a the 400 Building, Appellees.
    No. 76-704.
    District Court of Appeal of Florida, Second District.
    April 6, 1977.
    Bruce W. Pitzer and Steven L. Sommer-field, Venice, for appellant.
    Donald F. O’Connell, Wilson, Wilson & O’Connell, Venice, for appellees.
   HOBSON, Acting Chief Judge.

Appellant brought suit against appellees for fraudulent misrepresentation upon which he relied in entering into a lease for office space. The pertinent facts are that the appellee Morton Levine by his deposition admitted that he represented to appellant that he was getting 935 square feet of gross area. Appellant in his deposition testified that appellee Morton Levine represented to him that the suite he was negotiating to lease was 1,000 square feet and that Levine did not use the term gross square feet but that he was left with the impression that the suite had 1,000 square feet in it. He further testified that Levine stated the price as $5.75 per square foot.

The actual lease which was executed stated that the space leased was No. 180-183, inclusive, to be used and occupied by the lessee as office space. The lease further provided for an agreed total rental for a period of three years with escalating monthly rental payments. There was no mention in the lease as to square footage or rental per square foot.

Appellant in his deposition testified that some time subsequent to the execution of the lease he attempted to sublet two of the office spaces and that when he told Levine what he was asking for the sublease Levine told him that that was too high and they would not rent. He further testified that at that time he became suspicious because he thought what he was asking for the sublease was a fair price based upon what he was paying for total office space. He stated that at that time he measured the actual office space and that it only came to 635 square feet.

There was attached to the lease a preliminary layout which was prepared by Levine which showed the layout of the interior of the office space as the appellant had requested the partitions to be placed to establish the separate offices he desired. This preliminary layout included the dimensions of the different offices. The dimensions of the outside consisting of one-half of the hallways and a lobby outside of the entrance to the office space were not shown on the preliminary layout.

Appellant testified that the preliminary layout was for the purpose of showing him how the interior was to be divided into offices and that he did not compute the measurements of the separate offices to determine the exact square footage of the inside office space.

The trial court entered a final summary judgment for the appellees after finding that the preliminary layout attached to the lease as a matter of law put appellant on notice to inquire further into the true amount of office space he was renting.

Under the facts as alleged above there was a genuine issue of a material fact and it was a question for the trier of facts to determine whether or not the appellant was put on sufficient notice to require him to investigate and determine the true square footage of office space that he was renting. Under these circumstances it was error to enter a summary final judgment for the appellees.

REVERSED and REMANDED.

GRIMES, J., concurs.

McNULTY, J., dissents.


text:
    LEE COUNTY ELECTRIC CO-OPERATIVE, INC., Appellant, v. Oliver LOWE, Property Appraiser of Charlotte County, Florida, et al., Appellees.
    No. 76-1447.
    District Court of Appeal of Florida, Second District.
    April 6, 1977.

      J. Tom Smoot, Jr., Smoot & Whigham, Fort Myers, for appellant.
    John M. Hathaway, H. William Thompson, County Atty., Punta Gorda, Robert G. Jacobson, Port Charlotte, for appellees.
   OTT, Judge.

This appeal involves an attack upon the assessment of the appellant/property owner’s tangible personal property in Charlotte County by the appellee/property appraiser for the year 1975. The matter came on for trial in due course. At the conclusion of the appellant’s case the trial court entered an order of dismissal upon the appellee’s motion. We reverse for the reasons hereinafter stated.

A general revision of appraisal procedures and property assessments was accomplished in the years 1972 and 1973 pursuant to a county wide reassessment in Charlotte County. This county wide reassessment was performed by the appraisal firm of Hunnicutt & Associates. Pursuant to the values and procedures established by Hun-nicutt the property owner (a utility) filed a 1974 and 1975 estimate as required by Section 193.052(4), Florida Statutes in the amounts of $23,402 and $23,370 respectively. The tax assessment was mailed out by the property appraiser pursuant to this 1975 estimate of value filed by the property owner. But shortly thereafter an amended value notice was mailed to the property owner which changed the assessed value of the tangible personal property of the taxpayer to $367,030. This lawsuit resulted.

The property owner called the property appraiser as an adverse witness. The property appraiser testified that following receipt of the property owner’s 1975 estimate of value of tangible personal property, he received a communication from the State Department of Revenue enclosing a copy of page 2 of REA Form 7 which had been filed by the property owner with the Department of Agriculture. Form 7 contained a listing of the total assets and property of the utility. The property was located in four Florida counties, including Charlotte County, but the report did not purport to show any allocation by county or by type of property (such as real, vehicular or personal). The Department of Revenue enclosed a “breakdown sheet” containing certain figures or calculations the Department of Revenue had presumably extracted from page 2 of REA Form 7. These calculations attempted to break out tangible personal property from the total holdings and suggested that the total tangible personal property of the property owner in all four counties might be' as high as $29,060,972. The property appraiser testified that he did not know how the Department of Revenue had arrived at this value nor could he explain how such figures were derived from page 2 of the REA Form 7. In addition, the “breakdown sheet” listed the value of property as returned by the property owner to each county property appraiser in the four counties (including Charlotte). According to the four county returns the total value of tangible personal property in the four counties was $1,850,395. The property appraiser testified that according to these figures the percentage in Charlotte County amounted to 1.26297 percent. He then multiplied this percentage by the “total personal property” figure of $29,060,972 to arrive at the $367,030 figure. This result was then adopted as the assessed value of the property owner’s tangible personal property in Charlotte County.

Section 193.052(6), Florida Statutes, provides that the Department of Revenue has the duty to “promulgate the necessary regulations to insure that all . . . utility property is properly returned in the appropriate county.” In addition, the Department of Revenue should assist the county property appraisers in developing standards of assessment that are consistent with the mandate of the Florida Statutes. There is a clear mandate in Section 193.052(6), Florida Statutes, however, that “the evaluating or assessing of utility property in each county shall be the duty of the property appraiser.” Chapters 192 and 193 of the Florida Statutes spell out in detail the duties and procedures of the property appraiser and mandate an assessment by the property appraiser of the particular property pursuant to uniform standards for all similarly situated property consistent with the express criteria set forth in Section 193.011, Florida Statutes. See in particular Sections 192.011, 192.032, 192.042 and 193.-011, Florida Statutes.

Once the return of the property owner was brought into question the property appraiser should have complied with his statutory duty to make the appropriate assessment consistent with the criteria mandated by the Florida Statutes. See Stiles v. Brown, 182 So.2d 612 (Fla.1966); Metropolitan Dade County v. Tropical Park, Inc., 231 So.2d 243 (Fla.3d DCA 1970); Keith Investments, Inc. v. James, 220 So.2d 695 (Fla.4th DCA 1969); St. Joe Paper Company v. Brown, 210 So.2d 725 (Fla.1st DCA 1968).

Ironically, the property appraiser’s uncontradicted testimony established the invalidity of the assessment in this case. The State Department of Revenue accumulated all available data, summarized it, and pointed out what seemed to be apparent inconsistencies. This was supplied to the property appraiser. The property appraiser was entirely justified, on the basis of the information supplied, to question the accuracy or validity of the return of the property owner. However, he could not thereupon adopt the information supplied by the Department of Revenue as establishing either the quantity and type of tangible personal property in his county or its assessed value. He must proceed with an assessment of the property consistent with the mandated criteria of Section 193.011, Florida Statutes and consistent with accepted general standards applicable to all similar property or property owners within his county. The discretion vested in the property appraiser is not unbridled. The legislature has progressively more firmly pinned down the definition of “just value” and the discretion of the property appraiser must be exercised within the legislative parameters. See Walter v. Schuler, 176 So.2d 81 (Fla.1965); Cassady v. McKinney, 296 So.2d 94, 96 (Fla.2d DCA 1974); Container Corporation of America v. Long, 274 So.2d 571, 574 (Fla.1st DCA 1973).

The property owner has carried the burden of establishing the prima facie invalidity of the assessment of his property. The motion to dismiss the property owner’s suit should not have been granted. See GAC Properties, Inc. v. Colding, 308 So.2d 646 (Fla.2d DCA 1975).

With respect to the other assignments of error, suffice it to comment that the statutory requirement for assessment at “just value” as of January 1 for the tax year does not require physical appraisal to be made on that date. See, e. g., Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1 (Fla.1972). Neither must an expert — if otherwise qualified — be licensed in his speciality in the State of Florida in order to qualify for expert testimony. See, e. g., Florida Power Corporation v. Wenzel, 113 So.2d 747 (Fla.2d DCA 1959). However, broad discretion does lie with the trial court in the areas of acceptable evidence and experts. Since the matter must be returned to the lower court for further proceedings no useful purpose would be served in dealing with these evidentiary points and any attempt to do so would be premature.

The matter is remanded to the lower court with directions to set aside the order of dismissal and for such further proceedings thereafter as may be indicated.

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

      . 1.26297 percent is the quotient of the value returned figure for Charlotte County ($23,370) divided by the value returned figure for all four counties ($1,850,395).


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Greg P. WILLIAMS, Appellee.
    No. 76-1677.
    District Court of Appeal of Florida, Second District.
    April 6, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    Martin E. Rice of Harris, Clark, Green, Piper & Davenport, St. Petersburg, for ap-pellee.
   GRIMES, Judge.

This is an appeal from an order of discharge for failure to provide a speedy trial.

On May 14, 1975, the appellee was arrested for possession and sale of cocaine. Trial was set for September 26, 1975. On September 12, 1975, appellee filed a motion to exclude witnesses. On September 26, 1975, an order was entered excluding two of the state’s witnesses from testifying at the trial. The state immediately filed a notice of appeal from this order. At the same time the state also moved for an order staying the speedy trial time pending the appeal and the motion was granted on September 26, 1975.

This court treated the appeal as a petition for certiorari and denied the petition. This court’s mandate was filed below on July 14, 1976. A new trial date was set for September 30, 1976. Appellee then filed a motion for discharge pursuant to the speedy trial rule which was granted on September 30, 1976.

The problem here is that when the appeal was taken and the stay order entered, 135 days of the 180 days available under the speedy trial rule had already elapsed. Therefore, the court reasoned that the state only had 45 days left after the appeal was adjudicated to bring the appellee to trial. Since the trial did not take place within this 45 day period, the appellee was ordered discharged.

The state contends that it was entitled to 90 days after the appeal was decided within which to bring the appellee to trial. The state relies primarily upon State v. Vinson, 294 So.2d 418 (Fla.2d DCA 1974), in which this court observed, by way of dictum, that the automatic 90 day extension under Fla.R.Crim.P. 3.191(g) would apply to the reversal of an order dismissing an information. We do not find the Vinson rationale persuasive where, as here, the state’s appeal which brought about the trial delay was unsuccessful.

The speedy trial rule specifically contemplates the effect of an interlocutory appeal upon the speedy trial time. Thus, Fla.R.Crim.P. 3.191(d)(2) states:

“(d)(2). When Time May Be Extended. The periods of time established by this Rule for trial may at any time be waived or extended by order of the court . . (iv) a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pre-trial motions, for interlocutory appeals, and for trial of other pending criminal charges against the accused. . .” (Emphasis supplied.)

Certiorari proceedings raising questions bearing directly on the trial itself may properly be considered as interlocutory appeals for purposes of this provision. Esperti v. State, 276 So.2d 58 (Fla.2d DCA 1973). Moreover, the state availed itself of this provision when it moved for a stay upon the filing of the notice of appeal. Unfortunately for the state, its motion requested the court only

“ . . .to stay the Speedy Trial Rule, as set forth in Florida Rules of Criminal Procedure 3.191, for the period of time necessary to complete appellate procedures instituted in the above-styled cause.”

The order simply recited that the motion for staying speedy trial rule was granted. By the very terms of the motion and order, the time was only stayed pending the completion of the appellate proceedings. The order served to advise all concerned of the new time limits which were in effect. See Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974).

Upon the conclusion of the appellate proceedings, the speedy trial time recommenced running. When the state failed to bring the case to trial within the 45 days which were left, the appellee was entitled to discharge.

Questions as to whether or to what extent the speedy trial time should be tolled for appeal or certiorari are continuing to occur. There seems to be little uniformity on the subject, and Fla.R.Crim.P. 3.191 as now written does not provide ready answers to these questions. Accordingly, we have determined to certify this decision to the supreme court as representative of those cases in which the state has unsuccessfully sought appellate review. At the same time, we are also certifying our decision in Tucker v. State, supra, as representing a case in which the state was successful in having the ruling of the lower court overturned. By this procedure we hope to provide a vehicle for the supreme court to clarify the procedures to be followed in this area of law.

AFFIRMED.

BOARDMAN, C. J., and OTT, J., concur.

      . Fla.R.Crim.P. 3.191(g) reads as follows:
      “(g) Effect of Mistrial, Order of New Trial. A person who is to be tried again shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.”

      . In an opinion just released our court has now squarely reached this conclusion. Tucker v. State, 344 So.2d 284 (Fla.2d DCA 1977) (Opinion filed April 1, 1977).

      . In a sense, Vinson contributed to his own delay by seeking and obtaining an order which necessitated an appeal to set it aside.

      . As suggested by Esperti, there may be occasions in which the state finds its case seriously jeopardized by what it believes to be an erroneous interlocutory ruling from which there is no right of appeal. Then, the state’s only recourse is to file a petition for certiorari because if the case goes to trial jeopardy will attach and the state will have lost its right to have the order reviewed except by cross-appeal. Under these circumstances, there ought to be a way to toll the speedy trial time until after there has been a disposition of the certiorari proceedings.

      . We do not suggest that the tolling of the speedy trial time must always be limited to precisely the amount of time involved in the appellate proceedings. For example, had the trial originally been set on the 178th day and the state had chosen to appeal an unfavorable order entered on that date, the court would have been within its authority to extend the speedy trial time for a reasonable period after the termination of appellate proceedings because it is obvious that once the appeal was over a new trial could not be set to commence two days hence. By the same token, if there were only two days left when the appeal was over, we would expect the court to look favorably upon a motion for extension, providing this were done prior to the expiration of the total of 180 days. See State v. Williams, 287 So.2d 415 (Fla.2d DCA 1973).


author: BOYER, Chief Judge. JOPLING, WALLACE, Associate Judge.

text:
    Judy O’STEEN, Individually, et al., Appellants, v. Alfred G. KEMMERER, Trustee, Appellee.
    No. BB-444.
    District Court of Appeal of Florida, First District.
    April 7, 1977.

      Peter L. Niles, Daytona Beach, for appellants.
    Frank Marriott, Jr., of Gosney, Cameron & Parsons, Daytona Beach, for appellee.
   BOYER, Chief Judge.

Appellants who were plaintiffs in the trial court appeal an order finally dismissing their third amended complaint with prejudice. After twice amending, plaintiffs announced that they did not feel that further amendments would be beneficial and at their request the order of dismissal was made final.

Stripped to its essentials, the dismissed complaint alleges that one Winner, an agent or employee of defendant-appellee Kemmerer, kept wild monkeys on property owned by the defendant and that the defendant knew or should have known that said monkeys were not “properly contained or restrained, thus presenting a dangerous condition and risk to persons in the vicinity of said property” and that the defendant “negligently failed to warn or otherwise protect plaintiffs from [the] dangerous condition or risk of which he had knowledge, and of which plaintiffs neither knew or should have known by the use of reasonable care” and that said monkeys escaped from defendants property and went onto property owned by plaintiffs where they viciously attacked and bit plaintiff Judy O’Steen. There is no allegation that defendant had any interest in the monkeys nor that the monkeys were used by Winner incident to his employee or agency relationship nor that the monkeys had any relationship to defendant’s business or any other activity in which the defendant had any interest.

The issue therefore posed is: May liability be imposed upon an owner of real property for damages sustained on the property of another as a result of wild animals negligently maintained on the former’s property by an occupant who is either an agent or employee of the property owner in the absence of some interest or relationship between the property owner and the wild animals or other dangerous instrumentality?

The trial judge answered negatively. We affirm.

Appellants rely heavily upon a decision of our sister court of the Fourth District, Christie v. Anchorage Yacht Haven, Inc., 287 So.2d 359 (Fla. DCA 4th 1973). Whether we agree or disagree with that decision we need not now decide because in any event appellants now seek to extend that case one step further. In the Christie case the court held that the owner of real property may be held accountable for damages sustained on the property as a result of a vicious dog kept on the property by another with the knowledge of the property owner. Sub judice the damages allegedly sustained by the plaintiffs were not incurred on the defendant’s property but on their own property. The distinction is not without a difference. Whether or not, in a proper case, we would follow Christie, we are not now prepared to go the extra step.

AFFIRMED.

MILLS, J., concurs.

JOPLING, WALLACE, Associate Judge, dissents.

JOPLING, WALLACE, Associate Judge.

I dissent. The liability of the landowner as expressed in Christie v. Anchorage Yacht Haven, Inc., 287 So.2d 359 (Fla. DCA 4th 1973) should not necessarily be restricted to the boundaries of the landlord’s property. I would reverse for trial on the merits.


text:
    Edward O’Neal BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. DD-9.
    District Court of Appeal of Florida, First District.
    April 7, 1977.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
   MASON, ERNEST E. (Retired), Associate Judge.

In an amended information appellant was charged with the offense of the unlawful possession of a controlled substance, viz, phencyclidine, contrary to the provisions of Sections 893.03(3)(a) and 893.-13(l)(e), Florida Statutes. He filed a motion to suppress the evidence which was taken from his person when he was taken into custody and placed under arrest after a search of his person by an off-duty deputy sheriff of the Jacksonville Sheriff’s Office. At the time the officer was working at the Jacksonville Coliseum where a “rock” concert was in progress. He was employed there at the time to keep the peace. The trial court denied the motion to suppress, whereupon appellant entered a plea of nolo contendere, expressly reserving the right to appeal from the denial of his motion to suppress. Thereafter he was adjudged guilty as charged and sentenced to a split sentence of imprisonment and probation. It is from this judgment and sentence that appellant has filed this appeal. His sole assignment of error is the trial court’s denial of his motion to suppress.

We reverse, and in so doing find that the search of appellant’s person was an unreasonable search. At the time there was no warrant for either appellant’s arrest or a search of his person. He did not consent to the search nor was there probable cause to justify such search. The search was not an incident to a lawful arrest. The officer testified that at the time appellant was not disorderly nor disturbing the peace, and was not committing any crime, nor did he have reason to believe that he had committed any crime, or was about to commit any violation of state law or city or county ordinance. The officer’s stated reason for detaining appellant was that in his opinion he was intoxicated and “I figured I’d put him in Detox Center and let him sober up . ” After reaching this conclusion the officer then searched the appellant and testified that such search revealed a medicine bottle which upon being opened revealed fifteen tinfoil rolled up packets which appeared to him to be some kind of drugs. Thereupon the officer placed the appellant under arrest.

It is important to note that at the time there was no evidence of any criminal activity in the area, nor did the circumstances indicate that appellant’s actions posed any danger to the public safety. There is nothing in the officer’s testimony given at the time of the hearing upon the motion to suppress which would show that he had probable cause to believe that the appellant was armed with a dangerous weapon or that his safety was in danger. The entire circumstances do not reflect that a reasonably prudent person under such circumstances would have been warranted in a belief that his safety or that of others was in danger. The search was therefore not justified under the Florida Stop and Frisk Law (Section 901.151, F.S.) nor did it comply with case law construing the limitations of a permissible and constitutional stop and frisk. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Vollmer v. State, 337 So.2d 1024 (Fla.App. 2nd District) 1976.

The officer’s belief that the appellant was intoxicated did not authorize the officer either to arrest or search the appellant’s person, for the criminal offense of “public drunkenness” was abolished by the Legislature in 1971. (Ch. 71-132 Laws of Florida). Nor was the search or arrest of appellant reasonable under the circumstances above outlined on the premise of treatment as provided by the provisions of Section 396.072(7) F.S. There is no evidence that the appellant was incapacitated or in need of emergency medical treatment the one or the other of which such circumstances must exist before the officer is authorized to take an intoxicated person to a treatment center under the provisions of said section of the statutes of Florida.

We therefore reverse and remand to the trial court with direction to vacate the judgment and sentence and to discharge appellant.

IT IS SO ORDERED.

McCORD, Acting C. J., and DREW, E. HARRIS, Associate Judge, concur.


author: PER CURIAM.

text:
    Thomas PEREGO et al., Appellants, v. John Spencer ROBINSON and Robert L. Hannah, Appellees.
    No. BB-20.
    District Court of Appeal of Florida, First District.
    April 13, 1977.
    Joseph De Gance of Jansen & De Gance, Fort Lauderdale, for appellants.
    Richard R. Whitson of Robinson, Whitson & Lauderback, Daytona Beach, for appel-lees.
   PER CURIAM.

It is axiomatic that by summary judgment a trial court may not resolve issues of material fact and that summary judgment may not be used as a substitute for trial. The rules applicable to entry of summary judgment have been repeatedly recited in prior opinions of this court and nothing will be added to the jurisprudence of the State of Florida by repetition. (See Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975), cert. dism. 336 So.2d 105 (Fla.1976); Forrest v. Carter, 308 So.2d 141 (Fla. 1st DCA 1975) and Burlingham v. Allen, 317 So.2d 781 (Fla. 1st DCA 1975).

REVERSED.

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

RAWLS, J., dissents.


author: SMITH, Judge.

text:
    STATE of Florida, Appellant, v. D. R. S., a juvenile, Appellee.
    No. DD-320.
    District Court of Appeal of Florida, First District.
    April 13, 1977.
    Mary M. Callaway, Asst. State’s Atty., Pensacola, for appellant.
    Miriam M. Ptomey, Asst. Public Defender, Pensacola, for appellee.
   SMITH, Judge.

The State appeals from an interlocutory order of the Escambia County circuit court, juvenile division, rescinding its prior order which waived juvenile jurisdiction and certified D.R.S. for trial as an adult in the criminal division on charges of robbery and conspiracy to commit robbery. The State urges that the criminal and juvenile divisions of circuit court are distinct jurisdictions, State v. Robinson, 336 So.2d 437 (Fla. 2d DCA 1976), and that neither the criminal division judge who ordered the case remanded to juvenile division for reconsideration of the waiver order nor the juvenile division judge who there reconsidered that order had jurisdiction to do so. Three months passed between the waiver and remand orders.

Without foreclosing the existence of other circumstances in which a circuit court may before a juvenile’s felony trial properly reconsider a waiver order ending juvenile division jurisdiction, we find ample reason for that action in this case, in which the waiver order did not state reasons why the best interest of the public required juvenile jurisdiction to be waived. Such a statement is required by Fla.R.Juv.P. 8.100(c). The waiver order’s sole recitation on that subject was that “the defendant through his attorney stipulates probable cause.” The circuit court was correct in considering that recitation inadequate and in causing reconsideration of the waiver order on substantial evidence that reasonable prospects do exist to rehabilitate this juvenile. See Rice v. State, 311 So.2d 193 (Fla. 2d DCA 1975). Contrast J.M.D. v. State, 328 So.2d 521 (Fla. 3d DCA 1976); O.A.H. v. State, 332 So.2d 641 (Fla. 3d DCA 1976). Possible prejudice to the State arising from the speedy trial rule, Fla.R.Crim.P. 3.191, was alleviated by the juvenile’s waiver of that Rule’s benefits and by orders tolling the Rule.

No error having been demonstrated, the interlocutory appeal is DISMISSED. Fla. App.R. 4.2 c.

RAWLS, Acting C. J., and ERVIN, J., concur.


text:
    J. Ed STRAUGHN and State of Florida, Department of Revenue, Appellants, v. G. J. M., INC., Appellee.
    No. EE-173.
    District Court of Appeal of Florida, First District.
    April 13, 1977.
    Robert L. Shevin, Atty. Gen., and Caroline C. Mueller, Asst. Atty. Gen., for appellants.
    Bill R. Hutto, of Syfrett, Hutto & Paulk, Panama City, for appellee.
   McCORD, Judge.

This is an interlocutory appeal from an order of the trial court which denied appellant’s motion to dismiss for improper venue or, in the alternative, to transfer venue. Appellee initiated the suit below by filing a complaint contesting a documentary stamp tax assessment imposed by appellants upon an assignment of lease. Subject to certain exceptions, a state agency may be sued only in the county in which its official headquarters is located, which in this instance is Leon County, the seat of state government. In Department of Revenue v. First Federal Savings and Loan Association of Ft. Myers, 256 So.2d 524 (Fla. 2 DCA 1971), our sister court of the Second District held that where the only action taken by the Department of Revenue with regard to collection of taxes was the sending of a “formal notice assessment and demand” for delinquent taxes specifying the amount and date due, that such was a mere naked demand and not affirmative action to enforce that demand. In the absence of affirmative action to enforce the demand, the Second District Court held that venue would not lie in Lee County but would lie only in the county where the state agency maintains its official headquarters. In the ease sub judice appellants’ only actions in relation to the tax have been a request for information and the issuance of a “proposed notice of assessment of tax and penalty under Chapter 201, Florida Statutes.” Such does not at this point constitute an attempt by appellant to seize and sell property to enforce collection of the disputed tax. Therefore, venue does not lie in Bay County but only in Leon County.

Reversed and remanded with directions that the case be transferred to the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida.

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


text:
    AMALGAMATED TRANSIT UNION, LOCAL 1267, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION et al., Respondents.
    No. CC-426.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1976.
    Richard H. Frank of Frank & Meyer, P.A., Tampa, for petitioner.
    Curtis L. Mack, Tallahassee, Joseph P. Manners, Miami, Frank E. Hamilton, III, Fort Lauderdale, Allan M. Elster, North Miami Beach, and Joseph A. Caldwell, Miami, for respondents.
   ON PETITIONER’S MOTION FOR RECONSIDERATION OF ORDER DENYING STAY OF ELECTION

SMITH, Judge.

Amalgamated Transit Union, Local 1267, initiated this proceeding for certiorari review of a Public Employees Relations Commission (PERC) order dismissing Amalgamated’s petition for certification as bargaining representative for a limited class of Broward County transit employees pursuant to voluntary recognition accorded Amalgamated by the Board of County Commissioners of Broward County. Upon consideration of Amalgamated’s petition, docketed by PERC as 8H-RA-752-0178, and separately docketed petitions by respondents Federation of Public Employees, Inc., International Union of Operating Engineers, Local 675 and Teamsters Local 769, who also sought designation of variously defined bargaining units of Broward’s transit employees, PERC dismissed Amalgamated’s petition on the ground the proposed bargaining unit was inappropriately narrow, found that the bargaining units proposed by the other unions were similarly inappropriate, and itself defined as an appropriate. unit a broader class of blue-collar transit workers. PERC granted Amalgamated and each of the other unions leave to present “interest statements” indicating that its representation was desired by 30 percent of the employees in the proposed unit. Sec. 447.307(2), F.S.1975. Amalgamated represents to us that respondent Federation has achieved the requisite showing of employee interest and that PERC has ordered an election to determine whether Federation shall become the designated agent for the bargaining unit constituted by PERC.

Amalgamated, conceiving that PERC’s dismissal of its petition for certification was final agency action authorizing judicial review under § 120.68(1), F.S.1975, petitions for review of that order. Amalgamated asserts that PERC, in broadly defining the bargaining unit, misapplied the criteria for bargaining units set forth in § 447.307(4), F.S.1975, deprived the narrower class of transit employees of their asserted right to representation by Amalgamated, and unconstitutionally vitiated existing contractual obligations by Broward County to Amalgamated.

Amalgamated filed with its petition for review a motion that we stay the imminent election ordered on respondent Federation’s petition for certification, docketed by PERC as proceeding 8H-RC-752-0104. In an unpublished order we denied Amalgamated’s motion on the authority of City of Panama City v. Florida Pub. Empl. Rel. Comm'n, 333 So.2d 470 (Fla.App. 1st, 1976), but Amalgamated urges by petition for rehearing that we have overlooked substantial differences between the Panama City case and this one.

Our Panama City decision, that a PERC order defining a bargaining unit and calling an election is interlocutory, not final agency action, had direct reference only to the interests of the public employer. We there held that final agency action in such disputes occurs after an election, when PERC certifies the bargaining agent, and that the employer then and only then acquires a right of judicial review. Secs. 447.307,120.68(1), F.S.1975. Amalgamated urges that PERC’s order in this case, by contrast, finally dismissed Amalgamated’s petition for certification and that Amalgamated is not a party to the impending election in the same sense that Broward County, its affected employees and Federation are parties. Amalgamated posits that, not being a party, it will be unable to appeal from a PERC order certifying Federation following a successful election and that any error in PERC’s prior dismissal of Amalgamated’s petition will be irremediable. Thus, Amalgamated urges we stay the election pending our determination of Amalgamated’s petition, on the ground that the election and certification of Federation as exclusive collective bargaining representative of employees in the designated unit will trigger bargaining and a resulting relationship between Broward County, its transit employees and Federation which cannot effectively be undone should we determine that Amalgamated’s petition for certification as bargaining representative for some of those employees was improperly dismissed.

While we appreciate the distinction between the circumstances in Panama City and in this case, we conceive that the same result must obtain. The Florida Public Employees Relations Act contemplates that the necessary steps to certification of a bargaining representative, whether by voluntary recognition or by election, shall be accomplished in an orderly and efficient way. Strong policies militate against judicial interruption of the administrative process as it moves toward certification of a bargaining representative for the designated unit. Aside from considerations of administrative and judicial efficiency, we must take care that judicial intervention not become a detrimental factor in the certification process, as by delaying the election until the constituency of the proposed unit or its concept of self-interest has changed. Furthermore, there is ordinarily no need for judicial review of certain determinations preliminary to certification — e. g., the appropriateness of a proposed unit— until the employees themselves have had an opportunity to defeat certification because they oppose the proffered representatives or oppose the proffered unit, or both.

PERC having entertained and passed on the merits of their petitions concerning the organization of the Broward transit workers, we consider that Amalgamated as well as Operating Engineers Local 675 and Teamsters Local 769 remain parties to the proceeding in which an election on Federation’s petition has been ordered, regardless that PERC docketed the various petitions separately. When PERC addressed itself to the appropriateness of the units proposed by the several independent petitions, PERC acknowledged the petitioners’ credentials and their interest in organizing the Bro-ward transit workers and made it unnecessary for any of the petitioners to formally intervene in other separately docketed proceedings in order to acquire a party’s interest in the outcome. The dismissal of Amalgamated’s petition for certification by voluntary recognition was therefore an interlocutory step in the proceedings by which Federation still presses for PERC certification. Viewed in that light, any error in PERC’s dismissal of Amalgamated’s petition for certification may be remedied on Amalgamated’s petition for review following certification of Federation, if that occurs. As we stated in Panama City, 333 So.2d at 471, we have authority to stay collective bargaining by Federation following its certification, should PERC at that juncture refuse such relief to Amalgamated or other affected parties. Art. V, § 4(b)(3), Fla.Const.

We consider this disposition of the case entirely consistent with our recent ruling in Laborers Int’l Union, etc. v. Pub. Emp. Rel. Comm’n et al., 336 So.2d 450 (Fla.App. 1st, 1976). There we found “final agency action” in PERC’s order rescinding International’s intervenor status and ejecting International from continuing proceedings to certify a bargaining representative for a unit of Health and Rehabilitative Services workers. International was so dismissed from the proceedings because of registration irregularities. Sec. 447.305, F.S.1975. Here, by contrast, Amalgamated’s petition for certification by voluntary recognition was dismissed simultaneously with PERC’s decision to redefine the unit in related proceedings. The dismissal was a natural and necessary consequence of that decision. City of Titusville v. Florida Pub. Emp. Rel. Comm’n, 330 So.2d 733, 736 (Fla.App. 1st, 1976). But the issue of unit determination was not finally resolved by PERC’s action and will not be resolved except by election and certification. Amalgamated was not excluded from the continuing process by PERC’s order, but was invited to show interest for its representation among the class of employees which PERC regarded as an appropriate unit. In short, PERC’s action was final as to International, but interlocutory as to Amalgamated.

The case would of course be different if, at the time PERC dismissed Amalgamated’s petition for certification by voluntary recognition, there were no continuing proceedings looking to the organization of the same or overlapping classes of Broward County transit workers. In that event, PERC’s order of dismissal would have been final agency action on the pending matters, hence reviewable as in City of Titusville, supra, and School Board of Marlon Co. v. Pub. Emp. Rel. Comm’n, 330 So.2d 770 (Fla.App. 1st, 1976).

The prayer of Amalgamated’s petition for reconsideration of our order denying a stay of the election is therefore DENIED. The parties are requested to show cause, within 15 days, why Amalgamated’s petition for certiorari review of PERC’s order dismissing its petition for certification should not itself be dismissed as premature, in accordance with the views expressed in this opinion.

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

      . Included in the proposed unit were “all operators, mechanics, utility employees, service employees and cleaners” employed in Broward County’s division of mass transit. Excluded were managerial, confidential and professional employees, supervisors, office employees and guards.

      . Implicit in this is that Amalgamated, Operating Engineers Local 675 and Teamsters Local 769 are entitled to notice and opportunity to be heard in subsequent PERC proceedings upon Federation’s petition. Furthermore, as we have previously held in unpublished orders on petitions for review of PERC decisions, all such parties in PERC proceedings are automatically to be named and treated as parties respondent to any petition for review filed in this court. See unpublished order entered in City of Panama City v. Fla. Publ. Empl. Rel. Comm’n, No. BB-186, April 9, 1976: “[T]he request of Northwest Florida Police Benevolent Association, Inc. that it be joined in this review as a respondent is granted, because it actively participated in the administrative proceeding giving rise to this review [and] therefore is a necessary if not an indispensable party to this action.” Cf. Rule 3.11a, F.A.R.