author: ROBERTS, Justice. ENGLAND, Justice

text:
    DEPARTMENT OF LEGAL AFFAIRS, State of Florida, Appellant, v. Lee ROGERS, d/b/a American Holiday Association, Appellee.
    No. 47502.
    Supreme Court of Florida.
    Feb. 25, 1976.

      Robert L. Shevin, Atty. Gen., and Rodney L. Tennyson, Special Asst. Atty. Gen., for appellant.
    Edward S. Jaffry, Tallahassee, for ap-pellee.
    Robert A. Chastain, Gen. Counsel; and Robert J. Bishop, Tallahassee, Special Counsel, for Doyle Connor, Commissioner of Agriculture, Tallahassee, amicus curiae.
    Robert R. Feagin, III, and Anthony J., McNicholas, III, of Holland & Knight, Tallahassee, for amicus curiae. ,
    Richard E. Gerstein, State’s Atty, and Alan E. Krueger, Asst. State’s Atty., for the Consumer Frauds Division of the State Attorney’s Office of the Eleventh Judicial Circuit of Florida, amicus curiae.
    S. Edward Combs and Stephen E. Nagin, Atlanta, Ga., for The Federal Trade Commission, Atlanta Regional Office, amicus curiae.
   ROBERTS, Justice.

This cause is before us on direct appeal to review the final judgment of the Circuit Court in and for Leon County, Florida, which directly passes upon the constitutionality of Sections 501.204 and 501.205, Florida Statutes, and finds the same to be unconstitutionally vague and indefinite and an unlawful delegation of legislative authority. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida.

Pursuant to the provisions of Part II of Chapter 501, Florida Statutes, the Department of Legal Affairs filed an amended complaint against appellee, Lee Rogers, doing business as American Holiday Association and charged violation of said statute in that appellee failed to comply with the requirements of Section 501.204, Florida Statutes, because he is wagering with the contestants on the outcome of the contest in violation of the public policy of Florida and since this conduct fails to meet the trade practice standard imposed by the decisions of the Federal Trade Commission and Federal Courts pursuant to the legislative intent of Section 501.204 (2), Florida Statutes. Count II of the complaint charged that the contest conducted by appellee is a game of chance because (1) to choose eight words from among all those appearing on pp. 1-592 of the dictionary that start with the appropriate letters, that are of the required length and that will maximize the contestants score is so difficult that the average person competes by guesswork; and (2) the average person could not through any exercise of skill complete the puzzle in a reasonable amount of time with any certainty of having his score higher than any other contestant’s score. Count II charged that appellee failed to comply with Section 501.204, Florida Statutes, because the weekly contests conducted by appellee are lotteries.

The alleged unlawful gambling puzzle game is described in the complaint as follows :

Respondent invites consumers to participate in a puzzle contest like the “Happy Wanderer Puzzle Contest” by completing an elementary word-building puzzle appearing in a newspaper with national circulation. For this first contest, participants need pay no required entry fee. To be eligible for cash prizes of amounts up to $1,000.00, a contestant has only to send his solution to Respondent. Respondent anticipates that 97% of all entrants will correctly solve this first word-building puzzle and that it will require 3 additional tiebreaker puzzles to determine the winner.

A contestant who successfully completes the first puzzle, then receives notification from Respondent of his success. At the same time he receives his first tiebreaker puzzle, he is given an “official entry” blank that permits him to compete for an “extra” first prize simply by paying a stated amount of money. Finally, the contestant receives information about another contest that he can enter while still participating in the first one. In this “quickie” contest, he can pick the prize group for which he wishes to compete.

A contestant who chooses to participate in the second contest must then: solve another elementary word-building puzzle; select the cash group of prizes for which he wants to compete; pay a registration fee determined by the cash group he. selected. For cash group I, with grand prize of $500, he must send $1; for cash group II, with grand prize of $1,000, he must send $2; for cash group III, with grand prize of $1,500, he must send $3.

When the contestant has returned a correct solution to the first puzzle of the “quickie contest,” he then receives a letter telling him that he is definitely tied for first place and containing the first tiebreaker puzzle. At the same time, Respondent offers the contestant the opportunity to compete for “extra” first prizes, including a $10,000 grand prize. To be eligible for this extra prize money the only additional requirement a contestant must satisfy is payment of the extra fee indicated on the official entry blank.

To continue competing in the “quickie” contest, the contestant must complete the first tiebreaker puzzle. The contestant must choose one of three “Key Words” supplied by Respondent and must write the selected word in the vertical column on the left side of the official entry blank. He must then complete the puzzle by choosing eight words from the “Official Word List.” Each word he selects must start with a letter appearing in the vertical column and have as many letters in it as there are spaces in the horizontal row begun by the given letter. Next, the contestant must compute the “official value” of each word he chose by using the “official letter values” given by Respondent. The objective of each contestant is to maximize his score by skillful selection of a “Key Word” and then the eight words from the “Official Word List.”

If the contestant successfully completes the more difficult first tiebreaker, he receives tiebreaker puzzle # 2 which he must solve to continue competing in the “quickie contest.” This time the contestant must select one of five “Key Words” supplied by Respondent and must write the chosen word in the vertical column on the left side of the official entry blank. He must then complete the puzzle by choosing a word that starts with each letter appearing in the vertical column and that has as many letters in it as there are spaces in the horizontal row begun by that letter. Respondent supplies no word list this time. The contestant can choose any such words appearing “as entries in bold face type in the main vocabulary section of the New Merriam-Webster Pocket Dictionary, pp. 1-592.” The contestant must then compute the “official value” of each word he chose by using the “official letter values” given by Respondent. The objective of each contestant is to try to score the highest number of points of all contestants by “selecting words from the Dictionary that will give [him] the highest score.”

Regardless of the cash group they select or the extra prize for which they compete, all contestants solve the same puzzles.

The value of the prizes for which a contestant competes, however, is determined by the amount of the registration fee he pays.

Each contestant risks his entry fee in the hope that his solution will entitle him to win a prize.

Respondent risks the possibility of having to pay a more substantial prize if a winner has paid one of the larger registration fees. If no winner has chosen to compete for the more valuable cash prizes, Respondent will not be obliged to award them.

Respondent risks the possibility of having to award an “extra” first prize if a first prize winner has paid the requisite fee. If the winner has chosen not to compete for any “extra” first prize, Respondent will not be obliged to award any “extra” first prize.

Respondent’s puzzle games operate in such a manner as to appeal to the gambling instincts of the contestants by allowing additional consideration or wagering as contestants become more and more involved in the several levels of each game.

Pursuant to Section 501.2091, Florida Statutes, appellee petitioned for a stay of the administrative proceedings and requested a trial in the circuit court on the issues raised by the enforcing authority. The circuit court accepted jurisdiction and required appellee to file an answer to the charges.

Plaintiff-appellant moved for summary judgment praying that the court declare the word puzzle game to be a gambling device and enjoin its further solicitation and operation on Florida residents.

In motions to dismiss the complaint against him, appellee alleged that the complaint failed to state a cause of action for which relief could be granted in that Sections 501.204 and 501.205, Florida Statutes, constitute unlawful delegations of legislative power, prerogative and authority to an administrative agency in violation of Article III, Section 1, Constitution of Florida; that the circuit court was without jurisdiction of the subject matter since the activity complained of is confined to use of the United States Postal Service and subject to rules and regulations relative thereto to the exclusion of the state authority; and that by basing Count I of the complaint upon alleged violation of Section 501.204, Florida Statutes, is indirectly alleging that the questioned word puzzle contests are in violation of Section 849.14, Florida Statutes, and to say this is a denial of Rogers’ right to equal protection under the law.

The cause came on for hearing on appellant’s motion for summary judgment on Count I of the amended complaint and on appellee’s motions to dismiss. Determining that no genuine issue of material fact existed as to the issues made by Count I of the complaint and answer thereto or as to the constitutional challenge to Sections 501.204 and 501.205, Florida Statutes, and that judgment could he rendered as a matter of law, the trial judge entered final judgment in favor of appellee dismissing the amended complaint against appellee. The trial judge found that the word puzzle game or contest as described in the amended complaint is not a violation of Section 849.08, Florida Statutes, prohibiting games of chance for money or other things of value but rather is a scheme to compete for a purse, prize, or premium in a contest of skill; that the contest is not a scheme involving a stake, bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man or beast condemned by Section 849.14, Florida Statutes, but rather is the playing of a game in a contest of skill for a prize. As to the constitutionality vel non of Sections 501.204 and 501.205, Florida Statutes, the trial judge concluded that these sections constitute an unlawful delegation of legislative authority. In view of this holding the trial court found Rule 2-9.07, Florida Administrative Code, which states that it is an unfair or deceptive trade practice for a person to engage in any kind of game of skill, contest, sweepstakes, giveaway or other game promotion which requires any kind of entry fee, service charge, purchase .or similar consideration in order to enter, to be invalid and void. Explicitly because of his finding of invalidity of the statutes and rules upon which the amended complaint is based, the trial judge dismissed the complaint as to Counts I and II although it is noteworthy that no argument was made on the charge of operation of a lottery.

Detailing the background of the “little FTC act” in order to evidence legislative intent, appellant posits that Section 501.-204, Florida Statutes, which provides:

“Unlawful acts and practices.—
(1) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
(2) it is the intent of the legislature that in construing subsection (1) of this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to § 5(a)(1) of the Federal Trade Commission Act (15 U.S. C. 45(a)(1)), as from time to time amended.”

is not unconstitutionally vague or indefinite. The consumer affairs report made to the Governor in 1973 after much study of the consumer market problems in this state recited that although the majority of consumer laws in this state were criminal in nature, this provided little protection to the consumer because of the generally insurmountable barrier of proving criminal intent. Accordingly, the drafters of the report suggested the adoption of Chapter 501, Part II, with emphasis on civil enforcement by the Attorney General, state attorneys, and private citizens. In drafting legislation, appellant asserts that the legislative intent was to state a broad public policy and to delegate to the executive implementing power defined by specified standards. This was to avoid as much as possible the creation of loopholes by unscrupulous businesses whereby they could circumvent the laws. Appellant explains that the sanctions imposed by the “little FTC act” are not criminal in nature but rather consist of injunctive relief, declaratory relief, damages, and cease and desist orders.

The purpose of the act is explicated therein as follows:

“Purposes; rules of construction.— The provisions of this part shall be construed liberally to promote the following policies:
(1) To simplify, clarify, and modernize the law governing consumer sales practices.
(2) To protect consumers from suppliers who commit deceptive and unfair trade practices.
(3) To make state regulation of consumers sales practices consistent with established policies of federal law relating to consumer protection.” Section 501.202, Florida Statutes.

Sub judice, the trial court determined that the subject act is so vague, uncertain and indefinite that one may not know from the statute what he may or may not do. We do not agree. The act is not so vague as to negate its constitutionality by violating substantive due process. Ofttimes we have reiterated that it is fundamental that a statute be construed in such a manner so as to effectuate legislative intent and that all doubts as to the validity of a statute be resolved in favor of its constititutionality. A construction of a statute which will give effect to it should be preferred over another which would defect it. McKibben v. Mallory, 293 So.2d 48 (Fla. 1974).

The terminology “unfair methods of competition and unfair or deceptive acts or practices” utilized in the act is the same as employed in the Federal Trade Commission Act and is recommended by the Model Unfair Trade Practices and Consumer Protection Act and the State of Washington adopted the recommended language of the Model Act in its Consumer Protection Act, RCW 19.86.020. Against a constitutional attack on the Washington “little FTC act” on the basis of vagueness, the Supreme Court of Washington upheld the validity of the act. We find no fault in the cogent reasoning of the Washington court in State of Washington v. Reader’s Digest Association, Inc., 81 Wash.2d 259, 501 P.2d 290 (1972), wherein that court stated:

“Respondent’s theory of retrospective jeopardy does not stand up under scrutiny for another reason. It is based on the false premise that the phrases ‘unfair methods of competition’ and ‘unfair or deceptive acts or practices in the conduct of any trade or commerce’ are so vague that they deny substantive due process.
“Without question, the due process clause of the Fourteenth Amendment requires that people be given notice of what is prohibited. If a statute fails to give fair warning, it is subject to challenge for vagueness or indefiniteness. But, as Mr. Justice Frankfurter commented, what constitutes indefiniteness is itself indefinite :
“There is no such thing as ‘indefiniteness’ in the abstract, by which the sufficiency of the requirement expressed by the term may be ascertained. The requirement is fair notice that conduct may entail punishment. But whether notice is or is not ‘fair’ depends upon the subject matter to which it relates .... That which may appear to be too vague and even meaningless as to one subject matter may be as definite as another subject matter of legislation permits
Winters v. New York, 333 U.S. 507, 524, 68 S.Ct. 665, 674, 92 L.Ed. 840 (1948), Frankfurter, J., dissenting.
“ ‘Common intelligence’ is the test of what is fair warning:
“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
Connolly v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Accord State v. MacDonald, 74 Wash.2d 474, 477-478, 445 P.2d 345 (1968); State v. Galbreath, 69 Wash. 2d 664, 668, 419 P.2d 800 (1966).
“In the field of regulatory statutes governing business activities, greater leeway is allowed in applying the test. Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) and cases cited therein. Thus statutes which employ special or technical words or phrases well enough known to enable those expected to use them to correctly apply them, or statutes which use words with a well settled common law meaning, will generally be sustained against a charge of vagueness. Winters v. New York, supra at page 515, note 4, 68 S.Ct. 665; Connolly v. General Constr. Co., supra, at page 391, 46 S.Ct. 126. Furthermore, the United States Supreme Court has treated sympathetically ‘state statutes that deal with offenses, difficult to define, when they are not entwined with limitations on free expression.’ Winters v. New York, supra, at page 517, 68 S.Ct. at page 671.
“Although the constitutional question of the vagueness of section 5 of the FTC Act has not been before the United States Supreme Court, that court, in acknowledging that the act’s terms do not admit to precise definition, has said that the meaning of its terms ‘must be arrived at by what this court elsewhere has called “the gradual process of judicial inclusion and exclusion.” ’ Federal Trade Comm’n v. Raladam Co., 283 U.S. 643, 648, 51 S.Ct. 587, 590, 75 L.Ed. 1324 (1931). Accord Federal Trade Comm’n v. R. F. Keppel & Bro., Inc., 291 U.S. 304, 312, 54 S.Ct. 423, 78 L.Ed. 814 (1934). See also Federal Trade Comm’n v. Gratz, 253 U.S. 421, 427, 40 S.Ct. 572, 64 L.Ed. 993 (1920).
“The language of the amended federal act, from which RCW 19.86.020 is taken, has been with us since 1938. The federal courts have amassed an abundance of law giving shape and definition to the words and phrases challenged by respondent. Now, more than 30 years after the Supreme Court said that the phrase ‘unfair methods of competition’ does not admit to ‘precise definition,’ we can say that phrase, and the amended language has a meaning well settled in federal trade regulation law. RCW 19.-86.920 directs us to be guided by the federal law. Thus, in interpreting the language of RCW 19.86.020 we must hold that the phrase ‘unfair methods of competition’ and ‘unfair or deceptive acts or practices’ have a sufficiently well established meaning in common law and federal trade law, by which we are guided, to meet any constitutional challenge of vagueness.”

Section 501.205, Florida Statutes, provides :

“Rule-making power.—
(1) The department shall propose rules to the cabinet which prohibit with specificity acts or practices that violate this part and which prescribe procedural rules for the administration of this part. Such rules shall be adopted by majority vote of the cabinet. All rules prescribed by the cabinet and administrative actions taken by the department shall be pursuant to chapter 120. The Department of Legal Affairs shall, at least thirty days before the meeting at which such rules are to be considered by the cabinet, mail a copy of such rules to any person filing a written request with the Department of Legal Affairs to receive copies of proposed rules. The Department of Legal Affairs may charge a reasonable rate for providing copies of such rules, which rate shall not exceed the actual cost of printing and mailing.
(2) All substantive rules and regulations promulgated under this part shall be consistent with the rules, regulations, and decisions of the Federal Trade Commission and the federal courts in interpreting the provisions of § 5(a)(1) of the Federal Trade Commission Act (15'U.S.C. 45(a)(1)), as from time to time amended.”

Also at issue here is whether or not Florida’s Deceptive and Unfair Trade Practices Act constitutes an improper attempt to delegate legislative authority to the executive branch of government in violation of Article III, Section 1, Constitution of Florida. Since Subsection 501.204(2), Florida Statutes, imposes a clear and definite standard upon the enforcing authority in defining “unfair methods of competition” and “unfair or deceptive” trade practices under Sections 501.204 and 501.205, Florida Statutes, argues appellant, the trial court erred in invalidating these sections as unconstitutional delegations of legislative authority. Section 501.204(2), Florida Statutes, provides that due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the Federal Trade Commission. Generally, the legislature is presumed to have intended to enact a valid and constitutional law and as, aforestated, we will construe a statute, if possible, in such a manner as will be conducive to its constitutionality. Appellant suggests that a mandatory reading of the word “shall” requiring the enforcing and rule making authority to comply with the Federal Trade Law standard in effect on or before the effective date of the law would be such a construction as to preserve the constitutional validity of the act by establishing adequate specific standards to guide the enforcing and rule-making agency in exercise of powers delegated. We agree and find that the act does not constitute an unlawful delegation of legislative authority but rather conclude that adequate standards have been announced in the act to guide the administrative agency in the exercise of the delegated powers consistent with constitutional dictates. Cf. Dickinson v. State, 227 So.2d 36 (Fla. 1969).

In State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 So. 969 (1908) relative to delegation of power by the legislature to the railroad commission, this Court stated:

“In recognition of the power and duty of the state, the Constitution expressly accords to the Legislature full power and discretion to pass all laws necessary to prevent abuses, unjust discriminations, and excessive charges by common carriers and others engaged in rendering service of a public nature. To accomplish the purpose designed, the power thus conferred necessarily includes authority to do and provide for the doing of every needful act that is not clearly and plainly violative of some constitutional provision. Every doubt as to constitutionality should be resolved in favor of a legislative act designed to carry out the specific constitutional provision relative to common carriers, where some other provision of the organic law is not plainly and clearly violated.
“Taking these provisions and principles in connection with the salutary governmental purpose designed to be accomplished, and the duty of the court to sustain and enforce the legislative will as expressed, when it is not clearly unconstitutional, it cannot be said that beyond a reasonable doubt the authority given by the Legislature to the Railroad Commission to make reasonable and just rules and regulations for intrastate transportation, for the violation of which rules and regulations a penalty prescribed by the statute may be incurred, is such a delegation of purely and exclusively legislative power, as distinguished from an administrative duty or function, as that the constitutional provisions separating the powers of government into departments and conferring the legislative power of the state upon the Senate and House of Representatives has been clearly violated so as to render the act unconstitutional and nugatory. Railroad Commissioners v. Pensacola & A. R. Co., 24 Fla. 417, text 474, S So. 129, 2 L.R.A. 504, 12 Am.St. Rep. 220.”

In State v. Griffin, 239 So.2d 577 (Fla. 1970), a declaratory judgment action to determine the constitutionality vel non of the Orange Stabilization Act, against an attack of unconstitutional delegation of legislative authority, this Court enunciated the broad public purpose to be accomplished by the act and explained: Cf. FTC v. Sperry Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972), United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950).

“Obviously, the very conditions which may operate to make direct legislative control impractical or ineffective may also, for the same reasons, make the drafting of detailed or specific legislation impractical or undesirable. This point was made in State v. A. C. L. R. Co., 56 Fla. 617, 47 So. 969 (1908):
‘A direct exercise by the Legislature of the police power is in accordance with immemorial government usage. But the subject-matter may be such that only a general scheme or policy can with advantage be laid down by the Legislature, and the working out in detail of the policy indicated may be left to the discretion of administrative or executive officials.’
“This is not to imply that a double standard exists. Even where a general approach would be more practical than a detailed scheme of legislation, enactments may not be drafted in terms so general and unrestrictive that administrators are left without standards for the guidance of their official acts. Dickinson v. State of Florida, 227 So.2d 36 (Fla.1969). But it should be remembered that our Constitution does not deny to the Legislature necessary resources of flexibility and practicality, and when a general approach is required, judicial scrutiny ought to be accompanied by recognition and appreciation of the need for flexibility.
“The situation here is a case in point. In our view, the subject matter of the Orange Stabilization Act is such that ‘only a general scheme of policy can with advantage be laid down by the legislature.’ But, the Act is also ‘a law complete in itself’ which contains ‘valid limitations to provide rules for the complete operation and enforcement of the law within its expressed general purpose.’ ”

[6] Another aspect of the issue of delegation of legislative authority concerns the question of whether the legislature by the subject act intended to incorporate future (subsequent to the effective date of the statute) decisions of the Federal Trade Commission and federal court decisions. To preserve the constitutional validity of the act, we would have to say that the legislative enactment intended only decisions made prior to its enactment. Cf. State v. Welch, 279 So.2d 11 (Fla.1973); Freimuth v. State, 272 So.2d 473 (Fla. 1973) ; Fla. Ind. Com. et al. v. Peninsular Life Ins. Co., 152 Fla. 55, 10 So.2d 793 (1943); Fla. Ind. Com. et al. v. State ex rel. Orange State Oil Co., 155 Fla. 722, 21 So.2d 599 (1945).

Appellee’s contention that its word puzzle game, alleged by appellant in its complaint to be an unlawful gambling device, has been approved by the Federal Trade Commission and thus meets the legislative intent of Section 501.204(2), Florida Statutes, is completely without merit. The complaint filed by the Federal Trade Commission against appellee involved deceptive advertising and misrepresentation by appellee. The Federal Trade Commission has filed a brief as Amicus Curiae asserting that appellee has entirely misconstrued the Commission’s action, that the Commission’s complaint challenged the nature of appellee’s advertising on grounds of misrepresentation but did not question whether or not the contest or game was a lottery or unlawful wager. It is readily apparent from the complaint and decision and order of the FTC that it did not constitute approval of appellee’s activities. The complaint by the Federal Trade Commission charged: “Therefore the general method of operation, statements, and representations as set forth in paragraph four and paragraph five herein, were and are unfair, false, misleading and deceptive.” The Commission takes the position and we agree that the fact that the Commission has not taken a position with respect to whether or not the subject puzzle game is an unlawful wager or lottery does not preclude the State from taking such a posture.

Finally, we determine that Administrative Rule 2-9.07, Florida Administrative Code, promulgated under the authority of Sections 501.204 and 501.205, Florida Statutes, is a valid and reasonable rule.

Accordingly, for the reasons aforestated, we hold that Sections 501.204 and 501.205, Florida Statutes, are constitutional, are not vague and indefinite and do not constitute an unconstitutional delegation of legislative authority. The judgment of the trial court dismissing the amended complaint is reversed and the cause is remanded for further proceeding not inconsistent herewith.

This matter has been .considered on the record after two oral arguments before the Court, and a full Court Conference, and being of the view that the foregoing opinion is a final disposition of this litigation, we waive the operation of F.A.R. 3.14 and dispense with the filing of a petition for rehearing and direct the immediate release of the mandate.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON, SUNDBER'G and HATCHETT, JJ., concur.

ENGLAND, J., concurs with an opinion, with which SUNDBERG, J., concurs.

ENGLAND, Justice

(concurring).

In Conner v. Joe Hatten, Inc., 216 So.2d 209 (Fla. 1968), this Court held the phrase “unfair trade practices” to be insufficiently precise to survive a constitutional challenge of unlawful delegation of legislative power. The language of the “little FTC act” is, in part, virtually identical. Nonetheless, I agree with my colleagues that the statutory provisions under attack in this proceeding, taken together, are constitutionally valid. I reach this conclusion for somewhat different reasons than my colleagues have articulated.

The trial court below held the key provisions of the “little FTC act” to be unconstitutionally vague. I concede that the language of Section 501.204(1), Florida Statutes (1975), is more in the nature of a declaration of legislative policy than a prohibition of specific conduct. That is not an infirmity of constitutional dimensions in all cases, however.

“The exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulating enactments under the police power.”

In assessing the Legislature’s power to enact such legislation rather than to proscribe one or more enumerated, individual acts, I find the following circumstances persuasive:

(1) The act provides only civil and administrative remedies, as opposed to criminal punishment. Less specificity is tolerable under these circumstances.

(2) The specificity for which appellee argues — the “laundry list” form of prohibited marketplace activities — was present in the law of Florida for years before the little FTC act was enacted. It was wholly inadequate for its intended purposes, despite the presence of both criminal and administrative sanctions. Where the Legislature has pursued a policy, which is indisputably within its purview, by precise and narrow means (a so-called “rifle-shot” approach), courts should generally be reluctant to invalidate amendatory laws which endeavor to accomplish the same legislative purposes by other, more flexible means. Particularly is this true, as here, where the original approach to the problem lacked ostensible success and one principle, documented cause for failure appeared to be the ease by which the legislative targets avoided direct hits.

(3) Those whose conduct the act seeks to govern are merchants, tradesmen, and businessmen, as opposed to citizens and individuals in general. Terms such as those used in Section 501.204(1) have a general meaning in the marketplace for those whose livelihood takes them there every day. A context exists, although not always static, by which proscribed and permitted conduct can be distinguished.

(4) The phrases under attack here are, in my opinion, no less precise than some which had existed in Florida’s fraudulent practices statutes without apparent constitutional uncertainty before this enactment. For example, before the little FTC act was passed, the Florida Legislature had five times expressed its disapproval, in some cases with attendant criminal penalties, of “deceptive” and “misleading” advertising and trade practices.

The trial court also held that the little FTC act’s critical provisions constitute an unlawful delegation of legislative authority to the executive branch of government. I agree with my colleagues that the trial court erred in so holding although some limiting construction is essential to preserve the act’s constitutionality. As the Court stated in State v. Atlantic Coastline Ry., 56 Fla. 617, 47 So. 969, 976 (1908):

"The Legislature may . . . enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.”

This principle was cited with approval by the Court as recently as 1968.

As regards limitations on the reach of the act, I agree with the majority that it is not necessary to restrict the act, as appellant suggests, solely to unfair and deceptive trade practices as defined by the courts and the Federal Trade Commission on the date our law became effective. That construction would so confine the act as to defeat the legislative purpose for its enactment. The Legislature had already tried that approach and found it wanting. The majority has correctly gone beyond the federally defined areas which existed on October 1, 1973, to accommodate an evolving state policy on marketplace mores. Under the Court’s view, with which I generally agree, the little FTC act taken as a whole means:

(1) that Florida’s public policy is antagonistic to deceptive and unfair trade practices in all forms, without regard to what prohibited practices may have been experienced or regulated in the federal sphere;

(2) that Florida’s public policy should, to the fullest extent possible, be harmonized with federal policy on the same subjects when both jurisdictions consider certain classes of activity without the bounds of acceptable commercial propriety, both for ease of administration and for the prevention of interstitial gaps between interstate and intrastate regulation of the same activities; and

(3) that Florida’s declaration of commercial policy need not be made rigid to the point of ineffectiveness, but may be “fleshed out” by administrative action to meet changing circumstances within our borders.

In summary, I conceive that the Legislature has lawfully delegated to the executive branch the enforcement of its announced policy in this area. There is no abuse of that delegation so long as the class of prohibited acts are more specifically defined by prospective administrative action to which the Administrative Procedure Act applies. There is in this legislation no abdication of state legislative power by the automatic adoption of laws or rules to be developed by another legislative body or agency in another forum or jurisdiction.

SUNDBERG, J., cohcurs.

      . F.S. 501.2091 provides: Stay of proceedings pending trial. — Notwithstanding anything in this act to the contrary, any person made a party to any proceeding brought under the provisions of this part by any enforcing authority may obtain a stay of such proceedings at any time by filing a civil action requesting a trial on the issues raised by the enforcing authority in the circuit court in the county of said party’s residence. All parties shall be bound by the final order of the circuit court.

      . Specifically, the trial judge opined:
      “3. Turning now to the question of whether or not F.S. 501.204 and 501.205 constitute an unlawful delegation of legislative authority or power in violation of Section 1, Article III of the state constitution, it is concluded that such violation is involved. Part II of Chapter 501 is designated as the Florida Deceptive and Unfair Trade Practices Law. Among its stated purposes are to simplify, clarify and modernize the law governing consumer sales practices, to protect against unfair trade practices, and to make state regulation of consumer sales practices consistent with established policies of federal law relating to consumer protection. F.S. 501.202. In F.S. 501.204 it declares unlawful ‘ . . . unfair . . . acts or practices in the conduct of any trade or commerce . . . ’ Subsection (1). In subsection (2) it declares the intent of the legislature ‘that in construing subsection (1) of this section, due consideration and great weight shall be given to the interpretation of the Federal Trade Commission and the federal courts relating to Section 5(a) (1) of the Federal Trade Commission Act [15 U.S.C. 45(a)(1)], as from time to time amended’. F.S. 501.205 (1) provides that the Department of Legal Affairs ‘shall propose rules to the cabinet which prohibit with specificity acts or practices that violate this part . . . Such rules shall be adopted by majority vote of the cabinet.’ Subsection (2) directs that ‘All substantive rules and regulations promulgated under this part shall be consistent with the rules, regulations, and decisions of the Federal Trade Commission and the federal courts in interpreting the provisions of Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a) (1)), as from time to time amended’. A rule was promulgated, purportedly pursuant to the statute, which now appears as Rule 2-9.07, Florida Administrative Code, in pertinent part as follows:
      “2-9.07 Game Promotion
      (1) It shall be an unfair or deceptive act or practice for any person to engage in any kind of a game of skill, contest, sweepstakes, giveaway or other game promotion which:
      (b) requires any kind of entry fee, service charge, purchase, or similar consideration in order to enter; ”
      “4. It seems well established that the power of the legislature may be delegated to an administrative agency provided that in doing so it announces adequate standards to guide the agency in the execution of the powers delegated. Delta Truck Brokers, Inc. v. King, 142 So.2d 273 (Fla.1962) ; Dickinson v. State, 227 So.2d 36 (Fla.1969). The exact meaning of the requirement of a standard has not been definitely fixed, and it is recognized that the exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards. But it is also held that ‘the legislative exercise of the police power should be so clearly defined, so limited in scope, that nothing is left to the unbridled discretion or whims of the administrative agency charged witli the responsibility of enforcing the act’. Dickinson v. State, supra. .
      “6. If the standards to be applied are federal court decisions or tliose of a federal agency to be rendered in the future, the act purporting to specify them would be invalid as an unlawful delegation of legislative prerogative. Fla. Ind. Com, et al v. Peninsular Life Ins. Co., 152 Fla. 55, 10 So.2d 793; and Fla. Ind. Com. et al. v. State ex rel. Orange State Oil Co., 155 Fla. 722, 21 So.2d 599. The statute under consideration is ambiguous as to whether it is intended that future decisions of federal courts or F.T.C. would be applicable. It will be viewed in its best light as intending only decisions made prior to the enactment of the law. However, this will not save it.
      # * sji sfc Hs
      “7. . . . Assuming that the contest is gambling within our prohibitory statutes, the language of F.S. 501.204(1) does not specify that such is an unfair or deceptive act or practice in the conduct of any trade or commerce. Such acts are given no definition in the statute, but only an expression of legislative intent that ‘due consideration and great weight shall be given to interpretations of the certain portions of the Federal Trade Commission Act, dealing with unfair and deceptive trade practices, which are made by the Federal Trade Commission and the federal courts.’ Standing alone no one can say with any certainty, from the terms of the statute, what would be deemed an infringement of the law. The F.T.C. and federal court decisions are not to be controlling, even if such could be given a completely certain and consistent interpretation for guidance, but only to be accorded due consideration and great weight, with the implied right to accept or reject such interpretations. The certainty of meaning is to be found in rules proposed by the department and adopted by majority vote of the cabinet, which are directed to be ‘consistent with rules, regulations and decisions of the Federal Trade Commission and the federal courts interpreting 15 U.S. 45(a) (1), as from time to time amended’. F.S. 501.205. This is a delegation to the department and the cabinet the power to decide what should be and what should not be deemed an infringement of the law. It directs them to ascertain what interpretations the F.T.C. and federal courts have made of a' federal law and to avoid inconsistency with their own rules. Thus, it seems clear that the act is so vague, indefinite and uncertain that one may not know from the statute itself what he may or may not do, and there are no adequate guidelines and directions to properly instruct those to whom it would confer rule making power. ...”

      . Of. Sections 501.207, 501.208, 501.211, Florida Statutes.

      . Chapter 19.86.020, Revised Code of Washington, provides: “Unfair competition, practices, declared unlawful. Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. [1961 c. 216 § 2.]”
      Chapter 19.86.920, Revised Code of Washington, provides : “Purpose — Interpretation— Liberal construction — Saving—1961 c. 216. The legislature hereby declares that the purpose of this act is to complement the body of federal law governing restraints of trade, unfair competition and unfair, deceptive, and fraudulent acts or practices in order to protect the public and foster fair and honest competition. It is the intent of the legislature that, in construing this act, the courts be guided by the interpretation given by the federal courts to the various federal statutes dealing with the same or similar matters and that in deciding whether conduct restrains or monopolizes trade or commerce or may substantially lessen competition, determination of the relevant market or effective area of competition shall not be limited by the boundaries of the state of Washington. To this end this act shall be liberally construed that its beneficial purposes may be served.
      It is, however, .the intent of the legislature that this act shall not be construed to prohibit acts or practices which are reasonable in relation to the development and preservation of business or which are not injurious to the public interest, nor shall this act be construed to repeal by implication the Fair Trade Act contained in chapter 19.89 [ROW]. [1961 c. 216 § 20].”

      . Docket No. C-2312. Decision and Order— In the Matter of Lee Rogers, an individual trading and doing business as American Holiday Association—issued November 1, 1972.

      . Dickinson v. State ex rel. Bryant, 227 So. 2d 36, 37 (Fla.1969).

      . In 1967 the Florida Legislature passed the Uniform Deceptive Trade Practices Act. Chapter 67-349, Laws of Florida. In 1970, the Legislature enacted an Unfair Trade Practices and Consumer Protection Act. Chapter 70-240, Laws of Florida. These appeared as Parts III and IV of Chapter 817,-Fla.Stat. (1971).

      . Consumer Affairs in Florida: A Report to Governor Reubin Askew, Vol. 1, pp. 117-146, 312-13, 325-330 (Mar.1973).

      . In a related constitutional analysis, this Court has recognized that standards can be supplied by “common usage or by reference to the purposes of the Act”. Conner v. Joe Hatten, Inc., 216 So.2d 209, 213 (Fla.1968).

      . Sections 817.06, 817.41, 817.55, 817.71, and 817.77, Fla.Stat. (1971).

      . Conner v. Joe Hatten, Inc., 216 So.2d 209, 211 (Fla.1968).

      . See e. g., Hutchins v. Mayo, 143 Fla. 707, 197 So. 495 (1940).


source: Caselaw Access Project

author: ENGLAND, Justice. BOYD, Judge

license: Public Domain

text:
    Thomas Albert SHEFF, Petitioner, v. STATE of Florida, Respondent.
    No. 46443.
    Supreme Court of Florida.
    Feb. 25, 1976.
    Rehearing Denied April 30, 1976.

      Frank A. Graham of Graham & Vossler, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen. and Donald K. Rudser, Asst. Atty. Gen., for respondent.
   ENGLAND, Justice.

This case is before us by writ of certio-rari to review the denial of a motion to suppress evidence alleged to be illegally obtained from petitioner’s motel room in Tallahassee. Petitioner pled nolo contendere to various charges, reserving the right to appeal the denial of his motion. The First District Court of Appeal upheld the conviction in an opinion, reported at 301 So.2d 13, which conflicts with State v. Rheiner.

A recitation of facts is necessary for an understanding of the issues Sheff has raised.

While petitioner was registered at a motel but temporarily absent from his room, a cleaning maid admitted herself to the room for the normal discharge of her duties. While in the room she saw what she thought might be marijuana laying loose in an open suitcase. She reported this to the motel manager, who in turn informed the motel owner. The manager and owner then entered the room to examine the material, after which the owner called the sheriff’s office and asked that his cousin, Captain Revell, be sent to the motel. After his arrival at the motel Revell was admitted to the room to examine the suitcase, agreed that the material was probably marijuana, and left. Revell then called Detective O’Brien, a member of the force more familiar with marijuana, who came to the motel with Deputy Gunter. While these several people were discussing the sequence of events in the open area in front of Sheff’s room, the motel owner noticed and identified Sheff driving into the motel parking lot. Sheff stopped briefly, and without leaving his car drove away. O’Brien followed in his car and stopped Sheff a short distance away. O’Brien informed Sheff of his constitutional rights, obtained his driver’s license and ordered him to return to the motel.

While following Sheff back to the motel, O’Brien noticed him “fiddling around on the floor of the car.” Deputy Gunter observed Sheff pull into the parking lot and throw from his car a plastic bag, which was later found to contain marijuana. Sheff was then handcuffed and informed that he was under arrest for possession of marijuana. He was again given a “Miranda warning” regarding his constitutional rights.

O’Brien then observed a plastic bag on the floor of the front seat of Sheff’s car. O’Brien entered the car and ascertained that the bag contained marijuana. A full search of the car followed, resulting in the seizure of another bag of marijuana and paraphernalia. Thereafter, O’Brien entered the motel room, despite Sheff’s refusal to give permission, and seized the suitcase. Later a search warrant was obtained for the motel room and additional items were seized.

On these facts the district court held Revell’s initial entry into the motel room, and O’Brien’s seizure of the suitcase, were illegal. In this the district court was eminently correct. While a motel guest impliedly consents to entries by employees for the performance of their customary duties, consent to an entry by the police must be express and none was given in this case. If these were the only facts giving rise to the suppression of evidence this would be a classic situation in which to apply the exclusionary rule of Mapp v. Ohio, and reverse the convictions, as a prod to the police to obtain a search warrant in like cases. These are not the only facts bearing . on the acquisition of evidence, however, and our task is much more complex. In this case we are obliged to discern the extent to which an initial breach of Sheff’s privacy required exclusion of the evidence later seized by the state, considering that the exclusionary rule established in Mapp applies not only to evidence discovered directly as a result of the illegal search, but also as to evidence uncovered by using the illegally obtained evidence. It has been held that only an intervening, independent act by the defendant can dissipate the original taint of illegality.

The state contends that Sheff caused an independent intervening act when he threw a plastic bag from his car upon reentering the motel parking area.' Sheff argues that the bag was the fruit of a second violation of his constitutional rights because O’Brien arrested him without probable cause when he halted his car, read him his constitutional rights, seized his driver’s license, and ordered him to return to the motel. The state responds that this was only an investigatory detention, and not an arrest.

We need not decide whether Sheff was under arrest or merely detained pending investigation at the time his flight from the motel was interrupted. When O’Brien followed Sheff from the motel parking lot, he had already learned that responsible members of the community had personally observed what they believed to be marijuana in Sheff’s motel room, and he had personally observed Sheff pause and drive away after having had time to observe police cars in the area near his room. If legally discovered, these facts alone would provide O’Brien with probable cause for an arrest. The federal courts have consistently held that a search warrant based upon evidence which was obtained by both legal and illegal means is valid if evidence legally obtained would alone provide probable cause. We can apply that principle here since every detention is but a seizure of the person and no warrant is required where the police reasonably believe a felony is actually being committed by the arrested party. It follows that an officer possessing legally obtained information sufficient to constitute probable cause for an arrest is not barred from making an arrest solely because he also has information which was unlawfully obtained. Sheff was lawfully detained, so there is no basis to exclude from evidence the bag of marijuana thrown from his car.

In sanctioning the detention in this case and the seizures which flow from it, we are warned that police officers may be encouraged to commit unlawful searches for the purpose of proving the truthfulness of an informer’s story simply to avoid the effort necessary to obtain a warrant. That possibility does not concern us for two reasons. First, this is not a case where the detention was a subterfuge of any sort. Given the transient nature of the motel, as opposed to a home, and the manner in which the information was brought to O’Brien’s attention, we would expect a reasonable police officer to do exactly what O’Brien did here in attempting to prevent flight from the scene. To do less would constitute a dereliction of duty. Second, the application of an exclusionary rule to the evidence thrown from the car would not serve the goal of that rule by deterring the police from future misconduct. If Florida law enforcement officers engage in violations of the fundamental rights of Floridians, we will not hesitate to override their acts in favor of the rights conferred in Article I, § 12 of the Florida Constitution. No circumstances are shown here, however, which indicate any law enforcement official employed a purposeful scheme to bypass more onerous procedures at the expense of constitutional rights.

We turn now to the propriety of the seizure of the other items of evidence. We agree with the district court that Sheff’s car was lawfully searched. Although Sheff was in custody, handcuffed and some distance ’from his car, officer O’Brien discovered the bag of marijuana lying in plain view on the floor of the car. The vehicle’s search at that point was based on independent probable cause, and both the first-seen bag and the later-discovered evidence obtained from the car were admissible.

Lastly, the evidence seized in the motel room on the authority of the belatedly obtained search warrant was properly admitted. The warrant was issued upon a recitation of all the events which had occurred. Since information lawfully obtained constituted probable cause that evidence of a crime would be found in the motel room, the warrant was valid under the rule first discussed above.

The decision of the district court is affirmed.

ROBERTS, OVERTON and SUND-BERG, JJ., concur.

HATCHETT, J., concurs with result only.

BOYD, J., dissents with an opinion, with which ADKINS, C. J., concurs.

BOYD, Judge

(dissenting).

I respectfully dissent to the majority opinion. Without the unconstitutional entry by police into Petitioner’s motel room without a warrant no factual basis would have occurred to permit seizure of the marijuana by police either from the motel or automobile. When the Fourth Amendment to the United States Constitution was added, it was primarily intended to protect citizens from unlawful entry by police into private dwellings, business establishments and vehicles of that time. If we have a living Constitution, as we claim, its protection against unlawful entry must extend to protect those in our present society who live from suitcases in hotels, motels, automobiles and planes. After all, if the

Fourth Amendment is to give the same protection to people of the twentieth century as it gave to those who adopted it, it must protect those of a transient society, such as Petitioner here.

I would quash use of all evidence seized in this case as having been seized unreasonably and unconstitutionally. To do otherwise invites police to search without warrants, and this should be done in limited circumstances previously circumscribed by statute and case law.

ADKINS, C. J., concurs.

      . 297 So.2d 130 (2d DOA Fla.1974). We have jurisdiction under Article V, § 3(b)(3) of the Florida Constitution.

      . United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951).

      . Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L.Ed.2d 856 (1964).

      . 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See also, Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939).

        .Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). When the motel’s maid, manager and owner entered Sheff’s room there was no violation of a constitutional right because the Fourth Amendment protects only against governmental intrusions upon the privacy of the individual. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). Article I, § 12 of the Florida Constitution was intended to protect the identical right. See, Thurman v. State, 116 Fla. 426, 156 So. 484 (1934). Of course, if the information provided by motel personnel was tainted by the initial illegality, there would be no “articulable facts” upon which to base a reasonable suspicion for an investigative detention, since a mere departure from the parking lot is not alone a suspicious act. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Howell v. Cupp, 427 F.2d 36 (9th Cir. 1970) ; James v. United States, 135 U.S. App.D.C. 314, 418 F.2d 1150 (1969) ; United States v. Sterling, 369 F.2d 799 (3d Cir. 1966). Accord, Commonwealth v. Cosby, 335 A.2d 531 (Pa.Super.1975) ; Krauss v. Superior Court, 5 Cal.3d 418, 96 Cal.Rptr. 455, 487 P.2d 1023 (1971).

      . Terry v. Ohio, fn. 6 above.

      . Section 901.15(3), Fla.Stat. (1973).

      . See, Krauss v. Superior Court, fn. 7 above, 487 P.2d at 1027 (dissent).

      . Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L.Ed.2d 419 (1970).

      . State v. Parnell, 221 So.2d 129 (Fla. 1969).

      . Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The situation in this case is not like that in Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) or Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d 685 (1969).

      . See authorities cited in fn. 7 above.


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re Janies A. BACCUS.
    No. 47296.
    Supreme Court of Florida.
    Feb. 11, 1976.

      Jack L. Herskowitz, Bar Counsel, Miami, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    Frank A. Graham, Jr. of Graham & Vossler, Tallahassee, and James A. Baccus, in pro. per., for respondent.
   PER CURIAM.

In this attorney disciplinary proceeding against Respondent James A. Baccus we have considered the report and recommendations of the Referee, Stanley B. Richard, which we approve in modified form, as hereinafter explained.

As stated by the Referee, the undisputed facts are as follows:

“A. The Respondent’s wife, at the request of the Respondent, signed the name of Diane D. McWeeny to a note and mortgage encumbering property of the said Mrs. McWeeny ....
“B. The Respondent secured the acknowledgment of the purported mortgagor by directing John McGowan, a Notary Public of the State of Florida, to take the acknowledgment, although the document was not signed in the presence of the said John McGowan and the Respondent knew it was not signed by the said Diane D. McWeeny ....
“C. The Respondent caused said mortgage to be filed in the Public Records of
Dade County, Florida, on February 5, 1970, and it appears in said records in Official Records Book 6747 at page 510.
“D. Said note and mortgage were issued in favor of Sydell Singer and was used by the Respondent to secure from the mortgagee the sum of $5,900.00, which was retained by the Respondent for his own use.
“E. In the Criminal Court proceedings above mentioned the Respondent was charged in three counts, as follows: Count I — Grand larceny against an individual; Count II — Forgery taking place over a period of a month and a half; Count III — Uttering a forged instrument .... The Criminal Court trial transcript is silent as to the disposition of Counts I and II, but it is believed that either Respondent was found not guilty or these counts were abandoned. The jury then found the Respondent guilty of attempting to utter a false instrument .... On the defendant’s motion for a new trial the Court, on May 31, 1973, vacated the findings of guilty and transferred the case to the County Court upon the ground that this matter was concerned with a misdemean- or and was not within the jurisdiction of the Circuit Court Criminal Division. Thereafter, the Respondent was charged with attempting to utter a forged instrument between December 1, 1969 and February 1, 1970. Upon a motion to dismiss made on behalf of the Respondent, the Court did, on October 31, 1973, grant said motion and dismissed the charge. No further criminal proceedings were had thereafter.”

As the Referee pointed out, Respondent asserts that he did not intend to commit any wrongful act and that no one was damaged by his actions. To support his position, Respondent submitted the following assertions to the Referee:

“1. Respondent had entered into a contract to buy said property from said Diane D. McWeeny prior to his causing said mortgage to be made and that he did purchase said property, acquiring the title to it subsequent to the time of the aforesaid mortgage transaction.
“2. That he had the verbal authority of Diane D. McWeeny to execute said note and mortgage in her name, which Mrs. McWeeny denies ....
“3. Notary McGowan states that, at the request of the Respondent, he telephoned Mrs. McWeeny for authorization to take her acknowledgment and that she granted such authorization. Mrs. McWeeny denies this ....
“4. Respondent verbally guaranteed payment of the mortgage obligation to the mortgagee ....
“5. Respondent made full payment of said mortgage obligation and secured a satisfaction from the mortgagee, placing it of record.”

In spite of Respondent’s defense, the Referee recommended that he be found guilty of inducing his wife to forge the signature of another on a note and mortgage without the knowledge or consent of such person, to-wit, of causing the uttering of a forged instrument. In addition, the Referee recommended that Respondent be found guilty both of wrongfully securing funds from another by use of such forged instrument and of inducing a Notary Public to take an acknowledgment of a person while knowing that such person had not in fact executed such an instrument.

The Referee made the following recommendation as to disciplinary measures to be applied:

“I recommend that.the Respondent receive a public reprimand and be placed on probation for a period of two years as hereinafter provided. During the period of probation, I would recommend that the Respondent be required to take appropriate law school courses in real estate and mortgage transactions, and be further required to study the Integration Rule of The Florida Bar. Further, during said probationary period, Respondent should be obliged to make periodic reports to The Florida Bar of the matters he has handled and the manner in which he has handled them. The results of his courses of study at the law school should be provided by the instructors to The Florida Bar. Upon The Florida Bar finding that the Respondent had a better understanding of the handling of real estate and mortgage transactions and of the Integration Rule of The Florida Bar, recommendation should then be made to the Court that the probation be terminated.”

We have carefully examined the record in this case and find sufficient facts in it to justify the Referee’s finding of guilt. We adopt the Referee’s disciplinary measures subject to the condition that, instead of taking law school courses in real estate and mortgage transactions during the probationary period, Respondent is ordered to complete, in a satisfactory manner, at least one course in real property law offered by the Continuing Legal Education program of The Florida Bar and submit proof of same to the Bar.

Therefore, it is ordered that Respondent, James A. Baccus, be and he is hereby publicly reprimanded for the misconduct reported herein. The publication of this order and judgment shall constitute public reprimand.

Furthermore, it is hereby ordered that Respondent be placed on probation for a period of twenty-four months, commencing on February 11, 1976, and as an incident to probation, Respondent shall be required to file quarterly reports as to the status of all representations undertaken by him; that these reports are to be filed with the Clerk of the Supreme Court of Florida with a copy to the staff counsel of The Florida Bar; that the first report shall be filed ninety (90) days subsequent to the date of this Order.

It is further ordered that the costs of these proceedings incurred by The Florida Bar in the amount of $430.30 are taxed and assessed to Respondent.

It is so ordered.

ROBERTS, Acting C. J., BOYD, OVERTON and ENGLAND, JJ., and DRURY, Circuit Judge, concur.


author: SUNDBERG, Justice.

text:
    J. H. “Jim” WILLIAMS, as Secretary of the Department of Administration, et al., Appellants, v. Ray E. HOWARD et al., Appellees.
    No. 48040.
    Supreme Court of Florida.
    Feb. 26, 1976.

      Robert L. Shevin, Atty. Gen., and Thomas A. Harris, Asst. Atty. Gen., David V. Kerns of the Department of Administration, and Arthur C. Canaday, Tallahassee, Gen. Counsel to the Governor, for appellants.
    David H. McClain, of McClain & Walk-ley, and Mark R. Hawes, Tampa, for ap-pellees.
    Michael McK. Wilson and David A. Barrett, Tallahassee, for Donald L. Tucker, Barry Kutun, Robert C. Hector, Donald F. Haxelton and Robert McKnight, amicus curiae.
   SUNDBERG, Justice.

This matter comes to us on direct appeal from the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida. We have jurisdiction of the appeal pursuant to Article V, Section 3(b)(1), Florida Constitution, in that the trial court declared unconstitutional Subsection 20,-315(6), Florida Statutes, which was enacted by Chapter 75^-9, Laws of Florida.

Appellees brought suit under the Declaratory Judgment Act, Section 86.021, Florida Statutes, to have declared unconstitutional those portions of Chapter 75-49, Laws of Florida, which transfer non-quasi-judicial powers from the Parole and Probation Commission to the Department of Offender Rehabilitation. Appellees Howard and Cross sued individually and as members of the Parole and Probation Commission contending that the transfer of the powers, duties and functions of that Commission relating to the supervision of parolees and probationers is unconstitutional under Article IV, Section 8(c), Florida Constitution. Appellees Limpus and Gall sued individually and as field staff employees of the Parole and Probation Commission, alleging that their rights were affected under the Florida Career Service System. Appellees Goolsby and Fletcher sued individually and as probationers under the supervision of the Parole and Probation Commission, alleging that the instant statutory enactment affects the quality of rehabilitation and supervision they receive as probationers.

In ruling upon a motion to dismiss filed by appellants Williams and the Department of Administration of the State of Florida (DOA), the trial court expressly found that appellees Limpus, Gall, Goolsby and Fletcher, had standing to raise the issue of the constitutionality of the Act in their respective alleged capacities. The trial court explicitly ruled that appellees Howard and Cross lacked standing in their capacity as minority members of the Parole and Probation Commission. Each appellee was alleged to be a citizen and taxpayer of the State but the trial court found the complaint to be lacking in any specific allegation as to any unlawful expenditures of public monies if the act is invalid. The court concluded, however, that in view of the presence of other sufficient powers for prosecuting the suit by some of the plaintiffs, the general motion to dismiss should be denied without the necessity of determining whether or not the allegations of the complaint were sufficient to state a case for relief as citizens and taxpayers. The motion to dismiss was denied in an order which also found the statute to be unconstitutional. In the order the court, on the authority of State ex rel. Bisbee v. Drew, 17 Fla. 67 (1879), of its own motion, declined to take jurisdiction of the Governor. Thereafter, Williams and DOA filed their answer denying the material allegations of the complaint. Upon appropriate motion, the court entered an order permitting the State of Florida on the relation of Attorney General Shevin to intervene fully as to the papers, pleadings and orders dealing directly with the constitutionality of Section 20.315(6), Florida Statutes, as enacted by Chapter 75-49, Laws of Florida.

Appellees then filed a motion for judgment on the pleadings or, in the alternative, for summary judgment. Appellants responded with a motion for judgment on the pleadings declaring that Section 20.-315(6), Florida Statutes, is a constitutionally valid enactment. Based on agreement of all the parties that final judgment be entered on the motions without further argument or briefing, the trial court entered its final judgment, which in pertinent part declared that so much of Chapter 75-49, Laws of Florida, as purports to transfer from the Parole and Probation Commission of the State of Florida to the Department of Offender Rehabilitation the authority to supervise persons on probation and parole and all powers incident thereto, including the making of necessary investigations and the maintenance of adequate records, is invalid by reason of the operation of the superior force of Article IV, Section 8(c), Constitution of Florida, and enjoining Williams and DOA from taking any action pursuant to the purported authority of those portions of Chapter 75^-9, Laws of Florida, which were therein adjudged to be invalid. In its final judgment the court referred to its earlier order denying the motion to dismiss the complaint and determined that it was unnecessary to repeat in the final judgment the conclusions announced in that order. This appeal ensued.

The issues presented for our determination are (i) whether the trial court erred in finding that appellees, as plaintiffs below, have standing to maintain this suit and (ii) whether the trial court erred in finding Section 20.315(6), Florida Statutes, enacted by Chapter 75-49, Laws of Florida, to be unconstitutional. For the reasons hereinafter stated we determine that the trial court did err as to the standing issue, making it unnecessary for us to consider the second issue presented.

With respect to the standing of ap-pellees Howard and Cross to maintain this suit, we concur with the trial court in its determination that those individuals in their capacity as a minority of the Parole and Probation Commission lacked standing to maintain the suit. See Rawls v. D’Alemberte, 41 Fla.Supp. 130 (Leon Cty. Cir.Ct.1974). We also concur in the trial court’s finding that the allegations of the complaint were not specific as to any unlawful expenditures of public monies arising from the asserted invalidity of Section 20.315(6), Florida Statutes. We conclude, however, that such deficiency in the allegations of the complaint is fatal to the standing of Howard and Cross to maintain the suit as citizens and taxpayers. See Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917), the principles of which are reaffirmed in Dept. of Administration v. Horne, 269 So.2d 659 (Fla.1972) as to the point here under consideration. We do not accept the proposition that standing on the part of some of the plaintiffs to maintain a suit confers standing on other plaintiffs who are not similarly situated.

For the same reasons that the allegations were insufficient to create standing in Howard and Cross as citizens and taxpayers, they are insufficient for the other ap-pellees in such capacity.

We therefore turn next to the standing of appellees Limpus and Gall to maintain this suit as employees of the Parole and Probation Commission. The allegations of the complaint material to this inquiry are contained in paragraphs (2) and (8) of the complaint. They are as follows:

“2. That plaintiffs’ rights, status, and legal relations are affected by the transfer of the supervisory authority over parolees and probationers from the Parole and Probation Commission to a newly created department pursuant to Committee Substitute for Senate Bill 169 passed by the Legislature of the State of Florida on May 26, 1975, known as the ‘Correctional Organization Act of 1975,’ having an effective date of July 1, 1975, and designated as Chapter 75-49, Laws of Florida, a copy of said Act marked ‘Exhibit A’ is attached hereto and incorporated herein by reference.”
* H* * * * *
“8. That in view of Section 8(c) of Article IV of the Constitution of the State of Florida, a dispute exists as to whether the Legislature can constitutionally transfer to the newly created Department of Offender Rehabilitation all of the powers, duties and functions of the Parole and Probation Commission pertaining to the supervision of parolees and probationers; that said dispute affects the legal rights under the Florida Career Service System of plaintiffs, Charles Limpus and Charles D. Gall, as individuals and as employees of the Parole and Probation Commission, as well as the type and quality of rehabilitation and supervision over plaintiffs, Darrell H. Goolsby and Robert J. Fletcher, who under said Act will be supervised by a newly created Department of Offender Rehabilitation also having supervision and custody of inmates confined in State penal institutions.”

It is necessary first to determine the proper test to be applied in disposing of the motions for judgment on the pleadings in the context in which those motions were presented to the trial court. The rule ordinarily applicable is that all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Judgment on the pleadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment. Fla.R.Civ.P. 1.140; Paradise Pools v. Genauer, 104 So.2d 860 (Fla.App.3d 1958); 2A Moore’s Fed.Practice, 2d Ed., 2343. Strict application of the rule here would, of itself, preclude entry of judgment for the appellees because their allegations as to standing were denied in the answer. However, the final judgment entered by the trial court recites, “All parties have agreed that final judgment be entered on the motions without further argument or briefing”. We conclude, therefore, that the parties waived strict application of the rule so that the matter could be expeditiously concluded. See Storer v. Florida Sportservice, Inc., 115 So.2d 433 (Fla. App.3d 1959) as discussed in Davis v. Davis, 123 So.2d 377 (Fla.App.lst 1960). We recur to the question of the standard to be applied in passing upon the motions as made by the parties, without regard to the general denials contained in appellants’ answer. The test is the same as in disposing of a motion to dismiss for failure to state a cause of action. Reinhard v. Bliss, 85 So.2d 131 (Fla.1956); Davis v. Davis, supra.

As appears from the allegations hereinabove quoted, appellees Limpus and Gall assert that a dispute exists as to whether the Legislature can constitutionally make the proposed transfer, and then they assert the legal conclusion that said dispute affects their legal rights under the Florida Career Service System as individuals and as employees of the Parole and Probation Commission. They do not allege that their rights will be adversely affected, much less the nature or type of injury which they might sustain. The allegations fall short of constituting the sort of ultimate facts required by the rule to sustain appellees’ standing to attack the Act. Fla. R.Civ.P. 1.110, Maiden v. Carter, 234 So.2d 168 (Fla.App.1st 1970). As was aptly stated in Miller v. Miller, 151 So.2d 869 (Fla.App.2d 1963):

“ . . . The courts will not answer a question by way of declaratory relief unless the pleadings allege facts showing that the question then exists; and where the pleadings indicate the possibility that the question will never arise, the courts will deny declaratory relief. . . . ”

The bare assertion that their legal rights will be affected under the Career Service System without alleging how or why is simply not sufficient to demonstrate that any question now exists which requires an answer through operation of the Declaratory Judgment Act.

Appellees Limpus and Gall maintain in their brief in this Court that the possibility exists that they will be directly injured through (i) job reclassification, (ii) loss of Career Service status or (iii) termination of their employment. These assertions are not a part of the pleadings or record before us because of the procedural posture in which this case arrives in this Court. However, it is appropriate for ultimate disposition of the cause to observe that, even if the assertions made were a matter of proof before us, they, at best, only represent speculation and conjecture as to events which may or may not occur at some future date.

Although under the Act it is possible that reclassification could occur, there is no evidence that such will be the case. Additionally, in the event of a change in the classification system, appellees might receive a lower classification. On the other hand, they may receive the same or higher classification, resulting in equal or enhanced compensation.

The argument that Limpus and Gall will lose their Career Service status by being named Regional Directors likewise is conjectural. In their argument they assume that the positions of Regional Director and Program Director will be Career exempt. We cannot accept such assumption because Section 110.051(2), Florida Statutes, enumerates the positions which are exempt from Career Service status. The positions of Regional Director and Program Director are not enumerated therein. Section 2(19) (a) of Chapter 75-49, Laws of Florida, only exempts from operation of such chapter Section 110.022, Florida Statutes, which does not deal with exempt positions. Also, it should be noted that although Chapter 75-48, Laws of Florida, dealing with reorganization of the Department of Health and Rehabilitative Services expressly provides that analogous positions in that Department should be exempt, no such express provision is included in Chapter 75-49, Laws of Florida. See Chapter 75-48, Section 4, Laws of Florida. Consequently, there is not a foundation for the argument that appellees will lose Career Service status.

Appellees’ argument that they individually may lose employment altogether because Chapter 75-49, Laws of Florida, authorizes the Secretary, for fiscal year 1975-76, to “delete” authorized positions within the Department is wholly within the realm of speculation. Absent any allegation that they have been advised of contemplated termination or that there exist facts which make such termination at least probable as opposed to possible, one must indulge in guesswork to conclude that termination of these individuals will eventuate.

Appellees Goolsby and Fletcher, probationers currently under the supervision of the Parole and Probation Commission, maintain that the alleged dispute over the constitutionality of Chapter 75-49, Laws of Florida, affects “the type and quality of rehabilitation and supervision” over them because they will be supervised by the newly-created department which also will have supervision and custody of inmates confined in State penal institutions. This simply states a conclusion, not ultimate facts, and is deficient under Fla.R.Civ.P. 1.110, as noted above with respect to the allegations of Limpus and Gall. In their brief Goolsby and Fletcher amplify the allegations of the complaint by urging that (i) the organizational structure of the new department will impede the management decision-making process, thereby delaying services to them; (ii) they will be supervised by individuals who are concerned with programs and services for inmates rather than services and programs designed exclusively for probationers; and (iii) the new Act repeals the statutory authority which created a Department of Community Services, which will result in the loss to the probationers of community-based rehabilitative programs. Perhaps these assertions will prove to be correct, but their mere recitation does not make it so. It is just as reasonable an hypothesis that the reorganized structure will provide a higher quality of service to these probationers. Only time will tell. Consequently, the arguments of these appellees stand on no firmer a foundation as to reasonable probability than those of Limpus and Gall.

This Court has repeatedly held that the mere possibility of injury at some indeterminate time in the future does not supply standing under our Declaratory Judgment Act. In May v. Holley, 59 So.2d 636 (Fla.1952), for example, it was stated:

“Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.”

See also State ex rel. Fla. Bank & Trust Co. v. White, 155 Fla. 591, 595, 21 So.2d 213,215 (1944), where it was said:

“It is settled law that a court will not entertain a suit to determine a declaration of rights for parties upon facts which have not arisen, upon matters which are contingent, uncertain or rest in the future . . . .”

Bryant v. Gray, 70 So.2d 581 (Fla.1954), provides another illustration of the principle herein reiterated. As basis for a declaratory decree petitioner alleged that he was legally eligible to become a candidate for the office of Governor of Florida and that he was “desirous of seeking election in the general election of 1956 for a full term as Governor of the State of Florida”, but that he was in doubt as to whether if he sought election in 1954 and was elected for an unexpired term created by the death of the incumbent, he might thereafter seek re-election in the general election of 1956. Petitioner stated that he was “prepared” to become and “desirous” of becoming a candidate but never specifically alleged that he would become a candidate for the unexpired term or for the full term. This Court reversed a declaratory decree issued by the circuit court, because a proceeding for declaratory relief should not be entertained until there is a clear showing of bona fide, actual, present practical need for such declaration, which should deal with a present, ascertained or ascertainable state of facts or a present controversy as to a state of facts. In its opinion the Bryant court cited and quoted with approval from May v. Holley, supra. See also Harris v. Harris, 138 So.2d 376 (Fla.App.3d 1962).

In our jury instructions we admonish jurors to refrain from speculation or conjecture. The courts should be at least as disciplined when called upon to declare the rights of parties who assert that they will be affected by a state of facts which have not arisen or by matters which are contingent, uncertain or rest in the future.

Finding as we do that the appellees lack standing to maintain this suit, based either upon their pleadings or upon the matters asserted in their brief, we reverse the judgment of the trial court and remand this cause with directions to enter judgment for the appellants upon the issue of standing.

It is so ordered.

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

      . “PAROLE AND PROBATION COMMISSION ; TRANSFER. — All powers, duties and functions of the Parole and Probation Commission, except those relating to the exercise of its quasi-judicial duties and functions, as provided by law, are hereby transferred by a type four transfer pursuant to s. 20.06(4) to the Department of Offender Rehabilitation. This transfer shall include all court-related investigations, all supervision of parolees and probationers, administrative support services, data collection and information systems, field offices and other programs, and services and resources of the commission which are not necessary for the immediate support of the commissioners. The commission shall retain 155 positions and may add, delete, classify, and reclassify such positions without Department of Administration approval during fiscal year 1975-76. The Department of Offender Rehabilitation shall perform statistical analysis, research, and program evaluation for the Parole and Probation Commission. There shall be only one offender-based information and records system maintained by the Department of Offender Rehabilitation for the joint use of the Department of Offender Rehabilitation" and the Parole and Probation Commission. The Department of Offender Rehabilitation shall develop, in consultation with the Parole and Probation Commission, such offender-based information system designed to serve the needs of both agencies. The Department shall notify the Commission of all violations of parole and the circumstances thereof.”

      . “There may be created by law a parole and probation commission with power to supervise persons on probation and to grant paroles or conditional releases to persons under sentences for crime. The qualifications, method of selection and terms, not to exceed six years, of members of the commission shall be prescribed by law.”


author: BOYD, Justice.

text:
    Charles HAMILTON, III, Appellant, v. STATE of Florida, Appellee.
    No. 47480.
    Supreme Court of Florida.
    Feb. 25, 1976.
    Rehearing Denied April 21, 1976.
    Philip J. Padovano of Ruiz & Padov-ano, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee.
   BOYD, Justice.

This cause is before us on a direct appeal from the County Court of Pinellas County. Appellant was charged with a violation of Section 509.151, Florida Statutes, which reads as follows:

“509.151 Obtaining lodging with intent to defraud; penalty. — Any person who shall obtain food, lodging or other accommodations at any public lodging or food service establishment, with intent to defraud the owner or operator thereof, shall be guilty of a misdemeanor of the second degree, punishable as provided in §§ 775.082 or 775.083; provided, that if any owner or operator of such establishment has probable cause to believe, and does believe, that any person has obtained food, lodging or other accommodations at such establishment with intent to defraud the owner or operator thereof, and upon demand for payment being made, and there being no dispute as to the amount owed, failure to make payment shall constitute prima facie evidence of intent to defraud; provided, further, that the provisions of this section shall not apply where there has been an agreement in writing for delay in payments.”

Initially, Appellant pled not guilty and filed a Motion to Dismiss in which he asserted the constitutional invalidity of the above-quoted section; in his supporting memorandum Appellant argued that both Section 509.151 (“Obtaining lodging with intent to defraud; penalty.”) and Section 509.161 (“Rules of evidence in prosecutions.”), Florida Statutes, were unconstitutional in that (1) they create an impermissible presumption violative of the Fourteenth Amendment of the federal constitution;

(2) they violate the privilege against self-incrimination contained in the Fifth Amendment; and (3) they violate the constitutional proscription against imprisonment for non-payment of debt. In its order denying Appellant’s motion the trial court specifically held both sections to be constitutional. Thereafter, Appellant changed his plea to nolo contendere, preserving his right to appeal the denial of his motion to dismiss. The court accepted the plea, adjudicated Appellant guilty and sentenced him; this direct appeal followed.

We recognize that in 1969 the United States Supreme Court stated in Leary v. United States :

“The upshot of Tot [v. United States], [United States v.] Gainey and [United States v.] Romano is . . . that a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to follow from the proved fact on which it is made to depend. . . . ”

It is our view that Florida cases generally seem to be in agreement with the federal cases. In fact, this Court stated in State v. Kahler :

“Criminal acts declaring one fact prima facie evidence or presumption of another are frequent. Their purpose is not to relieve the State of the burden of proof, but to allow the establishment of a prima facie case. Constitutional guarantees are not violated as long as there is a rational connection between the fact proven and the ultimate fact presumed and reasonable opportunity is afforded to rebut the presumption.”

Furthermore, this Court in Dirk v. State considered whether prima facie evidence of fraudulent intent based solely on a check returned for insufficient funds was constitutional; in that instance we upheld the statutory presumption. Likewise, we note that the federal Supreme Court has upheld the inference arising from the unexplained possession of recently stolen property.

It is our view that the prima facie evidence of intent to defraud provided by Section 509.151, Florida Statutes, is no more of an incursion into the right against self-incrimination and the right to present proof beyond a reasonable doubt than the presumptions upheld in Dirk and Barnes, supra. In Section 509.151, Florida Statutes, there are four requirements of the evidence in order to provide the prima fa-cie evidence of intent: (1) the owner or operator must be shown to have probable cause to believe that the accused obtained food, lodging, etc., with intent to defraud; (2) demand for payment must be made; (3) there must be no dispute about the amount owed; and (4) there must be a failure to make payment. Admittedly, this statute may be susceptible to unconstitutional enforcement on occasion; nevertheless, in light of the criteria specified therein, we find the statutory language of the presumption to be constitutional.

We have examined Appellant’s remaining points on appeal and find them to be without merit.

The judgment of the trial court is affirmed.

It is so ordered.

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

ENGLAND, SUNDBERG and HATCHETT, JJ., dissent.

      . Article V, Section 3(b)(1), Florida Constitution.

      . 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (1969).

      . 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).

      . 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965).

      . 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).

      . 232 So.2d 166, 168 (Fla.1970).

      . 305 So.2d 187 (Fla.1974).

      . Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).


author: BOYD, Tustice.

text:
    STATE of Florida, Petitioner, v. Kathryn RATLIFF, Respondent.
    No. 47195.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Rehearing Denied April 19, 1976.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for petitioner.
    Carlton L. Welch, Jacksonville, for respondent.
   BOYD, Tustice.

This cause is before us on a petition for writ of certiorari to review the decision of the District Court of Appeal, First District, reported at 309 So.2d 634. Our jurisdiction is based on conflict between the decision sought to be reviewed and Dieci-due v. State. The facts of the case are as follows.

Respondent-Cross Petitioner and her husband, Andrew Ratliff, were having an argument in their trailer when the latter, being somewhat intoxicated, left and walked over to his car. Respondent rushed out of the trailer, running into her husband who turned around, grabbed her with both his hands, knocked her down against the trailer (about ten feet away) with sufficient force to dent it, and fell over on top of her. When the husband got up, he stepped back from Respondent and asked why she had cut him, to which she replied “I didn’t cut you, you fell on the knife. . ” Two young men came around the trailer just as the husband was getting off of Respondent, and they were in time to prevent his collapse from a knife wound which punctured his heart. As the husband was taken to the hospital, one witness overheard Respondent say that “she didn’t give a damn,” but another witness heard Respondent say “I didn’t mean to do it” upon returning from the hospital. The husband died in the hospital as a result of the knife wound.

Respondent was indicted and tried for murder in the first degree. After jury deliberations began the following question was brought in from a juror:

“If [the husband] fell on the knife in [Respondent’s] hand when [the husband] pushed her backwards, what charge is this ?”

During the discussion of the court’s proposed answer, Respondent’s attorney requested as an additional instruction that “if a person is killed by an accident which is not caused by the culpable negligence of the defendant or the accused, then your verdict must be not guilty.” Petitioner’s attorney objected to this particular instruction, although he agreed both that the court might give the jury additional instructions if it requested them and that it was proper for the court to reread the entire homicide instructions. The court stated its position to be:

“I want them to know that they can ask for additional instructions, but I don’t feel that the court can properly answer a question which is a mere question of law and fact. The court is concerned with the facts only to see that they are properly presented to the jury, and the jury is concerned with the law only as the court instructs it on the law at the close of the case. . . .”

Whereupon the court answered the jury’s question with the following note, to which neither party objected:

“Members of the jury, a ruling has been made by me that the court cannot answer this question. You are instructed that you may request additional instructions or may request to have any testimony re-read or to have any instructions on the law re-read.”

After further extensive discussion between court and counsel, the jury returned to the court and was given the following instruction:

“Manslaughter is the killing of a human being by the act, procurement or culpable negligence of another. In cases where such killing shall not be justifiable or excusable homicide or murder. Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances. Culpable negligence is the conscious doing of an act or following a course of conduct which any reasonable person would know would likely result in death or great bodily injury to some other person. When this is done without intent to injure any person, but with utter disregard for the safety of others.”

No objections or comments were made by the parties’ attorneys. The jury returned a verdict of guilty of manslaughter; thereafter, judgment and sentence were entered thereon.

On appeal to the District Court of Appeal, First District, that court reversed and remanded for a new trial on the ground that it was error for the trial court to refuse to answer the juror’s question. That court held “. . . The trial court should as near as possible instruct the jury on all material facts and the law applicable thereto. . . . ” This ruling conflicts with this Court’s holding in Diecidue, supra, that, as provided by both the statutes and the rules, a criminal defendant is entitled to a fair trial by a jury which must consider the case upon the sworn testimony given from the witness stand and upon the instructions of the Judge only upon the law of the case.

Although there may be both logic and merit in the view expressed by the District Court, we do not find that to be the law of this State. In our view, the trial court was eminently correct, and for this reason the decision of the District Court of Appeal, First District, is quashed and this cause is remanded for reinstatement of the judgment and sentence of the trial court.

It is so ordered.

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

ADKINS, C. J., and HATCHETT, J., dissent.

      . Article V, Section 3(b)(3), Florida Constitution.

      . 131 So.2d 7 (Fla.1961).

      .Section 918.10, Florida Statutes; Rule 3.390, R.Cr.P.