author: PER CURIAM. ENGLAND, Justice

text:
    Robert L. SHEVIN, Chief Administrator of the Department of Legal Affairs, State of Florida, Appellant, v. INTERNATIONAL INVENTORS, INC., Appellee.
    No. 51102.
    Supreme Court of Florida.
    Dec. 8, 1977.
    Robert L. Shevin, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for appellant.
    Steven A. Anderson of Anderson, Thorn, Grose & Quesada, Tampa, for appellee.
   PER CURIAM.

The following [omitting formal parts] is the Final Judgment which is the subject of this appeal.

“1. Plaintiff is a corporation organized under the laws of the State of Virginia for the purpose of evaluating, representing for manufacture, and distributing invention ideas. Plaintiff has engaged in the business continuously and without interruption in the State of Florida and specifically in Hillsborough County from the date of its organization.

“2. On October 1, 1976, an act relating to inventions became effective as the law of the State of Florida. Said act, House Bill 3321, Chapter 501.136 Florida Statutes provides that invention development service contracts shall meet certain requirements and shall contain certain disclosures. Plaintiff, being one of, if not the largest companies engaged in such business in the State of Florida, falls within the regulatory scope of said law.

“3. Non-compliance by Plaintiff with the provisions of Chapter 501.136 could have the result of rendering any contract between Plaintiff and Plaintiff’s customers void and unenforceable and might furthermore result in an award against the Plaintiff in the amount of or in excess of $3,000. Non-compliance by Plaintiff could also result in the filing of actions for injunctive relief against Plaintiff in accordance with the statute.

“4. Since becoming aware of the enactment of Chapter 501.136 the Plaintiff has attempted in good faith to make its contracts and operations comply with the intent of Chapter 501.136, having obtained legal counsel and having otherwise expended considerable amounts of time and money in attempting to comply. However, due to substantial and numerous defects, ambiguities and inconsistencies in the law, the Plaintiff has been in serious doubt as to the manner in which it might comply with the law, whether its contracts and operations comply with the law, and as to what its rights and liabilities under the law are.

“5. This is a proper action for declaratory relief under Chapter 86.011 Florida Statutes.

“6. Chapter 501.136(l)(b)3, Florida Statutes is vague, ambiguous and subject to numerous interpretations and the legislative intent cannot be determined without hypothecation or guessing. Furthermore, even if one of the numerous interpretations posed at trial were settled on, sub-section (l)(b)3 constitutes an unreasonable classification of persons protected by the law.

“The expressed purpose of Chapter 501.-136 is ‘ . . . to safeguard the public against fraud, deceit and financial hardship and to foster and encourage competition and fair dealing in the field of invention development services . . . ’ Subsection (l)(b)3 establishes a discriminatory scheme which bears no reasonable or rational relationship to that stated purpose, resulting in an unequal application of and protection under the law. Furthermore, the definition of ‘customer’ under that subsection, being based upon either the financial worth of the customer or of the business in which he is engaged (depending on which of the numerous interpretations is settled on), unreasonably requires Plaintiff to obtain financial information from the customer, thereby forcing the Plaintiff to infringe upon the customer’s privacy. The natural result of this classification and the intrusion into the customer’s financial privacy will be to have a chilling effect of Plaintiff’s business in many instances and to totally frustrate Plaintiff’s business in others.

“7. Subsections (6)(k) and (7)(b)3 of Chapter 501.136 require Plaintiff and other invention developers to disclose in the first oral communication with a customer and in at least ten point boldface type within the contract itself the total number of customers who have contracted with the invention developer, except for those who have contracted within the last thirty days, as well as the number of customers who have received, by virtue of the invention developer’s performance, an amount of money in excess of the amount of money paid by such customer to the invention developer. This requirement, particularly when viewed in terms of the vague and ambiguous definition of ‘customer’ as discussed in the proceeding [sic] paragraph, places Plaintiff and other invention developers in an impossible position. In the first place, requiring Plaintiff to disclose the number of its customers and its success factor places it in the dilemma of, on the one hand, making material misstatements of fact to potential customers or, on the other hand, violating the apparent intent of the law. Furthermore, the requirement of reporting plaintiff’s success factor will place an unreasonable burden upon invention developers in terms of obtaining and maintaining information relative to the continuing income of their present and former customers. This statutory provision is onerous to Plaintiff and others in the industry and is effectively prohibitive to their right to engage in business in this state without unreasonable or unnecessary regulation.

“8. Subsection (l)(d)3 excludes from the definition of ‘invention developer’ and therefore, from regulation, ‘any person whose gross receipts from contracts for invention development services ... do not exceed 10% of his gross receipts from all sources during the fiscal year proceeding [sic] the year in which any contracts or invention development services is signed.’ The legislative intent here is totally unclear. However, regardless of intent, the real and practical effect of this exclusion is to exempt from regulation:

“(1) Conglomerates and large, diversified enterprises which may be substantially involved in the invention development business yet receiving less than 10% of their gross receipts annually from that function;
“(2) Part-time or occasional invention developers who engage in the business as a secondary or occasional source of income;
“(3) Persons or entities who may be fully engaged in the business of invention development but who have been in existence less than one year.

“There is no rational consistency or logic to these exclusions and they bear no rational relationship to the stated legislative purposes of safeguarding the public and of promoting competition in the field of invention development services. The Court is not persuaded by the state’s argument that big businesses or conglomerates may be less suspect or have a higher standard of morals than smaller or less diversified businesses. Such a suggestion has no warrant in fact and its suggestion is totally contrary to the American experience. The purposes of this statute are not served by this unreasonable and arbitrary classification. In fact, the contrary seems true.

“9. Subsections (2)("b), (6)(h) and (7)(b)l all place unreasonable requirements upon the Plaintiff and others similarly situated. Subsection (2)(b) unreasonably requires Plaintiff to anticipate the amount of fees and costs which might be incurred in speculative future contracts with its customers as well as to provide its customers with copies of those possible future contracts. Subsections (6)(h) and (7)(b)l unreasonably require disclosure of commissions to Plaintiff or its agents. All of these requirements would have an obvious and substantial negative impact upon Plaintiff’s business. At the same time they would have no offsetting substantial benefit to the public and bear no actual or reasonable relationship to the objective sought by the legislature. Furthermore, these disclosure requirements would mandate that Plaintiff divulge corporate statistics, accounts and other information which have traditionally been considered private financial information. The court finds that the facts do not justify such an invasion and that these statutory requirements do not fall within the proper scope of the state’s police power.

“10. Chapter 501.136 fails to sufficiently define the activities of Plaintiff which are to be regulated. Crucial to the scheme of the statute are the words ‘develop’ and ‘promote’ which words are not defined in the law. Subsections (l)(a), (d) and (e) apparently were the legislature’s attempts to arrive at such a definition but fail to do so to the extent that Plaintiff and others in similar positions would be in serious doubt and uncertainty as to the portions of their business, if any, which are regulated.

“Plaintiff has engaged in its present business for several years. Facts introduced at trial demonstrate that historically Plaintiff has provided basically three forms of services: (1) evaluation of ideas, concepts and inventions (2) representation of those ideas, concepts or inventions to manufacturers and industry (3) distribution of certain products or inventions for sale. While all three of those services are involved with and relate to ideas, concepts and inventions, they are distinct and separable functions. It would seem' that the one aspect of Plaintiff’s business which might be regulated under the law would be that of representation, since that service, according to testimony, involves activities which one might normally expect to fall under the definition of ‘develop’ or ‘promote’. However, here again the express language of the statute is vague and ambiguous. A reading of the statute leaves one uncertain as to which activities the legislature intended to regulate and those which it intended to exclude from regulation. The definition is a matter of substantial import to Plaintiff and others within the regulatory scheme of the law.

“If Plaintiff operates under the assumption that all of its activities are regulated by the statute, it will incur substantial costs both in terms of complying with the statute and in terms of impaired business. On the other hand, if Plaintiff assumes that only portions of its activities and certain of its contracts are regulated it is placed in jeopardy of facing the substantial penalties provided under the remedy section of Chapter 501.136. The court does not feel that it can guess as to the meaning of the statute and must find that the law fails to convey sufficiently definite warning as to the proscribed conduct or sufficient definition as to the regulated activity when measured by common understanding and practice.

“11. Chapter 501.136(6)(a) requires a disclosure of certain facts pertaining to ‘terms and conditions of payment’ which are supposedly set forth in subsection (3) of the law. That section deals with ‘cancellation of contracts for invention development services’ and does not appear to set forth ‘terms and conditions of payment’. Again, this section fails to set forth the activities or conduct of Plaintiff proscribed by the statute and is at least a product of poor draftsmanship.

* * * * * *

“While the court is sympathetic with the expressed legislative intent of safeguarding the public against fraud, deceit and financial hardship and of fostering and encouraging competition and fair dealing in the field of invention development services, and while the Court is further certain that the legislature was well intentioned in drafting this legislation, it cannot help but reach the conclusion that, in numerous specific sections and as an entirety, Chapter 501.136 is constitutionally invalid. The penalties and risks to which Plaintiff would be subjected for violating the provisions of the law are substantial. However, the act is so vague and ambiguous as to make it incapable of proper construction.

“The Court finds the case of Anderson v. D’Alemberte, 334 So.2d 618 (1 DCA, Fla.1976) to be instructive on this point. In finding there that the test of a statute insofar as vagueness is concerned is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice, the court stated (at page 620):

“ ‘. . .we may not allow our sympathies to interfere with the constitutional rights of those members of the public who are affected by the statute. All citizens whether in the public or private sector, are entitled to be informed with reasonable precision what acts are proscribed. It is basically unfair and therefore contrary to the American scheme of justice to require a person to act at his or her peril. . . . ’

There is no question but that numerous portions of this law are incapable of clear construction. This may be due, as conceded by the State, to ‘sloppy draftsmanship’. However, neither Plaintiff nor others in a similar position should be required to bear the burden of the legislature’s sloppy draftsmanship. Consequently, Plaintiff has been denied due process under Article I Section IX Florida Constitution (1968) and the Fourteenth Amendment of the United States Constitution.

“The Court further finds that even if Chapter 501.136 were not unconstitutionally vague and ambiguous, it does, in numerous provisions, establish arbitrary and unreasonably discriminatory classifications which bear no reasonable relationship to the object sought by the legislature. While reasonable classification may be permitted without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which such classification is imposed. Southern Railroad Co. v. Green, 216 U.S. 400-417[, 30 S.Ct. 287, 154 L.Ed. 536] (1910); Reed v. Reed, 404 U.S. 71[, 92 S.Ct. 251, 30 L.Ed.2d 225] (1971). As previously stated, when measured against the expressed legislative purpose of the bill and the articulated reason for it, the statutes do not bear a fair and substantial relationship to the objectives sought by the state. See Morey v. Doud, 354 U.S. 459[, 77 S.Ct. 1344, 1 L.Ed.2d 1485] (1957) and American Trust Co., Inc. v. South Carolina State Board of Bank Control, 381 F.Supp. 313 (D.S.C.1974). Furthermore, the court finds that Chapter 501.136, as specifically stated in the findings above and in general, constitutes an onerous and oppressive regulation of a legitimate business within this state. Article I Section 2 of the Florida Constitution (1968) guarantees to everyone in this state the inalienable right to be rewarded for industry and to acquire, possess and protect property. Inherent in that protection is the right to do business and to contract free from unreasonable government regulation. The court finds that the cumulative effect of the statute would be to substantially diminish the Plaintiff’s ability to engage in business in the State of Florida and might constitute a substantial prohibition of the business altogether because of substantial impossibility of compliance. Such a result constitutes an unconstitutional infringement on Plaintiff’s inherent right of liberty to engage in business.

“The Court is aware that Chapter 501.136 contains a severability clause. However, it is the finding of the court that the statute as a whole cannot be saved. The individual provisions of the law which are constitutionally infirm are so numerous and so material to the purpose of the legislation that the remainder would not be complete and results not contemplated by the legislature would occur if they were merely severed therefrom. It is the specific finding of the Court that Chapter 501.136 is, in its entirety, unconstitutional.

“Plaintiff argues that in addition to its other constitutional defects, Chapter 501.-136 is violative of the Federal Supremacy Clause as established in Article VI Section 2 of the United States Constitution on the grounds that the statute conflicts with the purposes of and undermines the effectiveness of Federal Statutes governing patents and copyrights. There appears to be substantial authority in support of Plaintiff’s argument, particularly in respect to Section 5(a) of the statute which prohibits an invention developer’s acquisition of an interest in inventions. However, in view of the foregoing findings of the Court relative to the other claims of Plaintiff, it is unnecessary to rule on the supremacy question.

“ORDERED and ADJUDGED that:

“1. Defendant’s Motion for Summary Judgment is denied.

“2. Florida Statutes Chapter 501.-136(l)(b)3 is unconstitutionally vague and ambiguous in violation of Article I Section 9, Florida Constitution (1968) and the Fourteenth Amendment of the United States Constitution and is therefore void and unenforceable.

“3. Florida Statutes Chapter 501.-136(6)(k) and (7)(b)3 are constitutionally onerous and unreasonable and violative of Article I Sections 2 and 9, Florida Constitution (1968) and the Fourteenth Amendment of the United States Constitution and are therefore void and unenforceable.

“4. Florida Statutes Chapter 501.-136(l)(d)3 violates Plaintiffs equal protection rights under Article I Section 2, Florida Constitution (1968) and the Fourteenth Amendment, United States Constitution and is void and unenforceable.

“5. Florida Statutes Chapter 501-136(2)(b), 6(h) and (7)(b)l are unconstitutionally onerous and unreasonable regulations and requirements of business in violation of Article I Section 2 Florida Constitution (1968) and the Fourteenth Amendment, United States Constitution and are therefore void and unenforceable.

“6. Florida Statutes Chapter 501.136 is unconstitutionally vague and ambiguous in that it does not sufficiently define ‘develop’ or ‘promote’ nor does it sufficiently place Plaintiff on notice of the conduct and activity proscribed, in violation of Article I Section 9, Florida Constitution (1968) and the Fourteenth Amendment, United States Constitution and is therefore void and unenforceable.

“7. Florida Statutes Chapter 501.-136(6)(a) is unconstitutionally vague and ambiguous in violation of Article I Section 9, Florida Constitution (1968) and the Fourteenth Amendment, United States Constitution and is therefore void and unenforceable.

“8. Florida Statutes Chapter 501.136, as an entirety, violates Article I Section 9 and Article I Section 2 of the Florida Constitution (1968) and the Fourteenth Amendment of the United States Constitution, and is thereby void, unconstitutional, ineffective and without force of law and it is,

“FURTHER ORDERED and ADJUDGED that the statutory enforcement officers and authorities and each of them, their agents and servants be permanently restrained and enjoined from exercising any of the powers, rights or duties respecting the enforcement of the act insofar as it purports to confer such rights, powers and duties on said enforcement authorities and each of them.”

Such judgment is, in all respects, approved and affirmed, and is hereby adopted as the decision of this Court.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG, HATCHETT and KARL, JJ., and DREW (Retired), J., concur.

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice

concurring.

We are frequently called upon to evaluate and construe the solemn acts of the Legislature. Over the years this Court has endeavored to preserve legislative policy whenever possible, to the extent that one astute Court watcher recently described our efforts in these terms:

“I take the position that there’s nothing sacrosanct about an act of the Legislature. I know that this Court will leap to the aid of the Legislature on occasion. I have the analogy. The Legislature throws out a statute. It looks like the village drunkard, you know what I mean? And this Court rehabilitates that statute — you know, brushes it off, puts a hat on its head, so it can go home and meet the public in a presentable condition. This Court has done that to many legislative acts.”

I agree with the implicit conclusion of my colleagues that this statute is so worded and constructed as to defy our collective best efforts at “rehabilitation”.

      . Observation by Joseph Wanick, Esquire, during oral argument in Village of El Portal v. City of Miami Shores, Case No. 51,233, on October 21, 1977.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR. In re RULE 1.220(b), FLORIDA RULES OF CIVIL PROCEDURE (PETITION TO MODIFY).
    No. 51800.
    Supreme Court of Florida.
    Dec. 8, 1977.
    Russell Troutman, President of The Florida Bar, Winter Park, Robert L. Floyd, President-elect of The Florida Bar, Miami, Bill Wagner, Chairman, Tampa, and Joseph P. Klock, Jr., Vice Chairman and Clerk of the Civil Procedure Rules Committee, Miami, for petitioner.
    Paul Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, and Henry P. Trawick, Jr., a member of The Florida Bar, Sarasota, supporting Petition.
    Rod Tennyson, Chairman of the Consumer Protection Law Committee, The Florida Bar, West Palm Beach, for respondent.
    Jay H. Beckerman, State of Fla., Dept, of Transp., Jeffrey E. Streitfeld of Becker, Poliakoff & Sachs, Fort Lauderdale, opposing Petition.
   PER CURIAM.

This matter is before the Court upon the petition of The Florida Bar, acting through its Civil Procedure Rules Committee (petitioner), to modify Florida Rules of Civil Procedure 1.220(b). The petition for modification is opposed, principally by the Consumer Protection Law Committee of The Florida Bar (respondent). Florida Rules of Civil Procedure 1.220(b) was promulgated by this Court as an emergency rule in connection with its review of the constitutionality of Section 711.12(2), Florida Statutes (1975), and Section 718.111(2), Florida Statutes (Supp.1976), in Avila. South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1977). Because of the matters raised in its petition and brief herein, petitioner sought to intervené on rehearing in Avila. The petition for intervention and for rehearing was denied. However, due to the substantiality of the assertions made by petitioner, we directed that these proceedings be entertained in a separate docket with opportunity for all interested parties to be heard. We have jurisdiction pursuant to Article V, Section 2, Florida Constitution.

The competing positions of petitioner and respondent can be characterized as follows: (i) Petitioner maintains that Rule 1.220(b) is unnecessary in view of the repeal in 1976 of Section 711.12(2), Florida Statutes (1975), and enactment of Section 718.111(2), Florida Statutes (Supp.1976); (ii) respondent asserts that not only is the rule necessary, but it is essential to foster the public policy enunciated in both the 1975 and 1976 legislative enactments once this Court invalidated portions of each statute which dealt with practice and procedure. Petitioner suggests that although Section 711.12(2), Florida Statutes (1975), and to a lesser degree, Section 718.111(2), Florida Statutes (Supp.1976), represented an unconstitutional incursion by the legislature into the Court’s rule-making prerogative, nevertheless the Court in Avila intruded the realm of the legislature by invalidating all but the first two sentences of each section and enacting Rule 1.220(b). It is contended that “capacity” to sue is a matter of substantive right which is the prerogative of the legislature and that, at least, Section 718.111(2), ■Florida Statutes (Supp.1976), went no further than to create capacity in condominium associations. Petitioner concedes that even the 1976 enactment of the legislature requires some delicate surgical excision to reach this constitutional result.

Having laid this predicate petitioner then argues that the postoperative version of Section 718.111(2), Florida Statutes (Supp.1976), creates capacity in favor of condominium associations avoiding the impediment created by the decisions in Wittington Condominium Apartments, Inc. v. Braemar, 313 So.2d 463 (Fla. 4th DCA 1975), and Hendler v. Rogers House Condominium, Inc., 234 So.2d 128 (Fla. 4th DCA 1970) and, consequently, nothing in addition to Florida Rules of Civil Procedure 1.220(a) is necessary to vindicate the interests of condominium unit owners through the vehicle of a class action. This is so because once capacity is created the application of existing case law under Rule 1.220(a) will determine the standing of a particular condominium association to maintain a class action under particular factual situations. See Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976), and Harrell v. Hess Oil and Chemical Corp., 287 So.2d 291 (Fla.1973). Petitioner argues that this analysis and conclusion offers the advantage of preserving the body of case law which has developed with respect to interpretation of Rule 1.220(a) when a condominium association seeks to maintain or defend a class action. To do otherwise, it is argued, will lead to uncertainty and a multiplicity of appeals in the future where condominium associations are concerned. More importantly, petitioner asserts that individual unit owners who do not wish to be bound as plaintiffs or defendants in a class action maintained by their condominium association will be better served by adhering to the traditional rule.

On the other hand, respondent asserts that the rule is necessary and that public policy is advanced by expressly declaring condominium association members a class as a matter of law without the necessity for pleading or proving the traditional seven class action elements enunciated in Frankel and Harrell, supra. Respondent’s position essentially is that the elements traditionally required to establish the efficacy of a class are inherent in a condominium association relationship making pleading and proof of such elements unnecessary and burdensome. This position is reinforced by the argument that individual association members are protected from capricious or arbitrary class actions by the governing authority of the association through provisions of Chapter 718, Florida Statutes (Supp.1976), as well as decisions which impose a fiduciary duty upon the governing body of such associations to afford due process and equal protection to its members. See McCune v. Wilson, 237 So.2d 169 (Fla.1970), and Franklin v. White Egret Condominium, Inc., Case No. 76-1535, opinion filed Aug. 9, 1977 (Fla. 4th DCA 1977).

We concur with the respondent. As was articulated in Avila, supra, “the peculiar features of condominium development, ownership, and operation indicate the wisdom of providing a procedural vehicle for settlement of disputes affecting condominium owners concerning matters of common interest.” Id. at 608. Petitioner is quite correct in its assertion that the legislature granted the substantive right of “capacity” to sue and be sued by enacting Section 718.111(2), Florida Statutes (Supp.1976), but the legislature had no constitutional power to also create a procedural vehicle for condominium associations to maintain or defend such suits as a class action, this being a matter of practice and procedure. The response of this Court in Avila was to recognize the authority of the legislature to create capacity in condominium associations to maintain suits, but to reject the attempt of the legislature to design the procedural vehicle for vindication of substantive rights. However, recognizing the virtue of the policy sought to be asserted by the legislature, we adopted Rule 1.220(b). Based on the same sort of reasoning displayed by Judge Baskin in Imperial Towers Condominium, Inc. v. Brown, 338 So.2d 1081 (Fla. 4th DCA 1976), we believed that as to controversies affecting the matters of common interest recited in Rule 1.220(b), the condominium association, without more, should be construed to represent the class composed of its members as a matter of law.

Petitioner states that this rule will force litigation upon unwilling members of a class which is contrary to the precepts of a traditional class action. With this we disagree. It was represented to the Court at oral argument that notwithstanding the creation of a special class by operation of Rule 1.220(b), trial judges have in a number of instances since adoption of the rule required notification to the putative class members after institution of suit to provide an opportunity for nonconsenting unit owners to “opt out” of the suit. This procedure is not inconsistent with Florida Rules of Civil Procedure 1.220(b). By its terms the last sentence of the rule contemplates other actions by members of the class which is one of the traditional basis for “opting out” of a class action.

For the reasons stated the petition of The Florida Bar for modification of Florida Rules of Civil Procedure 1.220(b) is denied. However, we would not leave this opinion without commenting on the efforts of the several committees of The Florida Bar here represented to fully advise this Court in its rule-making function. Rule 1.220(b) was adopted as an emergency matter arising out of the exigencies of the Avila case. It has been of substantial benefit to this Court to receive the comments and arguments of all participants concerning the proper scope of the class action rule. The proceedings reinforced our earlier conclusions, but input from The Florida Bar is beneficial when we exercise our rule-making authority. The committees of the Florida Bar who appear in this proceeding are commended for their contribution on behalf of the bench, bar, and public of the State of Florida.

It is so ordered.

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

      . Fla.R.Civ.P. 1.220(b) reads:

        “Condominium Associations. After control of a condominium association is obtained by unit owners other than the developer, the association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest, including, but not limited to, the common elements; the roof and structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving an improvement or a building; representations of the developer pertaining to any existing or proposed commonly used facilities; and protesting ad valorem taxes on commonly used facilities. If the association has the authority to maintain a class action under this section, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action under this section. Nothing herein limits any statutory or common law right of any individual unit owner or class of unit owners to bring any action which may otherwise be available.”

      . In Wittington and Hendler, it was the absence of this capacity which barred the certification of the classes.


text:
    In re FLORIDA BOARD OF BAR EXAMINERS. In re QUESTION OF LAW CERTIFIED (CHAPTER 77-63, LAWS OF FLORIDA) ADMISSION OF EXAMS TO BLIND AND DEAF.
    No. 52017.
    Supreme Court of Florida.
    Dec. 8, 1977.
    Parks M. Carmichael, Chairman, Gaines-ville, and C. Graham Carothers, Tallahassee, for Florida Bd. of Bar Examiners, petitioner.
    Robert L. Shevin, Atty. Gen., and David J. Baron, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This cause is before us upon petition of the Florida Board of Bar Examiners for an advisory opinion concerning the validity of Chapter 77-63, Laws of Florida, and its applicability to the Board. At the urging of this Court the Attorney General has filed a response to the petition. We have jurisdiction under Article V, Section 15, Florida Constitution.

Chapter 77-63, Laws of Florida, deals generally with the modification or adaptation of certain examinations administered by state agencies to persons who are classified as blind or deaf. This enactment seeks to encourage and assist blind or deaf persons to receive personal and vocational independence by eliminating certain barriers so as to make them competitive in qualifying for state career service jobs and admission to The Florida Bar. The Board notes that Chapter 77-63, Laws of Florida, specifically addresses itself to the administration of The Florida Bar examination and purports to regulate the manner in which this examination is administered by the Board. Additionally, the act provides that a violation thereof shall constitute a criminal misdemeanor punishable by fine not to exceed $500. The Board now questions whether the Florida Legislature may properly enact this legislation without violating Article V, Section 15 of the Constitution of the State of Florida and, if it can, whether the act is valid as applied to the Florida Board of Bar Examiners. Because the Florida Constitution by its express terms vests exclusive jurisdiction in this Court to regulate the admission of persons to the practice of law, because the Florida Board of Bar Examiners is an attaché of this Court, and because the act imposes criminal penalties upon the Board for failure to adhere to its provisions, we find the act invalid as to the Board of Bar Examiners in administering the Florida Bar Examination. Our Constitution prohibits legislative interference with this Court’s exercise of its power to govern admissions to The Florida Bar. Article V, Section 15, Florida Constitution.

For more than six centuries prior to the adoption of our Constitution, the English courts exercised the right to determine who should be admitted to the practice of law. Matter of the Sergeants at Law, 6 Bing-ham’s New Cases, 235. This authority was grounded upon the rationale that if the courts and the judicial power were to be regarded as an entity, the power to determine who should be admitted to practice law was a constituent element of that entity. This was so because the quality of justice dispensed by the courts depended in no small degree upon the integrity and competence of its bar. An unfaithful or incapable bar could visit reproach upon the administration of justice and upon the courts themselves.

The drafters of the Florida Constitution recognized this inherent right of the courts to regulate the admission of persons to the practice of law, imbuing the Supreme Court with exclusive jurisdiction to direct such admissions. Article V, Section 15, Florida Constitution. See The Florida Bar v. Massfeller, 170 So.2d 834 (Fla.1964). In the exercise of its constitutional authority, this Court created the Florida Board of Bar Examiners to evaluate candidates for admission to The Florida Bar. As an arm of this Court, the Board is answerable solely to this tribunal. Any legislative enactment which constitutes an usurpation of this Court’s constitutionally endowed power, by , seeking to govern the Board’s activities must be invalid.

In the case sub judice, Chapter 77-63, Laws of Florida, clearly seeks to regulate the manner in which the Florida Bar Examination is administered by the Board. It requires the Board to adopt specific examination modifications and adaptations designed to make handicapped individuals more competitive with other candidates. The enactment authorizes the Division of Personnel of the Department of Administration and the Department of Education to jointly formulate rules pursuant to these examination modifications. Finally, it imposes criminal penalties upon the Board if the Board violates the provisions of the act. The Board logically inquires how it may properly be answerable to the direction of this Court and at the same time the dictates of the legislature embodied in Chapter 77-63. It is the age-old dilemma of attempting to serve two masters.

Respondent has conceded that the enactment appears to conflict with Article V, Section 15, Florida Constitution, if applied to the Florida Board of Bar Examiners. With respect to the enactment’s effect upon the Board, however, respondent urges this Court to construe the act as an advisory expression of the appropriate public policy, as determined by the legislature. Respondent asserts that such construction is preferred because it must be assumed that the legislature intended for the law to be constitutional. Consequently, concludes respondent, the word “shall” as found in the act, when applied to the Board actually means “may.” However, when the act applies to any other State agency, the word “shall” actually means “shall.” We reject such sophistry as constituting an inaccurate interpretation of legislative intent.

Respondent suggests that the statute in question was meant to serve a commendable purpose, i. e., to provide a sound approach to compliance with the provisions of Article I, Section 2, Florida Constitution, providing that “[n]o person shall be deprived of any right because of race, religion or physical handicap.” We agree with respondent’s proposition and note that the Board concurs with the legislative policy embodied in Chapter 77-63, Laws of Florida. We take note of the fact that the Board has for some time given special consideration to the physically handicapped in administering the bar examination. Furthermore, the Board has recently memorialized its sensitivity to the physically handicapped by adopting formal policies and guidelines relating to the administration of the Florida Bar Examination to persons having such handicaps. These policies and guidelines are compatible with the provisions of Chapter 77-63.

Our decision today constitutes no more than a determination of the intent of the framers of our Constitution with respect to the seat in which the power herein enunciated should reside. No greater responsibility rests with this Court than maintaining in form and substance the government established by the people through our organic document.

Accordingly, we hold that Chapter 77-63, Laws of Florida, is invalid as applied to the Florida Board of Bar Examiners. Nothing in this opinion addresses the applicability or validity of Chapter 77-63 with respect to any other agency mentioned therein.

It is so ordered.

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

      . Ch. 77-63, Laws of Florida, reads:
      “CHAPTER 77-63
      “Committee Substitute for Senate Bill No. 249
      “AN ACT relating to state government; providing for modification or adaptation of certain examinations administered by state agencies so that blind or deaf persons can more equitably compete with sighted or hearing persons taking any such examination; providing criteria for certain modifications and adaptations; providing for rules; providing penalties; providing an effective date.
      “Be It Enacted by the Legislature of the State of Florida:
      “Section 1. Examinations administered by state agencies; modifications with respect to blind or deaf persons; duties of state agencies; penalties.—
      (1) The purpose of this section is to further the policy of the state to encourage and assist blind or deaf individuals to achieve maximum personal and vocational independence through useful and productive gainful employment by eliminating unwarranted barriers to their competitively qualifying for state career service jobs and to their admission to The Florida Bar.
      (2) As used in this section:
      (a) ‘Blind person’ means an individual having central visual acuity 20/200 or less in the better eye with correcting glasses or a disqualifying field defect in which the peripheral field has contracted to such an extent that the widest diameter or visual field subtends an angular distance no greater than 20 degrees.
      (b) ‘Deaf person’ means an individual having an 82 decible loss of hearing and manual communication is necessary to communicate.
      (c) ‘Agency’ includes each department and agency of the state, the Florida Board of Bar Examiners, and each subdivision or agency thereof.
      (3)(a) The Florida Board of Bar Examiners with respect to The Florida Bar examination, and the Division of Personnel of the Department of Administration, with respect to all competitive examinations administered by it or any other agency to applicants for employment within the State Career Service System, shall adapt such examinations so that blind or deaf persons taking any such examinations can more equitably compete with sighted or hearing persons taking the examinations. The modifications or adaptations required by this subsection shall include, but not be limited to, the following:
      1. The provision of at least 50 percent more time to complete the examination for the blind or deaf person taking the examination to allow for the slowness of readers or interpreters.
      2. Competent reader service provided by the agency or by the appropriate blind services agency of the Department of Education or certified interpreter service provided by the agency or by the appropriate office of Vocational Rehabilitation of the Department of Health and Rehabilitative Services at no expense to the blind person taking the examination.
      3. The exclusion from the examination of graphs, charts, tables, and questions which might, per se, be unfamiliar to a blind person or would be difficult for a blind person to interpret because of his blindness as, for example, estimating distances visually.
      (b) Each agency shall allow a blind or deaf person taking such an examination to use any necessary special equipment, aids, or appliances including, but not limited to, the following:
      1. Note-taking equipment as, for example, slate and stylus or Braillewriter.
      2. Computational aids as, for example, the cramer abacus, as a substitute for hand calculations for sighted competitors.
      3. Low-vision aid devices.
      (c) Blind or deaf examinees shall be given sufficient privacy to insure good testing conditions and prevent disruption of others’ testing environment.
      (d) If there are two or more blind or deaf examinees, they shall be seated either in separate rooms or far enough apart so that they do not interfere with or help one another.
      (4) The examination modifications and adaptations required under the provision of this section shall be accomplished in consultation with the appropriate blind services agency of the Department of Education or the Office of Vocational Rehabilitation of the Department of Health and Rehabilitative Services and may be accomplished in consultation with the United States Civil Service Commission for utilization of current research findings. Rules promulgated pursuant to this section shall be jointly formulated by the Division of Personnel of the Department of Administration and the Department of Education.
      (5) No agency, as herein defined, shall be allowed to evade the intent and meaning of this act. Any agent or employee of such agency who intentionally violates the provisions of this act is guilty of a misdemeanor of the second degree, punishable by a fine not to exceed $500.
      “Section 2. This act shall take effect January 1, 1978.
      “Approved by the Governor May 26, 1977.
      “Filed in Office Secretary of State May 26, 1977.”

      . Art. V, § 15, Fla.Const., reads:
      “Attorneys; admission and discipline.—
      The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.”


author: LETTS, Judge.

text:
    Janet Hedke PINKERTON, Appellant, v. G. Anthony WEST, Appellee.
    No. 76-1882.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Martin L. Hoffman of Hoffman & Kup-fer, Tamarac, for appellant.
    William D. Ricker, Jr. of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   ON PETITION FOR REHEARING

LETTS, Judge.

This is an appeal from a summary final judgment rendered in favor of an attorney who successfully pled the statute of limitations in a suit against him for legal malpractice. We reverse and remand.

This appeal stems from a representation of the appellant client by the appellee Florida lawyer in efforts to enforce, in Florida, a Michigan order for alimony arrearages. The basic mis-advice to his client was that she should accept an offered settlement, or her ex-husband would respond by declaring bankruptcy, in which case she would receive nothing. Believing this advice she settled and then later, after a period of more than two years had gone by since the advice was given, was told by a California lawyer that the advice was erroneous, as indeed it was. A suit followed which she lost because of Florida Statute § 95.11(4)(a) (1975) which reads, in part:

4.WITHIN TWO YEARS—
(a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.

The appellant argues that under the above statutory language the two year period did not begin to run until she discovered from the California lawyer that Florida counsel had given her erroneous information. Florida counsel responds that she knew or should have known because, more than two years before the suit was filed, she:

(1) read an article informing her that bankruptcy does not discharge alimony.

(2) wrote letters to her attorney questioning his competence, his ethics and hinting that she might switch lawyers.

In support of this argument, Florida counsel cites Henzel v. Fink, 340 So.2d 1262 (Fla. 3rd DCA 1976), where that court held that the trial tactics of counsel revealed “obvious errors” about which the client did nothing for over two years. However in that case the aggrieved client knew all he was ever going to know at the time the obvious errors occurred — and then did nothing for the full statutory period. This being so, we find it distinguishable from the case at bar.

If any laywoman reads an article in a newspaper quoting law that affects her, it seems most obvious that she will go to her lawyer for confirmation and for clarification. In this case appellant did just that, to be told that the law of the newspaper article did not apply in Florida. We fail to see why, as a matter of law, she is charged with knowledge that her lawyer was wrong or with failure to use reasonable diligence to so discover. If we were so inclined we would be confessing that the lay public is on notice to believe “newspaper law” in preference to that expounded by the legal profession. Such we cannot do.

The mistaken lawyer also argues that her repeated expressed dissatisfaction and distrust of him was sufficient to put her on notice of his shortcomings about which she herself berated him. It is significant however that the record is silent as to evidence conclusive, as a matter of law, that she knew or should have known her lawyer was wrong in his rendered legal opinion that bankruptcy defeated alimony arrearages. At all events, it would appear to us to be a question of fact as to whether his incompetence was so glaring and of such magnitude that his client was on notice to pay no attention to any of his legal advice.

All this being so, we think it was error for the judge to grant a summary judgment against the appellant. As we have held before:

“the applicability of the statute of limitations to the plaintiffs’ cause of action for malpractice against the attorney-defendant is dependent upon when the attorney’s alleged act of negligence became known to the client which matter is a question of fact to be determined by the trier of the fact and nqt by the court in a summary proceeding.” Schetter v. Jordan, 294 So.2d 130, 131 (Fla. 4th DCA 1974).

This cause is reversed and remanded for further proceedings consistent herewith.

DOWNEY, J., and MARVIN U. MOUNTS, Jr., Associate Judge, concur.


author: PER CURIAM. BOYER, Acting Chief Judge.

text:
    Henry Thomas MANNING, Appellant, v. Virginia Elnora MANNING, Appellee.
    No. DD-458.
    District Court of Appeal of Florida, First District.
    Oct. 24, 1977.
    Rehearing Denied Dec. 20, 1977.

      John Peter Kirtz, Jr., Pensacola, for appellant.
    Louis K. Rosenbloum, of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   PER CURIAM.

Appellant’s appeal from the final judgment of dissolution is affirmed in all respects with the exception of that portion of the judgment allowing the wife permanent alimony. We note from the record that the parties were married for ten years prior to dissolution, and had two children, ages seven and nine. The wife was awarded custody of the children and the husband is directed to pay $110.00 per week for support of the two minor children. The wife is 29 years of age, in good health, and has a high school education. While she has not worked for some time because of her efforts in raising her children, she was employed for a while during the outset of the marriage as a cashier and store clerk. We are of the opinion the interests of the parties would be best served by the court considering an award of rehabilitative, as opposed to permanent, alimony. See Fitzwater v. Fitzwater, 296 So.2d 74 (Fla. 1st DCA 1974). This cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART AND REVERSED IN PART.

BOYER, Acting C. J., and MILLS and ERVIN, JJ„ concur.

ON PETITION FOR REHEARING

BOYER, Acting Chief Judge.

Appellee has filed a petition for rehearing urging, inter alia, that by our holding that on remand the trial court should consider an award of rehabilitative (as opposed to permanent alimony, we have apparently overlooked our own decision in Ruhnau v. Ruhnau, 299 So.2d 61 (Fla.lst DCA 1974). Appellee has apparently misunderstood our holdings in this case, in the Ruhnau case and other decisions relating to rehabilitative and permanent alimony. We have, indeed, commended the mother who has expressed a willingness and desire to fulfill that role rather than test her fortunes in the market place and social circuit. However, for clarification we reiterate that just as permanent does not necessarily mean forever (Ruhnau v. Ruhnau, supra) neither does rehabilitative necessarily mean temporary. Should a trial judge determine that a mother is discharging her responsibilities as such and that her “mothering responsibilities” prevent her from rehabilitating herself or substantially impede her progress to that end, then there is nothing to prohibit the trial judge from awarding rehabilitative alimony during such period although the period may encompass an extensive amount of time. However, when the mother role has terminated by virtue of maturity or independence of the children then the wife should, health and other factors permitting, make every effort to rehabilitate herself within a reasonable time thereafter and when she has done so the rehabilitative alimony should be discontinued. As in other forms of alimony, rehabilitative alimony may be modified from time to time upon a showing of change of circumstances; the needs and respective abilities being the guideposts for the exercise of judicial discretion. Any modification requested by the recipient must be sought prior to expiration of the period for which it was awarded. (Lee v. Lee, 309 So.2d 26 (Fla.2nd DCA 1975); Cann v. Cann, 334 So.2d 325 (Fla.1st DCA 1976)).

The petition for rehearing is denied.

MILLS and ERVIN, JJ., concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    The RENAISSANCE OF POMPANO BEACH, INC., a Florida non-profit Corporation, and those Individuals names in Schedules 1 and 11 attached hereto (see Notice of Appeal), Appellants, v. SOUTHEASTERN DEVELOPMENT CORP., a Florida Business Corporation, and Florida Coast Bank of Oceanside, a Florida Banking Corporation, Appellees (three cases).
    Nos. 76-1820 to 76-1822.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.
    Rehearing Denied Dec. 20, 1977.

      Stephen N. Lipton of Becker & Poliakoff, P. A., Fort Lauderdale, for appellants.
    Dennis Alan Richard of Richard & Richard, Miami Beach, for appellee-Southeast-ern Development Corp.
    William J. Barnes of Miller, Zachman & Balasso, P. A., Pompano Beach, and R. Ben-jamine Reid of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, P. A., Miami, for appellee-Florida Coast Bank of Oceanside.
   PER CURIAM.

AFFIRMED.

CROSS and LETTS, JJ., concur.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

This is an interlocutory appeal, in equity, of an Order in a condominium case. The particular matter raised on appeal is the ordered release of funds held in the court registry.

Appellant is an association of condominium unit owners and Appellee Southeastern is the developer and owner of the recreational facilities located at the condominium development known as the Renaissance of Pompano Beach. The unit owners each entered into a lease with the Appellee for the use of the recreation facilities for a period of 99 years. Among the covenants of the lease the lessor agreed that the premises were free of encumbrances but reserved the right to mortgage the premises in the future.

The unit owners have sued the developer alleging a breach of various agreements concerning the recreational facilities, and unjust enrichment. They contend the developer did not deliver all he promised to deliver.

Upon the owners’ application the court ordered the lease payments be made into the court registry. On the developer’s application the court ordered the registry funds be paid to the mortgagee/Appellee-Florida Coast Bank of Oceanside.

For our determination is the propriety of that last mentioned Order. It was entered under the authority of Section 711.63(4), Florida Statutes (1975), which permits the court to direct “disbursement of all or part of the funds ... for the payment of mortgage payments. . . .”

Before us to consider are:

1) The various agreements between the parties and the assertions of the developer-lessor concerning the recreational unit including:

a) The recreational unit was for the use of the lessees upon their payment of the lease and maintenance payments.

b) The assurances of the developer that the recreational unit would consist of certain facilities and amenities.

2) The allegation of the lessees that the lessor has not complied with its agreements.

3) The agreement of the lessor-developer that the recreational unit was unencumbered.

4) The mortgage in favor of Appellee-Florida Coast Bank of Oceanside.

5) Section 711.63(4), Florida Statutes (1975), the legislative intent behind it and the fact we are dealing on the equity side.

The easiest thing to do is to decide the Statute means exactly what it says and sustain the trial court’s Order releasing payments to the mortgagee. But I cannot do so in face of this record. The recreational unit lease is one of the most comprehensive “lessor leases” which one could ever imagine. It ties down the rights and obligations of the parties for 99 years in such a way that I cannot help but construe it very strictly against the drafter, lessor. Baker and Company, Florida v. Goding, 317 So.2d 118 (Fla.3d DCA 1975); Bouden v. Walker, 266 So.2d 353 (Fla.2d DCA 1972). When lessor covenanted the recreational unit was free from all encumbrances, save inferior mortgages, I assume it should be bound to that statement and therefore the rights of the mortgagee probably should remain subordinate to the rights of the lessee. I hasten to assure that the mortgagee would be in no different position vis-a-vis the lessor and the security than before. The mortgagee would still be able to look to the lessor for payment and the property for security and ultimately to the lessees for the lease and maintenance payments, if necessary. It appears the leases were recorded before the mortgage and the leases have been assigned by lessor to mortgagee.

When the developer-lessor agreed the property was unencumbered, but reserved his right to encumber, it in effect agreed to apply the lease payments first to the provision of the recreational unit and then to his profit. It is alleged the developer did not provide the recreational unit as promised and the Statute permits the lessee to make the lease payments into the court registry until the dispute is settled. I am convinced the legislature did not intend to permit the condominium developer to mortgage away the rights of the lessees.

It is alleged the lessor has failed to use the funds received from the lessees for the construction and maintenance of the recreational unit. The court should not sanction the device created by the lessor, if in fact a devise was created, to divert the funds from the construction and maintenance of the recreational unit to pay a mortgage which may not have been obtained for the benefit of the recreational unit even though it encumbers it.

There are questions which must be answered in the trial court, in this case, before it can be said the lessor has the right to have the lease payments diverted to the mortgagee. Therefore I would remand this case for a hearing below to determine:

1) Were all of the mortgage funds used for the construction and maintenance of the recreational unit?

2) For what purpose have the past lease payments been used?

If the trial court should determine the mortgage and lease funds were used for purposes other than the construction and maintenance of the recreational unit then that fact should be a most persuasive consideration for denying the use of the registry funds for the mortgage payments when all factors are weighed together.

Therefore I would have the trial court reweigh the matter with a stricter look at the developer and mortgagee.


text:
    John PENNINGTON and Marcia Pennington, his wife, Appellants, v. Jack SERIG et al., Appellees.
    No. 76-2154.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1977.
    Rehearing Denied Jan. 4, 1978.

      Freidin & Goldfarb and Philip Freidin, Miami, for appellants.
    Leland E. Stansell, Jr., and Robert A. Glassman, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiffs appeal an adverse summary judgment in this action to recover damages for personal injuries sustained as a result of a slip and fall accident.

Jack Serig, defendant-appellee, supervises the annual safety inspection for all school facilities as safety supervisor for the Dade County Board of Public Instruction. On September 25, 1975 Serig recommended to the Board’s maintenance department that the treads on the 4th floor landing of a stairway in the Board’s office building be removed. The maintenance department removed the treads and shortly thereafter Serig inspected the landing and determined it to be safe. On October 5 plaintiff John Pennington sustained personal injuries when he tripped on the landing and fell. He and his wife, Marcia, filed a complaint against Serig and his supervisor, Richard Hale, alleging that the landing was in a defective or dangerous condition due to the negligence of these two defendants in removing or directing the removal of the treads creating a dangerous condition and in failing to warn of this condition. Following pretrial discovery, defendants moved for summary judgment which was entered in their favor. We affirm.

In the absence of any allegation or proof of bad faith or malicious purpose on their part, defendants are immune from personal liability under Section 768.28(9), Florida Statutes (1975). See also Metropolitan Dade County v. Kelly, 348 So.2d 49 (Fla.1st DCA 1977). Second, plaintiffs’ reliance upon the fellow servant rule to establish a duty upon the defendants is misplaced as under the circumstances plaintiffs and defendants cannot be considered fellow servants. See Sutton v. Hancock, 105 Fla. 497, 500, 141 So. 532, 533 (1932) and Cf. Williams v. Dade County, 237 So.2d 776, 781 (Fla.3d DCA 1970). Last, if a duty did exist, then such duty was owed to the general public as opposed to a special duty owed to the plaintiffs and, therefore, under the holding of Modlin v. City of Miami Beach, 201 So.2d 70, 75 (Fla.1967), plaintiffs could not prevail.

Affirmed.