author: PONDER, Judge.

text:
    L. H. “Jerry” BENNETT v. EXECUTIVE DEPARTMENT, DIVISION OF STATE BUILDINGS AND GROUNDS.
    No. 10716.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied July 6, 1976.

      Alex W. Wall, Baton Rouge, for appellant.
    Phil E. Miley, Baton Rouge, R. Gray Sexton, Intervenor for Civ. Serv. Dept., Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

When this case was before this court previously, it was remanded to the Civil Service Commission so that it might consider whether the charges against appellant had been made by the proper appointing authority. Bennett v. Division of Administration, La.App., 307 So.2d 118. After receiving more evidence, the commission rendered an opinion, the pertinent portion reading:

“Executive orders Nos. 40 and 41 make it clear that the Governor delegated to his Executive Assistant, Charles E. Roe-mer, II, supervisory authority over the division of the Executive Department known as “State Building and Grounds.” Such supervisory authority was in no way limited or restricted in those orders, and it necessarily includes the right to hire, fire, or otherwise to discipline personnel employed in that Division.
“Testimony of Charles E. Roemer, II and of Joe A. Terrell make it abundantly clear that Roemer had, in turn, delegated to Terrell the authority to manage that division. Testimony of Mercy Cambre, the Personnel officer of the division, was clear that she had been informed by Roemer that such authority had been delegated to Terrell, and she confirmed that Terrell has exercised that authority in personnel actions.
“The conclusion is inescapable that the disciplinary action taken against this appellant by Joe A. Terrell was taken by one duly authorized to do so, and the ‘Supplemental Appeal’ is denied.”

Plaintiff L. H. “Jerry” Bennett has timely appealed. Under the authority of R.S. 13:3417 the Department of Civil Service has intervened, asking that the decision of the Civil Service Commission be reversed.

The requirement that the discharge come from the appointing authority is to be strictly construed. Bennett v. Division of Administration, supra; Miller v. State Department of Health, La.App., 135 So.2d 570; Tassin v. Louisiana Wildlife and Fisheries Commission, La.App., 193 So.2d 812.

R.S. 49:141 reads as follows:

“There is created the Division of State Buildings in the office of the governor which shall be administered by a superintendent of state buildings appointed by the governor. The superintendent of state buildings shall have charge of the management, operation and maintenance of general public buildings of the state, including the governor’s mansion.”

The preponderance of the evidence presented is that both before and after appellant’s discharge, all discharges have been made by the Superintendent of State Buildings and Grounds. One witness agreed that appellant’s discharge was “unique.”

In Pelletier v. Executive Department, La.App., 331 So.2d 72 and Caston v. Executive Department, La.App., 331 So.2d 864, this court has held that the Superintendent was the proper appointing authority in March of 1975.

We must look then for some salient point justifying the conclusion that Mr. Terrell was the appointing authority when Mr. Bennett was discharged in October, 1973.

The commission and appellee depend upon Executive Orders Nos. 40 and 41. These read as follows:

EXECUTIVE ORDER NO. 40
“WHEREAS, Executive Order No. 28 required all contracts for services purchased by agencies of the State of Louisiana to be reviewed and approved by the Division of Administration, and
WHEREAS, the opportunity avails itself to effect a sizable savings for the State of Louisiana through the review and approval process, and
WHEREAS, the Division of Administration is the primary purchasing agent for the State and indeed enters into numerous contractual arrangements itself, and
WHEREAS, the creation of a check and balance procedure is most desirable;
NOW, THEREFORE, I, EDWIN EDWARDS, GOVERNOR OF LOUISIANA, do hereby direct the creation of a principal department within the Executive Department, Office of the Governor, to be known as the Department of Contractual Review with the Director of said department to be appointed by the Governor.
FURTHERMORE, I direct that the State Bond and Building Commission be established as a principal department in the Executive Department, Office of the Governor. The Director of which will be appointed by the Governor.
AND FURTHER, the Directors of the Department of Contractual Review and the State Bond and Building Commission and the Division of State Buildings and Grounds will report directly to a staff member of my office, who will be designated by me on July 1, 1973.”
EXECUTIVE ORDER NO. 41
“WHEREAS, Executive Order No. 40 requires that I designate a member of my staff as the reporting authority for the Directors of the following principal departments of the Executive Department, Office of the Governor.
1. Department of Contractual Review
2. State Bond and Building Commission
3. State Buildings and Grounds
NOW, THEREFORE, I, EDWIN EDWARDS, GOVERNOR OF LOUISIANA, do hereby direct that the Directors of the above Departments report directly to my Executive Assistant, Charles E. Roemer, II, effective July 1, 1973.”

We cannot agree with the Commission or the appellant that this constituted a change of the appointing authority of the Division of State Buildings and Grounds. The references in Executive Order 40 to Executive Order 28, to the capacity of the Division of Administration as the primary purchasing agent for the State and to the creation of a Department of Contractual Review lead us to the view that what was contemplated was a supervision of purchasing and the letting of contracts. We agree with the testimony of Mr. Terrell, Administrative Assistant to Mr. Roemer, when he said that what was contemplated was letting them know what was going on, a sort of “overview.” There is certainly nothing in the Executive Orders leading to the conclusion that it was intended that the Superintendent of State Buildings and Grounds could no longer employ and discharge as he had been doing, and as he has been doing since Mr. Bennett’s discharge. Executive Order No. 40 contains the words that the “Director” of the “Division of State Buildings and Grounds will report to a staff member of my office,” and Executive Order No. 41 nominates the Governor’s Executive Assistant as that staff member. It is a long stretch from “reporting to” to complete control, including hiring and firing.

Because of this conclusion we need not consider the serious point raised by the in-tervenor that the Governor did not have the power to take from the Superintendent his appointing power. Certainly, such a position would have serious effect upon the state Civil Service system.

Also, because of this conclusion, it is not necessary to discuss the specification of error raised in the first appeal.

For these reasons the decision of the Civil Service Commission is reversed. It is ordered that appellant, L. H. “Jerry” Bennett, be reinstated as Assistant Superintendent of State Buildings and Grounds together with full restoration of all rights and privileges.

REVERSED.

      . The effect of Executive Orders 40 and 41 was not an issue in these cases because Mr. Terrell admitted that his authority, if any, as appointing authority had been returned to tbe Superintendent of State Buildings and Grounds prior to January 1, 1975, some three months before Pelletier and Caston were discharged.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    CAJUN ELECTRIC POWER COOPERATIVE, INC. v. LOUISIANA POWER & LIGHT COMPANY.
    No. 7929.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.

      John Schwab, Baton Rouge, for plaintiff-appellee.
    Monroe & Lemann, Andrew P. Carter, William T. Tete, New Orleans, for defendant-appellant.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   ON MOTION TO DISMISS

GULOTTA, Judge.

This matter is before us on a motion, filed by Cajun Electric Power Cooperative, Inc., to dismiss the appeal. Plaintiff’s petition seeks “to compel arbitration”. On remand from this court, the trial judge ordered the parties to “proceed with arbitration of their differences”. The basis of the motion to dismiss is that the trial court’s judgment is an “interlocutory judgment that cannot cause irreparable injury to the appellant and is therefore not ap-pealable”. We disagree.

LSA-C.C.P. art. 2083 states:

Art. 2083. Judgments appealable
“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

In addition, LSA-C.C.P. art. 1841, in pertinent part, states:

Art. 1841. Judgments, interlocutory and final
‡ * % . 'Jfi. 4s
“A judgment that determines the merits in whole or in part is a final judgment.”

When the trial judge ordered arbitration, he passed on the merits of the case. Therefore, the trial court judgment is a final judgment. The motion to dismiss the appeal is denied.

MOTION DENIED.


author: BOUTALL, Judge. LEMMON, Judge

text:
    Charlsie M., wife of/and Leonard DEQUEANT v. Julia B., wife of/and Charles DOBBINS and Allstate Insurance Company.
    No. 7507.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.

      Wendell H. Gauthier, Gauthier & Murphy, New Orleans, for Charlsie M., wife of/and Leonard Dequeant, plaintiff-appel-lee.
    Laurence E. Larmann, Metairie, for Julia B., wife of/and Charles L. Dobbins and Allstate Ins. Co., defendants-appellants.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

This case involves an intersectional collision. Defendant, Julia Dobbins, ran a stop sign and collided with a pickup truck containing Leonard Dequeant and his wife, Charlsie. The trial court rendered judgment in favor of plaintiffs and defendants appeal solely on the grounds that the trial court granted excessive damage awards.

The medical evidence shows that Mrs. Dequeant suffered a severe lumbosacral strain in the collision. She also received a very bad bruise to her right forearm. She suffered numbness in her right hand and fingers, causing her to lose much of the gripping power in her right hand.

These injuries are not disputed by defendants. The issue, as it relates to Mrs. Dequeant, is whether or not she additionally sustained a herniated disc in her cervical region. The trial court concluded that she had and relied upon the testimony of her treating physician, Dr. Ahlschier and consulting neurologist, Dr. Vogel.

The appellants rely upon the testimony of Dr. Howell and Dr. Carey. Dr. Howell saw Mrs. Dequeant on referral from Dr. Vogel. Dr. Vogel asked Dr. Howell to merely run two electrical conduction tests on Mrs. Dequeant’s arm for the purpose of discovery of the location of nerve injury which caused the symptoms in her arm. These tests showed no evidence of cervical disc injury. Dr. Howell testified that the tests for the latter purpose are only accurate 60 to 70% of the time. Dr. Howell could not say that Mrs. Dequeant did not have a herniated cervical disc because his only function was to take the tests for the limited purpose stated and did not examine Mrs. Dequeant further. He stated that he prefers the myelogram test and usually doesn’t make a diagnosis of diseased disc until he has taken a patient history (which he didn’t) and run the conduction tests and myelogram.

Dr. Cary examined Mrs. Dequeant only once, three months after the accident. He took a history, gave her an examination and took x-rays. He states that he found no evidence of disc injury and felt that her problem was degenerative arthritis and a cervical strain.

Dr. Ahlschier, a general practitioner, treated Mrs. Dequeant for her injuries. Because of her high blood pressure, heart disease and hypertension, he was required to treat her very conservatively. After five months of treatment she had not responded satisfactorily and he suspected disc injury might be causing Mrs. De-queant’s pain. He then referred her to Dr. Vogel. Dr. Vogel’s diagnosis of Mrs. De-queant’s problem was severe lumbosacral strain which had resolved itself by the time he examined her and a subscapular herniated cervical disc which was going to slowly resolve itself. Dr. Vogel testified that it was his opinion that the numbness in her right hand was caused by an injury to the C-5, C-6 cervical disc area. He further stated that Dr. Howell was consulted merely to discover if her right arm had any neurological disorder and not for the purpose of diagnosing a herniated disc. Although Mrs. Dequeant still complains of pain and numbness in her right hand and fingers, she was discharged by Dr. Ahls-chier eight months after the accident occurred.

There is a great wealth of medical testimony as to Mrs. Dequeant’s injuries. The resolution of that testimony by the trial court was that Mrs. Dequeant sustained a herniated disc in addition to her other injuries. The record supports that result as the most probable one and we agree.

The trial court awarded Mrs. De-queant $3,616.38 in lost wages, which were stipulated to, and $10,000.00 for pain and suffering. Considering the injuries of Mrs. Dequeant we cannot say these awards go beyond the bounds of discretion afforded the trial court in R.C.C. article 1934 (3).

Mr. Dequeant was also injured in the accident and he also sought treatment with Dr. Ahlschier. Upon examination Mr. De-queant complained of pain in his right arm and neck. Dr. Ahlschier found no bruising. The doctor diagnosed his injury as a flexion injury to the cervical spine with severe spasms of the cervical muscles. Because of the patient’s high blood pressure and heart disease the doctor testified that he was forced to treat Mr. Dequeant very conservatively, mainly with heat treatments. However, even with conservative treatment Mr. Dequeant was discharged one month after the accident occurred.

The trial court granted Mr. De-queant an award of $7,500.00 for his pain and suffering, lost wages and the community medical bills, without itemizing these damages. The record discloses that the community medical bills totaled $2,968.46, and the stipulated sum of lost wages was $298.83. This leaves a sum of $4,232.71 as Mr. Dequeant’s award for pain and suffering.

We hold that an award of $4,232.71 for a cervical strain which completely resolved itself after one month of conservative treatment is excessive. We are aware of the “much discretion” afforded the trial court by R.C.C. article 1934(3). We have been referred to a number of cases involving awards for cervical strain and other similar injuries. The facts in this case do not exhibit any extraordinary pain and suffering for the period involved.

Considering the rather minor nature of Mr. Dequeant’s injuries this court finds that an award of $1,500.00 for pain and suffering is quite sufficient.

Defendants’ final contention is that the medical bills of Dr. Ahlschier are grossly excessive and that many of the tests run on Mr. and Mrs. Dequeant were unnecessary for the treatment of their injuries.

In support of this issue defendant filed a third-party demand in the trial court against the doctor, apparently because of our ruling in Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608 (La.App. 4th Cir. 1972). As already pointed out, the trial court awarded “the medical expenses of the community” in a lump sum with the other damages. The judgment makes no disposition of the third party demand, although appellant in brief tells us that it was denied. The record shows the appearance of the doctor through counsel on the first day of trial, but no appearance on the second day. When defendant appealed, it only requested notice of appeal to plaintiffs. Under these circumstances we do not consider that the third party demand is before us but only the issues between plaintiffs and defendant.

The record before us gives some indication of overtreatment and overcharges because of the wide variety of tests, etc., not usually afforded in the ordinary case of a tort victim suffering these injuries. However, the only evidence on this issue is the testimony of Dr. Ahls-chier, almost entirely on cross-examination. Dr. Ahlschier stated that his charges were not out of line with the prevailing prices in the medical community; that he had checked on the prices and charges of others engaged in furnishing services and supplies, and adopted similar charges. As to the various tests run on the Dequeants, Dr. Ahlschier stated that both the Dequeants had high blood pressure, heart disease and a history of tuberculosis, and that he was forced (by sound medical standards) to consider the entire condition of the patient, so that treatment for one condition did not have a deleterious effect on the other medical problem. On both these points, defendants failed to introduce any evidence to rebut this testimony, or to show unusual behavior between doctor and patient, and we see no reason to disbelieve the testimony. In the absence of some showing of fault or bad faith on the part of the patient, we assess, between tort victim and tort feasor, the doctor’s charges against the tort feasor Hillebrandt v. Holsum Bakeries, Inc., supra.

For the above reasons the judgment of the trial court is amended to reduce the award in favor of Leonard Dequeant from $7,500.00 to $4,767.29; in all other respects the judgment is affirmed. Appellants to pay all costs.

AMENDED AND AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge

(concurring).

I agree with affirming the judgment on the principal demand on the basis that plaintiffs appearently did not contract in advance to pay $799.00 for the first examination of their whiplash injuries or to pay total charges of $2,369.00. In the absence of unreasonable behavior by the tort victim in accepting excessive treatment or contracting for excessive charges, the issue of the excessiveness of the doctor’s charges is not between tort victim and tortfeasor. Hillebrandt v. Holsum Bakeries, Inc., supra. However, unlike in Hillebrandt, the trial judge in this case did have the opportunity to deny the doctor his excessive charges, and if the trial judge had dismissed the third party demand, I would vote to reverse and remand.

From the vast number of personal injury-cases which have come before this court, we can take judicial notice that examination charges on the first day of $411.00 and $388.00 for Mr. and Mrs. Dequeant respectively, cannot be supported. The complaints of the plaintiffs could not reasonably justify, as related, to this accident, such tests as tuberculosis, electrocardiogram, blood count, sedimentation rate, stool analysis, urine analysis, serum alkaline phosphate, glticose, serum cholesterol, blood urea nitrogen, creatinine, RA, serology, globulin, albumin, total serum protein, bili-rubin, phosphorous and SGOT. Furthermore, daily examination charges of $46.00 per person for diathermy and a routine followup check on cervical strains cannot be justified, nor can total medical charges of $1,762.00 and $607.00.

The doctor’s treatment and charges were self-evidently excessive and unreasonable. At the trial of the third party demand, evidence can be presented to what the proper treatment and charges should have been for the injuries related to this accident.


author: MORIAL, Judge.

text:
    LOUISIANA POWER & LIGHT COMPANY v. Wayne URSIN.
    No. 7544.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Talbot, Sotile & Carmouche, Jess J. Waguespack, Donaldsonville, for plaintiff-appellant.
    Martin, Himel & Peytavin, Anthony J. Nobile, Lutcher, for defendant-appellee.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff appeals from a judgment dismissing its suit based on defendant’s dilatory exception of lack of procedural capacity to be sued and declinatory exception of lack of jurisdiction over the person of defendant. Defendant’s exceptions were based on the ground of minority. The exceptions were taken up on the date assigned in the absence of plaintiff and its counsel. No evidence was introduced as permitted by LSA-C.C.P. Article 930. After hearing argument only of counsel for the defendant, the district court maintained the exceptions and dismissed plaintiff’s suit. We reversed and remand.

The lack of procedural capacity is a dilatory exception which, like the declin-atory exception of lack of jurisdiction over the person, merely retards the progress of the action rather than tends to defeat it. See LSA-C.C.P. Articles 923, 925, 926, 928 and 930. Likewise, when the grounds of the objections pleaded in either the declinatory or dilatory exception may be removed by amendment of the petition or other action of the plaintiff, “ * * * the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.” LSA-C. C.P. Articles 932, 933. However, only if the grounds of the objection cannot be removed or, if the plaintiff fails to comply with an order requiring such removal within the delay allowed by the court, will the suit be dismissed. LSA-C.C.P. Articles 932, 933.

In our opinion, therefore, our learned trial brother erred in dismissing the suit against the defendant without first affording the plaintiff an opportunity to cure the defect by amendment of their petition.

For the foregoing reasons, we reverse the district court’s judgment sustaining the minor’s exception to the lack of procedural capacity to be sued and lack of jurisdiction over the person of the defendant and dismissing plaintiff’s suit and remand these proceedings to the trial court to enter an order allowing the plaintiff a delay within which to amend its petition. The case is to be dismissed only upon noncompliance with such order. The costs of this appeal are assessed against the plaintiff-appellant.

REVERSED AND REMANDED.


author: PER CURIAM. ENGLAND, J.,

text:
    In re ADVISORY OPINION OF THE GOVERNOR. In re ADMINISTRATIVE PROCEDURE ACT, EXECUTIVE CLEMENCY.
    No. 49233.
    Supreme Court of Florida.
    June 23, 1976.
    Arthur C. Canaday, Gen. Counsel, Tallahassee, for Reubin O’D. Askew, Governor.
    Donald D. Conn and Sharyn L. Smith, Asst. Attys. Gen., for Robert L. Shevin, Atty. Gen.
   PER CURIAM.

SUPREME COURT OF FLORIDA

Tallahassee

The Honorable Reubin O’D. Askew Governor, State of Florida The Capitol Tallahassee, Florida

Dear Governor Askew:

We have the honor to acknowledge your communication of April 13, 1976, requesting our advice in regard to certain executive powers and duties, pursuant to Article IV, Section 1(c) of the Florida Constitution and Rule 2.1(h) of the Florida Appellate Rules. You have asked us the following question:

“Do the requirements of Chapter 120, Florida Statutes, the Administrative Procedure Act, apply to the constitutional power of the Governor to extend executive clemency as delineated in Article IV, Section 8 of the Florida Constitution?”

Upon receipt of your letter we made preliminary determinations that your request was answerable and that we would exercise our discretion to do so. We then requested interested persons to file briefs. Having now received a brief from the Attorney General and your counsel, we dispense with oral argument.

We answer your question in the negative. Florida’s present Administrative Procedure Act was adopted by the Legislature and approved by the Governor in 1974, to become effective generally on January 1, 1975. Chapter 74-310, Laws of Florida. By its express terms the Act does not apply to your exercise of any power “derived” from the Florida Constitution. Since the clemency powers vested in your office have their genesis in the Constitution, it would appear that the Act itself provides exemption for the exercise of your clemency powers. This view of the scope of the Act is supported by its background.

The Act evolved from a proposal of the Law Revision Council, and we have previously commented on the historical relevance of the Council’s draft statutes and accompanying commentary. See Lewis v. Judges of the District Court of Appeal, 322 So.2d 16, 19 (Fla.1975). These documents reveal that the scope of the act as it relates to the Governor’s exercise of his duties was the subject of considerable study and careful definition. The first draft statute (dated October 26, 1973) excluded from the definition of “agency” the Governor and lieutenant governor when exercising executive powers “described in Article IV of the Constitution.” (See Sup.Ct.Libr. file No. 3). The second draft statute (dated November 30, 1973) eliminated the reference to Article IV, extending the exclusion to all of the Governor’s constitutional powers. (See Sup.Ct.Libr. file No. 7). The final draft placed before the Legislature retained its reference to the lieutenant governor and “described” powers. The Legislature, however, struck the lieutenant governor from Section 120.-52(1) (a) and broadened the exclusion to cover the exercise of executive powers “derived” from the Constitution.

No aspect of clemency powers exists by virtue of a legislative enactment, and none could. These powers are “derived” solely from the Constitution. The exclusivity of the exercise of clemency powers by the executive branch is further buttressed in the area under consideration by the procedural requirements of the Constitution itself. Where that document sufficiently prescribes rules for the manner of exercise, legislative intervention into the manner of exercise is unwarranted. That is the situation here.

Implicit in your inquiry is the applicability of the Act to those gubernatorial grants of executive clemency which, under Article IV, Section 8(a) of the Constitution, require the approval of three members of the cabinet. This Court has always viewed the pardon powers expressed in the Constitution as being peculiarly within the domain of the executive branch

of government. Merely because the 1968 Constitution has given the Governor the initiative to institute certain acts of clemency and expanded the number of cabinet officers eligible to participate with him in the exercise of these powers, we see no reason to depart from our previous view that the Legislature may not intrude into this area of constitutional authorization. For that reason, and without regard to the absence of an express exemption in the Administrative Procedure Act for members of the cabinet, we believe that the acts of approval by members of the cabinet are also beyond the scope of the Act.

It is our opinion, therefore, that the requirements of Chapter 120, Florida Statutes (1975), do not apply to the exercise of the clemency powers conferred on the Governor or the members of the Cabinet by Article IV, Section 8, of the Florida Constitution.

Respectfully,

Ben F. Overton

S/Ben F. Overton

S/B. K, Roberts_

B. K. Roberts

S/James C. Adkins_

James C. Adkins

S/Joseph A. Boyd, Jr.

Joseph A. Boyd, Jr.

S/Alan C. Sundberg_

Alan C. Sundberg

S/Joseph W. Hatchett

Joseph W. Hatchett

ENGLAND, J.,

concurring in part and dissenting in part.

Dear Governor Askew:

I fully concur with the opinion of my colleagues insofar as it relates to the powers of the Governor under Article IV, Section 8 of the Constitution. I cannot agree that we are authorized to express an opinion as to the applicability of the Act to members of the cabinet, and I therefore express no view on that subject. See In re Opinion Supreme Court, 39 Fla. 397, 22 So. 681 (1897). And cf., Jones v. Kind, 61 So.2d 188 (Fla.1952).

Respectfully,

S/Arthur J. England, Jr.

Arthur J. England, Jr.

      . The Act was amended in particulars not relevant here by Chapters 76-107 and 75-191, Laws of Florida.

      . The operative provisions of the Act concern only “agencies” as defined in the Act. Section 120.62(1) (a), Fla.Stat. (1975), defines “agency” to mean “The governor in the exercise of all executive powers other than those derived from the Constitution.” (emphasis added).

      . These powers include the exclusive right to suspend the collection of fines and forfeitures and to grant reprieves, together with the shared power to grant pardons, restore civil rights, commute punishments, and remit fines and forfeitures.

      . In Re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Ma.1975); Singleton v. State, 38 Fla. 297, 21 So. 21 (1896).

      . See Ex parte White, 131 Fla. 83, 178 So. 876 (1938).

      . See footnote 4 above.

      . Compare Article IV, § 8(a), Fla.Const. (1968), mth Article IV, §§11 and 12, Fla. Const. (1885).


author: BOYD, Justice. ENGLAND, Justice

text:
    The TELOPHASE SOCIETY OF FLORIDA, INC., et al., Appellants, v. STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS, etc., Appellee.
    Nos. 47187, 47188.
    Supreme Court of Florida.
    June 4, 1976.
    Rehearing Denied July 29, 1976.

      Anthony S. Battaglia and Michael L. Hastings of Battaglia, Parker, Ross, Parker & Stolba, and William H. Fleece of Fleece, Rhoades & Werly, St. Petersburg, for appellants.
    Robert L. Shevin, Atty. Gen., and James D. Whisenand and Donald D. Conn, Asst. Attys. Gen., for appellee.
   BOYD, Justice.

In this proceeding we are reviewing consolidated appeals from the Second District Court of Appeal, shown at 308 So.2d 606, holding Chapter 470, Florida Statutes, constitutional as applied to Appellants, construing portions of the statute and affirming the trial court’s order enjoining Appellants from continuing operation of their cremation services.

Appellants operate a business for the purpose of cremating human remains. Their physical plant consists of a refrigeration room and a cremation furnace. Human bodies are delivered to them by a professional livery service. Once delivered, the bodies are placed in cardboard liners and refrigerated by Appellants for forty-eight hours, the time necessary to gain approval of the Board of Health. During the forty-eight hours Appellants process paper work relating to the cremation, including the Death Certificate, Cremation Request, Cremation Permit, and Social Security and Veteran Benefit Forms. After completion of the paper work and approval by the Board of Health the liners containing the bodies, unembalmed and without cosmetics, are placed in the furnace and reduced to cremains. The cremains are often transferred to urns supplied by Appellants. Occasionally the cremains are scattered over a garden or at sea by Appellants, or they may be given to the family of the deceased and used in a memorial service unconnected with Appellants’ business.

The State sought to enjoin Appellants from operating their business because they were engaging in the profession of funeral directing without a license from the State Board of Funeral Directors and Embalmers in violation of Section 470.21, Florida Statutes. Appellants answered the Complaint for Injunction by claiming that their operation did not meet the definition of “funeral directing” as provided in Section 470.01 (3), Florida Statutes:

“The term ‘funeral directing,’ as used in this chapter, shall be construed to mean the profession of directing or supervising funerals for profit, or the profession of preparing dead human bodies for burial or cremation by means other than embalming, or the disposition or shipping of dead human bodies, or the provision or maintenance of a place for the preparation of dead human, bodies.”

The State moved for summary judgment.

The trial court contraed Section 470.01 (3), Florida Statutes, in the disjunctive, holding the performance of any of the enumerated activities to constitute “funeral directing.” Finding that Appellants, without the required lincense: provided and maintained a place for preparation of dead human bodies; prepared dead human bodies for cremation by means other than embalming; and disposed of dead human bodies by cremation. The court entered partial summary judgment and enjoined Appellants from the practice of “funeral directing.”

Constitutional issues concerning the “statute-as-applied” were raised, as well as issues of the trial court’s construction of Chapter 470, Florida Statutes, by assignments of error, before District Court of Appeal, Second District.

The District Court of Appeal, Second District, found both that the statute was constitutionally applied and that the trial court’s construction of the statute was correct. Consequently the court affirmed the order granting partial summary judgment. Since the partial summary judgment fully disposed of the case, the court treated it as a plenary summary judgment and remanded the cause with instruction to enter a final judgment enjoining Appellants’ business.

Appellants appealed the District Court’s decision to this Court and also petitioned this Court for a writ of certiorari. Certio-rari was denied, but appellate jurisdiction was accepted.

Appellants present five issues for our consideration:

1. Whether the application of Chapter 470, Florida Statutes, is an unlawful exercise of the police power constituting a violation of substantive due process as guaranteed by the Fourteenth Amendment.

It is our view that Chapter 470, Florida Statutes, relating to handling, storing, preparing and final disposal of dead human bodies is a constitutional exercise of police power and does not violate substantive due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States. State Board of Funeral Directors and Embalmers v. Cooksey, 147 Fla. 788, 3 So.2d 502 (1941) lists eight areas of public concern which provide a basis for regulation of funeral directing and embalming:

(1) Care of dead human bodies; (2) Embalming; (3) Transportation of dead human bodies; (4) Location of business and its equipment; (5) Sanitation; (6) Danger of infection or contagion from disease; (7) Obtaining required certificates and permits before acting; and (8) Orderly conduct of funerals and burials.

The public health and welfare requires that dead bodies be disposed of in such manner as to prevent spread of disease and other conditions offensive to surviving relatives and friends and the public at large.

“The legislature has a valid interest in safeguarding against the undue commercialization and exploitation of death and its various trappings.” State Board of Funeral Directors and Embalmers v. National Chapels, Inc., 249 So.2d 677 (Fla.1971).

Without the application of Chapter 470, Florida Statutes, to Appellants there would be no governmental sanctions available against Appellants for the most shocking and negligent handling of human corpses. On the contrary, misconduct by a licensed funeral director would likely end his professional career.

It is clear to us that Appellants practice “funeral directing” as defined by Section 470.01(3) and that the Legislature intended that those operating crematories comply with Chapter 470, Florida Statutes.

2. Whether the District Court erred in determining that Section 470.01(3), Florida Statutes, must be construed to read in the disjunctive and that the performance of any of the enumerated activities in Section 470.01(3), Florida Statutes, would place one within the purview of said statute.

The legislative intent is to require that human corpses be handled and disposed of by persons highly skilled in the professional care of human remains. This need increases as population density increases. Informal disposition of human corpses has been common in the past, but is generally unacceptable today. It is the legislative intent that performing any of the enumerated activities in Section 470.01 (3), Florida Statutes, constitutes “funeral directing.” The District Court correctly held that Section 470.01(3), Florida Statutes, be construed in the disjunctive. “Or” when used in a statute is generally to be construed in the disjunctive. Pompano Horse Club, Inc. v. State, 93 Fla. 415, 111 So. 801 (1927).

3. Whether the District Court erred in affirming a partial summary judgment and determining that Appellants have prepared dead human bodies for cremation by means other than embalming.

The record shows Appellants prepared dead bodies by means other than embalming. The receiving, refrigerating, storing and cremating dead bodies, with or without embalming, without complying with Chapter 470, Florida Statutes, is a violation of the statute. The District Court of Appeal, Second District, was correct.

4. Whether the District Court erred in affirming a partial summary judgment by concluding that the Appellants disposed of dead human bodies by cremation.

The District Court of Appeal was correct in affirming the trial court’s partial summary judgment finding that Appellants were disposing of dead human bodies.

5. Whether Appellants do provide or maintain a place for the preparation of dead human bodies.

The record shows Appellants maintain a building in which dead bodies are received, refrigerated for forty-eight hours and then cremated on the premises, with the cremains delivered to the families or disposed of by scattering.

The District Court of Appeal, Second District, was correct in its finding.

Accordingly, the decision of the District Court of Appeal, Second District, herein reviewed is affirmed.

It is so ordered.

ROBERTS, ADKINS, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., dissents with an opinion.

OVERTON, C. J., dissents and concurs with ENGLAND, J.

ENGLAND, Justice

(dissenting).

While I fully concur with the majority’s conclusion that chapter 470 is a legitimate exercise of the state’s police power, I must dissent from its conclusion that petitioners here are subject to that regulatory scheme.

So far as is relevant here, Section 470.21, Florida Statutes (1975), makes it unlawful to engage in the profession of “funeral directing”, or to hold oneself out as a “funeral director”, without a license. Section 470.08(2) states that no applicant will be licensed as a “funeral director” unless he has all of the qualifications for an “embalmer”, as set out in Section 470.08(1). The effect of these provisions is to create a closed trade association for all aspects of the funeral business in Florida, to which only trained embalmers may be admitted.

It is undisputed on the record before us that petitioners do not embalm and have no need to do so. The service they provide the public meets all requirements imposed by the Board of Health, yet it avoids the typical (and more costly) funeral which has become a part of our culture. By requiring petitioners to be licensed, and therefore to hire or be “embalmers”, the majority has placed its approval on a purely anti-competitive statute by accepting a superficial appeal to the “police power”. Given that petitioners’ premises are regularly inspected and approved by various health and sanitation authorities, I am unwilling to say, as the majority has done, that the police power may be invoked to require the employment or presence of an embalmer for the performance of an activity enumerated in Section 470.01(3) which is unrelated to public health concerns.

I prefer to leave some vitality in Article I, Section 2 of the Florida Constitution and the 14th Amendment to the United States Constitution. The right to pursue an occupation which is not within the legitimate range of the police power to prohibit is a “liberty” worth preserving. Arbitrary licensing requirements which preserve a trade or professional monopoly for no discernible public purpose should not be sanctioned by the courts. World Fair Freaks and Attractions, Inc. v. Hodges, 267 So.2d 817 (Fla.1972); State ex rel. Hosack v. Yocum, 136 Fla. 246, 186 .So. 448 (1939); State ex rel. Fulton v. Ives, 123 Fla. 401, 167 So. 394 (1936); Riley v. Sweat, 110 Fla. 362, 149 So. 48 (1933); State ex rel. Davis v. Rose, 97 Fla. 710, 122 So. 225 (1929). Also see, Carbo, Inc. v. Meiklejohn, 217 So.2d 159, 160 (Fla.App. 1st 1968), cert. denied, 22$ So.2d 533 (Fla.1969).

OVERTON, C. J., concurs.

      . Why should those who supervise funerals for profit or those who ship dead human bodies be embalmers? Since when have priests or rabbis, airlines, ambulances or railroads, been required to be licensed as embalmers? Logically Section 470.01(3) can only be read as cumulative, not in the disjunctive, and when read in that fashion the state’s legitimate interests become immediately apparent.


author: PER CURIAM.

text:
    Karl H. COX, Petitioner, v. STATE of Florida, Respondent.
    No. 48285.
    Supreme Court of Florida.
    June 4, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for petitioner.
    Richard E. Gerstein, State’s Atty., and John H. Lipinski, Asst. State’s Atty., for respondent.
   PER CURIAM.

We have jurisdiction of this cause through Art. V, § 3(b)(3), Fla.Const. Petitioner was charged with violations of §§ 316.089, 316.059 and 316.028, Florida Statutes. He was declared insolvent; the public defender was appointed. The traffic court adjudicated him guilty of all three charges and imposed court costs. On appeal to the Circuit Court, Eleventh Judicial Circuit, in and for Dade County, his convictions for two of the offenses, as well as the costs pursuant to those convictions, were affirmed. His petition for certiorari was denied by the District Court of Appeal, Third District.

§ 939.15, Florida Statutes, states:

“Costs paid by county in cases of insolvency. When the defendant in any criminal case pending in any circuit or county court, a district court of appeal or the supreme court of this state has been adjudged insolvent by the circuit judge or the judge of the county court, upon affidavit and proof as required by § 924.17 in cases of appeal, or when the defendant is discharged or the judgment reversed, the costs allowed by law shall be paid by the county in which the crime was committed, upon presentation to the county commissioners of a certified copy of the judgment of the court against such county for such costs.”

This section was interpreted in Mack v. State, 305 So.2d 264 (Fla.App.3rd, 4974), to make it error to assess court costs against a defendant who had been adjudicated insolvent. We agree with the holding in Mack. It was therefore error for the Circuit Court to affirm the imposition of court costs and the District Court of Appeal should have reversed.

The cause is remanded to the District Court of Appeal, Third District, for proceedings consistent with this opinion.

It is so ordered.

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


author: SUNDBERG, Justice.

text:
    FARRENS TREE SURGEONS and Liberty Mutual Insurance Company, Petitioners, v. Lonnie B. WINKLES and State of Florida, Industrial Relations Commission, Respondents.
    No. 47485.
    Supreme Court of Florida.
    June 9, 1976.

      John C. Taylor, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for petitioners.
    Michael McDermott, of Provitola & McDermott, DeLand, for respondents.
   SUNDBERG, Justice.

This matter is before us on a petition for writ of certiorari to the Industrial Relations Commission from an order reversing the Judge of Industrial Claims. Jurisdiction vests pursuant to Article V, Section 3(b)(3), Florida Constitution.

Respondent Winkles, now 44 years of age and a veteran of some 25 years of employment with petitioner Farrens Tree Surgeons, sustained an injury in an automobile accident arising out of his employment as an hydraulic mechanic on September 17, 1965. At a hearing before the Judge of Industrial Claims in January, 1974, he made no request for temporary disability compensation, because he had continued to receive his regular salary, with occasional raises, from the time of the accident. He did, however, request permanent partial disability compensation based on a 90 percent permanent loss of vision in the right eye, a 30 percent permanent partial disability of the body as a whole for injuries to the neck, back, and spine; and a 20 percent permanent disability to the left arm. After hearing testimony from Winkles and his supervisor (there were depositions from three doctors, including a chiropractor, as well), the Judge of Industrial Claims found that respondent had sustained a 60 percent permanent partial disability to the body as a whole because of his injuries sustained in the accident. This figure was reached by adding together the following: a 24 percent permanent partial disability to the body as a whole resulting from a 100 percent loss of vision of the right eye; a 30 percent permanent partial disability to the body as a whole because of the spine injury; a 6 percent permanent partial disability to the body as a whole because of the injury to the left extremity.

Winkles filed a timely application for review with the Industrial Relations Commission. The Commission reversed, holding that it was improper to treat combinations of injuries as constituting injuries to the body as a whole under Section 440.-15(3) (u), Florida Statutes. Noting that scheduled compensation for the eye injury alone entitled respondent Winkles to 175 weeks of compensation, the Commission specifically disapproved of the conversion of Winkles’ individual injuries to a percentage of “whole body” injuries, and remanded the cause to the Judge of Industrial Claims. It is from the Commission’s decision that certiorari to this Court was taken.

In view of Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974), the issue before us is whether the Commission’s order constitutes “a departure from the essential requirements of law.” The questions framed for the resolution of this issue are:

(i) Whether the Judge of Industrial Claims erred in treating the claimant’s multiple injuries as relating to the body as a whole and in awarding disability benefits based upon a rating to the body as a whole; and
(ii) Whether there was competent substantial evidence for the Judge of Industrial Claims’ finding of 60 percent permanent partial disability of the body as a whole.

Relying upon Williamson v. Bush & La-Foe, 294 So.2d 641 (Fla.1974), petitioners assert that the Commission has departed from the essential requirements of law. Since the Florida Workmen’s Compensation Act makes no provision for combinations of injuries, the employer/carrier maintains that a Judge of Industrial Claims who is faced with a situation such as the one at bar must find compensation for permanent partial disability under Section 440.15(3) (u), Florida Statutes. Section 440.15(3) (u) follows an enumeration by the Legislature of scheduled injuries to single body members or bodily functions [Section 440.15(3) (a) through (t), Florida Statutes] and refers to “all other cases in this class of disability.” Petitioners assert that since there are multiple scheduled injuries and an injury to the body as a whole, Section 440.15(3), Florida Statutes, requires the Judge of Industrial Claims to proceed to Section 440.15(3)(u), Florida Statutes. Because multiple scheduled injuries are not defined in Section 440.-15(3) (a) through (t), Florida Statutes, it is argued that the situation presented in the instant case must fall within the legislative category of “other cases”. Petitioners find support for their position in the following language from this Court’s opinion in Williamson, supra:

“In connection with this point it should be noted that F.S. § 440.15(3) (d), F.S.A., refers to ‘foot lost’, the singular and not the plural. The Legislature recognized that it could not possibly foresee every possible injury or combination of injuries so it included in the schedule subsection (u) to cover other cases. The injury described sub judice falls into the ‘other cases’ category.”

In Williamson, supra, the claimant suffered injuries to both feet. The Judge of Industrial Claims found permanent partial disability to each foot on an anatomical basis but concluded that “the effect of the two scheduled injuries is to reduce the efficiency of the body as a whole.” Accordingly, he rendered an award based on injury to the body as a whole under Section 440.15(3) (u), Florida Statutes. The Commission reversed and remanded, finding that the Judge of Industrial Claims should have found permanent partial disability of scheduled members and not disability of the body as a whole. This Court stated the issue as follows:

“The sole question for our determination is whether independent, simultaneous injuries to two body members, which would be considered as scheduled injuries if they occurred separately, may be treated under Florida Statute § 440.-15(3)(u), F.S.A., as an injury to the body as a whole?” (Emphasis supplied)

The Court responded to the question in the affirmative and in arriving at its decision stated:

“ . . . Secondly, we do not feel that the Legislature meant ‘torso’ when it said ‘body as a whole’ but instead meant to recognize that some injuries simply may not fit in the schedule set forth in F.S. § 440.15, F.S.A. Thus when an injury to a scheduled member results in greater disability than ordinarily accompanies that injury because it has coupled with another member injury, the JIC should recognize that fact and hold accordingly.’’ p. 644. (Emphasis supplied)

The “most favorable remedy” doctrine has been at least implictly a feature of Florida workmen’s compensation law for years. In Henderson v. Sol Walker and Co., 138 So.2d 323, 327 (Fla.1962), this Court said in reference to the Workmen’s Compensation Act:

“[T]he construction given the act by the commission is entitled to great weight, and this court will not adopt a contrary interpretation except for the most cogent reasons. Moreover, where the Act is susceptible of disparate interpretations, the court will adopt that construction which is most favorable to the employee.”

Petitioners assert that Williamson, supra, effectively departed from the dictates of the doctrine described above. But it is apparent that rather than receding from the “most favorable remedy” rule, the Court in Williamson recognized its efficacy by holding that when an injury to a scheduled member results in greater disability than ordinarily accompanies that injury because it has coupled with an injury to another member, the JIC should recognize that fact and make its award accordingly. Willianu-son does not stand for the proposition that the award must be made under Section 440.15(3) (u), Florida Statutes, when it would result in a diminished disability award.

In Grao v. Fountainebleau Hotel, IRC Order 2-2543 (March 11, 1974); cert, denied Fountainebleau Hotel v. Grao, 300 So.2d 900 (Fla. 1974), the Commission enunciated the rule of law in this area thus:

“When there are two distinct injuries, one to a scheduled member and one to the body as a whole, even if both are incurred during the same accident, they may both be compensated for separately as long as the injury to the body as a whole is not the result of the injury to the scheduled member. Furthermore, in determining the loss of wage earning capacity, all injuries, including scheduled injuries, must be considered. Consequently, there will be three amounts initially determined in Mrs. Grao’s claim. The Judge of Industrial Claims will determine (1) the scheduled recovery, (2) the separate anatomical injury to the body as a whole, and (3) loss of wage earning capacity taking into consideration all of Mrs. Grao’s injuries. The Judge will then award to Mrs. Grao the greater of either the total of the scheduled injuries [1], plus anatomical body as a whole injury not resulting from the scheduled injury [2] ; or the loss of wage earning capacity determined considering all of Mrs. Grao’s injuries [3].”

In view of the admonition in Wick Roofing Co. v. Curtis, 110 So.2d 385 (Fla.1959), that the statute (Chapter 440, Florida Statutes) was meant to be applied in such a way as to “accomplish the benficient purposes and objectives implicit in legislation of this type,” we are not persuaded that the Industrial Relations Commission departed' from the essential requirements of law in its interpretation and application of Section 440.15(3), Florida Statutes. See Henderson v. Sol Walker & Co., supra.

We concur also with the Commission’s determination that there was an absence of competent substantial evidence for the Judge of Industrial Claims’ finding of 60 percent permanent partial disability of the body as a whole. The Judge of Industrial Claims expressly found 100 percent loss of vision of the right eye, but then determined that such loss was equivalent only to 24 percent permanent partial disability to the body as a whole. A plain reading and application of Sections 440.-15(3) (r) and (e), Florida Statutes, provide for 175 weeks of compensation in the event of total loss of use of an eye. As a result of the conversion into a body as a whole rating the benefits to Winkles were reduced to 84 weeks. Such a procedure is clearly in contravention of Sections 440.-15(3) (r) and (e), Florida Statutes.

Accordingly, the petition for writ of certiorari is denied.

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

      . “Other cases: In all other cases in this class of disability the compensation shall be sixty per cent (60%) of the injured employee’s average weekly wage for such number of weeks as the injured employee’s percentage of disability is of three hundred fifty (350) weeks; provided, however, that for the purpose of this paragraph ‘disability’ means either physical impairment or diminution of wage earning capacity, whichever is greater.”


text:
    H. S. EQUITIES, INC., formerly Hayden Stone, Inc., a Delaware Corporation, Appellant, v. HARTFORD ACCIDENT & INDEMNITY CO., a Connecticut Corporation, Appellee.
    No. 47559.
    Supreme Court of Florida.
    June 9, 1976.
    Stanley A. Beiley and Peter F. Paul of Paul, Landy & Beiley, Miami, for appellant.
    Edward J. Atkins and Richard J. Thornton of Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellee.
   SUNDBERG, Justice.

This case is before us on certified question from the United States Court of Appeals for the Fifth Circuit, pursuant to Section 25.031, Florida Statutes, and Rule 4.61, Florida Appellate Rules.

As appears from the opinion of the United States Court of Appeals (H. S. Equities, Inc. v. Hartford Accident & Indemnity Co., 512 F.2d 1277, 5 Cir., 1975), the statement of the case and the questions certified are as follows:

“Statement of the Case.
“In 1967, H. S. Equities, Inc., formerly known as Hayden Stone, Inc., obtained a brokers liability policy from Hartford Accident & Indemnity Company. Both H. S. Equities and Hartford maintain offices and do business throughout the United States and are licensed to do business in Florida. The liability policy obtained by H. S. Equities from Hartford in New York was designed to cover claims throughout the United States and Canada. The policy provided that Hartford would pay any final judgment rendered against H. S. Equities for damages sustained by its customers through acts committed or omitted by officers or employees in the ordinary course of H. S. Equities’ business as a stockbroker in all of its offices throughout the United States. The policy limits were $100,000.-00. The policy also obligated Hartford to pay H. S. Equities’ counsel fees and court costs in defending customer suits. One of the policy provisions required that H. S. Equities give notice to Hartford as soon as practicable of any act or circumstance indicating a claim under the policy. The policy did not contain a choice of law provision.
“The policy of insurance was applied for in New York, countersigned in New York, and premiums were paid in New York. The policy was kept by H. S. Equities in New York and when it gave notice of the claim to Hartford, the notice was given in New York.
“On June 3, 1970, a customer of H. S. Equities, one Robert Uricho, Jr., of Bro-ward County, Florida, gave notice to Appellant of his probable claim. On May 6, 1971, the customer sued H. S. Equities in Broward County Circuit Court seeking damages because the customer’s securities were sold out contrary to representations made by H. S. Equities’ employees that they would not sell out the customer’s account. The suit was removed to the U. S. District Court for the Southern District of Florida. At the conclu-
sion of a non-jury trial, final judgment was entered in favor of the customer and against H. S. Equities, Inc., on March 31, 1972, for $186,310.38. In September, 1972, H. S. Equities satisfied the judgment by paying the customer, in Florida, the amount awarded in the judgment plus interest. The customer’s claim was a type of risk covered by the broker’s liability policy. H. S. Equities first gave notice to Hartford of the customer’s claim on May 4, 1972. Hartford refused to honor the claim on the grounds of late notice and this lawsuit was filed.
“After issue was joined, Hartford moved for summary judgment, claiming no issue of material fact and entitlement to judgment on the grounds that Florida’s conflicts or choice of law rule required the application of New York law to the notice provision in the insurance contract. Under New York law, late notice or lack of timely notice is an absolute defense regardless of whether the insurer is prejudiced thereby. [Footnote omitted] H. S. Equities claimed in opposition to summary judgment that, under Florida’s conflicts or choice of law rule, Florida law would apply to the notice provision. Under Florida law, late or untimely Notice is not an absolute defense to performance of an insurance contract, but rather, if the insured can demonstrate the insurer was not prejudiced by late Notice, then the insurer will be liable under the contract.
“The trial court concluded, in agreement with Hartford’s contention, that Florida’s choice of law would apply new York law on the late notice issue and that failure to give notice as soon as practicable, as a matter of law, was fatal to H. S. Equities’ case. Therefore, final judgment was entered for Hartford. This appeal followed.
“Questions to be Certified.
“(1) Whether Florida or New York law applies to the issue of the effect of late notice given under the insurance policy sued upon.
“(2) Whether the district court erred in granting summary judgment for the defendant/insurer on the ground that plaintiff gave late notice of a claim to the defendant and that under New York law late notice was an absolute defense regardless whether the insurer was prejudiced by the late notice.”

We answer the first question certified to us by the United States Court of Appeals for the Fifth Circuit as follows: New York law is applicable to the late notice issue as it affects an insurance policy which was entered into between two non-Florida corporations, applied for in New York, paid for in New York, countersigned in New York, retained in New York, and whose performance (payment of indemnity by appellee) was to have occurred in New York.

Appellant contends for application of Florida law to this case because, as cited in the statement of the case by the United States Court of Appeals, under the law of this forum late or untimely notice is not an absolute defense. Under Florida law late notice is not a defense if the insured can establish that the insurer was not prejudiced thereby. Renuart-Bailey-Cheely Lumber & Supply Co. v. Phoenix of Hartford Ins. Co., 474 F.2d 555 (5th Cir. 1973); Tiedtke v. Fidelity & Cas. Co., 222 So.2d 206 (Fla.1969); Swiss Nat’l Ins. Co. v. Martorella, 239 So.2d 144 (4th D.C.A.Fla.1970).

In New York, absent a valid excuse, a failure to satisfy the notice requirement vitiates the policy. Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N. Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76 (1972). Appellant does not allege that it has a valid excuse for its failure to notify appellee. H. S. Equities, Inc. does contend, however, that the insurance policy at issue was an ambulatory contract on which suit could be brought in more than one state. Since the customer whose claim was covered by the policy was a Florida resident, he dealt with appellant’s Florida office, gave notice of his claim to that office, sued appellant in a Florida court, and recovered a judgment and was paid in Florida, it is argued that Florida has sufficient contacts with the transaction to apply its law. Clay v. Sun Ins. Office, Ltd., 377 U.S. 179, 84 S.Ct. 1197, 12 L.Ed.2d 229 (1964), is cited as principal authority for appellant’s position. In Clay, an insurance policy was purchased by the petitioner in Illinois while he was a citizen and resident of that state. The insurance company was a British corporation licensed to do business in Illinois, Florida, and several other states. A few months after purchasing the policy, the insured moved to Florida, becoming a citizen and resident of this state, and some two years later a loss occurred in Florida for which petitioner sought to hold the insurer liable. The ultimate issue in the case was whether a clause requiring that suit be brought within twelve months of loss, valid under Illinois law, was negated by a Florida statute nullifying such limitation clauses if they require suit to be filed in less than five years. The United States Supreme Court ruled that application of the Florida statute was not an unconstitutional denial of due process or a derogation of the principle of full faith and credit.

Appellant’s reliance on Clay, supra, is misplaced. That case dealt with a personal property policy, and personal property ordinarily has the situs of the insured party’s residence. The insured moved to Florida, becoming a resident and citizen of this state, entitled to protection of its laws and public policy. It may well be asked what interest the State of Florida has in the legal relationship between the parties in the instant case, both of which are foreign corporations with respective principal places of business in New York and Connecticut. The fact of Uricho’s Florida residence does not alter that relationship. Viewing the matter in this light, it is simply not evident why the public policy of this State should be invoked on behalf of the appellant.

The facts of this case resemble those of Aetna Cos. & Sur. Co. v. Enright, 258 So. 2d 472 (3d D.C.A.Fla.1972), more closely than those of Clay, supra. In Enright, a New York resident, Thomas E. Enright, driving in Florida collided with a car driven by an uninsured motorist. Enright was driving a car owned by Lehman, also a New York resident, and both were covered by automobile liability policies which had been issued in New York and which provided uninsured motorist coverage. The driver made a claim under the uninsured motorist provision of the owner’s policy, settling for the policy limits. Enright then sought further recovery under the uninsured motorist provision of his own policy issued by Aet-na. In a declaratory judgment action brought by Aetna, the trial court held that the public policy of this state as expressed in Section 627.0851, Florida Statutes, voided the “other insurance” or “excess coverage” clause on which the insurer relied. The District Court of Appeal, Third District, reversed, opining that the trial judge’s decision had “improperly extended statutory expressions of public policy regulating insurance policies issued in Florida to the point where he ha[d] overruled the general law of contracts.” 258 So.2d at 474. Thus the court declined to apply Florida law to an automobile insurance policy issued in New York to a New York resident, notwithstanding the fact that the collision and consequent damages occurred in Florida. See also Quarty v. Insurance Co. of No. America, 244 So.2d 181 (2d D.C.A.1971); State-Wide Ins. Co. v. Flaks, 233 So.2d 400 (3d D.C.A.1970).

The two cases cited by appellant in its reply brief as supporting its position are readily distinguishable. Johnson v. Auto-Owners Ins. Co., 289 So.2d 748 (1st D.C. A.Fla.1974), involved uninsured motorist coverage in an automobile liability policy issued by an Alabama agency to a client who listed his home address on the application form as “Route 1, Century, Escambia, Florida 32535 (In Alabama)” and the location of his employment as Pensacola, Florida. The appellee was licensed to do business in Florida and the accident itself occurred in Florida. The court found that Florida had ample contacts with the insured to apply its law, which voided an exclusionary clause on which the insurer sought to rely. It should be noted, however, that the same result would have been reached under the jurisprudence of Alabama, the other jurisdiction whose law might have been applied. In lohnson, there was a specific risk which must have been foreseen by the parties and willingly accepted by the insurer in return for premiums paid by the insured. In the case sub fudice, we have an agreement which was negotiated and entered into in New York between two corporations whose place of incorporation and principal place of business are far removed from Florida. Although performance might have been called for in any part of the United States or other parts of the world, it was called for, in fact, in New York where notice was given and demand was made. The place where the loss occurred was only incidental to the relationship between these parties. Gillen v. United Services Automobile Ass’n, 300 So.2d 3 (Fla.1974), is even less helpful to appellant. There the insureds under an automobile liability policy issued in New Hampshire had notified their out-of-state insurer at the time of their move to Florida, had been issued a second policy after the move, and were Florida residents at the time of the loss which occasioned the litigation. This Court said that the issuance of a new policy “can be seen as an acknowledgment of domiciliary change and would indicate to United that coverage . . . would be shifted to Florida.” Id. at 6. As noted above, neither of the corporate parties in this case is a Florida resident.

Appellant argues further that notice provisions of insurance contracts such as the one at issue are minor and insignificant and may be violated without materially breaching the contract. In support of this position appellant cites general discussions of dependent and independent covenants in Williston and of material and minor breaches in Am.Jur.2d. We are not willing to accept this position either as a matter of law or of policy. In fact, Wil-liston specifically embraced a contrary position, quoting Jefferson Realty Co. v. Employers’ Liability Assur. Corp., 149 Ky. 741, 748, 149 S.W. 1011, 1014 (1912);

“A reasonable compliance with the conditions of the contract relating to notice is indispensable to fix liability. These conditions are a material and important part of the contract, and should not be set aside as of no moment.” (Emphasis supplied)

Williston, Contracts, § 675, at 187-188.

In view of our answer to the first certified question and of the parties’ apparent agreement that late notice is an absolute defense under New York law, we conclude that the district court did not err in entering summary judgment for the defendant insurer. Thus the second question is answered in the negative.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND and HATCH-ETT, JJ., concur.

      . This fact is clear from the earlier Olay case, wherein Mr. Justice Black authored the dissenting opinion which provided the basis for the majority opinion under consideration. See Clay v. Sun Ins. Office, Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960).


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

text:
    Gerald CROTEAU, Appellant, v. STATE of Florida, Appellee.
    No. 46921.
    Supreme Court of Florida.
    June 16, 1976.

      Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   SUNDBERG, Justice.

This is an appeal from the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County. Since that court construed Article I, Section 12, Florida Constitution and the Fourth Amendment to the United States Constitution, we have jurisdiction. Art. V, § 3(b)(1), Fla.Const.; Rule 2.1, Subd. a (5) (a), F.A.R.

Appellant, who had received three years’ probation for a California drug offense but was at the time living in Florida, was visited at his place of residence at 8:00 A.M. on September 24, 1973, by three Florida probation officers, including his own. Appellant’s probation officer, a Mr. Suarez, asked whether he could “look around”, and appellant agreed that he could. Appellant claims that he later told Suarez to discontinue his tour of appellant’s living quarters and also asked whether the officer had a search warrant, which admittedly he did not have. Suarez claims that the appellant, Mr. Croteau, never expressed any objection to a search of his residence. In any event, Suarez found a bag of marijuana in the top drawer of a dresser located in appellant’s bedroom.

On October 2, 1973, appellant was charged with unlawful possession of cannabis in violation of Section 893.13, Florida Statutes. He was arraigned and pleaded not guilty on November 7, 1973. The original information was dismissed and a new information filed on February 21, 1974. Four days later the defendant was arraigned and pleaded not guilty to the new information. On October 17, 1974, the defense filed a motion to suppress evidence obtained through an unreasonable search and seizure. A hearing was held on the motion to suppress evidence on October 21, 1974, and Messrs. Croteau and Suarez told their respective stories. At the termination of the hearing the judge said:

“. . . [I]f the defendant had not been a probationer, the opinion of the Court would be an illegal search and seizure, but in this instance, this Court has for a long time been of the opinion that when the Court places his people on probation, they are then in a little different category than the ordinary person and that person gives up at least some of his rights. . . .”

Following that denial of the motion, the defendant withdrew his prior plea and entered a plea of nolo contendere, expressly reserving the right to appeal the denial of the motion to suppress. The court found the defendant guilty and ordered a pre-sen-tence investigation. On November 21, 1974, adjudication was withheld and the defendant was placed on probation. An appeal was commenced to the District Court of Appeal, Third District, and was transferred to this Court because the trial court had construed controlling provisions of the state and federal constitutions. We reverse.

One does not absolutely forfeit the protection of the Fourth Amendment’s prohibition of unreasonable searches and seizures merely by assuming the status of a probationer. Martin v. United States, 183 F.2d 436 (4th Cir. 1950); Brown v. Kearney, 355 F.2d 199 (5th Cir. 1966); State v. Gansz, 297 So.2d 614 (4th D.C.A.Fla.1974). However, probationary status may be taken into account in determining whether a particular search was in fact reasonable. State v. Gansz, supra. The question presented on this appeal is whether the exclusionary rule applies to the evidence of Suarez’ findings on the occasion of his early-morning visit to appellant’s house. The procedural context in which this issue arises is that of a suppression hearing incident to a criminal charge, not a parole revocation hearing. The importance of this distinction will soon become apparent.

In State v. Gansz, supra, the court affirmed a trial judge’s order suppressing evidence recovered by the State under circumstances similar to those at bar. There appellee’s probation officer received an afternoon telephone call from an anonymous tipster, who suggested that the officer visit Gansz’ house because he had been dealing in drugs since being placed on probation. At 10:00 P.M. on the same day the probation officer, accompanied by two colleagues as well as by local police officers, decided to visit the probationer’s residence. Gansz was awakened, and, when told by his probation officer that the latter wanted to search the house, consented. The officers found marijuana in several different locations inside the dwelling. The district court held that Gansz was entitled to the protection of the Fourth Amendment, that the fact of his probationary status could be considered in determining the reasonableness of the search, that under this test the search was unreasonable because the officers did not obtain a search warrant, and that Gansz’ consent to the search had not been given voluntarily. The trial court’s order suppressing the subject evidence was affirmed.

Two cases from other jurisdictions persuade us to the view that, while evidence obtained in violation of the Fourth Amendment may be admissible against the probationer at a revocation hearing, such evidence cannot constitutionally be admitted at a criminal trial. In United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970), the relator, a probationer, was stopped and frisked without a warrant by a policeman who had been an arresting officer on the burglary charge giving rise to his probationary status. The officer had neither reasonable grounds for suspicion that Lombardino was armed nor probable cause for arrest, but the search uncovered a tin of marijuana. This evidence was ordered suppressed at a hearing in which the state court judge determined that the search had been illegal, and a charge of possession of marijuana was subsequently dropped by the State. At a later hearing, the same judge, after hearing the probation officer’s testimony that Lom-bardino had been found in possession of marijuana, concluded that he had violated a condition of his probation and ordered the probation revoked. The relator, who had since been incarcerated, petitioned for habeas corpus relief in the United States District Court. The court dismissed the petition, approving both decisions made by the state trial judge as proper responses to the same evidence in the essentially different contexts of criminal suppression hearing and administrative revocation hearing. In 1971, the United States Court of Appeals for the Fifth Circuit affirmed at 438 F.2d 1027. Under similar circumstances, an Illinois appellate court reached the same result in People v. Dowery, 20 Ill.App.3d 738, 312 N.E.2d 682 (1974), where tainted evidence was ruled admissible in a probation revocation hearing after it had been suppressed in a separate criminal proceeding.

We approve the position taken by the above-cited authorities. While the exclusionary rule does not apply to probation revocation hearings (see, e. g., United States v. Hill, 447 F.2d 817, 7th Cir. 1971), which are administrative in nature, we think it constitutionally required that one facing trial for a new and discrete criminal offense, as Croteau was in the instant case, be given the full protection of the Fourth Amendment and the corollary means by which the search and seizure principle is vindicated. At the present time, chief among these means is the exclusionary rule, and the trial court erred in refusing to invoke that sanction after making an express determination that evidence had been obtained illegally in the instant case. In short, we conclude that a probation officer has authority to enter upon the living quarters of his probationer to observe his life-style and any material evidence thereby discovered is admissible in proceedings for revocation of probation, but this does not validate an otherwise unreasonable search for contraband resulting in prosecution for a separate criminal offense.

Accordingly, the judgment is reversed and the case remanded to the circuit court for further proceedings not inconsistent herewith.

ROBERTS, ADKINS, BOYD and ENGLAND, JJ., concur.

HATCHETT, J., concurs with an opinion.

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

HATCHETT, Justice

(concurring).

Today’s decision demonstrates that it is within the province of the trial court to determine whether appeal of a noncapital felony conviction will lie to this Court, when a constitutional question is raised in the course of the prosecution. This does not represent a change in the general rule that noncapital felony convictions are appealed to the District Court of Appeal, even though the trial judge has explained his reasons for denying a suppression motion. I concur in the decision of the Court on jurisdiction and in the majority view that “while evidence obtained in violation of the Fourth Amendment may be admissible against the probationer at a revocation hearing, such evidence cannot constitutionally be admitted at a criminal trial.” Ante, p. 579.

Ordinarily a trial court implicitly construes Art. I § 12 of the Florida Constitution and the Fourth Amendment to the United States Constitution in deciding a motion to suppress illegally seized evidence. That fact alone does not give this Court jurisdiction of the appeal. Rojas v. State, 288 So.2d 234 (Fla.1973); Ogle v. Pepin, 273 So.2d 391 (Fla.1973); Armstrong v. City of Tampa, 106 So.2d 407 (Fla.1958). In Dykman v. State, 294 So.2d 633 (Fla. 1973) (reh. den. 1974) cert. den. 419 U.S. 1105, 95 S.Ct. 774, 42 L.Ed.2d 800 (1975) transferred 300 So.2d 695, the Court said’:

Although our direct appeals jurisdiction includes cases in which the trial court inherently passes upon the constitutionality of a statute, we may not accept a direct appeal based upon an inherent construction of a constitutional provision;
In ruling upon the motions to suppress, the trial court merely applied undisputed propositions of law to the facts it found to exist in the instant case, and in so doing found the motion not to be well-founded. Even if the trial court ruling on the motion is erroneous, it would' not support a direct appeal to this Court. At 634-636.

The trial judge here undertook “to explain, define or otherwise eliminate existing doubts arising from the language or terms of the constitutional provision.” Armstrong v. City of Tampa, supra at 392. Not even that would suffice to confer jurisdiction on this Court, if the trial judge had not also specifically referred to “the Fourth Amendment.” (R 48) No court can “construe a provision of our constitution without reference to it.” Ogle v. Pepin, supra at 392. By expressly construing the Fourth Amendment in the present case, however, the trial judge rendered appellant’s order of probation appealable here.

OVERTON, Chief Justice

(dissenting).

I dissent. In my opinion it is reasonable and within the bounds of the Fourth Amendment for the supervising officer of a defendant on probation for a drug offense to search the quarters of the probationer and to use the evidence found in the search as a basis for liability for a separate criminal offense.

An individual who stands convicted of a criminal offense is granted a privilege by being allowed to be free on probation. That privilege is conditioned upon his supervision by an assigned probation officer. A supervised probationer is in an entirely different status than an ordinary citizen.

The majority holds the search by a supervising probation officer is unreasonable to the extent it is used to charge a new criminal offense but reasonable when used to revoke probation. The purpose of the exclusionary rule is to prevent illegal conduct by law enforcement officers. I fail to see the logic in the view expressed by the majority. What is legal and proper to revoke probation should also be legal to charge a new criminal offense. The trial court’s denial of the motion to suppress was correct, and its decision should be affirmed.

      . Appellant’s California probation form, which is part of the record in this case, contained some twenty conditions with a small box adjacent to each. Five of these boxes were marked with an “X.” Among those conditions not so checked was that appellant “[s]ubmit his person and property to search or seizure at any time of the day or night by any law enforcement officer with or without a warrant.” The State’s position that an unmarked condition on a standard probation form was, explicitly or implicitly, part of the agreement between the parties is simply untenable.

      . The exclusionary rule in this context has become the object of much judicial dissatisfaction, and its future appears uncertain. See, e. g., Chief Justice Burger’s dissenting opinion in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) :
      “Some clear demonstration of the benefits and effectiveness of the Exclusionary Rule is required to justify it in view of the high price it extracts from society — the release of countless guilty criminals . . . But
      there is no empirical evidence to support the claim that the rule actually deters illegal conduct of law enforcement officials.

        Id. at 416, 91 S.Ct. at 2014, 29 L.Ed.2d at 638.

       In addition, I believe that Florida law requires the same result, independently of the Fourth and Fourteenth Amendments. The warrantless search and seizure of appellant’s dwelling is in violation of Fla.Const. art. I, § 12 (1975). See Fla.Stat. § 933.18 (1975); Cooper v. State, 106 Fla. 254, 143 So. 217 (1932); Pesce v. State, 288 So.2d 264 (Fla.App. 4th Dist.1974); Gelis v. State, 249 So.2d 509 (Fla.App. 2d Dist.1971); Panzavecchia v. State, 201 So.2d 762 (Fla.App. 3d Dist.1967). In Florida, the exclusionary rule is not merely a judicial construct hut is written into the Constitution itself. “Articles or information” obtained unreasonably, within the meaning of Art. I § 12, “shall not be admissible in evidence.” Fla. Const, art. I, § 12 (1975). Unquestionably this provision applies to trials. The present case does not require decision whether evidence seized in violation of Art. I § 12 must also be excluded from probation hearings. Cf. Bernhardt v. State, 288 So.2d 490, 500 (Fla.1974) ; Brill v. State, 159 Fla. 682, 32 So. 607 (1947).


author: ENGLAND, Justice.

text:
    SCHOOL BOARD OF MARION COUNTY, Florida, Relator, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    No. 48681.
    Supreme Court of Florida.
    June 16, 1976.
    John P. McKeever, of Pattillo, MacKay & McKeever, Ocala, for relator.
    Gene L. Johnson and Rodney W. Smith, Tallahassee, for respondent.
    Joseph H. Williams, of Troutman, Parrish & Weeks, Orlando, for International Brotherhood of Painters and Allied Trades, District Council 66, intervener.
    Sidney L. Matthew, of Tobias Simon and Elizabeth duFresne, Miami, for Florida Education Association/United, amicus curiae.
   ENGLAND, Justice.

By petition for a writ of mandamus we have before us the question of whether the Public Employees Relations Commission has a statutory duty to allow examination of union authorization cards signed by public employees. We have original jurisdiction pursuant to Article V, Section 3(b)(5) of the Florida Constitution.

District Council No. 66 of the International Brotherhood of Painters and Allied Trades filed with the Commission a petition for certification as bargaining agent for certain employees of the School Board of Marion County. The petition was accompanied by dated authorization cards signed by at least 30% of the employees in the proposed bargaining unit, as required by Section 447.307(2), Florida Statutes (1975). Ten days later the School Board wrote the Commission denying that the petition was supported by 30% or more of the Council’s employees and requesting access to the authorization cards. No reasons for the denial or the request were expressed.

The Commission refused access “because of the need for employee confidentiality in representation matters,” stating that the staff of the Commission “assumes the responsibility of checking the petitions for a valid showing . . . [and] this determination is both thorough and confidential.” The School Board then invoked our jurisdiction, requesting a writ of mandamus directed to the Commission, and we issued our alternative writ.

The School Board argues that Sections 447.307(2) and 119.01, Florida Statutes (1975), give employers an absolute right to review authorization cards. Section 447.-307(2) provides in relevant part:

“Any employee, employers, or employee organization having sufficient reason to believe any of the employee signatures were obtained by collusion, coercion, intimidation, or misrepresentation or are otherwise invalid shall be given a reasonable opportunity to verify and challenge the signatures appearing on the petition.”

Section 119.01 is the public records law of Florida, which declares that all documents received by a public agency “shall at all times be open for a personal inspection by any person.”

The Commission takes the postition that a review of authorization cards is permissible only where factual proof of collusion, coercion, intimidation, misrepresentation or invalidity is placed before the Commission and an independent investigation by the Commission does not disprove the assertions. The Commission bases its argument on labor policies developed under the National Labor Relations Act and the public employee relations statutes of other states. It contends that no other jurisdiction permits employer access to authorization cards under these circumstances, for the policy reason that disclosure might enable employers and competing unions to make reprisals and, indirectly, “chill” the exercise of collective bargaining rights by employees. With respect to the public records law, the Commission contends that collective bargaining rights of employees, which are guaranteed by the Constitution, operate in an area exempt from the public records law by public policy.

We cannot agree with the Commission’s position. There is one major and controlling difference between the use of authorization cards by the National Labor Relations Board and other states, and their use in Florida. The National Labor Relations Board has itself established a 30% representation requirement relative to union petitions for Board elections in order to screen frivolous petitions and to conserve the Board’s resources. This is not a requirement of law and it does not involve “an element in determining whether or not a question of representation exists.” Section 447.307, in contrast, embraces more than a rule of administrative convenience in the scheme of public employee collective bargaining. It is a comprehensive statement of the procedures and rights guaranteed when an employee organization seeks certification as a bargaining representative. Subsections (2) and (3) govern those cases where the public employer refuses to recognize an employee organization, affording the organization recourse to the Commission for a supervised election. In those situations a prerequisite of law is the employee organization’s showing that it has been selected by at least 30% of the employees in the proposed unit. Proof of representation is submitted in the form of authorization cards filed with the petition for recognition, and the Commission then has a duty to investigate the petition and verify the cards. If that investigation reveals the petition is deficient the matter ends. But if the petition is sufficient then a hearing must be held at which the employer can contest the petition, including the validity of the authorization cards. In this context, subsection (2) gives the public employer the right to “verify and challenge dle signatures” on the authorization cards if it has “sufficient reason to believe” that the signatures are invalid or were improperly obtained. If the challenge is found to be without merit, an election can be held. But the requirement of a hearing allows the issue of representation to be tested in public, on a record, and by the presentation of evidence.

As we view the statute, the right of challenge would be meaningless if an employer who alleges one of the statutory grounds for invalidation is denied access until the hearing is held. The pre-hearing right of access is not, however, an invitation to potential abuse or coercion, and it may not be employed for the purpose of producing the chilling effect to which the Commission alludes. Under the legislative scheme, it appears to have been recognized that some public employers, competing employee organizations or individual employees might abuse a right of access. The Legislature protected against this in two ways.

First, the Legislature limited access to those cases where the requesting party has reason to believe that employee signatures were obtained by “collusion, corecion, intimidation, or misrepresentation or are otherwise invalid.” The set of circumstances are narrow indeed. Second, the Commission has been given the power to remedy abuses of the right of access. Sections 447.501(1) (a), (l)(b), (2) (a), (2)(b), and (2)(d), Florida Statutes (1975), delineate unfair labor practices that would occur in the event an employer or competing employee organization seeks access to signature cards in bad faith or abuses the exercise of that right in order to chill an employee’s associational rights. Where lesser remedies are insufficient, bargaining orders may provide a full remedy. Cf., NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

In sum, we find that the statute here is quite different from that in other jurisdictions, and that the Legislature has not ignored the asserted evils which prompted the Commission’s action in this case. We understand the statute to mean that a public employer’s good faith allegation of one of the grounds enumerated in the statute is sufficient to require the Commission to give access to the authorization cards, and that the Commission is not authorized to review or test the employer’s judgment or assertions at that stage of the proceedings.

In the present case, however, we find that the School Board did not specifically allege any of the grounds enumerated in the statute. Its request was, therefore, properly denied by the Commission. For this reason the petition for a writ of mandamus must be denied, without prejudice to the School Board’s right to renew its request in a proper form if it has “sufficient reason” and in good faith believes that the accumulation of employee signatures was improper for one of the enumerated reasons.

The other issues raised by the parties are without merit, and the alternative writ of mandamus is discharged.

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

      . The Commission is a state agency created, among other reasons, to resolve controversies concerning claims for recognition as a bargaining agent for a bargaining unit of public employees. Chapter 74r-100, Laws of Florida, appearing as Part II, Chapter 447, Fla.Stat. (1975). See specifically § 447.207(6), Fla. Stat. (1975).

      . 29 U.S.C. §§ 151-167 (1970).

      . See S. H. Kress, 137 NLRB 1244, 50 LRRM 1361 (1962). These views are also expressed in advisory letters to the Commission from public employee relations boards in the states of Hawaii, Michigan, New Jer-. sey, New York, Oregon and Wisconsin, which have been made part of the record. In its brief, the Commission describes the chilling effect in these terms. “If an employee knows at the inception of the organizational campaign that his name and desires for collective representation will be exposed to public scrutiny, public ridicule, or more basic, reprisal from an employer, he may choose to forego or curtail the exercise of his constitutional right rather than submit to such pressures.”

      . Art. I, § 6, Fla.Const.

      . The public records law contains no express exemption relative to collective bargaining. Section 119.07(2) (a), Fla.Stat. (1975), however, provides:
      “All public records which presently are provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, shall be exempt from the provisions of subsection (1).”

      . See NLRB v. J. I. Case Co., 201 F.2d 597 (9th Cir. 1953).

      . Compare 29 U.S.C. § 159 (1970), with § 447.307(2), Fla.Stat. (1975).

      . NLRB v. J. I. Case Co., fn. 6 above. See also NLRB v. White Constr. & Engin. Co., 204 F.2d 950 (5th Cir. 1953); Kearney & Trecher Corp. v. NLRB, 209 F.2d 782 (7th Cir. 1953). The reasoning of the National Labor Relations Board in requiring secrecy at that state of the proceeding points up the difference between national procedures and Florida’s. The Board has indicated that employers have no legitimate interest in the union’s preliminary show-of-interest because “ [i] t is the election, not the petitioner’s showing of interest, which decides whether the employer is obligated to recognize the petitioner as the exclusive bargaining representative of the employees.” S. H. Kress, fn. 3 above, at 1249. In contrast to that reasoning, Florida’s statute has expressly conferred on employers a legitimate interest, in certain circumstances, at the petition stage.

      . The pre-hearing accumulation of facts by the employer is consistent with the fact that the statute does not authorize the Commission to review the sufficiency of the employer’s belief or require factual allegations in support of the asserted ground of invalidity. The employer’s right is premised on its “having sufficient reason” to request verification.

      . The statute does not provide free public access to signature cards, but rather limited access to a narrowly defined class of interested persons. To this extent Section 447.307 (2) may actually operate as an exemption to Section 119.01, as recognized in Section 119.07 (2) (a). In light of the manner in which we have construed Section 447.307(2), we are not required in this proceeding to determine whether or to what extent the public records law has been amended by Chapter 74-100, Laws of Florida.

      . Should practical experience under the statute show that it does in fact abridge the collective bargaining rights guaranteed in Article I, Section 6 of the Florida Constitution, the courts are available to enforce constitutional rights.