author:
PER CURIAM.
      ENGLAND, Justice

text:
    Dock Odell THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 48423.
    Supreme Court of Florida.
    Nov. 30, 1976.
    Rehearing Denied Feb. 28, 1977.

      Frank A. Graham, Jr., of Graham & Vos-sler, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This case is before us on direct appeal from an order of the Leon County Circuit Court (i) denying a motion to suppress certain evidence seized by agents of the Florida Department of Criminal Law Enforcement and (ii) holding constitutional the search and seizure authority granted to the Department in Chapter 943, Florida Statutes (1975). Appellant entered a plea of no contest to three counts of possession of a stolen vehicle and reserved the right to appeal the trial court’s ruling under the doctrine announced in State v. Ashby, 245 So.2d 225, 228 (Fla.1971). We have jurisdiction to review the trial court’s order under Article V, Section 3(b)(1) of the Florida Constitution.

The principal contentions of the appellant deal with the legal authority of the Department’s agents to obtain and execute search warrants, and the constitutionality of the manner in which the Legislature granted them this investigative authority. We have considered other issues raised by the appellant and find them to be without merit.

The Department of Criminal Law Enforcement Act of 1974 was enacted by the Legislature to assist local governments in combating crime and to provide the means for statewide enforcement of the criminal laws of Florida. The provision of that Act under attack here is Section 943.-04(2)(a), Florida Statutes (1975), which provides:

“Under appropriate rules and regulations adopted by the department, or by written order of the governor or by direction of the legislature acting by a concurrent resolution, and at the direction of the executive director, the division of law enforcement may investigate violations of any of the criminal laws of the state, and shall have authority to bear arms, make arrests and apply for, serve and execute search warrants, arrest warrants, capias, and other process of the court.”

On the effective date of the new Act, the Governor issued Executive Order 74-38, which in relevant part provides:

“I . . . hereby authorize, order and direct the Florida Department of Criminal Law Enforcement, . . . and all special agent-investigative personnel, to investigate violations of any of the criminal laws of the State and the misconduct in connection with their official duties of public officials and employees of officials and members of public corporations and authorities subject to suspension or removal by the Governor, and do further hereby authorize the Executive Director and all special agent-investigative personnel under his supervision to bear arms, make arrests and apply for, serve and execute search warrants, arrest warrants, capias and other process of the court.”

Appellant contends that Executive Order 74-38 was inadequate to authorize the exercise of the powers conferred in the statute, inasmuch as the Legislature intended that a more precise statement of the procedures to be followed by departmental agents be established through rules adopted by the Governor. Since the procedures are inadequate, appellant argues, the Department’s agents lacked authority to obtain and execute any search warrant and the evidence seized in this case must be suppressed. We disagree.

Section 943.04(2)(a) creates three alternatives by which the Department’s agents may be directed to exercise the investigatory powers granted in the Act. One of the contemplated methods is a “written order of the Governor”. The plain language of the Act negates appellant’s suggestion that the Governor is required to promulgate rules, in accordance with the Administrative Procedure Act, before ordering the Department into action. The Governor’s power to initiate action by “written order” is, by its terms, in sharp contrast with the two alternative methods of initiating action by departmental “rule” or by concurrent resolution of the Legislature. Since the Legislature is not subject to the Administrative Procedure Act, it is obvious that rules need not be promulgated before the adoption of a concurrent resolution by that body. It follows that the statutory alternatives were intended to mean exactly what they say, namely that the authorized administrative agency was not excused from compliance with the Administrative Procedure Act as a prelude to its launching an investigation under Chapter 943, but that the Legislature and Governor were free to act in their normal, constitutional way (legislative resolution and gubernatorial order) without preliminary administrative regulations.

In this case, the Governor chose to order the investigation of all illegal conduct of state officials and employees. He acted within his authority under Chapter 943 and the agents complied with the statutory requirements for search warrants found in Chapter 933, Florida Statutes (1975). We hold, therefore, that the Department was validly ordered to exercise its investigatory powers and had the power in this case to obtain and execute the search warrant in question.

Appellant also contends that Section 943.04(2)(a) constitutes a delegation of legislative power to the executive branch of government in violation of the separation of powers prescribed in Article II, Section 3 of the Florida Constitution, in that the statute vests the Governor with unlimited discretion to determine the breadth or application of the investigatory powers exercisable by the Department. This argument is based on the language of Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789 (1919), where this Court explained that the Constitution forbids the delegation of “the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law ,.”

The Legislature did not here authorize an unbridled exercise of executive discretion to investigate matters outside the sphere of duty already imposed on the chief executive by Article IV, Section 1(a) of the Constitution. A prohibited form of discretion would exist if this or any other statute conferred on the executive branch a discretionary authority it does not have already or which, for all practical purposes, is equivalent to the law-making power itself. In the area of law enforcement, the resources of the state must be marshalled and focused in the manner deemed most efficacious at the time. The burden of this task falls on the executive branch of government, although the power to determine what is or what is not criminal behavior is peculiarly within the province of the Legislature. These distinctive functions have not been blurred here.

There being no constitutional infirmity in Section 943.04(2)(a) or in the manner in which the investigation, search and arrests were made in this case, the order of the trial court is affirmed.

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

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice

(concurring).

I fully concur in the Court’s decision in this case, but I would use the occasion of this appeal to consider the advisability of continuing the Ashby doctrine of reserved appellate questions.

At the time Ashby was adopted it was anticipated that the resolution of controversies would be expedited and that the legal issues for appeals would be more narrowly drawn. The doctrine, however, has engendered appeals in cases where the defendant’s guilt is not subject to serious question and the points of law preserved for appellate review are not meritorious. Deciding these cases has required more judicial labor and taxed more resources of the criminal justice system than the benefits which originally were perceived in fact warrant.

I believe it is now appropriate to adopt for Florida the rule of law, rejected in Ashby, which the Second District Court of Appeal first described in Peel v. State and the Third District Court of Appeal applied in City of Miami Beach v. Eason. In light of the complete discussion of the history and legal effect of no contest pleas in Peel, I will not burden this concurrence with a repetition of those views. I would simply adopt as my own so much of that decision as deals with this subject matter.

      . It is argued that the affidavit upon which the search warrant issued did not provide a sufficient basis for a finding of probable cause. Our review of the affidavit discloses that there were more than adequate facts. State v. Wolff, 310 So.2d 729 (Fla.1975). It is also argued that Department agents conducted a search beyond the scope of the warrant, or that the warrant authorized an unconstitutional general search. The warrant was quite specific as to what was to be seized and its location, and we do not find it defective. The record before us is inadequate for consideration of appellant’s alternative argument, there being no hearing transcript bearing on the. scope of the agents’ search and no lucid stipulation of the facts by counsel. The clerk of this Court brought the unsatisfactory status of the record to the attention of appellant’s counsel, but he elected to stand upon the record as filed. We must therefore affirm the trial court’s ruling on this issue, as no error has been made to appear. Finally, it is argued that the Department’s agents making the seizures involved here did not act “at the direction of the executive director.” See § 943.04(2)(a), Fla.Stat. (1975). We do not conceive this statutory language to require specific approval of every action taken by an agent. Rather, it exists to insure that supervisory responsibility remains in the executive director as head of the agency. The status of the agents as employees of the Department is not contested.

        . § 120.50 et seq., Fla.Stat. (1975).

      . It is problematical whether the Governor would be subject to the Administrative Procedure Act for this activity in any event. The Act exempts the Governor in the exercise of his constitutional duties. § 120.52(l)(a), Fla.Stat. (1975). The power to see that laws are faithfully executed, which is essentially what Chapter 943 is designed to achieve, derives from Article IV, Section 1(a) of the Florida Constitution.

      . We construe that portion of the Governor’s Executive Order which authorizes the investigation of the “misconduct” of public officials to mean those acts of misconduct which violate the criminal laws of the state. The Governor has no power under the Act to direct an investigation of lesser forms of misconduct.

      . See § 933.07, Fla.Stat. (1975), permitting the issuance of search warrants “to any sheriff and his deputies or any police officer or other person authorized by law . . Section 943.-04(2)(c), Fla.Stat. (1975) states that investigators of the Department “shall be considered peace officers for all purposes.”

      . 82 So. at 793.

      . State v. Ashby, 245 So.2d 225, 228 (Fla.1971).

      . 150 So.2d 281 (Fla.2d DCA 1963), appeal dismissed, 168 So.2d 147 (Fla.1964), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965).

      . 194 So.2d 652 (FIa.3d DCA 1967).

      .Essentially, 150 So.2d at 283-92. Additionally, I would now approve, as being without technical deficiency, the use of the English equivalent “no contest” for the Latin phrase “nolo contendere”. Indeed, such usage may be preferable to avoid communication difficulties with criminal defendants. See Fox v. State, 112 Fla. 104, 150 So. 228 (1933).


source: Caselaw Access Project

author: ENGLAND, Justice. BOYD, Justice

license: Public Domain

text:
    COUNTY OF PALM BEACH, Florida, Appellant, v. STATE of Florida et al., Appellees.
    No. 48569.
    Supreme Court of Florida.
    Nov. 30, 1976.
    As Corrected On Denial of Rehearing Feb. 10, 1977.

      Arnold L. Greenfield, Gen. Counsel, State Division of Bond Finance, Tallahassee and R. William Rutter, Jr., County Atty., for appellant.
    Robert L. Shevin, Atty. Gen.; and Basil S. Diamond and Mary Jo Carpenter, Asst. Attys. Gen., for appellees.
    Chester Bedell and John A. DeVault, III of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for intervenors-appellees.
   ENGLAND, Justice.

This case is an appeal from a judgment of the Palm Beach County Circuit Court declaring invalid a $50 million bond issue approved by the voters of Palm Beach County. We have jurisdiction pursuant to Article V, Section 3(b)(2) of the Florida Constitution.

The trial judge below construed the resolution by which the Palm Beach County Commission proposed the bond issue as authorizing the use of the proceeds for the unconstitutional purpose of maintaining beaches and parks, and declared the issue invalid for that reason. He also found that Chapter 75-471, Laws of Florida, could not cure the complete failure of the county to publish notice of the bond election in the manner required by Section 100.211, Florida Statutes (1973), because this curative legislation also authorized the use of the bond proceeds for the maintenance of beaches and parks. We reverse.

There is no question but that the manner in which the officials of Palm Beach County conducted the election proceedings surrounding this bond issue was deplorable. Infirmity after infirmity crept into the bonding process, and ill-considered and equally careless attempts were made to cure the defects. Nonetheless, the present posture of the matter is that we are obliged to accept or reject that which the voters of the county overwhelmingly approved. Based on the law presently in existence in this state, we can fulfill the voters’ expectations by validating the bonds, with a limiting construction placed on the use of the word “maintenance”.

Article VII, Section 12 of the Florida Constitution, limits the power of counties to issue bonds to the two purposes of financing or refinancing capital projects, and to refund outstanding bonds at a lower interest cost. Bonds cannot be issued for the purpose of non-capital expenditures, such as payment of daily maintenance expenses. In this case, the County Commission passed a resolution which stated in relevant part that the bond proceeds would be used to finance “the cost of the acquisition, maintenance and preservation of beaches, parks, bicycle trails, parking facilities, access strips and facilities appertenant (sic) thereto . . . .” If it were clear that references to “maintenance” were intended to mean constitutionally prohibited non-capital expenditures, we would have no choice but to affirm the judgment of the trial court. It is far from clear, however. County Commissioners are presumed to have acted in accordance with their duty to uphold the Constitution of this state, and this Court is bound to avoid constitutional questions concerning a statute by severing objectionable phraseology where necessary. In the context of the resolution the term “maintenance” is not so clear and unambiguous that all would agree it means operating as opposed to capital expenses. It reasonably can be read to mean “capital maintenance”, such as replacing fallen trees or eroded beaches. When such ambiguity exists, intent is the touchstone. Before us, the Commission has avowed its intention to use the bond proceeds only for constitutionally proper capital projects, and after the election it adopted a resolution validating the election which omitted the word “maintenance”. We accept the averments of the Commission, cognizant of the fact that if any attempt is made to use bond proceeds in an improper manner an action for injunc-tive relief would lie.

As regards the failure to comply with the notice requirements of Section 100.211, this Court has very clearly stated that after-the-fact validating legislation is perfectly proper to cure procedural defects. In this case the Legislature in Chapter 75-471 declared the election valid because notice had been given through the mailing of a sample ballot to all registered voters in the county. While such substituted notice would not constitute substantial compliance with Section 100.211, the facts of this case present no grounds for the overruling of established precedent. Our construction of the term “maintenance” as used by the Commission is also applicable to the use of that word by the Legislature. We therefore find that the failure to give statutory notice was cured by subsequent legislative validation.

For the reasons stated, the judgment of the Palm Beach County Circuit Goúrt is reversed and this case is remanded for further proceedings- not inconsistent with this decision.

It is so ordered.

OVERTON, C. J., and ADKINS, SUND-BERG and HATCHETT, JJ., concur.

BOYD, J., dissents with an opinion with which ROBERTS, J., concurs.

BOYD, Justice

(dissenting).

I cannot agree with the majority that validity was breathed into the bond issue by Chapter 75-471, Laws of Florida.

Article VII, Section 12 of the Florida Constitution does not include maintenance within the purposes to which it limits local bonds. County Commission Resolution 74-783, which called for the bond issue, states that the funds from sale of bonds shall be used “for the purpose of financing the cost of the acquisition, maintenance and preservation of beaches, parks, bicycle trails, parking facilities, access strips and facilities appertenant [sic] thereto for the residents of Palm Beach County.” Minutes of the meeting indicate the Commission, in adopting the above resolution, intended that portions of the money be used for maintenance purposes. The question presented to the voters did not state directly that the proceeds from bond sales would be used for maintenance, but stated the bonds would be issued pursuant to the resolution. Reference to the resolution constituted an indirect inclusion in the question before the voters of maintenance as an expenditure of the bond proceeds. The Legislature, in the enactment of the special curative statute, Chapter 75-471, referred to the bonds as providing funds for financing the costs of acquisition and maintenance of beaches and parks.

It is clear to me that the voters must have thought proceeds from the bonds would be used for the unconstitutional purpose of maintenance and that the Legislature’s attempt to breathe validity into the bond issue was likewise unconstitutional.

Aside from the constitutional problems, other errors were committed in the bond process. Resolution 74-783 directed that the clerk should publish notice of the bond election- to be held on November 5, 1974, once each week for four consecutive weeks, the first publication to be not less than thirty days prior to the date of the election as required by Section 100.211, Florida Statutes (1973). No such notice was ever published.

The learned circuit judge found that county officials and the news media at all levels informed the residents of the County of the coming bond election, including the mailing of one sample ballot to each home having one or more registered voters. Nevertheless, the court found that complete failure of statutory notice constituted a fatal and incurable defect in the bond issue rendering it invalid.

The trial court relied heavily upon 1st Tax Dist. No. 1 of Duval County v. State, Florida, et al., 123 So.2d 315 (Fla.1960), where only one publication of notice of a bond election was made. This Court held the bond issue invalid because of failure to comply with the statutory requirement of four weekly notices. The trial court’s decision is buttressed by State ex rel. Pope v. Shields, 140 So.2d 144 (Fla. 1st DCA 1962), where the Court held that publication of notice of a town incorporation election in three issues of a weekly newspaper did not constitute substantial compliance with a Special Act.of the Legislature which provided for the election procedure and called for notice to be published once a week in a local newspaper for four consecutive weeks.

Appellant relies upon State v. County of Sarasota, 155 So.2d 543 (Fla.1963), where this Court held a bond issue valid based upon substantial compliance with the same statutory notice requirements at issue here.

“The publication in question was first made thirty-five days before the election and was made once each week for five weeks before the election, the first two weeks of the period of publication and the last three weeks. In fact, in the last three weeks, publication was made every day for fifteen days. However, on account of a cause which the publisher has not been able to determine, one publication of the formal notice was not made during the week of March 4.” at 545.

That case is not at all similar to this case. Here statutory notice was not published once. Instead the election was publicized by public officials and the news media. To permit statutory notice to be substituted by other types of notice gives rise to an impossible task as to what forms and degrees will be sufficient to constitute substantial compliance. Most informed citizens expect legal notices to appear as items so designated in newspapers of general circulation. Thus, as the majority recognizes, the efforts of the County officials did not constitute substantial compliance with statutory requirements.

The entire bonding process was riddled with errors. Approval of this bond issue lowers the standards for the issuance of bonds to such an extent that from now on it will be difficult to disapprove bond issues regardless of how defective and regardless of obvious constitutional violations.

I dissent from the opinion of the majority and I would affirm the order of dismissal by the Circuit Court.

ROBERTS, J., concurs.

      . Cf. City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957).

      . State v. Calhoun County, 126 Fla. 376, 170 So. 883 (1936).

      . Weiss v. Leonardy, 160 Fla. 570, 36 So.2d 184 (1948).

      . Williams v. Town of Dunnellon, 125 Fla. 114, 169 So. 631 (1936).

      . Coon v. Board of Public Instruction, 203 So.2d 497 (Fla.1967) (curative legislation abrogating a prior legislative mandate setting the percentage of freeholders required to petition for an election); State v. County of Sarasota, 155 So.2d 543 (Fla.1963) (curative legislation directed at defects in statutory publication of notice requirements).

      .Chapter 75-471 provides:
      “All acts and proceedings in connection with the election held in Palm Beach County on November 5, 1974, including the failure to publish notice of such election as required by s. 100.211, Florida Statutes, since notice of such election was in fact given by the mailing of sample ballots to all registered voters, to authorize the issuance of bonds of Palm Beach County, for the purpose of providing funds for financing the costs of acquisition and maintenance of beaches and parks are hereby ratified, validated, and confirmed and said election is declared to be legal and valid in all respects.”


author: ROBERTS, Justice. HATCHETT, J.,

text:
    Norman STEPHENSON et al., Appellants, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, State of Florida, Appellee.
    No. 49305.
    Supreme Court of Florida.
    Nov. 30, 1976.
    Rehearing Denied Feb. 28, 1977.
    Allan P. Clark of Caven & Clark, Jacksonville, for appellants.
    Robert A. Chastain and Leslie McLeod, Jr., Tallahassee, for appellee.
   ROBERTS, Justice.

We have for review by direct appeal the decision of the District Court of Appeal, First District, in Stephenson et al. v. Department of Agriculture and Consumer Services reported at 329 So.2d 373, which passes on the constitutional validity of Section 570.15, Florida Statutes (1975), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

The decision' of the District Court under review succinctly states the pertinent facts relative to this appeal. “By their complaint, appellants contend in the trial court that appellee, the Department of Agriculture and Consumer Services of the State of Florida, was without statutory or constitutional authority to require their trucks to stop at appellee’s road-guard stations for agricultural inspections, alleging their trucks do not carry agricultural products. They sought an injunction to prevent appel-lee from requiring their trucks to stop. The trial judge, in his order denying appellants’ motion for summary judgment, pointed out that the Supreme Court of Florida in Johnson v. State, [99 Fla. 1311], 128 So. 853 (1930), upheld the constitutionality of the citrus inspection code saying:

‘The protection of a large industry constituting one of the great sources of the state’s wealth and therefore directly or indirectly affecting the welfare of so great a portion of the population of the state is affected to such an extent by public interest as to be within the police power of the sovereign.’

“The trial court then found that the ap-pellee’s actions to ascertain what agricultural products, if any, appellants are transporting have been reasonable and no abuse of discretion has been shown. The trial court further pointed out that the agricultural inspection laws are ‘regulations de-signéd to promote the public health, safety and welfare in order to determine whether there has been compliance with prescribed standards.’ The court made the further affirmative finding:

‘It is within the police power of the state to cause to stop for inspection all trucks operating on the public highways.’ ”

The statutes under consideration authorizing appellee to require appellants’ trucks to stop for agricultural inspections are Sections 570.15 (which was amended after the trial court’s order) and 570.44(3), Florida Statutes. Since appellants sought prospective relief by their action for declaratory judgment, the District Court of Appeal, First District, considered the law as it existed at the time of the appeal rather than at the time of the entry of the order appealed.

The subject statutory provisions provide:
“570.44(3) BUREAU OF ROAD GUARDS. — It shall be the duty of this bureau to operate and manage those road guard inspection stations of the state and to perform the general inspection activities relating to the movement of agricultural, horticultural, and livestock products and commodities as directed by the department and the division director.
“570.15 Access to places of business and vehicles.
“(l)(a) The commissioner, assistant commissioner, directors, counsel, experts, chemists, agents, inspectors, road-guard inspection special officers, and other employees and officers at the department shall have full access at all reasonable hours to all:
^ *
2 * * *
g * * *
^ * * *
g * * *
6. Trucks;
7. Motor vehicles, other than private passenger automobiles with no trailer in tow or any vehicles bearing an RV license tag;
8. Truck and motor vehicle trailers;
g * * *
10. All records pertaining thereto; used in the production, manufacture, storage, sale or transportation within the state of any food product; any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.
(b) If such access be refused by the owner, agent, or manager of such premises or by the driver of such aforesaid vehicle, the inspector or road-guard inspection special officer may apply for a search warrant which shall be obtained as provided by law for the obtaining of search warrants in other cases, or may conduct a search of any of the aforesaid vehicles without a warrant pursuant to s. 933.19.
(c) * * *
(2) It shall be unlawful for any truck or any truck or motor vehicle trailer to pass any official road-guard inspection station without first stopping for inspection. A violation of this subsection shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.-082 or s. 775.083.”

Affirming the trial court, the District Court of Appeal opined, and we agree:

“Appellee has full authority under the police power of the State of Florida to conduct agricultural inspections of the vehicles mentioned in the above statutes provided such inspections are made pursuant to the terms of said statutes. The inspections are necessary in order that appellee may carry out its responsibilities relating to disease control, fruit and vegetable grading and other similar matters required by law, appellee’s regulations and federal marketing orders. Under subsection (2) of section 570.15 above, all trucks and motor vehicle trailers [not limited to those mentioned in subsection (1)] are required to stop at appellee’s road-guard inspection stations for inspection. Unless such a vehicle stops at the station, it cannot be determined by the inspectors whether or not it is being used for transportation of ‘any food product, any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.’ Upon stopping, the majority of operators of such vehicles will probably have no objection to such an inspection and will consent to same; but as provided in the statute, if access is refused, the vehicle may not be searched without the inspector obtaining a search warrant or without a legal basis for search without a warrant pursuant to established law. Such in no way impairs appellants’ right to be free from unreasonable search and seizure, their right to due process of law, or their right to equal protection of the law. We do not find that it violates any constitutional right of appellant.
“From the record it appears that appel-lee has a procedure whereby a concern may qualify for a permit through which its trucks, upon stopping, will be given clearance through exhibiting their bills of lading, but appellants have not sought to avail themselves of this procedure.
* * * * * *
“The inspections authorized by statute in the case sub judice fall in a different category. Agricultural inspections appear to be more nearly akin to drivers’ license checks than detentions for criminal investigations, but we have found no authority and none has been cited to us dealing with agricultural inspections of motor vehicles.
“It is our view that the requirement of the foregoing statute that all trucks and trailers stop at the inspection stations of appellee for agricultural inspection is entirely reasonable and is a valid exercise of the police power of the state. The stopping of a vehicle for such purpose is not a search and is not an unreasonable seizure. Only unreasonable searches and seizure are prohibited by the Fourth Amendment.”

Accordingly, the decision of the District Court of Appeal, First District, is hereby affirmed.

It is so ordered.

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

HATCHETT, J., concurs in result only, with concurring opinion.

HATCHETT, J.,

concurring.

I concur on the authority of United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).


author: PER CURIAM.

text:
    John W. HARRIS, II, a minor, by and through his father John W. Harris and Rita Harris, Petitioners, v. Clifford B. MILES, M.D., and Holy Cross Hospital, Inc., d/b/a Holy Cross Hospital, Respondents.
    No. 49543.
    Supreme Court of Florida.
    Dec. 16, 1976.
    Rehearing Denied Feb. 28, 1977.
    Simons & Schlesinger, Fort Lauderdale, and Robert Orseck of Podhurst, Orseck & Parks, Miami, for petitioners.
    John W. Fleming and William D. Ricker, Jr. of Fleming, O’Bryan & Fleming, Fort Lauderdale, for respondents.
   PER CURIAM.

This case is before the Court on a Petition for Writ of Certiorari to the District Court of Appeal, Fourth District, 330 So.2d 181.

The Court is of the opinion that the Petition for Writ of Certiorari should be and is hereby granted, the filing of briefs on the merits is dispensed with and the decision of the District Court of Appeal is hereby quashed on the authority of Foley v. Morris et al., Fla., 339 So.2d 215, opinion filed November 4, 1976.

OVERTON, C. J., and ENGLAND, SUNDBERG and ROBERTS (Retired), JJ., concur.

ADKINS, BOYD and HATCHETT, JJ., dissent.


author: ENGLAND, Justice.

text:
    MAULE INDUSTRIES, INC., etc., Petitioner, v. William T. MAYO, etc., et al., respondents. The CITIZENS OF the State of FLORIDA, Cross-Petitioners, v. William T. MAYO, etc., et al., Respondents.
    No. 47301.
    Supreme Court of Florida.
    Dec. 22, 1976.
    Rehearing Denied Feb. 28, 1977.

      John W. McWhirter, Jr. of Cason, McWhirter, Henderson & Stokes, Tampa, for petitioner.
    William L. Weeks, Prentice P. Pruitt and Donald R. Alexander, Tallahassee, for Florida Public Service Comm.
    Talbot D’Alemberte, Shepard King and Richard Smith, of Steel, Hector & Davis, Miami, for Florida Power and Light Co., respondents.
    Woodie A. Liles, Public Counsel, Donald W. Weidner, Deputy Public Counsel, and C. Earl Henderson, Associate Public Counsel, Tallahassee, for the Citizens of the State of Florida, cross-petitioners.
   ENGLAND, Justice.

This case is brought to us by public counsel for the State of Florida, asking that we review and either decrease or reverse an interim rate increase granted by the Public Service Commission to Florida Power and Light Company pursuant to Section 366-06(4), Florida Statutes (1975), the so-called “file and suspend” law applicable to electric utility companies. We have jurisdiction for review pursuant to Article V, Section 3(b)(3) of the Florida Constitution, and Section 366.10, Florida Statutes (1975).

FACTS

On August 2, 1974, Florida Power and Light Company (“FP&L”) petitioned the Commission for a permanent rate increase of approximately 143 million dollars, based on a projected test year ending December 31, 1974. On August 14, the Commission suspended the effectiveness of the proposed rate increase in an order which found that the proposed rates

“may not be justified and may be unjust, unreasonable, unduly discriminatory, or preferential, or otherwise unlawful

After the Commission had scheduled public hearings on the proposed rate increase, FP&L requested a partial interim rate increase of approximately $70 million based on a test year ending September 30, 1974. The basis for this request was an alleged erosion of FP&L’s previously granted rate of return, stemming mainly from higher operating costs. The Commission scheduled and held a public hearing on the request for interim relief prior to the completion of the hearings on the full rate increase.

During the interim rate hearing, the Commission received extensive evidence concerning FP&L’s financial position and increased costs,- including testimony that 79% of the total increase in operating costs was attributable to increased fuel expenses (the accounting treatment for which is the principal source of the controversy now before us).

On January 10,1975 the Commission granted FP&L an interim rate increase of nearly 70 million dollars, treating the award as proper both under Section 366.-06(4) and this Court’s decision in Southern Bell Tel. & Tel. Co. v. Bevis, 279 So.2d 285 (Fla.1973). One Commissioner dissented from the interim award on the ground (among others) that $54 million of the $70 million increase represented nonrecurring, unrecovered fuel costs which, through operation of FP&L’s automatic fuel adjustment clause, would be recovered by the company within months of the end of the test year used to compute the interim award.

On April 1, 1975, the Commission granted FP&L a permanent rate increase of more than $107 million. In its order the full Commission adopted the dissenting view expressed in the interim order that unreeovered fuel costs are nonrecurring and should be disallowed as an operating expense in the test year computation. Nonetheless, the Commission affirmed the entire interim rate increase previously awarded, finding that it was fair and reasonable in light of the fact it amounted to less than the amount awarded on a permanent basis. Review of the Commission’s order was timely sought here.

ISSUES

After the petition for review in this case was lodged here, but before all briefs had been filed, we rendered our decision in Citizens of Florida v. Mayo (Gulf Power Co.), 333 So.2d 1 (Fla.1976). All parties concede that, despite some procedural matters peculiar to this case, the Commission’s overall procedures in connection with FP&L’s interim rate increase were compatible with the standards set out in that decision. In fact, many of the subsidiary issues raised in this case have been resolved in our Gulf Power decision and need not be elaborated here.

Public counsel presents two principal issues for our review. He contends that the Commission failed to support its interim rate award with findings of fact adequate to meet the standards described in Gulf Power, and that the Commission erred in approving $54 million of unrecovered fuel costs in the interim rate increase. The Commission defends the interim rate increase on essentially two grounds. It says there was ample evidence at the interim hearing to support the need for emergency rate relief inasmuch as the substantive standard developed in Southern Bell provides an adequate legal foundation to support a temporary award under Section 366.-06(4). It also says that the disallowance of unrecovered fuel costs in the final order is irrelevant to the treatment of that item in the interim award because, until figures for the final three months of 1974 became available, it was impossible to ascertain that the lag in recovery of fuel costs was merely a temporary phenomena.

FP&L strongly supports the contention of the Commission that the substance of the Southern Bell decision, described by FP&L as a “make-whole” standard for utilities, should remain as the minimum legal standard under which statutorily-processed interim rate awards should be judged. The company also argues that the final order’s finding of rate reasonableness is alone adequate to support the interim award under the so-called “end result” doctrine of Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944). In that case it was held that methods of computation used by a regulatory agency are to be ignored if the final ruling is not unreasonable on the basis of the entire record. The “end result” test has, of course, been expressly adopted in Florida. We note, however, that this rate-reviewing test was judicially developed for procedures vastly different from those available under the file and suspend statute, and we decline to extend its applicability to the confirmation orders which, in final rate awards under Florida’s new statutory scheme, approve earlier interim rate awards.

ANALYSIS

The two principal points of contention for our resolution, then, are, first, whether there exists an adequate factual basis for the Commission’s interim rate award, and, second, whether the nonrecurring $54 million cost item should have been revised for the interim award. We hold that an adequate factual justification for partial relief was shown, but that unrecovered fuel costs were improperly considered in computing the amount of interim relief that was awarded.

In Gulf Power we prescribed the standards for granting an interim award once the Commission acts to suspend a rate schedule filed by a utility. We there said that an order of the Commission which lifts a suspension must state with particularity the facts which were developed to overcome the Commission’s initial decision to suspend the effectiveness of new rates. In this case the Commission awarded interim rate relief on the basis of FP&L’s showing of general financial difficulties, including a specific showing that net revenues had dropped to a level which constituted

“a serious threat to the continued ability of the Company to attract capital and maintain its present bond rating.”

Although not identified with particularity in the order granting interim relief, adequate evidence appears to have been developed at the interim rate hearing, or through filings made after the suspension, to overcome the Commission’s initial rejection of FP&L’s $143 million initial rate request. The interim order describes, among other factors, the company’s erosion of earnings below the last authorized minimum rate of return, and it states that rate base and net operating income data were prepared on a basis consistent with the Commission’s last full award to FP&L. While these findings do not meet in full the specificity we have said the file and suspend law requires, the order in this instance was entered before our Gulf Power decision clarified the legislative standard. Our independent review of the record evidence developed after the initial filing convinces us that, except for the erroneous treatment of unrecovered fuel costs, the evidence to warrant lifting the rate suspension was adequately identified in the Commission’s interim rate order in this case. Greater factual clarity in these types of orders, however, will be expected in future cases.

In concluding that FP&L adequately justified its need for interim rate relief, we necessarily accept FP&L’s contention that the “make-whole” legal standard of Southern Bell is a proper substantive basis on which to award interim rate relief under Section 366.06(4).

We now turn' from the Commission’s legal standard for interim relief to the amount actually awarded in this case. We find that the Commission allowed FP&L to exaggerate its operating expenses for the purpose of computing a revenue deficiency by including in its computations a nonrecurring item wholly inappropriate to the test year tool of rate-making. .The error first occurred when the Commission accepted FP&L’s net' operating income figures as being consistent with its last full rate order for the company. In fact those figures were not compatible with the prior treatment of unrecovered fuel costs. Commissioner Hawkins correctly identified this early error in her dissent from the interim award. The error was later compounded by the Commission’s refusal, when the permanent rate award was approved, to adjust the interim award and award a refund to customers.

An improper accounting treatment of un-recovered fuel costs is no different from an improper inclusion in rate base of unwarranted contributions in aid of construction, or an unwarranted claim for any other improper item of expense. In all such cases the excessive allowance distorts the amount of revenue needed to bring the utility up to the last authorized minimum rate of return.

On the record before the Commission when the interim award was granted, if it had applied only the proper accounting standards and discounted FP&L’s unrecov-ered fuel costs in the revenue deficiency equation, only $15 million (approximately) would have been necessary to restore the company to its then proper rate of return. The additional $54 million increase was plainly'awarded only because an erroneous standard of accounting was used and not, as the Commission suggests, because ample evidence was supplied to the Commission later to show other bases for even greater financial relief.

Pursuant to Section 120.68(10), Florida Statutes (1975), the petition for writ of certiorari is granted and Order No. 6591 is quashed insofar as it confirms that portion of Order No. 6456 which grants FP&L interim rate relief predicated on $54 million of unrecovered fuel costs. This case is remanded to the Commission with directions to enter appropriate orders in conformity with this opinion, including a direction to refund to FP&L’s customers under Section 366.06(4) the amounts of unrecovered fuel costs which were collected by FP&L between January 28 and May 1, 1975.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG and ROBERTS (Retired), JJ., concur.

      . Public counsel requested review of the interim award here, but the petition was dismissed on the basis of a motion noting that the interim award was not final. Citizens of Florida v. Mayo, 314 So.2d 781 (Fla.1975). We have determined that interim awards are reviewable only after final action by the Commission. Citizens of Florida v. Mayo (Southern Bell Tel. & Tel. Co.), 322 So.2d 911 (Fla.1975); Citizens of Florida v. Mayo (Florida Power Corp.), 316 So.2d 262 (Fla.1975).

      . The Commission awarded FP&L a general rate increase of approximately $77 million and a rate recovery of franchise fees aggregating $30 million, the latter to be collected from select groups of FP&L’s customers. Although the Commission’s allocation of franchise fees to specific customers was held improper in another rate proceeding, Plant City v. Mayo, 337 So.2d 966 (Fla.1976), no timely challenge was made to that aspect of FP&L’s permanent rate increase.

      .The Commission’s final order on this point states: “In ratemaking proceedings, we have traditionally disallowed or adjusted out those items which are nonrecurring, extraordinary in nature, and unrepresentative of normal operations. Although the Company contends that 1974, in terms of oil prices, was not unusual, we conclude instead that prices escalated more sharply and in such a greater degree than any time since we assumed jurisdiction over the Company in 1951. We cannot visualize similar conditions occurring in 1975, particularly with respect to the almost 300% increase in costs that occurred in 1974. In any event, we are compelled to characterize the fuel underrecov-ery as nonrecurring, extraordinary in nature, and unrepresentative of normal operations. As a matter of fact, we note that an overrecovery of current fuel costs has occurred in January and February, 1975 and this is but one indication that conditions have become more stable than they were in 1974.”

      . Maulé Industries, Inc. timely filed for review here and public counsel timely cross-petitioned for review of the points now argued. Maulé subsequently obtained a voluntary dismissal of its petition. Maule’s dismissal does not divest public counsel of standing to continue the proceeding before us.

      . Section 366.06(4) authorizes Commission action to suspend rates for up to 8 months after their filing “pending a final order ... in any rate proceeding . . . .” (emphasis added). Technically, it is not necessary for a utility to file a separate request for interim relief since the statute operates to make it available in conjunction with all rate relief requests. It follows, of course, and we so held in the Gulf Power case, that the interim rate procedures enacted in 1974 are an integral part of the general and more elaborate process for obtaining rate increases. See also Citizens of Florida v. Mayo (Florida Power Corp.), 316 So.2d 262, 264 (Fla.1975). As such, an interim award could never be requested or granted on the basis of a test year different from that used as a basis for the permanent rate increase request. The Commission erred in allowing FP&L to employ a different year for the temporary and partial portion of its permanent and full request. Although that error complicated the accounting aspects of this case, our disposition of the interim rate award makes it unnecessary to solve the accounting difficulties. The procedures used in this case demonstrate why, as a result of the enactment of file and suspend procedures for Florida utilities, these companies may now find it un'desirable to file rate hike requests on the basis of a “projected” test year, as was done here. They may, rather, have to choose between that accounting mechanism to minimize regulatory lag and the use of an historic accounting test year on the basis of which they can justify immediate rate relief under the new statutory mechanism. The handicap in being forced by the new statutory scheme to make that choice is not apparent, however. We note that in this proceeding, without any serious discussion or argument, FP&L obtained the benefit of four utility-favoring techniques of rate-making — the file and suspend procedure, the use of a year-end rate base, the benefit of automatic fuel adjustment clauses, and the use of a projected test year.

      .In Gulf Power we held that the legislative scheme for interim rate awards has pre-empted and now made inapplicable the procedures for emergency rate relief which were sanctioned in the Southern Bell case, so that the Commission’s alternate reliance on that case for its procedures was misplaced. In Gulf Power we also dealt with and rejected the suggestion made here that evidence adduced in the course of the permanent rate hearing could be a basis on which to justify the reasonableness of an earlier interim award. “Second, we reject the suggestion that full public hearings conducted in February 1975 could breathe life into the prior proceedings. If the full rate proceeding could provide retroactive justification for an interim award there would have been no need for the Commission to be given preliminary review and suspension authority.” 333 So.2d at 8.

      . The Commission makes two other arguments in support of its action, neither of which we are able to accept. First, it suggests that it never found the rates as initially filed to be unreasonable or unjustified since its order stated only that they “may” be unreasonable, unjust or discriminatory. From this the Commission, joined by FP&L, argues that it need not develop the “additional or corroborative data” which our Gulf Power decision states is essential to the Commission’s lifting of a rate suspension. The implication of this suggestion is that the Commission can obviate the need for thoughtful action in the first instance (or, as FP&L puts it, can suspend rates simply because it is in doubt) and then revive those rates on the ground that the initial action taken was tentative and indecisive. We cannot accept this view of the Commission’s role. The file and suspend statute requires “a reason or written statement of good cause” for initially withholding consent. We said in Gulf Power that the Commission’s suspension of rates means that it is “dissatisfied with the utility’s preliminary showing.” 333 So.2d at 5. If the Commission does not have a reasoned basis to believe that the rates as filed are unreasonable or discriminatory it would appear to have a statutory obligation to withhold suspension and allow them to become effective.
      Second, the Commission also seems to suggest that any defects in its evidentiary development are cured by the mere act of holding hearings prior to lifting a suspension. We do not agree. Procedural rectitude is no substitute for the data-gathering responsibilities we outlined in Gulf Power.

      . Jacksonville Gas Corp. v. Florida R. R. & Pub. Util. Comm’n., 50 So.2d 887 (Fla.), cert. denied, 342 U.S. 820, 72 S.Ct. 38, 96 L.Ed. 620 (1951). Its application was last affirmed in Shevin v. Yarborough, 274 So.2d 505 (Fla.1973).

      . This conclusion seems erroneous as to FP&L’s inclusion of unrecovered fuel costs as an operating expense of the test period, however.


author: HATCHETT, Justice. ENGLAND, Justice,

text:
    CITY OF PLANTATION and Midland Insurance Company, Petitioners, v. Robert L. ROBERTS and Industrial Relations Commission, State of Florida, Respondents.
    No. 47405.
    Supreme Court of Florida.
    Dec. 22, 1976.
    Rehearing Denied Feb. 28, 1977.

      Edwin H. Underwood and Albert A. Gordon, Underwood, Gillis, Karcher, Reinert & Gordon, Miami, for petitioners.
    Robert H. Gregory, Coral Gables, and Donald F. Harrington, Miami, for respondents.
   HATCHETT, Justice.

Respondent Roberts was injured while operating a police launch in a canal within the corporate limits of petitioner city. Mr. Roberts was a policeman employed by petitioner, and was acting within the scope of his employment on July 19, 1973, when he was pelted with coconuts which five children threw at him from the canal bank. He filed a claim for workmen’s compensation for injuries sustained from the coconuts. His claim was met with a motion to dismiss on the ground that the judge of industrial claims lacked jurisdiction. The theory of the motion was that unspecified federal law created a remedy for an injury of this kind, and also, even before the enactment of Section 440.09(2), Florida Statutes (1975), ousted state tribunals of jurisdiction over accidents occurring on navigable waters. The judge of industrial claims rejected this theory, without deciding whether the canal should be classified as navigable waters, and, on appeal, the Industrial Relations Commission affirmed the denial of the motion to dismiss. By petition for writ of certiorari, the city and its insurer bring the question here. We conclude that the judge of industrial claims properly exercised jurisdiction and deny the petition for writ of certiorari.

As a policeman employed by petitioner city, respondent’s principal duties were those of a radar officer in the traffic division. In addition, respondent was one of “about eleven people that” operated the police launch “from time to time. Whoever happened to be available, and knew anything about operating the outboard would get it.” (T 23). On this basis, respondent had manned the outboard motorboat on 12 to 15 occasions in the course of more than two and a half years’ employment by the police department (which was preceded by two years in the police reserves). Respondent Roberts was out in the police launch alone, investigating a sunken boat, when he was injured.

The city relies on Atlas Iron and Metal Co. v. Hesser, 177 So.2d 199 (Fla.1965), in arguing that the judge of industrial claims had no jurisdiction over respondent’s claim. The Atlas Iron and Metal Co. case arose out of an accident which occurred while the employee Hesser was engaged in converting certain naval landing craft into barges for civilian use. The vessels were afloat on navigable waters, moored in a canal. Hesser spent a substantial portion of his working day on land but was aboard ship when he was injured. The question for decision was whether Hesser was entitled to workmen’s compensation benefits or whether he was covered by the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 903 et seq., and the Court decided that he was entitled to the benefits of the federal legislation, and therefore not entitled to benefits afforded by the Workmen’s Compensation Law. Section 440.01 et seq., Florida Statutes (1975). The holding in Atlas Iron and Metal Co. v. Hesser, supra, rests on the exclusivity provision of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 905, and does not control here because the claimant in the present case has no possibility of recovery under the Longshoremen’s and Harbor Workers’ Compensation Act, which specifically excludes from its coverage any “officer or employee . of any State . . . government, or of any political subdivision thereof.” 33 U.S.C.A. § 903(a)(2) as amended 1972.

The present case resembles more closely the case of Sikes v. Fort Myers Construction Co., 191 So.2d 265 (Fla.1966), in which a tugboat operator was injured while securing a fuel barge to a dredge. The dredging operation was part of the creation of a series of canals in what was to become a residential development. The Court distinguished the Atlas Iron and Metal Co. case in these words:

Both Atlas Iron and Metal Co. and Calbeck [v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962)] dealt with the problem of whether a state workmen’s compensation act or the Federal Longshoremen’s and Harbor Workers’ Act was controlling. Here the dispute concerns the problem of the applicability of the Florida Workmen’s Compensation Law or the Jones Act. There are many differences between the Jones Act and the Longshoremen’s Act, the chief of them being that the former necessitates proof of negligence for recovery, while the latter is a compassionate statute from which much of our Workmen’s Compensation Act was drawn. The jurisdictional aspects of the two federal acts also differ; therefore Atlas Iron and Metal Co. cannot be decisive in the case sub judice. 191 So.2d at 266 (footnotes omitted)

The Sikes court then noted that the Jones Act, 46 U.S.C. § 688, conferred a cause of action only on “any seaman” and declared that Sikes was not a seaman because “the ‘ship’ was a dredge . [and Sikes] slept and took his meals on shore and was paid on an hourly basis.” 191 So.2d at 266. The Sikes decision established as a matter of Florida law that workmen’s compensation benefits were available to an otherwise eligible workman, who sustained an injury in a man-made canal communicating with navigable- waters, so long as the accident fell outside the purview of the Longshoremen’s and Harbor Workers’ Compensation Act and the workman did not qualify as a “seaman” within the meaning of the Jones Act. Subsequent decisions of this Court have in no way eroded the authority of the holding in Sikes v. Fort Myers Construction Co., supra, in this regard.

It is therefore appropriate to consider whether respondent Roberts is a “seaman” within the intendment of the Jones Act. The master of a vessel, no less than the crew he commands, may be a “seaman” within the meaning of this Act. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940). But in order to qualify as a “seaman” under the Jones Act, a person must be more or less permanently attached to the vessel. Owens v. Diamond M. Drilling Co., 487 F.2d 74, reh. den., 487 F.2d 1401 (5th Cir. 1973); Dugas v. Pelican Const. Co., 481 F.2d 773 (5th Cir. 1973) cert. den. sub nom., 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550; McKie v. Diamond Marine Co., 204 F.2d 132 (5th Cir. 1953). A recent decision of the United States Court of Appeals for the Fifth Circuit, Brown v. ITT Rayonier, Inc., 497 F.2d 234 (1974), bears importantly on the question whether respondent Roberts should be viewed as a seaman within the meaning of the Jones Act.

An employee of a paper mill whose “primary duties were to take samples of wood pulp within the plant and to conduct certain tests” Brown v. ITT Rayonier, Inc., 497 F.2d at 235, was also assigned the job of going more than 20 miles down-river from the plant site “in a 17-foot outboard motorboat,” id., to take samples from the river as part of a pollution monitoring program. On one such outing he was injured. When he brought suit under the Jones Act, the Fifth Circuit held he was not a “seaman”:

The basic test used in this circuit for determining crew member status is that stated in Offshore Co. v. Robison, 5 Cir., 1959, 266 F.2d 769, at 779:
‘there is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.’ See Dugas v. Pelican Construction Co., 5 Cir., 1973, 481 F.2d 773; Ross v. Mobil Oil Corp., 5 Cir., 1973, 474 F.2d 989; Keener v. Transworld Drilling Co., 5 Cir., 1972, 468 F.2d 729; Labit v. Carey Salt Co., 5 Cir., 1970, 421 F.2d 1333; Thomas v. Peterson Marine Service, Inc., 5 Cir., 1969, 411 F.2d 592; Rotolo v. Halliburton Co., 5 Cir., 1963, 317 F.2d 9; Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 1960, 280 F.2d 523.
******
In the present case we confront a situation ... in which the injured worker was aboard the vessel while it was in transit, and in which he was aboard strictly for the purpose of aiding in its navigation. Albeit his duties aboard would be brief, and his principal duties with his employer were on shore, he was at the time of his injury performing tasks that could only be performed while the vessel was under weigh and which, unlike services performed by shore-based workers upon docked vessels, were directly a part of the vessel’s navigational mission.
******
Nonethless, we conclude that the Robi-son-McKie test is properly applied here to deny status as a crewman. In part we base our conclusion on Dugas v. Pelican Construction Co., supra, and Cox v. Otis Engineering Co., supra. While these opinions do not address themselves to the issue raised before us, they do deny crew member status to drill barge employees who apparently performed work directly involved in the drilling mission. In each instance, the basis of the decision was the temporary, albeit operational, relationship with the vessel. 497 F.2d 236-238.

The conclusion to be drawn from cases like Brown v. ITT Rayonier, Inc., supra, is that the circumstances in which respondent Roberts sustained his injuries make a less compelling case for the applicability of the Jones Act than the circumstances which obtained in Sikes v. Fort Myers Construction Co., supra. For that reason, we perceive no state law obstacle to the award of compensation in this case.

Remaining for consideration is the question whether federal law, constitutional or statutory, precludes the relief respondent seeks. Workmen’s compensation laws were originally enacted, with the expectation that their applicability would extend beyond the water’s edge. Alaska Pacific S. S. Co. v. Pillsbury, 174 Cal. 389, 163 P. 204 (1917); Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A. 372 (1915); Lindstrom v. Mutual S. S. Co., 132 Minn. 328, 156 N.W. 669 (1916). The United States Supreme Court, however, saw a threat to shipping in the sheer number of laws to which ships, especially coastwise vessels, could be subjected. In Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), the Court reversed an award under New York’s workmen’s compensation act, saying:

If New York can subject foreign ships coming into her ports to such obligations as those imposed by her Compensation Statute, other states may do likewise. The necessary consequence would be destruction of the very uniformity in respect to maritime matters which the Constitution was designed to establish; and freedom of navigation between the states and with foreign countries would be seriously hampered and impeded. 244 U.S. at 217, 37 S.Ct. at 529.

The Court’s concern for unimpeded navigation has never required a blanket suspension of workmen’s compensation statutes in every case of maritime injury, however. In Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922), a shipwright was injured while working on a vessel which was under construction but already launched and afloat on navigable waters. The Court upheld an award of state workmen’s compensation benefits to Rohde because he and his employer “contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation, and the application of the local law [could not] materially affect any rules of the sea whose uniformity is essential.” 257 U.S. at 477, 42 S.Ct. at 158. Respondent Roberts’ police work has a more attenuated connection with maritime commerce than did the work of the shipwright Rohde. Here, as in Grant Smith-Porter Ship Co. v. Rohde, supra, “the parties contracted with reference to the state statute” 257 U.S. at 477, 42 S.Ct. at 158. Mr. Roberts’ injury was “local in character, though maritime in nature.” Calbeck v. Travelers Ins. Co., 370 U.S. 114, 133, 82 S.Ct. 1196, 1207, 8 L.Ed.2d 368 (1962) (Stewart, J., dissenting). See Grant Smith-Porter Ship Co. v. Rohde, supra; Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921). The reasoning of these and other cases which delineate the constitutional boundary between the admiralty jurisdiction and the realm of state law supports the conclusion that the present case falls well within the permissible area of state regulation.

Neither is there any federal statutory impediment to the grant of workmen’s compensation benefits in this case. Unlike the Longshoremen’s and Harbor Workers’ Compensation Act, see 33 U.S.C. § 905, the Jones Act has no provision rendering inoperative state laws which create parallel remedies. Even in the event that respondent Roberts has a claim under the Jones Act, therefore, nothing prevented his applying for benefits under our Workmen’s Compensation Law. Similarly, Mr. Roberts was free to proceed in the manner he chose, notwithstanding the possibility of a claim for maintenance and cure under general admiralty principles. See Potashnick-Badgett Dredging, Inc. v. Whitfield, 269 So.2d 36 (Fla. 4th DCA 1972).

Accordingly, the petition for writ of cer-tiorari is denied.

ADKINS, BOYD and ROBERTS (Retired), JJ., concur.

ENGLAND, J., dissents with an opinion with which OVERTON, C. J., and SUND-BERG, J., concur.

ENGLAND, Justice,

dissenting.

The petition we have before us seeks more than a rejection of Roberts’ compensation claim; it seeks to establish stability in the law by setting lines of demarcation between Florida’s Workmen’s Compensation Act, the federal Longshoremen’s and Harbor Workers’ Compensation Act, and the Jones Act.

Robert Roberts was an employee of the City of Plantation Police Department who was injured while alone on a patrol boat in an inter-city canal approximately 30 to 50 feet wide. The particular canal in which this occurred leads to the ocean, ebbs and flows with the tide, and is generally navigated by various vessels, although larger ones await high tide.

The City of Plantation defended against Roberts’ claim on the theory that, under Florida and federal jurisprudence, workmen’s compensation benefits are not available for accidents occurring on navigable waters. The Judge of Industrial Claims determined that he had jurisdiction without regard to the navigability of the canal and awarded compensation. The Industrial Relations Commission affirmed.

The respective positions of the parties here are simply .stated. Roberts asserts that he was an employee in Florida injured in the course of his employment, and that Florida’s workmen’s compensation law was designed to provide benefits for him irrespective of whether he happened to be performing land-based or water-based police duties. He correctly states that the statute did not bar the claims of employees performing maritime duties at the time of his injury, and he asserts that a denial of benefits would be illogical in a state with the extensive waterways and shorelines which are present in Florida.

The City of Plantation argues that if an injury occurs on navigable waters, the Bureau of Workmen’s Compensation has no jurisdiction and the matter there ends. It asserts that the policy behind this approach is legal certainty — the continuation of a principle which has evolved over years of litigation in this area in the state and federal courts and which denies injured employees nothing except the opportunity to forum-shop.

It is clear from the record of this proceeding that the canal on which the injury occurred was a navigable waterway. Roberts does not assert otherwise. In my view, that fact is conclusive of this proceeding under existing law, barring the Bureau and the Commission from assuming jurisdiction over his claim.

In 1917 the United States Supreme Court ruled that the states were without power to bring maritime employees injured on navigable waters within the coverage of their workmen’s compensation statutes. Since then, the courts of this nation have been grappling with the difficult problem of drawing the line between the respective realms of state and federal power to provide compensation coverage. The judicial labor expended in this effort has created a tortuous history, periodically complicated by the intrusion of nebulous federal constitutional doctrines which have excused state infringement of the superior admiralty jurisdiction of the federal government where the intrusion was not of a serious nature. The first of these was the “local concern doctrine”, permitting state compensation coverage to apply where the employment relationship had no direct relevance to navigation or commerce. After passage of the Longshoremen’s Act, there developed the “twilight zone rule” which raised a rebut-table presumption of coverage before the tribunal first chosen by the claimant. These doctrines evolved from a bias in favor of state coverage, premised on an understandable desire to allow employees a prompt recovery of benefits sought.

For a time these doctrines were essential because many employees were beyond the remedial scope of any statutory scheme, regardless of the merits of their cause. A high price was paid by the judicial system, however, in this pursuit of a benevolent system. Endless litigation of jurisdictional issues occurred because

“No dependable definition of the area— described as ‘maritime but local,’ or ‘of local concern’ — where state laws could apply ever emerged from the many cases which dealt with the matter in this and the lower courts. The surest that could be said was that any particular injury might be within the area of ‘local concern’, depending upon its peculiar facts.”

The gap was closed in 1962 when the United States Supreme Court announced that the Longshoremen’s Act covered all injuries on navigable waters, whether the employee was water or land-based. Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962).

Recognizing the import of Calbeck, this Court unanimously determined in Atlas Iron and Metal Co. v. Hesser, 177 So.2d 199 (Fla.1965), that Florida’s workmen’s compensation act did not cover injuries occurring on navigable waters even though a substantial portion of the employee’s duties were performed on land. By so holding, this Court settled on a precise line of demarcation between the state and federal spheres which has prevented endless litigation from burdening our court system and delaying the award of deserved benefits. Roberts now asks us to abandon this simplified system. He suggests that the Court receded from Atlas in Sikes v. Fort Myers Construction Co., 191 So.2d 265 (Fla.1966), at least when the state’s jurisdiction is pitted against the Jones Act. While a divided Court in Sikes did indeed distinguish Atlas as involving the more beneficent federal Longshoremen’s Act, the distinction affords no comfort to Roberts in this case. The Sikes court analyzed the claimant’s status as a “seaman” under the Jones Act to determine whether pre-emption occurred notwithstanding the fact-finder’s ruling in favor of Florida’s jurisdiction because the injury did not occur on navigable water. A two-tier analysis was developed in Sikes, but does not control here. Unlike Sikes this case is neither a controversy regarding the place of injury — on navigable waters — nor an assertion that the Longshoremen’s Act does not provide Roberts coverage, perhaps equivalent to or greater than that provided in our act.

I can understand the Court’s desire to uphold the award Roberts has already received under our statute. I cannot, however, for that reason agree to return to the spasmodic and episodic demarcation between federal and state jurisdiction which preceded the Calbeck decision.

Finally, I do not share the majority’s concern that Roberts will not be compensated at all because he is not covered under the Longshoremen’s and Harbor Workers’ Compensation Act. Admittedly, that act contains an exclusion for employees of the state and its “political subdivisions,” but I do not believe the City of Plantation is within that exclusion. In Florida municipalities are not “political subdivisions”, Article 8, Section 1(a), Florida Constitution, and federal courts in the past have indicated a willingness to apply state law to a federal definition of that term. See In re Fort Lauderdale, 23 F.Supp. 229 (S.D.Fla.1938).

OVERTON, C. J., and SUNDBERG, J., concur.

      . This proposition is disputed in dissent on the authority of the Florida Constitution and In re Fort Lauderdale, 23 F.Supp. 229 (S.D.Fla.1938). The question whether respondent Roberts is excluded from coverage under the Longshoremen’s and Harbor Workers’ Compensation Act is a question of federal, not state, law, see Bagrowski v. American Export Isbrandtsen Lines, Inc., 440 F.2d 502 (7th Cir. 1971), and has nothing to do with bankruptcy proceedings.

      . This section provides, as follows:
      Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in the case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

      .Earlier in the Sikes opinion, the Court said that the dredge was not “self-propelled but must be moved from place to place by a tug. . The claimant had begun work as a dumphand or common laborer, but had acquired the status of tugboat operator at the time of his injury.” 191 So.2d 265.

      . It is immaterial that another court might have . concluded that Sikes had a claim falling within the admiralty jurisdiction, because of Sikes’ “status of tugboat operator at the time of his injury.” 191 So.2d at 265. Whether Sikes was entitled to workmen’s compensation benefits was a question of state law. Sikes’ entitlement to such benefits, like that of respondent Roberts in the present case, is a question that is analytically independent of the Jones Act. For cases arising after October 1, 1974, however, the legislature has made the question whether the Jones Act applies determinative of whether workmen’s compensation benefits are available. Ch. 74-197 § 3 has created Section 440.-09(2), Florida Statutes (1975), to provide:
      No compensation shall be payable in respect of the disability or death of any employee covered by the Federal Employer’s Liability Act, the Longshoremen’s and Harbor Worker’s [sic] Compensation Act, or the Jones Act.

      . To deny workmen’s compensation benefits, on the ground that a claimant could sue under the Jones Act, would be to take the Sikes decision one step further, albeit in a direction indicated by obiter dicta in that case. The fact that the legislature did take this additional step, by enacting Section 440.09(2) after the injury with which we are concerned was inflicted, is of ambiguous significance. While it is open to Mr. Roberts to argue that the legislature acted in order to effect a change in existing law, the city can answer that the enactment was nothing more than the codification of case law. For a case in which an injured workman received workmen’s compensation benefits and also recovered a judgment under the Jones Act, see Potashnick-Badgett Dredging, Inc. v. Whitfield, 269 So.2d 36 (Fla. 4th DCA 1972).

      . See ante, p..72 n. 4.

      . Only if the injury occurred on navigable waters is there even arguably a federal issue as to whether state compensation benefits are available. The evidence produced before the Judge of Industrial Claims showed that the canal was 30 feet in width, that the land under the canal was owned by the adjoining home owners, and that a 25-foot boat could not navigate the length of the canal except at high tide.
      In Perry v. Haines, 191 U.S. 17, 26, 24 S.Ct. 8, 10, 48 L.Ed. 73 (1903), the United States Supreme Court, quoting from The Daniel Bail, 77 U.S. 557, 10 Wall. 557, 19 L.Ed. 999, said:
      “[Tjhose rivers must be regarded as public navigable rivers in law, which are navigable in fact,” and that “they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form, in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is, or may be, carried on with other states or foreign countries, in the customary modes in which such commerce is conducted by water.”
      Under Florida law, navigable waters are defined as:
      Navigable waters of the United States may be defined as the high seas and such lakes and streams as are navigable in fact, and which by themselves or in connection with other waters form or afford a continuous channel or highway for commerce among the states or with foreign countries, or which may be made available for such purposes at reasonable cost.
      29A Fla.Jur. Ships and Shipping, § 5; 26 Fla.Jur. Public Lands, § 39; Clement v. Watson, 63 Fla. 109, 58 So. 25 (1912).

      . Chapter 440, Fla.Stat. (1975).

      . 33 U.S.C. § 901 (1976).

      .46 U.S.C. § 688 (1976).

      . It is irrelevant to this controversy that the injury-inflicting coconuts were thrown from the shore. The law is well settled that where a person on board a vessel is injured by a land-based instrumentality the point of impact determines the place of injury. Minnie v. Port Huron Terminal Co., 295 U.S. 647, 55 S.Ct. 884, 79 L.Ed. 1631 (1935).

      . The 1974 Legislature has now barred coverage under the act for employees covered by the Federal Employers’ Liability Act, the Longshoremen’s and Harbor Workers’ Compensation Act, or the Jones Act, effective October 1, 1974. Section 440.09(2), Fla.Stat. (1975).

      . Roberts argues that a denial of benefits to him would affect numerous other policemen and state employees, including for example marine-based employees of the Game and Fresh Water Fish Commission and Department of Transportation employees who use boats to construct and repair bridges over the navigable waters of the state. Since Roberts is not an employee of the state or one of its political subdivisions, we need not address the status of these others. As regards other employees, it appears that the Legislature has now addressed that policy argument. See footnote 5, above.

      . United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940); Perry v. Haines, 191 U.S. 17, 24 S.Ct. 8, 48 L.Ed. 73 (1903); I Benedict on Admiralty, § 44 at p. 94.

      . Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917).

      . The development of this area of law is recounted in 3 A. Larson, The Law of Workmen’s Compensation, §§ 89 and 90 (1973).

      . See, Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922).

      . See, Davis v. Dep’t of Labor & Indus., 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942).

      . Calbeck v. Travelers Ins. Co., 370 U.S. 114, 119, 82 S.Ct. 1196, 1199, 8 L.Ed.2d 368 (1962).

      .An exception exists where the injured employee is a “seaman” covered by the Jones Act and has a more extensive admiralty right to “maintenance and cure”. Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944).


author: HATCHETT, Justice.

text:
    Gertrude S. ZULLO, Petitioner, v. Joseph ZULLO, Respondent.
    No. 48111.
    Supreme Court of Florida.
    Jan. 20, 1977.
    Rehearing Denied March 31, 1977.
    Albert George Siegel, Miami Beach, for petitioner.
    Michael I. Libman of Abramson, Scremin, Mendigutia & Libman, Miami, for respondent.
   HATCHETT, Justice.

We issued a writ of certiorari in this cause based upon an alleged conflict between the decision in this case reported at 317 So.2d 453 (Fla.3d DCA 1975), and Weeks v. Weeks, 143 Fla. 686, 197 So. 393 (1940). Upon reviewing the briefs filed on the merits and the record, we are of the judgment that there is no conflict in decision and, accordingly, certiorari should not have been granted.

The writ is hereby discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and ROBERTS (Retired), JJ., concur.


author: SUNDBERG, Justice.

text:
    WINCAST ASSOCIATES, INC., a Florida Corporation, Petitioner, v. Lawrence J. HICKEY et al., Respondents.
    No. 48291.
    Supreme Court of Florida.
    Jan. 20, 1977.

      Sanford N. Reinhard of Zinn & Reinhard, Miami, for petitioner.
    John R. Young of Hamilton, James, Mer-kle & Young, Del Ray Beach, for respondents.
   SUNDBERG, Justice.

This is a petition for writ of certiorari to the District Court of Appeal, Fourth District. We have jurisdiction under Article V, Section 3(b)(3), Florida Constitution. Oral argument has been waived, and we consider the merits as argued in the briefs submitted by the parties.

Respondent Hickey brought an equity proceeding against the Rosemurgys and Ro-semurgy Company (Company), a successor in interest to a land developer. The Company impleaded petitioner Wincast Associates, Inc. as a third party defendant. Win-cast operates apartment buildings and the Company maintains surrounding recreational areas.

The cross-claims of Wincast and the Company provide the subject of this petition. By impleader, the Rosemurgys and the Company alleged that Wincast breached the contractual agreement to pay fees for the use of recreational areas. Wincast’s answer was that the Company had denied it access to the facilities and allowed the areas to deteriorate. Wincast also sought a declaratory judgment as to the continued effect of certain easements and covenants.

On the cross-claim issues centering on breach of contract which were cognizable at common law, Wincast demanded a jury trial. On October 16, 1974, the Circuit Court in and for Broward County denied the request for a jury trial as to both the cross-claim filed against and that filed by Win-cast. Denial was without prejudice so that the demand could be made at a later time with no penalty for failing to meet the time limit set by the Florida Rules of Civil Procedure.

On October 29, 1974, the Company and the other primary defendants moved to set the cause for trial, a motion which Wincast opposed on the basis of continuing discovery which would demonstrate the right to trial by jury. On November 12, 1974, the circuit court set January 2, 1975, as the trial date. Motions to vacate the order setting the non-jury trial and to set a jury trial were denied by the circuit court on December 20, 1974.

Three days later, Wincast filed notice of an interlocutory appeal to the Fourth District Court of Appeal, seeking also a constitutional stay writ to delay the impending trial. The writ was denied. Wincast Associates, Inc. v. Rosemurgy, 305 So.2d 889 (Fla. 4th DCA 1974). This Court subsequently granted Wincast’s petition to stay proceedings in the District Court and circuit court pending disposition of its petition for writ of certiorari to challenge the Fourth District’s denial of the motion for a constitutional stay writ. However, that petition for certiorari was finally denied by this Court. Wincast Associates, Inc. v. Rosemurgy, 317 So.2d 768 (Fla.1975).

Wincast’s instant petition seeks review of the Fourth District’s decision on the merits of the interlocutory appeal. That court affirmed per curiam without opinion the circuit judge’s denial of the jury trial demand. 320 So.2d 488.

After careful consideration, we have concluded that the trial court erred in denying the request for a jury trial on petitioner’s cross-claim against the respondent. In so doing, we have relied heavily on the reasoning enunciated in Hightower v. Bigoney, 156 So.2d 501 (Fla.1963).

Hightower involved a suit filed in chancery to foreclose an architect’s lien. The defendants filed a compulsory counterclaim for damages allegedly caused by the plaintiff’s negligent performance of his duties under the contract for architectural services and requested a jury trial on the issues presented therein. The chancellor’s decision to strike the request for a jury trial was affirmed by the District Court of Appeal. In an exhaustive opinion, the Supreme Court decided that it was error to deny Hightower his right to a jury trial on the counterclaim. After citing and quoting from numerous state and federal court cases on the subject, Mr. Justice Terrell, writing for the majority, concluded thus:

“Other cases could be cited in support of our thinking on the concept of trial by jury and its place in our jurisprudence. The cases we have cited show that it was at one time the right arm of common law but that it is now the dividing line that separates law from equity and that it is guaranteed by the state and federal constitutions. It has had a long and distinguished history and is now one of the main avenues through which the common man directs the working of democracy. To hold that the mere discretion of a chancellor can set it at naught tends to agitate the butterflies in the stomach of an old common law lawyer who imbibed the common law from Coke, Blackstone, Holdworth’s History of English Law, Lord Campbell’s Lives of the Chief Justices, and Mr. Justice Holmes’ The Common Law.” 156 So.2d 509.

See also Olin’s, Inc. v. Avis Rental Car Sys., 131 So.2d 20 (Fla.3d DCA 1961).

We believe that the Hightower holding should be extended to the facts of the instant ease. It is desirable policy to encourage the filing of cross-claims and permissive counterclaims so that all aspects of a given legal dispute may be disposed of as expeditiously as possible. See Jones-Mahoney Corp. v. C. A. Fielland, Inc., 114 So.2d 18 (Fla.2d DCA 1959); Fla.R.Civ.P. 1.170(h), 1.250(c). If, in a situation such as here presented, it is impossible to settle all the facets of the dispute at one time due to a demand for jury trial, the trial judge can still order a separate trial on the subsidiary claims pursuant to Rule 1.270(b), Fla.R. Civ.P.

Accordingly, the petition for writ of cer-tiorari is granted, the opinion of the District Court of Appeal is quashed, and the cause is remanded to the trial court for further proceedings not inconsistent herewith.

OVERTON, C. J., and ADKINS, ENGLAND, HATCHETT and ROBERTS (Retired), JJ., concur.

BOYD, J., dissents.


text:
    MEMORIAL HOSPITAL, Appellant, v. Cary SOLOMON et al., Appellees.
    No. 48632.
    Supreme Court of Florida.
    Jan. 20, 1977.
    Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellant.
    Paul J. Culp, Baynton Beach, for appel-lees.
   PER CURIAM.

Reversed and remanded on the authority of Carter v. Sparkman, 335 So.2d 802 (Fla.1976).

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


author: PER CURIAM. ’

text:
    STATE of Florida, Appellant, v. Robert A. HAMZA, Appellee.
    No. 48777.
    Supreme Court of Florida.
    Jan. 20, 1977.
    Robert L. Shevin, Atty. Gen., and Harry M. Hipler, Asst. Atty. Gen., for appellant.
   PER CURIAM. ’

This is a direct appeal from an order entered in the County Court of Broward County, Florida, declaring Section 316.-028(3), Florida Statutes, unconstitutional. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

Robert Hamza was charged by a traffic citation with driving while under the influence of alcoholic beverages and unlawful blood alcohol level contrary to the above-cited statute. The trial judge, on his own motion, dismissed the charge relating to the unlawful blood alcohol level on the ground that the statute was unconstitutional. The order of the judge was entered prior to our decision in Roberts v. State, 329 So.2d 296 (Fla.1976) upholding the validity of the statute. Thereafter, we once again held the statute to be constitutional in State v. Carhartt, Fla., 335 So.2d 554, opinion filed July 14, 1976.

The judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent herewith.

It is so ordered.

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


text:
    In re TRANSITION RULE 20, TRAFFIC COURT RULE 6.330.
    No. 46571-H.
    Supreme Court of Florida.
    Jan. 27, 1977.
    Richard E. Cox, Executive Secretary of the Traffic Court Review Committee, Tallahassee, petitioner.
   PER CURIAM.

Pursuant to a petition from the Traffic Court Review Committee, rule 6.330 of the Florida Rules of Practice and Procedure, is amended in the manner as appended to this opinion and said amendment is hereby adopted. This amendment shall be effective immediately.

It is so ordered.

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

RULE 6.330. ELECTION TO ATTEND TRAFFIC SCHOOL

(a) Unless a mandatory hearing is required pursuant to section 318.19 of Florida Statutes, or the alleged offender appears at a hearing before an official, an alleged offender may elect to attend a driver improvement school or a student traffic safety council school where such schools are available in lieu of payment of the civil penalty. The person must appear at the traffic violations bureau of the court having jurisdiction of the case to make such an election, within ten days of the date of the citation. If the person begins the driver school course, such action shall constitute an admission and a waiver of the right to a hearing. An offender may elect to attend a driver improvement school or student traffic safety council school to satisfy only one traffic infraction citation during each calendar year.

(b) An offender who is sentenced to or elects to attend a driver improvement school shall have the right to attend such school in the county of his residence, if his county has an approved driver improvement school. If his residence county does not have an approved driver improvement school, the offender shall have the right to attend an approved driver improvement school in the county closest to his county of residence that has an approved school.


author: ADKINS, Justice.

text:
    STATE of Florida, Plaintiff, v. Randolph HUNTER, Defendant.
    No. 49759.
    Supreme Court of Florida.
    Jan. 27, 1977.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for plaintiff.
    Ralph N. Person, Asst. Public Defender, for defendant.
   ADKINS, Justice.

This cause is a certified question pursuant to Fla.App. Rule 4.6, wherein the trial court certified to us for resolution the following question:

“Do the time periods established by Rule 3.191, R.Cr.P., commence when a juvenile is taken into custody as a result of conduct giving rise to a petition for delinquency where the juvenile court subsequently waives jurisdiction and transfers the juvenile to the criminal division of the circuit court for trial as if the juvenile were an adult?”

Since the certification of this question, we have rendered our decision in State v. Benton, 337 So.2d 797 (Fla.1976), which answers this question in the affirmative.

The order staying the proceedings of this cause until the decision was rendered in State v. Benton, supra, is hereby vacated.

It is so ordered.

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


text:
    Clark S. THOMPSON, Appellant, v. Walter E. RAMSDELL, Individually and as Chief of Police of the City of Lauderhill, Florida, et al., Appellees.
    No. 75-1970.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1976.
    Rehearing Denied Jan. 18, 1977.
    Ronald B. Sladon and Madison H. Cock-man, Jr., Fort Lauderdale, for appellant.
    Anthony J. Titone, Anthony J. Titone & Associates, P. A., Sunrise, for appellees.
   PER CURIAM.

The petitioner-appellant, who was terminated from his employment as a police officer for the City of Lauderhill, Broward County, Florida, by action of the respondents-appellees, has presented nine points for appellate consideration. Although we are of the opinion that except for appellant’s fifth point the other points are without merit, it is unnecessary for this court to reach or consider such other points.

The record reflects that the appellant was discharged from his duties as a police officer for violation of the Lauderhill Police Department rules of conduct which purportedly were adopted and put into effect on April 30, 1966, but which event does not appear to be supported by the record. Apart from the foregoing, the record reflects that the City Council of the City of Lauderhill passed and adopted a civil service ordinance on October 18, 1971, section 5 of which provides:

“Section 5. The Board shall, consistent with the policy set forth in Section 2 of this Ordinance, adopt, enact and amend a code of rules and regulations for each department, which code shall be approved by the City Commission. This code shall cover the regulations for the conduct and direction of the members of the City departments and shall prescribe their duties, hours of work, discipline and control. It shall further contain rules and regulations for the appointment, employment, suspension and discharge in all positions in the departments of the City, based on merit, efficiency, character and industry.”

The record conclusively shows that subsequent to the enactment of the civil service ordinance the said rules of conduct upon which appellant’s termination was predicated were never adopted or approved by the civil service board of the City of Lauderhill or the city commission as required by the above-quoted ordinance.

Inasmuch as the City Commission approval of the police department rules and regulations had not been given the force and effect of the rules and regulations were a nullity. See Moon v. Smith, 138 Fla. 410, 189 So. 835 (1939). A fortiori, appellant’s discharge thereunder for violations thereof was invalid and of no force and effect. Cf. Gontz v. Cooper City, 228 So.2d 913 (Fla. 4th DCA 1970).

Accordingly, the final judgment is reversed and the cause remanded to the circuit court for the entry of an order or judgment in accordance herewith. See Metropolitan Dade County v. Klein, 229 So.2d 589 (Fla. 3d DCA 1969).

REVERSED AND REMANDED.

MAGER, C. J., CROSS, J., and WAD-DELL, TOM, Jr., Associate Judge, concur.