author: SUNDBERG, Justice.

text:
    William C. DEWBERRY, Jr., as Administrator of the Estate of Patrick Joseph Dewberry, Deceased, and as Administrator of the Estate of Thomas Michael Dewberry, Deceased, and William C. Dewberry, Jr., Individually, Appellants, v. AUTO-OWNERS INSURANCE COMPANY, Appellee.
    No. 52461.
    Supreme Court of Florida.
    Sept. 7, 1978.
    Rehearing Denied Nov. 28, 1978.

      Fredrick G. Levin, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P. A., Pensacola, for appellants.
    William H. Clark, Jr., of Clark, Parting-ton, Hart & Hart, Pensacola, for appellee.
   SUNDBERG, Justice.

We entertain this appeal from the Circuit Court for Escambia County, Florida, because the final judgment of that court passed initially and directly on the validity of Section 627.4132, Florida Statutes (Supp. 1976). Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

The facts are not in dispute. On August 3, 1976, the appellant and named insured, William C. Dewberry, Jr., renewed his automobile insurance with the defendant/appel-lee. The policy included uninsured motorist coverage on two vehicles, each vehicle carrying uninsured motorist coverage in the amount of $100,000 for injury or death of one person, and $300,000 for each, occurrence. In addition to this uninsured motorist coverage, the named insured purchased medical payments coverage on each vehicle in the amount of $2,000 and no-fault coverage (personal injury protection) of $5,000. Included as insureds for the aforementioned coverages were the named insured’s two sons, Patrick Joseph Dewberry and Thomas Michael Dewberry, who were insureds because they were residents of the named insured’s household.

On December 11, 1976, Patrick and Thomas Dewberry died as a result of injuries sustained when an automobile owned and operated by George Lowell was involved in a one-car accident. At the time of the accident, George Lowell was insured under a policy of automobile liability insurance issued by United States Fidelity and Guaranty Company providing for policy limits of $15,000 for injuries and death sustained by one person, and $30,000 for injuries and death sustained by all persons in a total accidental occurrence.

Following the accident, United States Fidelity & Guaranty Company tendered $15,-000 for the death of Patrick and $15,000 for the death of Thomas, which represented the policy limits. The named insured then made a claim for payment of funeral bills and medical expenses for each deceased child from Auto-Owners Insurance Company under the medical payments and no-fault coverages, which Auto-Owners paid.

The insured then filed suit for declaratory judgment alleging that he had access to $200,000 uninsured motorist coverage for the death of each child, and alleging that the uninsured motorist coverage is excess over the liability coverage of the liability carrier of Lowell. The insured alleged that he was entitled to “stack” the coverages applicable to each of the two vehicles for the claim of each decedent.

Prior to October 1, 1976, uninsured motorist coverage would “stack,” which means that the appellant would have $200,000 in uninsured motorist coverage for the death of each child ($100,000 uninsured motorist coverage times two vehicles). On October 1, 1976, Section 627.4132, Florida Statutes (Supp.1976), became law and it stated that uninsured motorist coverage will no longer stack for accidents occurring on or after October 1,1976. Appellant argued the passage of Section 627.4132, Florida Statutes (Supp.1976), could not affect his insurance contract with appellee, which was entered into prior to October 1,1976, without violating Article I, Section 10, Florida Constitution. After both parties moved for summary judgment, the trial court held adversely to appellant, finding that the statute did have retroactive effect, that the statute was constitutional, and consequently, that the insured may not stack the coverages applicable to the two insured motor vehicles. Finally, the appellant contended that Section 627.727, Florida Statutes (1975), required uninsured motorist coverage to be “excess over” any liability coverage that a third party has. The trial court again held adversely to appellant, finding that the $15,000 liability coverage of Lowell, tendered to the insured, operated to reduce the uninsured motorist coverage from $100,000 to $85,000.

Renewing the arguments he made in the trial court, appellant posits that (1) Section 627.4132, Florida Statutes (Supp.1976), is unconstitutional because the statute abridges the right of two private parties to contract freely, (2) the statute violates Article 1, Section 10, Florida Constitution, because it impairs the obligation of an insurance contract entered into prior to the effective date of the statute, and (3) the trial court erred in holding that Section 627.727(1), Florida Statutes (1975), requires the insured to set off the amount recoverable from the third-party tort-feasor’s insurance carrier against the total amount of uninsured motorist coverage available to him. In view of oúr disposition of appellant’s second argument, it is unnecessary for us to pass upon the facial constitutionality of Section 627.-4132, Florida Statutes (Supp.1976), and we decline to do so. Singletary v. State, 322 So.2d 551 (Fla.1975); Peoples v. State, 287 So.2d 63 (Fla.1973); Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973); Walsingham v. State, 250 So.2d 857 (Fla.1971); Mounier v. State, 178 So.2d 714 (Fla.1965).

With regard to appellant’s contention that the insurance contract was impaired in contravention of Article I, Section 10, Florida Constitution, we agree. Appellant renewed his uninsured motorist coverage in August, 1976. On that date, uninsured motorist coverage would stack. The Governor signed Chapter 76-266 (Section 627.4132) into law on June 27, 1976, to apply to all claims arising out of accidents on or after October 1, 1976. In the instant case, the accident occurred on December 11,1976. While it is true that a law is presumed to operate prospectively in the absence of clear legislative expression to the contrary, Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977), it is equally clear that the legislature intended a retroactive application of this statute by its pronouncement that the act shall take effect on October 1, 1976. As of that date whether the insured had entered previously into an insurance contract for uninsured motorist coverage or not, stacking was no longer permitted. Thus, the effect upon appellant of the statute’s passage was to reduce his uninsured motorist coverage from $200,000 to $100,000 albeit he paid premiums for the increased coverage. It is axiomatic that subsequent legislation which diminishes the value of a contract is repugnant to our Constitution. As this Court stated in Pinellas County v. Banks, 154 Fla. 582, 19 So.2d 1, at 3 (1944):

Any conduct on the part of the legislature that detracts in any way from the value of the contract is inhibited by the Constitution. State of Louisiana v. City of New Orleans, 102 U.S. 203, 26 L.Ed. 132; Edwards v. Kearzey, 96 U.S. 595, 24 L.Ed. 793.

See also Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975); Rorick v. Board of Commissioners of Everglades Drainage District, 57 F.2d 1048 (1932); Moore v. Branch, 5 F.Supp. 1011 (1934). Accordingly, appellant’s constitutional right guaranteed by Article I, Section 10, Florida Constitution, has been infringed.

Appellee contends that in view of the fact that the insured renewed his insurance policy after the Governor had signed Chapter 76-266 into law, he was on notice that stacking would not be permitted after October 1, 1976. Consequently, appellee concludes that appellant’s policy was not altered retroactively without notice to him at the time the contract was made. As support for this proposition, appellee relies upon Nationwide Mutual Insurance Co. v. Bryar, 349 So.2d 1221 (Fla. 2d DCA 1977), wherein on facts similar to the instant case, the District Court of Appeal, Second District, found this argument persuasive. We are not so persuaded. The citizens of this State cannot be charged reasonably with notice of the consequences of impending legislation before the effective date of that legislation, for it is generally accepted that a statute speaks from the time it goes into effect. In re Raimondi, 126 F.Supp. 390 (D.C.Cal.1954); Combs v. Cook, 238 Ind. 392, 151 N.E.2d 144 (1958); Gianforte v. Crucible Steel Co. of America, 25 N.J.Super. 183, 95 A.2d 632 (1953); County School Board of Fairfax County v. Town of Herndon, 194 Va. 810, 75 S.E.2d 474 (1953). Today we reaffirm this general rule and find that appellant was placed on notice of the effectiveness of Section 627.4132, Florida Statutes (Supp.1976), only as of October 1, 1976.

Appellant’s other point on appeal requires this Court to construe the meaning of certain language found in Section 627.727(1), Florida Statutes (1975). That statute reads in pertinent part that uninsured motorist coverage

shall be excess over but shall not duplicate the benefits available to an insured under any workmen’s compensation law, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.

It is appellant’s position that the words “excess over” should be interpreted literally to mean “added to” and not “set off.” Because we must assume that the legislature knew what it was doing when it used the words “excess over,” appellant posits that appellee is not empowered to set off the $15,000 liability coverage of Lowell from appellant’s uninsured motorist coverage. Thus, if appellant “stacks” his uninsured motorist coverage in the case sub judice, he claims entitlement to $200,000 as opposed to $185,000.

Appellee asserts that the insurance policy itself, case law, and policy mandate that an uninsured motorist carrier be entitled to credit for the liability coverage of a third-party tort-feasor. In addition to citing a provision of the policy which appel-lee contends provides for a credit and numerous decisions of the District Courts of Appeal which it claims recognize that payments from the liability insurers of third-party tort-feasors operate to reduce the available uninsured motorist coverage, ap-pellee submits that appellant's position runs contrary to the basic theory of uninsured motorist coverage. That theory is that uninsured motorist coverage is meant to compensate the plaintiff for a deficiency in the tort-feasor’s personal liability insurance coverage. We agree. The statute was only intended to allow the insured the same recovery which would have been available to him had the tort-feasor been insured to the same extent as the insured himself. Cf. Salas v. Liberty Mutual Fire Insurance Co., 272 So.2d 1 (Fla.1972); Lee v. State Farm Mutual Auto Insurance Co., 339 So.2d 670 (Fla. 2d DCA 1976); State Farm Mutual Auto Insurance Co. v. Anderson, supra; Government Employees Insurance Co. v. Graff, 327 So.2d 88 (Fla. 1st DCA 1976); Biondino v. Southern Farm Bureau Casualty Insurance Co., 319 So.2d 152 (Fla. 2d DCA 1975). It could not have been intended to place the insured who is injured by an underinsured motorist in a better position than one who is harmed by a motorist having the same insurance as the insured. Furthermore, were we unpersuaded that policy considerations mandate such a result, we would still adopt appellee’s position on this point because the language of the statute, read in its entirety, suggests that we do so. The statute states that uninsured (or underinsured) motorist coverage “shall be excess over but shall not duplicate benefits available to an insured . . . under any automobile liability . . . coverages . . from the owner or operator of the uninsured motorist vehicle.” (Emphasis supplied). Here, $15,000 of liability coverage of the tort-feasor was “available to” and tendered to the insured. To accept appellant’s contention would require duplicating the benefits the appellant has received from the tort-feasor. Were benefits from the tort-feasor’s liability coverage not available to the appellant, e. g., where the benefits under the tort-feasor’s policy have been exhausted by payment of claims to persons other than the insured, then the appellant would be entitled to “excess over” the tort-feasor’s liability coverage benefits, and the uninsured motorist coverage would then not duplicate the benefits received from the tort-feasor’s coverage. Similarly, where the benefits under the tort-feasor’s policy have been partially exhausted by payment of claims to persons other than the insured, then the insured is entitled to “excess over” the amount received from the tort-feasor’s carrier up to the limits of the claim or the policy, whichever is less. See State Farm Mutual Automobile Insurance Co. v. Diem, 358 So.2d 39 (Fla. 3d DCA 1978). Thus, we find that the $15,000 liability coverage of the tort-feasor which was tendered to the insured reduced what the appellant could receive from his uninsured motorist carrier by that amount.

Accordingly, that part of the trial court’s judgment finding that the application of Section 627.4132, Florida Statutes (Supp. 1976), to appellant’s insurance contract did not violate Article I, Section 10, Florida Constitution, is reversed. That part of the judgment finding that the uninsured motorist carrier is entitled to credit on the uninsured motorist coverage for the liability insurance coverage of the tort-feasor that has been tendered to the insured is affirmed. This cause is remanded for proceedings not inconsistent with the views expressed herein.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., concurs in result only.

      . § 627.4132, Fla.Stat. (Supp. 1976), reads:
      “Stacking of coverages prohibited. — If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.”

      . Ch. 76-266, § 10, Laws of Florida (§ 627.-4132) was passed on June 4, 1976. The last section of that bill reads:
      “Section 16. This act shall take effect October 1, 1976, and shall apply to all claims arising out of accidents occurring on or after said date.”

      . Sammis v. Bennett, 32 Fla. 458, 14 So. 90 (1893). See also State ex rel. Stuart Daily News, Inc. v. Lee, 120 Fla. 858, 163 So. 135 (1935); 30 Fla.Jur., Statutes, § 147 (1974).

      . State Farm Mutual Automobile Insurance Co. v. White, 330 So.2d 858 (Fla. 2d DCA 1976); Govt. Employees Ins. Co. v. Farmer, 330 So.2d 236 (Fla. 1st DCA 1976); State Farm Mutual Auto Ins. Co. v. Anderson, 332 So.2d 623 (Fla. 4th DCA 1976); Govt. Employees Ins. Co. v. Butt, 296 So.2d 599 (Fla. 3d DCA 1974); Sellers v. Govt. Employees Ins. Co., 214 So.2d 879 (Fla. 1st DCA 1968). We note that none of these cases expressly construe the meaning of “excess over” as used in § 627.727(1), Fla.Stat. (1975). However, a set off for the tort-feasor’s coverage was assumed.

      . § 627.727(3), Fla.Stat. (1973), changed the definition of uninsured motor vehicle to include not only a vehicle which had no liability insurance, but in addition, defined the words “uninsured motor vehicle” to include an insured motor vehicle when the liability insurer thereof “has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under uninsured motorists coverage applicable to the injured person.” Thus, while the tort-feasor in the case sub judice had bodily injury liability coverage with limits less than the policies of appellant and therefore was “underinsured,” we have referred to the appellant’s coverage as uninsured motorist coverage.

      .To the extent that Jones v. Travelers Indemnity Co. of Rhode Island, 357 So.2d 231 (Fla. 4th DCA 1978), holds to the contrary it is hereby disapproved.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert F. BRYAR and Marilyn E. Bryar, his wife, guardians of the person and property of Robin Gail Hoekstra, incompetent, Petitioners, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Respondent.
    No. 52769.
    Supreme Court of Florida.
    Sept. 7, 1978.
    Douglas J. Loeffler, of Fox, George, Loeffler & Downey, Clearwater, for petitioners.
    James C. Hadaway, of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Pe-tersburg, for respondent.
   PER CURIAM.

The petition for writ of certiorari is granted. We dispense with the filing of briefs on the merits and oral argument and hereby quash the decision of the District Court of Appeal, Second District, 349 So.2d 1221, and remand the cause to that court for proceedings not inconsistent with the views expressed by this Court today in Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978), Case No. 52,461, opinion filed September 7, 1978.

It is so ordered.

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


text:
    SKAGGS-ALBERTSON’S, Petitioner, v. ABC LIQUORS, INC., and Liquor World, Inc., Respondents.
    No. 52560.
    Supreme Court of Florida.
    Sept. 7, 1978.
    Rehearing Denied Nov. 28, 1978.

      James A. Urban of Urban, Peirsol, Williamson & Davis, and James E. Slater of Maguire, Voorhis & Wells, Orlando, for petitioner.
    J. Sam Owens, Jr. of Fishback, Davis, Dominick & Simonet, and William L. Eagan of Arnold, Matheny & Eagan, Orlando, for respondents.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Fourth District, reported at 349 So.2d 657 (Fla. 4th DCA 1977), which announced a rule of law relating to standing required to contest zoning decisions that conflicts with a rule previously announced in Renard v. Dade County, 261 So.2d 832 (Fla.1972). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner, Skaggs-Albertson’s, owns a grocery and liquor store which is located in the same complex. However, petitioner created the liquor store to have its own entrance with no access from the liquor to the main grocery store pursuant to Section 565.04, Florida Statutes (1975), which requires that package stores be devoted exclusively to the sale of alcoholic beverages and that they have no openings to other buildings or rooms. The respondents own competing liquor stores with respondent ABC’s store being within close proximity to petitioner’s business.

Petitioner applied to the Division of Beverages of the Department of Business Regulation for a license to sell alcoholic beverages as mandated by Chapter 561, Florida Statutes. As part of its application for the license, petitioner was required to submit a permit from the zoning director of Orange County reflecting that the location meets the zoning requirements of Orange County. The zoning director refused to issue the required permit, certifying that to do so would violate a zoning resolution of Orange County prohibiting the construction of a package store which is located within 5,000 feet of an existing liquor store. That section of the Orange County zoning resolution explaining the method to be employed in measuring the distance states:

The distance provided in this resolution shall be measured by following the shortest route of ordinary pedestrian travel along the public thoroughfare from the proposed main entrance of a vendor who proposes to operate his place of business and is licensed under Ch. 561, Florida Statutes, to the main entrance of any other vendor who was operating such a business.

Subsection 4, Article XXV, Section 15, Zoning Resolution of Orange County.

As demonstrated by the attached illustration, the zoning director interpreted this section in such a way that the main entrance of petitioner’s liquor store was determined to be less than 5,000 feet from the main entrance of respondent ABC’s store. Conversely, the illustration shows that petitioner’s proposed method of measurement (identified as trial court’s route) would satisfy the zoning resolution.

[See following illustration.]

Reprinted from the decision of the District Court of Appeal, Fourth District.

Petitioner appealed the determination of the zoning director to the Board of Zoning Adjustment of Orange County which reversed the decision of the zoning director. Respondents then appealed this decision to the Board of County Commissioners pursuant to Section 15 of Chapter 63-1716, Special Acts, Laws of Florida, which provides:

Any person aggrieved by any decision of the . . . board of zoning adjustment may file a notice of appeal to the Board of County Commissioners .

The Board of County Commissioners reversed the decision of the Board of Zoning Adjustment. Subsequent to the decision of the Board of County Commissioners, petitioner filed a petition for writ of certiorari in circuit court. Respondents, ABC Liquors, Inc. and Liquor World, Inc., intervened. The circuit court granted the writ of certiorari, reversed the decision of the Board of County Commissioners, and ordered the zoning director to issue petitioner’s Certificate of Zoning Approval. On the face of its order, the circuit court found that the intervenors had standing to appeal the decision of the Board of Zoning Adjustment to the Board of County Commissioners and that the proper method of measurement was that suggested by petitioner. Respondents then appealed to the District Court of Appeal, Fourth District. Petitioner cross-assigned as error the finding of the circuit court that respondents had standing to appeal the decision of the Board of Zoning Adjustment to the Board of County Commissioners. The district court reversed the circuit court, ruling adversely to petitioner on all points.

Petitioner now renews its assertions that (1) respondents did not have standing to appeal the decision of the Board of Zoning Adjustment to the Board of County Commissioners or to appeal the decision of the circuit court to the District Court of Appeal, Fourth District, and (2) the District Court of Appeal, Fourth District, erred in reversing the decision of the circuit court with regard to the interpretation of the zoning ordinance at issue. For the reasons that follow, we find that respondents were “aggrieved” persons within the meaning of Section 15, Chapter 63-1716, Special Acts, Laws of Florida, and that the District Court of Appeal, Fourth District, was correct in reversing the decision of the circuit court with respect to the proper interpretation to be placed on the zoning ordinance.

We initiate our discussion of standing to contest zoning decisions by noting that this area of the law appears to be characterized by instability. It will be our endeavor to stabilize this issue by attempting to resolve the apparent inconsistencies created by the various appellate decisions which have entertained the subject.

In Boucher v. Novotny, 102 So.2d 132 (Fla.1958), this Court enunciated the principle that one seeking redress, either preventive or corrective, against an alleged violation of a municipal zoning ordinance must allege and prove special damages peculiar to himself differing in kind, as distinguished from differing in degree, from damages suffered by the community as a whole. The plaintiff owned property across the street from the property on which defendant Novotny was building a motel. Plaintiff alleged that certain projections of the building would violate the setback requirements of the city’s zoning ordinance. In affirming the circuit court’s dismissal of the complaint on the grounds of lack of standing, this Court announced the rule that:

We have on a number of occasions held that where municipal officials threaten or commit a violation of municipal ordinances which produces an injury to a particular citizen which is different in kind from the injury suffered by the people of the community as a whole then such injured individual is entitled to in-junctive relief in the absence of an adequate legal remedy. With equal consistency, however, we have likewise held that in order to sustain a complaint for relief against threatened or consummated municipal action such as the creation of a nuisance or the blocking of a street the injury suffered by the complaining individual must be special and peculiar to himself and not merely different in degree from that suffered by the remainder of the community. In other words, the complaining citizen along with all other people in the community might suffer some injury and it may be that the extent of the injury suffered by the one complaining is greater in degree than that suffered by many other citizens. Nevertheless, the complaining citizen is without redress in equity unless he can allege and prove special damages peculiar to himself and differing in kind rather than in degree from the damages suffered by the people as a whole.

102 So.2d at 134 (citations omitted).

Recognizing that the aforementioned rule had been applicable to abatement of nuisances, this Court found that it was equally apposite to actions seeking to remedy or prevent breaches of municipal zoning ordinances.

Fourteen years later we had the opportunity to revisit this area in Renard v. Dade County, supra. In that ease, petitioner and respondents owned adjoining parcels. Respondents applied for a rezoning of their parcel to multifamily residence, which was ultimately granted. Petitioner objected during the stages of administrative appeal. Following adverse determinations, petitioner sought review by certiorari in the circuit court which ruled against petitioner, finding that he had no standing to prosecute the matter in that he had alleged no special interest. On appeal, the District Court of Appeal, Third District, held that petitioner had sufficient standing to institute the suit, but since the rezoning question was “fairly debatable,” the trial court’s decision should have been approved. Nevertheless, the court found the question to be of sufficient public interest to certify it to this Court. Specifically, the certified question concerned:

“The standing necessary for a plaintiff to (1) enforce a valid zoning ordinance; (2) attack a validly enacted zoning ordinance as not being fairly debatable and therefore an arbitrary and unreasonable exercise of legislative power; and (3) attack a void ordinance, i. e., one enacted without proper notice required under the enabling statute or authority creating the zoning power.”

261 So.2d at 834.

After noting that a division had developed among the district courts on the issue of standing to sue in zoning matters following the Boucher decision, the Renard Court answered the certified question as follows:

The question certified to this Court, set out supra, has three parts. Part (1) deals with standing to enforce a valid zoning ordinance. The Boucher rule requiring special damages still covers this type of suit. However, in the twenty years since the Boucher decision, changed conditions, including increased population growth and density, require a more lenient application of that rule. The facts of the Boucher case, if presented today, would probably be sufficient to show special damage.
Part (2) of the question certified to this Court deals with standing to attack a validly enacted zoning ordinance as being an unreasonable exercise of legislative power. As indicated above, persons having a legally recognizable interest, which is adversely affected by the proposed zoning action, have standing to sue.
Part (3) of the question certified deals with standing to attack a zoning ordinance which is void because not properly enacted, as where required notice was not given. Any affected resident, citizen or property owner of the governmental unit in question has standing to challenge such an ordinance.

261 So.2d at 837-38 (footnotes omitted).

It therefore became important to determine into which category a particular case fell, for different rules of standing applied depending on whether the action sought to enforce a valid zoning ordinance, whether it attempted to attack a validly enacted zoning ordinance as being an unreasonable exercise of legislative power, or whether it involved an attack upon a zoning ordinance which was void because not properly enacted.

The reason for these disparate rules was apparently historical. As suggested in Re-nard, the “special damage” rule was an outgrowth of the law of public nuisance. Inasmuch as a public nuisance was an offense against the state and, accordingly, was subject to abatement on motion of the proper governmental agency, an individual could not maintain an action for a public nuisance unless he suffered some special damage from the public nuisance. Restatement of Torts, Chapter 40, Invasion of Interests in Private Use of Land, Introductory Note (1939); North Dade Bar Association v. Dade Commonwealth Title Insurance Co., 143 So.2d 201 (Fla. 3d DCA 1962). Because one of the historical antecedents of zoning was the law of nuisances, violations of valid zoning ordinances came to be treated as public nuisances for purposes of determining rules of standing. Thus, the Renard Court stated that “[t]he Boucher rule was not intended to be applied to zoning matters other than suits by individuals for zoning violations.” 261 So.2d at 835. However, when the zoning ordinance itself was challenged either on substantive or procedural grounds, there was no longer the historical predicate for invoking the “special damage” rule.

This Court again had the occasion to enunciate its steadfast support for the “special damages” rule in United States Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla.1974), a case involving a nuisance action, and found that the rule serves a contemporary jurisprudential function which undoubtedly accounts for its continued viability. Quoting with approval from Askew v. Hold the Bulkhead—Save Our Bays, Inc., 269 So.2d 696 (Fla. 2d DCA 1972), this Court adopted the following language as its own:

“Neither of appellees has alleged or shown that one or the other of them will suffer a special injury or that either has a special interest in the outcome of this action. In order to maintain this kind of action, absent a sufficient predicate to a proper class suit (and there is no such predicate here), it is well settled that a plaintiff must allege that his injury would be different in degree and kind from that suffered by the community at large.
“If it were otherwise there would be no end to potential litigation against a given defendant, whether he be a public official or otherwise, brought by individuals or residents, all possessed of the same general interest, since none of them would be bound by res judicata as a result of prior suits; and as against public authorities, they may be intolerably hampered in the performance of their duties and have little time for anything but the interminable litigation.
[We again exclude from this rationale a proper ‘class action.’]”

303 So.2d at 12 (citations omitted).

It is clear then that the “special damage” rule still has vitality in both nuisance actions and actions seeking to enforce a valid zoning ordinance, albeit that rule has acquired a more liberal application.

The question arises whether the proprietor of an existing business has standing to challenge a zoning decision authorizing a competitor to do business solely on the ground that he suffers injury because of loss of business. In Skaggs-Albertson’s Properties, Inc. v. Michels Belleair Bluffs Pharmacy, Inc., 332 So.2d 163 (Fla. 2d DCA 1976), the District Court of Appeal, Second District, answered this question in the negative. The appellant, in that case, proposed to construct a combination grocery and drug retail store. After appellant received its building permit but prior to the commencement of construction, appellee sought to enjoin construction on the store. The court found, inter alia, that appellee did not have standing and stated:

The fact that Michels might lose business because of competition from Skaggs’ drugstore operation cannot provide the requisite standing. Cord Meyer Development Co. v. Bell Bay Drugs, Inc., 1967, 20 N.Y.2d 211, 282 N.Y.S.2d 259, 229 N.E.2d 44.

332 So.2d at 116.

In announcing the principle that the prevention of competition is not a proper element of zoning, the Michels court echoed a rule recognized by a number of authorities in other jurisdictions. Mott’s Realty Corp. v. Town Plan & Zoning Commission of Windsor, 152 Conn. 535, 209 A.2d 179 (1965); Farr v. Zoning Board of Appeals, 139 Conn. 577, 95 A.2d 792 (1953); Benson v. Zoning Board of Appeals, 129 Conn. 280, 284, 27 A.2d 389, 391 (1942); 179 Duncan Ave. Corp. v. Board of Adjustment of Jersey City, 122 N.J.L. 292, 293, 5 A.2d 68 (1939); Lehrer v. Board of Adjustment of City of Newark, 137 N.J.L. 100, 58 A.2d 265 (1948); Town of Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183 (1927); Board of County Supervisors of Fairfax County v. Davis, 200 Va. 316, 106 S.E.2d 152 (1958); Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920 (1949); Metzenbaum Zoning (2d Ed.), Ch. X-m-(10).

In the instant case, the District Court of Appeal, Fourth District, appeared to deviate from this principle when it explained:

We can think of no one more interested in the establishment of a liquor store than another liquor store nearby. The effect to the established liquor store is certainly an economic one; to increase competition is to reduce income, usually.

349 So.2d at 660.

The court relied in part on Keating v. State, 173 So.2d 673 (Fla.1965), for this proposition. Keating involved the revocation of a liquor license which was issued to the tenant of a building. The revocation order provided that no liquor license could be issued for use at the location of the building for two years. The landlord of the premises sought to alter the revocation order which request was granted by a subsequent Beverage Director. The respondent, a competitor of the landlord, then succeeded in obtaining an order enjoining the Director from modifying the original revocation. Keating v. State, 167 So.2d 46 (Fla. 1st DCA 1964). Subsequently, petitioner, the incumbent State Beverage Director, sought certiorari review in this Court contending the respondent had no legal standing to challenge the order of petitioner’s predecessor. This Court found that the requisite standing existed and held:

We are convinced that we should recede from Baker v. State ex rel. Hi-Hat Liquors, Inc., supra, insofar as it holds that a licensee competitor has no standing to maintain an action of the kind here involved merely because as a business competitor the profits or commercial advantages which he might gain in eliminating his competition “are too elusive and uncertain to sustain the action.”

173 So.2d at 675.

Considering the case on the merits, the Court decided that because the liquor industry was carefully regulated by the government, a liquor license had come to have the quality of property. Accordingly, the license could not be revoked without giving the landlord notice and opportunity for a hearing as mandated by due process.

Petitioner attempts to detract from the significance of Keating by emphasizing that it was not a zoning case and, therefore, not subject to the particular requirements of standing which this Court has ruled applicable to such cases. Secondly, petitioner suggests that the Keating Court expressly stated it was receding from Hi-Hat only insofar as it applied to actions of the type involved in Keating, i. e., a case involving the revocation of a liquor license and not one in which a competitor was seeking enforcement of a valid zoning ordinance.

Respondents contend that Keating stands for the principle that the proprietor of an alcoholic beverage store has standing to object when a competitor violates a valid and existing law regulating his business because he has suffered some special damage. This is so because that industry is characterized by stringent governmental regulation, and, therefore, the reestablishment of a store at an alternate location is made more difficult thereby. We agree. Underlying the decision of this Court in Keating was the notion that a liquor license is a form of property bestowing certain special rights to the liquor licensee different from those rights ordinarily accruing to the licensee of another business. The Keating Court adopted language in House v. Cotton, 52 So.2d 340 (Fla.1951), which stated:

“Even though a liquor license may have the character of a mere privilege insofar as governmental regulation of the alcoholic beverage industry is concerned, it must be recognized that in this state, as well as in many other states, due to the limitations respecting the number and location of liquor establishments and the conditions under which the license is issued, a liquor license has come to have the quality of property, with an actual pecuniary value far in excess of the license fees exacted by the state, county, and city.”

173 So.2d at 676.

Thus, the package store operator who loses his license suffers a special kind of injury. He may not be permitted to relocate in a desired location or, conceivably, may not be able to obtain another license at any other location. When a competitor opens a shop in his locale, the licensee runs the risk of being forced from his present place of business. He must then attempt to relocate pursuant to all the limitations respecting the number and location of liquor establishments. Unlike Skaggs-Albertson’s Properties, Inc. v. Michels Belleair Bluffs Pharmacy, Inc., supra, in which appellee sought to prevent the construction of a drug and grocery store, the instant case attempts to proscribe the erection of a package store. While the number and proximity of liquor vendors are stringently regulated, the number of drugstores is not. Consequently, although we adhere to the general rule enunciated in Skaggs-Albertson’s Properties, Inc. v. Michels Belleair Bluffs Pharmacy, Inc., supra, that loss of business from a potential competitor ordinarily cannot provide the existing proprietor with the requisite standing, we find that an alcoholic beverage dealer tends to suffer a special injury when confronted with a nearby competitor because of the regulation applicable to him and his business.

In the instant case, the District Court of Appeal, Fourth District, correctly found that respondents had the requisite standing but incorrectly applied the principles enunciated in Renard. That court substituted the “legally recognizable interest” rule for the “special damages” rule when it stated:

Skaggs has raised the question of standing. We find the case of Renard v. Dade County, 261 So.2d 832 (Fla.1972) to be on point: “. . . persons having a legally recognizable interest, which is adversely affected by the proposed zoning action, have standing to sue.”
349 So.2d at 660.

The instant case questions the interpretation of a valid zoning ordinance. There has been no challenge to the validity of the ordinance itself either on substantive or procedural grounds. Accordingly, respondents had to prove special damages in order to be “aggrieved” persons under Section 15, Chapter 63-1716, Special Acts, Laws of Florida. Pursuant to Keating v. State, supra, we believe respondents have made the requisite showing of special damage.

Petitioner’s second point challenges the decision of the District Court of Appeal, Fourth District, in reversing the circuit court with regard to the interpretation to be placed on the applicable zoning ordinance. We find that the conflicting interpretations urged by petitioner and respondents are both reasonable and, consequently, find that the Board of County Commissioners acted in accordance with the essential requirements of law in reaching its decision. The circuit court, therefore, transcended the scope of its certiorari review by substituting its judgment for that of the local zoning authority. Because zoning or rezoning is the function of the appropriate zoning authority and not the courts, the circuit court was not empowered to disapprove the finding of the Board unless the record was devoid of substantial competent evidence to support the Board’s decision.

Accordingly, the writ of certiorari is discharged.

It is so ordered.

ADKINS, BOYD and HATCHETT, JJ., concur.

ENGLAND, C. J., and OVERTON, J., dissent.

      . 12 U.Fla.L.Rev. 16, 27 (1959); Wis.L.Rev. Vol. 1955; 440.

      . Opinions following the “special damages” rule include Banyan Cafeterias, Inc. # 3 v. Faith Lutheran Church, 151 So.2d 426 (Fla. 1963); Continental Con-Dev Co. v. Shallberg, 267 So.2d 40 (Fla. 4th DCA 1972).

      . See also Wyatt v. City of Pensacola, 196 So.2d 777 (Fla. 1st DCA 1967); Fogg v. City of South Miami, 183 So.2d 219 (Fla. 3d DCA 1966); Abdo v. City of Daytonia Beach, 147 So.2d 598 (Fla. 1st DCA 1962).

      . In Baker v. State, 159 Fla. 286, 31 So.2d 275 (1947), a preemptory writ of mandamus was issued by the circuit judge, ordering the Director of State Beverage Department to revoke a retail liquor package store license issued to Baker on the ground that his place of business was within 300 feet of a school site in violation of a statute. Hi-Hat, a competitor whose store was outside the prescribed 300-foot zone, brought suit to enforce the zoning ordinance. Finding that Hi-Hat’s declared object was to eliminate Baker as a competitor, this Court held that Hi-Hat had no special interest sufficient to sustain the suit.

      . We note that the District Court of Appeal, Third District, in Rayan Corporation, Inc. v. Board of County Commissioners of Dade County, 356 So.2d 1276 (Fla. 3d DCA 1978), a case having substantially the same issue as the instant cause, concluded similarly to the district court herein.

      . Hillsborough County v. Twin Lakes Mobile Home Village, 166 So.2d 191 (Fla. 2d DCA 1964); Sarasota County v. Walker, 144 So.2d 345 (Fla. 2d DCA 1962); City of Tampa v. Consolidated Box Co., 110 So.2d 446 (Fla. 2d DCA 1959).


author: BOYD, Justice.

text:
    Fred W. WELLER et al., Appellants, v. Governor Reubin O’D. ASKEW et al., Appellees.
    No. 52085.
    Supreme Court of Florida.
    Sept. 21, 1978.
    Rehearing Denied Nov. 28, 1978.

      John W. Prunty of Prunty, Ross, De-Loache & Olsen, Miami, and Robert J. An-gerer and Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
    Robert L. Shevin, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for appellees.
   BOYD, Justice.

Fred Weller, Nolan Popenhager, R. L. Burnett and Dixie Williams, four owners of land in The Big Cypress Area of Florida, brought suit in the Leon County Circuit Court for a declaration of their rights and injunctive relief. The suit was defended by the Governor and Cabinet in the dual capacities of Board of Trustees of the Internal Improvement Fund and Head of the Department of Natural Resources. During the proceedings the plaintiffs challenged the validity of Section 380.055, Florida Statutes, the statute which designates Big' Cypress an area of critical state concern and sets up a plan for state and federal acquisition of the area leading to federal ownership. In an order denying the requested relief Judge James E. Joanos passed directly on the validity of Section 380.055, Florida Statutes. We have jurisdiction of the landowner’s direct appeal. Article V, Section 3(b)(1), Florida Constitution. We affirm. Although the arguments raised by appellants do not necessitate much discussion, we set out the facts of the case in detail to demonstrate the importance of what is at stake in this proceeding.

The Big Cypress Area lies in Lee, Collier and Monroe Counties, just north of the Everglades National Park. The area’s importance to the state cannot be underestimated. The watershed it contains is a vital hydrological resource. It provides sheet water flow to the Everglades, a recognized natural resource. It has a direct relationship to the freshwater aquifer which supplies the water for nearly all of the people of South Florida. And it feeds the estuaries on which many Florida fisheries depend.

In 1973 the Legislature enacted “The Big Cypress Conservation Act,” Section 380.055, Florida Statutes. The enactment was undertaken both to accomplish the purposes of “The Florida Environmental Land and Water Management Act of 1972,” by designating the Big Cypress Area an area of critical state concern and to implement Article II, Section 7, of the Florida Constitution, the provision declaring the state’s policy to conserve and protect its natural resources and scenic beauty.

The Act also was part of the state’s contribution to a joint effort with the federal government to protect the Big Cypress watershed. In Congress legislation had been proposed to establish the Big Cypress National Preserve so that the watershed would come under federal protection. In contemplation that the federal legislation would pass, the Florida Act set out a program for state action, essentially in three steps, for turning over land and water areas in the Big Cypress Area, both owned by the state and to be acquired from private owners, to the proposed Preserve. See Section 380.-055(5), Florida Statutes. First, an agreement between Florida and the federal government for acquisition of privately owned areas would be entered. Pending federal action the Governor and Cabinet would begin interim acquisition immediately on behalf of the state. Second, the Governor and Cabinet were to set aside from the proceeds of the full faith and credit bonds authorized by the Land Conservation Act of 1972 or other appropriate funds $40 million for the acquisition. Third, the Governor and Cabinet were empowered to donate and convey title in the land and water areas to the United States once the federal government expended funds for acquisition costs at least equal to those expended by the state for acquisition.

While final action on the proposed federal legislation was pending and an agreement with the federal government setting forth an acquisition plan was under negotiation, the state initiated the interim process for acquisition as directed by Section 380.-055(5)(a), Florida Statutes. The Department of Natural Resources prepared a report dated January 25, 1974 and entitled “Recommendation for Land Acquisition in the Big Cypress National Preserve.” There is a reference to the report in a Resolution of the Governor and Cabinet, as the Head of the Department. The resolution refers also to “consultation between the Department and . . . affected landowners [which] has produced general agreement as to a specific part of the recommended total acquisition area in which proposed land acquisition efforts by the state should be initiated.” By this document the Governor and Cabinet resolved to “proceed independently with implementation of a land acquisition plan” and to acquire any and all of the lands within the recommended initial acquisition area as shown on an attached boundary map. The resolution was signed by the Governor and Cabinet on March 19, 1974.

On October 11, 1974 Congress enacted Public Law 93-440 establishing the Big Cypress Preserve. See 16 U.S.C. § 698f et seq. Little more than two months later the United States, acting through the Secretary of the Interior, and the State of Florida, as authorized by Section 380.055(5)(a), entered an agreement for acquisition of privately owned lands in the Preserve. The agreement made the federal government the sole acquiring agency for most of the privately owned land in the Preserve. But, it provided that Florida could unilaterally terminate U. S. acquisition services if the state, in its discretion, determined they were not proceeding satisfactorily. The federal government began the acquisition process.

The four landowners, disturbed that the federal acquisition proceedings were in a “checkerboard” fashion likely to reduce the value of their lands rather than in the “orderly” fashion contemplated by the March 16 resolution and the fashion they thought had been agreed to at their meeting with the Department of Natural Resources, brought suit in Leon County Circuit Court. The suit sought a declaration of rights and an injunction of the ongoing acquisition process. They raised several claims in support of an injunction. One was that the funding of the present acquisition process by full faith and credit bonds violated Article VII, Section 11(a), Florida Constitution. That provision bans the issuance of state bonds pledging the state’s full faith and credit except “to finance or refinance the cost of state capital projects upon approval by a vote of the electors . . ..” As to this claim, Judge Joanos perceived the issue to be, not whether the project was a “capital” one, but whether it was a “state” one, in light of the expected donation of the land to the federal government. The judge felt that if the Governor/Cabinet’s power to donate the lands were unrestricted, so that Florida would lose any interest in the land, then the project would not be a “state” one and the plan would be unconstitutional. But, the judge found that under the Act any such donation would be subject to Florida’s enforceable right to have the land made part of the Big Cypress National Preserve, with all the environmental protection that would go with it. And, the judge found proof of the state’s enforceable right to federal environmental protection for the Big Cypress Area in the agreement the Governor and Cabinet had entered with the U. S. Department of the Interior. Accordingly, the judge declared that the agreement aided the Act to satisfy the “state bond” requirements of the Florida Constitution and ordered summary judgment in favor of the Governor and Cabinet on the constitutional issue.

A bench trial was held on the remaining issues. One issue concerned donations of the land under the Turner River, which runs through the Big Cypress Area, and is navigable. Lands under navigable rivers, unalienated with the 1968 Constitution was adopted, are sovereignty lands and held in trust for the people of this state. Under Article X, Section 11, Florida Constitution, such lands may be sold when authorized by law “but only when in the public interest.” The landowners proposed that this provision bars the donation of the land under the Turner River. In an order entitled “Findings” the trial judge did not directly address this contention. Instead, he found that although the Act used the word “donate,” the transaction could not be characterized truly as a “donation.” It was something more than that because the state exchanged the right to ownership for the valuable consideration of having the area, including the land below the river, incorporated into the Big Cypress National Preserve.

At the trial, too, the landowners charged that the Legislature had unlawfully delegated authority to acquire land in the Big Cypress Area to the federal government. The trial judge disagreed, finding the state to have retained the ultimate acquisition authority over the land through the unlimited termination power it kept under the agreement with the Interior Department.

Finally, the landowners argued that the March 19 resolution was either a contract between them and the Governor/Cabinet that legally prevented the way the acquisition was proceeding, or, at least, equitably estopped acquisition. The trial judge found the resolution not to be a contract between the landowners had rendered no consideration in support of it and the landowners had no obligations under it. And the judge found any agreement without equitable effect.

In keeping with his findings the judge entered a final judgment as to all issues in favor of the Governor and Cabinet. The landowners appealed directly here. Essentially, they renew the claims they made before the trial court. We affirm the orders of Judge Joanos in every material respect.

We reject the notion that the project is not a state one so that it may not be funded by state full faith and credit bonds. The eventual control of the land by the federal government does not detract from the state status of the project. The project was undertaken to further this state’s policy to conserve and protect state natural resources and scenic beauty pursuant to Article II, Section 7 of the Florida Constitution. By contributing to the achievement of federal environmental protection for the Big Cypress Area the funds from the full faith and credit bonds aid in the accomplishment of this important state goal.

The “Donation” to the federal government of the sovereignty lands under the Turner River will not violate Article X, Section 11, Florida Constitution. When the provision was adopted as part of the 1968 Constitution it gave constitutional dimensions to the common law doctrine applicable in the state that the beds of navigable waters are held in trust for the people. See Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909). On its face the authorization for placing the sovereignty lands under federal environmental protection is certainly not a violation of that trust. And the record of this proceeding does not in any way show a violation. The provision is silent as to donations but as to a “sale” of sovereignty lands it requires that the sale be authorized by law and in the public interest. Without characterizing the donation as a sale, but for the sake of argument, if the transaction for turning the lands over to the federal government is a sale, it meets both requirements. It is authorized by law and its goal of environmental protection is unquestionably in the public interest.

As to appellants’ claim that they are being damaged by the state’s failure to comply with representations made by officials of the Department of Natural Resources about the order of acquisition, there is no proof in the record of a contract. There is no legal or equitable relief available to them on this claim. The other arguments raised by appellants are without merit.

The orders of the Leon County Circuit Court in this proceeding are affirmed.

It is so ordered.

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

ADKINS, J., dissents.

      . See Report No. 93-502, submitted to accompany H.R. 10088 at the first session of the 93rd Congress by Representative Haley from the Committee on Interior and Insular Affairs.

      .Attached as exhibit one to the plaintiffs’ amended complaint. Record-on-Appeal, p. 45.

      . Id.

      . Id. at 46.


author: ADKINS, Justice.

text:
    Emery SCAVELLA by his parents Yvonne Scavella and Elbridge Scavella, Appellants, v. The SCHOOL BOARD OF DADE COUNTY and the Florida Department of Education, Appellees. Jerry GRACE by his mother Lisa Grace, Appellants, v. The SCHOOL BOARD OF DADE COUNTY and the Florida Department of Education, Appellees.
    Nos. 50831, 51564.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Rehearing Denied Nov. 28, 1978.

      Louis R. Beller, Miami Beach, for appellants.
    Frank A. Howard, Jr. and Phyllis 0. Douglas, Miami, for School Board of Dade County.
    Winifred L. Wentworth, Gen. Counsel and John D. Carlson, Counsel, Tallahassee, for Florida Department of Education.
   ADKINS, Justice.

We have for review on direct appeal two consolidated cases where the circuit court judges uphéld the constitutionality of Chapter 75-284, Section 26, Laws of Florida codified at and hereafter referred to as Section 230.23(4)(m)7, Florida Statutes (1977). Both cases involve exceptional students who have been attending private schools because of the lack of special services in the Dade County public schools to meet their special needs. Before the 1975-76 school year, the Dade County School Board had been paying the entire costs of appellants’ education pursuant to Section 230.23(4)(m), Florida Statutes (1977). In 1975 the legislature added the following paragraph, the subject of this appeal.

“7. The district school board shall establish a maximum amount which can be paid by a district school board for an individual exceptional student contract with a nonpublic school, based on the maximum full-time equivalent earned by the student.”

The school board interpreted this to mean that they could only pay out to private schools what they actually received from the state for that particular student. It added the following amendment to the Dade County Procedures for Providing Special Education for Exceptional Students (1975-76):

“Effective July 1, 1975, the maximum amount which will be paid by the School Board of Dade County, Florida, pursuant to any individual exceptional child contract with a non-public school will be no more than the base student cost determined annually by the legislature times the legislatively established cost factor appropriate for the child’s exceptionality times the established district cost differential. There will be no cost deduction for administrative costs.”

In accordance with this policy the school board limited its obligations in the contract with the two private schools for less than the full cost of appellants’ education. Having no other choice, appellants’ parents paid the difference and sought reimbursement in the circuit court. Neither case came to trial: an order of summary judgment was entered in Scavella v. School Board of Dade County, Case No. 76-84 (Fla. 11th Cir.Ct. 1976) and a dismissal with prejudice of a third amended complaint was entered in Grace v. School Board of Dade County, Case No. 76-83 (Fla. 11th Cir.Ct. 1976).

In the order granting summary judgment, the circuit court judge explicitly held Section 230.23(4)(m)7, Florida Statutes (1977) constitutional. In the other case, the order to dismiss the complaint with prejudice is implicitly based on the same conclusion. We have jurisdiction to decide both eases. Article V, Section 3(b)(1), Fla. Const.; Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959).

Appellants argue that placing a cap on the amount of money a school district may pay to a private institution for the education of a physically handicapped child is unconstitutional. They mainly contend that the cap is a denial of their right to equal protection under the laws.

Much of the argument centered around whether appellants were members of a “suspect class”, a classification used by the United States Supreme Court in determining the standard of judicial review in equal protection cases. We need not embroil ourselves in this controversy since Florida has a more specific constitutional provision which provides:

“No person shall be deprived of any right because of race, religion or physical handicap.” Article I, Section 2, Florida Constitution. (emphasis supplied)

In light of this more stringent constitutional requirement, we only need to decide whether the cap imposed by Section 230.-23(4)(m)7 Florida Statutes (1977), deprives appellants of any right, not just their right to be treated equally before the law.

We start our analysis by examining what effect the challenged statute has on existing law. We first take note that the state is responsible for providing adequate educational opportunities for all children, Section 229.011, Florida Statutes (1977). This responsibility is delegated to the school officials who compose the school board of each school district, Section 230.01, Florida Statutes (1977). The powers and duties of the school board are found in Section 230.23, Florida Statutes (1977), which in relevant part reads:

“The school board, acting as a board, shall exercise all powers and perform all duties listed below:
(4) adopt and provide for the execution of plans for the establishment, organization, and operation of the schools of the district as follows:
(m) Exceptional students. — Provide for an appropriate program of special instruction, facilities, and services for exceptional students as prescribed by the state board as acceptable, including the provision that:
2. The school board provide the special instruction, classes and services, either within the district school system, in cooperation with other district school systems, or through contractual arrangements with approved private or nonpublic schools or community facilities.”

This statute requires the different school boards to establish special programs for educating exceptional students. Exceptional students include all those students who are physically handicapped. Section 228.-041(19), Florida Statutes (1977). Realizing that the public schools may not have the special facilities or instructional personnel to provide an adequate educational opportunity for the exceptional students, the legislature has allowed the school boards to make contractual arrangements with private schools. Section 230.23(4)(m)2, Florida Statutes (1977). The Board of Education, however, requires that such arrangements be made only as a last resort:

“When an appropriate special program cannot be provided within the district or in cooperation with other districts, a district may utilize nonpublic schools through a contractual arrangement based on guidelines issued by the director of the division of elementary and secondary education.” Fla.Admin.Code Rule 6A-6.-311(3).

The effect of the challenged statute allows the school boards to set a cap on the amount of money they will pay to a private school when fulfilling their responsibility to provide an education for exceptional students. The problem is whether this cap denies exceptional students, more specifically the physically handicapped students, their right to a free education. That such a right exists cannot be disputed even though there are no Florida cases holding such. The Florida Constitution mandates the legislature to provide for “a uniform system of free public schools.” Article IX, Section 1, Florida Constitution. In compliance with this provision, the legislature has established a system of public schools which must provide “13 consecutive years of instruction . . . [and] such instruction for exceptional children as may be required by law.” Section 228.051, Florida Statutes (1977). These schools are funded by governmental sources and nonresident tuition fees, not by the people utilizing them, except indirectly as taxpayers. The clear implication is that all Florida residents have the right to attend this public school system for free.

It is incumbent upon this court to construe this statute as not interfering with the right to a free education so as to prevent its being rendered unconstitutional. Bonvento v. Board of Public Instruction, 194 So.2d 605 (Fla.1967). The legislature wishes to impose a cap “based on the maximum full-time equivalent earned by the student.” The full-time equivalent earned by a student depends, among other things, upon the student’s particular handicap. Section 236.081, Florida Statutes (1977). Presumably more money is allotted for those students whom it costs more to educate. Thus the legislature recognized a need to place a higher cap on the spending of money for private instruction and special facilities for the more severely disabled children.

The term “based on the maximum full-time equivalent” does not necessarily mean “equal to the full-time equivalent.” It could mean a certain factor times the full-time equivalent. Such an interpretation would preserve the legislature’s intent to correlate the maximum a school board should pay to a private school with the severity of the particular student’s handicap.

We therefore hold that the statute requires the school districts to establish a maximum amount that would not deprive any student of a right to a free education. So interpreted the statute is constitutional and will not deny anyone of equal protection before the law since the cap is reasonably based upon the student’s particular need. Whether appellants’ rights to a free education are denied depends on whether there exists some adequate program for the exceptional student, which cost does not exceed the cap established by the school board.

In this case the Dade County School Board set as a maximum an amount equal to a factor of one times the full-time equivalent. The issue now becomes whether the school board’s rule is constitutional. That is, does the maximum set by the school board deny appellants their right to an adequate opportunity to receive a free education? We are unable to answer this question. In neither case does the record show, nor the complaint allege, that the maximum set by the school board is insufficient to provide appellants an education.

In Case No. 76-83 Appellant Grace’s third amended complaint was dismissed with prejudice. Upon review, we are to accept all the allegations in the complaint as true. In re Burton’s Estate, 45 So.2d 873 (Fla.1950).

In paragraph 9 of the complaint, Jerry Grace alleged that the maximum amount established by the Dade County School Board was “based on an arbitrary formula different from the actual cost of educating the exceptional student.” The complaint also alleges that Jerry Grace is an exceptional student who attended a private school; that the Dade County School Board paid for the full cost of his education for the 1974 — 75 school year; and that since that time no new facilities have become available within the Dade County School System nor has any alternative plan of education been offered to Jerry Grace. We believe these allegations are sufficient to support a cause of action.

If indeed the maximum amount set by the school board prevents Jerry Grace from receiving a reasonable opportunity to receive a free education, the relief he requests should be granted. But, on the other hand, if Jerry’s parents had forsaken an adequate special program for a more expensive, albeit better, private school, then they should pay for the extra costs. Because we have interpreted the statute to render it constitutional, we believe Grace should be allowed to further amend his complaint.

This cause is reversed and remanded with instructions to proceed in conformity with this opinion.

In Case No. 76-84, appellant Emery Scavella moved for a summary judgment. By making such a motion, appellant has conceded that the record is complete and that there are no issues of material fact to be resolved. Geiser v. Permacrete, Inc., 90 So.2d 610 (Fla.1956). Since the record does not conclusively show that the cap prevented appellant from receiving a free education and since the judge did not err as a matter of law in finding Section 230.-23(4)(m)7, Florida Statutes (1977) constitutional, his final order is affirmed.

ENGLAND, C. J., and BOYD, OVER-TON and SUNDBERG, JJ., concur.

HATCHETT, J., concurs in result only.


author: SCHEB, Judge.

text:
    Michael H. KIEHL, Appellant, v. STATE of Florida, Appellee.
    No. 77-1904.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 1978.
    Rehearing Denied Oct. 20, 1978.
    Garrick N. Fox of Rothblatt & Barnett, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant Kiehl and his codefendant Summerlin were charged by information with having committed a robbery on April 3,1977. The information contained the further allegation that “during the hours of the aforesaid offense, the said [appellant and codefendant] did carry a deadly weapon, to wit: A FIREARM.”

After first pleading not guilty, appellant withdrew his plea and pled nolo contendere to the charge of robbery. At the sentencing hearing in September 1977, after receiving a presentence investigation report, the trial judge announced she would withhold adjudication and place appellant on probation for two years. The state objected, contending the court was compelled to impose a minimum sentence of at least three years under § 775.087(2), Fla.Stat. (Supp. 1976). At this point appellant’s counsel moved to strike the language in the information referring to a firearm. The trial court granted the motion, and ordered that appellant serve a two-year probationary term.

Later the state filed a motion to correct the sentence pursuant to Fla.R.Crim.P. 3.800. By this motion the state once again sought to have appellant sentenced to a minimum of three-years imprisonment. After a hearing in October 1977 the trial court vacated its previous order of probation and sentenced appellant to three years in prison with credit for time served.

Appellant raises a number of points questioning the propriety of his three-year sentence. Without discussing these points individually, we hold this case is controlled by Summerlin v. State, 360 So.2d 805 (Fla.2d DCA 1978). We reverse on its authority.

Summerlin v. State was the appeal of appellant’s codefendant, Larry Summerlin. The trial court had likewise withdrawn Summerlin’s order of probation and sentenced him to three-years imprisonment. Judge Ott, speaking for this court, held that because of the confusion which surrounded the plea and sentencing hearings it could not be said that Summerlin’s plea of nolo contendere was voluntarily entered. Thus, Summerlin’s judgment and sentence were set aside and the cause was remanded to the trial court with directions to afford Summerlin the opportunity to withdraw his plea.

As recognized by the state during oral argument, appellant here is in substantially the same position as Summerlin found himself. We hold that appellant Kiehl, just as his codefendant Summerlin, did not knowingly and voluntarily enter his plea to the information charging him with committing robbery while carrying a firearm.

We, therefore, vacate appellant’s judgment and sentence and remand this case with directions that the trial court afford appellant the opportunity to withdraw his plea of nolo contendere.

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


text:
    William FLOOD, Appellant, v. Fred W. WARE and Ware Plumbing, Inc., a Florida Corporation, Appellee.
    No. 77-1628.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 1978.
    Rehearing Denied Nov. 2, 1978.
    Jack F. White, Jr., Clearwater, for appellant.
    F. Wallace Pope, Jr., of Johnson, Blakely, Pope & Bokor, P.A., Clearwater, for appel-lee Ware.
    Gilbert P. MacPherson of Robinson, Mac-Pherson, Harper & Kynes, Clearwater, for appellee Ware Plumbing.
   SCHEB, Judge.

William Flood appeals and Fred W. Ware cross-appeals from jury verdicts and the judgment entered upon them against appel-lee Fred W. Ware and appellee Ware Plumbing, Inc. The jury awarded appellant $500 in punitive damages against Fred W. Ware and $100 in compensatory and $500 in punitive damages against Ware Plumbing, Inc.

We have reviewed the briefs and the record and are of the opinion that appellant’s points are without merit. However, we agree with appellee Ware that the verdict against him cannot stand. A jury may not, as it did here, order a defendant to pay punitive damages if it does not find him liable for either compensatory or nominal damages. Sonson v. Nelson, 357 So.2d 747 (Fla. 3d DCA 1978). See also, Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977).

Accordingly, we vacate that part of the final judgment which assesses punitive damages against Fred W. Ware, and remand with directions that the trial court enter judgment in Ware’s favor. In all other respects, we affirm the judgment.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Teddy Kirk PRICE, Appellee.
    No. 78-161.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 1978.
    Rehearing Denied Nov. 2, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Thomas A. McDonald and P. Douglas Brinkmeyer, Asst. Public Defenders, Bar-tow, for appellee.
   OTT, Judge.

The lower court entered an order suppressing marijuana seized as a result of a vehicle search. We reverse.

While on routine patrol at about 6:30 p. m. a policeman observed a lone vehicle with four occupants in a stopped position off the street and near the rear entrance to a lounge. The lounge was open for business and darkness was falling. The vehicle was not in a regular parking position and its engine was running. The four occupants remained in the vehicle for some period of observation by the officer.

There had been several automobile burglaries in the area. Under the circumstances the policeman decided to approach the vehicle and make sure of its right to be there. As he approached the passenger side, he observed the defendant move to conceal something in a jacket that was between the two front bucket seats of the vehicle. At this point, he was immediately adjacent to the lowered passenger window and he detected a strong odor of marijuana smoke emanating therefrom. The policeman thereupon advised all of the occupants of the vehicle of their Miranda rights. After making sure the defendant and other occupants fully understood their rights, he further advised them that he had reason to believe that they had marijuana within the vehicle. The policeman secured the individual consent of each occupant for a search of the vehicle and after each had given his consent, he immediately seized the jacket, opened the flap and found a baggie of marijuana. The defendant admitted the jacket was his and that he had been smoking marijuana just prior to the arrival of the policeman.

Two questions are presented on appeal. The first is whether or not the initial action of the policeman in approaching the vehicle was illegal and therefore tainted the subsequent search; the second is whether or not the consensual search extended to the jacket.

In discussing the first question, we note at the outset that this is not the usual situation of the stop or detention on a public street of a vehicle proceeding in a lawful manner as existed in the situations dealt with by this court in its recent decisions in: McClure v. State, 358 So.2d 1187 (Fla. 2d DCA 1978); Foss v. State, 355 So.2d 225 (Fla. 2d DCA 1978); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977); and Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976). In the instant situation the policeman observed the vehicle in the parking area of a lounge open for business, but the vehicle was not parked in a normal position. The vehicle was occupied by four persons who gave no evidence of entering the place of business. The vehicle’s engine was running. These facts have to be weighed in the light of the policeman’s knowledge that the area had been the scene of several automobile burglaries. We know of no case that holds that the policeman’s approach of such a vehicle at such a location and under such circumstances for the purpose of determining the identity or purpose of the occupants transgresses any basic constitutional rights. We also think it significant that the policeman had alighted from his cruiser and was walking onto the parking lot toward the vehicle making no overt attempt to stop, detain or hold the vehicle or its occupants. Up to this point we think the officer was doing nothing more than the general public has the right to expect of its policemen in the process of their normal patrol, surveillance and investigatory duties.

It should be noted that this was not the usual “stop and frisk” dealt with by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) or contemplated in Section 901.-151(2), Florida Statutes (1977). Under either of these situations some indication of a well-founded suspicion of criminal activity must exist to justify the subsequent detention and seizure. As pointed out supra, the policeman in the instant case had not stopped or accosted the vehicle or its occupants and no unlawful “intrusion” has been demonstrated either as to the place (the parking lot) or the vehicle and its occupants.

Assuming this case to be governed by the standards for a “founded suspicion” a reversal would be warranted. In the recent case of State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978) our sister court in approving our holding in State v. Bastardo, 347 So.2d 463 (Fla. 2d DCA 1977) discussed the standards for “founded suspicion” under somewhat similar circumstances. Judge (now Justice) Alderman stated in Stevens that “[a] ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” 354 So.2d at 1247. Judge Alderman went on to discuss the factors to be evaluated in borderline cases:

There will be borderline cases . in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect’s possible commission, existing or imminent, of a crime: The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge. 354 So.2d at 1247.

In Stevens the policeman observed a heavily laden truck pulling away from the vicinity of a city supply and equipment yard. Not only was it unusual for a truck to be there at that hour of the night, but the policeman knew that supplies had been stolen from that same yard recently. The Stevens court held that “there were numerous factors which, when interpreted in the light of [the policeman’s] knowledge of the area and of a previous crime, gave foundation to his suspicion . . . .” 354 So.2d at 1247.

Under the “founded suspicion” standard the observation by the policeman in the instant case of the vehicle on a parking lot but not in the designated parking position or area with its motor running in an area in which there had been recent automobile burglaries would surely justify his suspicion and his approach to the vehicle.

With reference to the specific point of whether or not the policeman could approach the car, two 1975 cases decided by other district courts of appeal are illustrative. In Berry v. State, 316 So.2d 72 (Fla. 1st DCA 1975) the police flushed out of a certain area fifteen to twenty people who were smoking marijuana. They all fled. In that same general area, four persons were sitting in a car parked by the side of the road. A policeman approached the car on the driver’s side and asked the driver for identification. The First District Court of Appeal held that the policeman’s approach had been valid:

While the officer stated that he had no suspicion that a crime was being committed, . . . the totality of all of the circumstances was sufficient to justify the officer in approaching the car and asking the driver for his identification. 316 So.2d at 73.

In Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975) the appellant was sitting in an automobile parked in a parking lot next to a bar. A policeman made a routine check because “there was a high rate of narcotics used in the area and a number of stolen vehicles had been dropped off in the parking lot.” 323 So.2d at 589. The court held that this initial approach of the officer in no way violated the constitutional rights of the appellant.

On this first question we hold that there was nothing improper or illegal in the action of the police officer in approaching the vehicle under the circumstances and in the light of his knowledge. We simply hold that under the circumstances there is nothing illegal or improper in the action of the police officer or his decision to approach the vehicle that taints or vitiates the subsequent search.

With reference to the second question we point out that prior to the time the officer addressed any of the occupants, or issued any directions, commands or requests, that two things occurred: first, he observed the front seat passenger make a furtive movement as if to conceal something under or in a jacket lying between the two front seats; and, second, almost simultaneously the policeman detected the strong odor of marijuana smoke emanating from the open window on the front passenger side. He certainly now had a fully founded suspicion of criminal activity. In the sequence of events that followed, the policeman secured the consent of each of the occupants to a search of the vehicle. The defendant frankly concedes that there was consent to the search of the vehicle, but attacks the actual seizure of the contraband on the ground that the consensual search of the vehicle did not extend to the loose jacket lying between the two front seats of the vehicle. We are not of the opinion that a consensual search of the vehicle is so narrowly circumscribed as to prohibit the officer from seizing or lifting the jacket or otherwise exploring beneath it or in it. Again, we think it appropriate to point out that the objection of the defendant is based purely upon the fact that the object seized or lifted by the policeman was an item of wearing apparel. Such an objection would be untenable had the item been newspapers, duffel bags or any one of a number of other items.

Defendant cites Bailey v. State, 319 So.2d 22 (Fla.1975) in support of his argument that the permission to search the car did not extend to the jacket. In Bailey, the court pointed out that there had been “serious illegal actions” by the police prior to the giving of the alleged consent. According to the court, this casts serious doubts upon the voluntariness of the consent. The court held' that under all the circumstances “it is doubtful whether a valid consent could have been established . . . .” 319 So.2d at 28.

In contrast to the Bailey situation in which the court noted that “[m]ere conclusions of an officer are insufficient to establish a valid consent”, the evidence in the instant case precludes such criticism.

The supreme court in Bailey stated: [Cjonsent . . . is an exception to the search and seizure requirements. As an exception and as a waiver it must be shown by the State that strong circumstances are present in a case for it to qualify as an acceptable alternative to preservation of constitutional rights of citizens. 319 So.2d at 26.

In the instant case there was no transgression of the constitutional rights of the defendant. We hold that a proper search was made pursuant to the consent of the occupants of the vehicle.

The order of the lower court suppressing the evidence and discharging the appellee is therefore

REVERSED and set aside and the cause remanded for further proceedings consistent herewith.

SCHEB, Acting C. J., and DANAHY, J., concur.

      . Under our “stop and frisk” law, Section 901.-151(2), Florida Statutes (1977), it is provided: Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
      The supreme court in Terry stated:
      [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.