author: BEATTY, Justice.

text:
    Thomas Jerry STEPHENS v. CENTRAL OF GEORGIA RAILROAD CO. et al. v. JORDAN INDUSTRIES, INC.
    77-442.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    Rehearing Denied Jan. 26, 1979.

      George L. Stevens, Jr., of Rutledge, Williams, Williams & Norton, Anniston, for appellant, Thomas Jerry Stephens.
    Eugene P. Stutts, of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for ap-pellee, Central of Georgia Railroad Company.
    Charles C. Pinckney and Lyman H. Harris, Birmingham, for appellee, Jordan Industries, Inc.
   BEATTY, Justice.

This is an appeal by plaintiff, Thomas Jerry Stephens, from judgments entered in favor of defendant, Central of Georgia Railroad Company, and third-party defendant, Jordan Industries, Inc. We affirm.

Jordan Industries, Inc. (hereinafter Jordan, Inc.) is chiefly engaged in the pile-driving business. In July and November, 1974 the Central of Georgia Railroad Company (hereinafter the Railroad) contracted Jordan, Inc. to drive old discarded rails into the ground beside the Railroad’s tracks to stabilize the roadbeds. These agreements were memorialized in two service orders issued by the Railroad. Jordan, Inc. undertook the work under the first contract with a small crew consisting of a foreman pile driver, a crane operator, and two laborers. The second service order, however, provided for an assistant foreman pile driver, a crane operator, and two laborers. One of the laborers was the plaintiff, Thomas Jerry Stephens. The Railroad under both contracts furnished a representative who was present at all times as the work progressed. It appears that this representative kept up with train movements in the area, and saw that the rails were driven in the proper areas. Jordan, Inc. provided most of the equipment, although the rails to be driven into the ground and a “dolly” on which Jordan, Inc.’s air compressor was transported along the tracks were furnished by the Railroad.

Work under the first contract was uneventful. However, on the last day of the job under the second contract an accident occurred. As the equipment was being placed upon a Jordan, Inc. truck in preparation for the trip home to Ozark, Alabama, the plaintiff climbed onto the air compressor to tie down the engine covers. He apparently slipped and fell to the ground seriously injuring his ankle.

Plaintiff brought the present action against the defendant under the theory that he was an employee of Railroad and therefore was subject to the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. (1970 ed.). The Railroad filed a third-party complaint against third-party defendant, Jordan, Inc., on the strength of an indemnity agreement between the parties which said that should the Railroad be sued by a Jordan, Inc. employee, Jordan, Inc. would indemnify the Railroad. Trial was had before a jury November 7-10, 1977, after which the jury returned verdicts in favor of the Railroad in the main action, and for Jordan, Inc. in the third-party action. From the judgment for the Railroad the plaintiff appeals.

The Federal Employers’ Liability Act, supra, provides in § 51 that:

Every common carrier by railroad while engaging in commerce shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

That same section defines the term “employee” in this fashion:

Any employee of a carrier, any part of whose duties as such employee shall be [in] the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.

The central issue at trial concerned whether or not the plaintiff was an employee of the Railroad under the terms of this section. It is apparent from the jury verdict that the issue was answered in the negative. The plaintiff on this appeal however contends — among other things — that the verdict was fatally tainted by the admission into evidence over objection of Jordan, Inc.’s exhibit DJ-6.

Jordan, Inc.’s exhibit DJ-6 was a copy of a letter purportedly prepared by Mr. D. R. Jordan, Vice-President of Jordan, Inc. at the direction of his father, Mr. H. C. Jordan, President of Jordan, Inc. The letter was introduced into evidence to rebut the plaintiff’s inference that the change from the “Foreman” classification in the first service order to the “Assistant Foreman” classification in the second service order necessarily implied that the Railroad representative would be the person in control of the Jordan, Inc. crew. This arguably would have made the plaintiff an employee of the Railroad under the terms of the FELA. Exhibit DJ-6 however tended to show that the change in job classifications had in fact already occurred under the first contract and only for reasons of economy. The pertinent text of this exhibit is as follows:

July 23, 1974
Mr. J. C. Waldrop Division Engineer Southern Railway System P. 0. Box 1417 Columbus, Georgia 31902
Re: Service Order #905294
Requisition #11532 and 11533
Montgomery District Roadway Stabilization
Dear Mr. Waldrop:
Please find enclosed a copy of our Invoice for first week of work in reference to roadway stabilization period.
Please note than Purchase Order calls for a Foreman, Operator and 2 Laborers. We feel this operation can be accomplished with one man less than the Purchase Order allows. Therefore, we will use a classification of Assistant Pile Driver Foreman, which is cheaper than the regular Pile Driver Foreman authorized. We will also decrease number of laborers authorized from 2 to 1.

Plaintiff Stephens lists several reasons why he feels the court erred in overruling the objection to the admission of this exhibit into evidence. The defendant however raises a threshold issue which we must first address: whether or not these matters were properly raised below so that they are before us on this appeal. Brown v. Robinson, 354 So.2d 272 (Ala.1978).

Rule 4(aX3), ARAP, provides that “[a]ny error or ground of reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under Rule 52(b) or Rule 59 of the ARCP.” (emphasis added). See also State v. Long, 344 So.2d 754, 757 (Ala. 1977). Plaintiff argues that all of the grounds supporting the objection, and ably set out in brief, were raised and argued in chambers, and were ruled upon there. This may well be the case. However, whether or not there were objections and rulings upon those objections in chambers is irrelevant to this appeal when the record does not reflect them. In effect appellate courts are prisoners of the record and the occurrences in chambers and off the record are outside our purview unless the trial court or attorneys make certain that we are privy to them. See King v. Smith, 288 Ala. 215, 259 So.2d 244 (1972). Nor does the plaintiff’s contention that these same objections were made in their motion for new trial make them available for review. Even if they were— and, again, the record does not so reflect— such objections would have come too late for us to review them here. Rule 4(a)(3), ARAP requires that such objections must be asserted in the trial. At the time a motion for new trial is raised under Rule 59, ARCP the trial is over. This is why we call a Rule 59 motion a “post-trial motion.” This rule is based on solid policy reasons. The trial court must have an opportunity to pass on these evidentiary issues during the course of the trial. If the rule were otherwise the party raising the issue for the first time after trial might reverse a judgment on a point, which, if presented below the court may have avoided by excluding the evidence, or which the other party might have avoided by waiving the testimony objected to, or by rendering it competent by the introduction of other proof. Cf. T. R. Miller Mill Co. v. Ralls, 280 Ala. 253, 192 So.2d 706 (1966) citing Walker v. Blassingame, 17 Ala. 810 (1850). This is also why it has long been settled that in reviewing the action of the trial court in overruling objections we will only consider the grounds of objection assigned when the objection was made, Cook v. Latimer, 279 Ala. 294, 184 So.2d 807 (1966); Marigold Coal, Inc. v. Thames, 274 Ala. 421, 149 So.2d 276 (1963), and why, once a specific objection is made the party will be confined to the particular ground stated in the lower court and will be held to have waived all other grounds of objection. McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975); Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973); T. R. Miller Mill Co. v. Ralls, 280 Ala. 253, 192 So.2d 706 (1966). Hence the defendants’ argument is well taken and we can consider on this appeal only those objections raised below. From the record we are able to find three possible objections to 'the exhibit which we shall address in turn:

A) At a point in the questioning of Mr. H. C. Jordan — prior to the letter’s introduction — the plaintiff objected to testimony concerning a change or changes in the first contract on the ground that pursuant to his December 30, 1975 Request for Production, see Rule 34(a), ARCP, all contract documents under which the plaintiff was injured should have been in his possession. The judge stated that the matter had already been taken up in his office and overruled the objection. We hold that such a ruling was not in error. In brief the plaintiff treats this objection as one also aimed at a violation of the pretrial order under Rule 16, ARCP. That order required that documents intended for use at trial be made available to the opposing party at least 10 days prior to trial. We need not address whether or not the pretrial order ground is also before us for in either case preclusion is a matter of judicial discretion. See e. g., Napolitano v. Compania Sud Americana De Vapores, 421 F.2d 382 (2nd Cir. 1970); 6 Wright & Miller, Federal Practice and Procedure: Civil, § 1527 (1971). Nor do we find an abuse of discretion in this instance. The scope of both the request for production and the pretrial order can only be reasonably interpreted as calling for production of those documents pertaining to the second contract, i. e., the contract under which the plaintiff was injured. The exhibit in question however can only reasonably be interpreted as a modification of the first, or July contract.

B) Following the above objection Mr. H. C. Jordan was questioned by plaintiff on voir dire. At that time plaintiff objected to the letter on the ground that the witness did not prepare the letter. There was no ruling. This specific objection was, if anything, premature as at that point the exhibit had not been offered into evidence. Further, and most fatal, there was no ruling by the court coincident to this objection so as to preserve this particular ground for review. See e. g., Small v. State, 348 So.2d 507 (Ala.1977). As we have long held, the absence of a ruling by the trial court leaves us nothing to review. Fountain v. Vredenburgh Saw Mill Co., 279 Ala. 68, 181 So.2d 508 (1965); Fallaw v. Flowers, 274 Ala. 151, 146 So.2d 306 (1962); Sanders v. Sanders, 342 So.2d 380 (Ala.Civ. App.1977). In instances such as this it is incumbent upon the party offering the objection to request of the court a ruling. It is error for the court to then refuse to rule on a proper objection although he may defer the ruling until he has had the opportunity to consider the problem, but in such a case he can wait no longer than the close of the trial. See Gamble, McElroy’s Alabama Evidence (3rd ed. 1977) § 428.01(1); Ballard v. Bank of Roanoke, 187 Ala. 335, 65 So. 356 (1914).

C) Following the previous objection defendant elicited testimony from Mr. Jordan that the letter had been discussed with his son and had in fact been authorized by him. Defendants at that point offered the letter into evidence at which time the plaintiff objected on the ground of “blatant hearsay.” This objection was overruled and the letter admitted. Hearsay is defined as “testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” Cleary, McCormick on Evidence, § 245, p. 584 (2d ed. 1972); see 5 Wigmore, Evidence § 1361 (Chadboume Rev. 1974); Gamble, McElroy’s Alabama Evidence (3d ed. 1977). In this instance we in no way find the probative force of this evidence to depend on the competency and credibility of some person other than Mr. H. C. Jordan. The testimony elicited during the voir dire established without rebuttal that the witness discussed, directed and authorized the letter. He was present, under oath, and available for cross-examination by plaintiff and we find from the record that plaintiff took ample advantage of this opportunity. Therefore having found no merit in this objection nor the other objections to this exhibit we hold the trial court was not in error in overruling those objections.

Next plaintiff contends that the trial court erred in excluding testimony by the plaintiff that he purportedly offered on the issue of whether or not the plaintiff was an employee of the Railroad. He contended on appeal that this evidence tended to show that Jordan, Inc. was under the control of the Railroad. However at trial the contention was not so evident. Immediately preceding the offer the plaintiff testified that following his recovery he returned to Jordan, Inc. to seek reemployment. Mr. H. C. Jordan apparently was prepared to place him back on the payroll when the instant lawsuit came to his attention. At that point in the testimony the following took place:

Q (By Mr. Williams) Did Mr. Jordan say, after his son brought that to his attention—
MR. HARRIS: I object. It is not material or relative to the issue that we are trying here today.
MR. RUTLEDGE: May I state the relevancy of it?
THE COURT: All right.
MR. RUTLEDGE: It is relative because—
MR. HARRIS: Judge, we are going to make a jury argument. May we approach the bench?
THE COURT: All right, come up here. (Discussion at bench.)
MR. RUTLEDGE: It is relevant because Johnston is going to testify that he indicated Mr. Stephens to go back to work January 6, 1975 and we want to show why he had to return to work on that date. It goes to the question—
MR. HARRIS: Any employer has the right to employ or not employ anybody it wants to.
MR. WILLIAMS: Your Honor, he just told the man that he would put the man back to work the following Monday and I want to show why he didn’t put him back to work.
THE COURT: I think it is prejudicial and has nothing to do with the lawsuit and then you are going to try to get damages because he wouldn’t give him the job back.
I think it is highly prejudicial. I will sustain the objection.

We hold the court did not err in sustaining the objection to this testimony. Why Mr. Jordan did not put the man back to work was not shown to be relevant at the time of the ruling, nor with the mixed blessing of hindsight are we convinced that even if relevant the trial court abused its discretion in excluding the evidence as prejudicial. See State Farm Mutual Automobile Insurance Co., Inc. v. Griffin, 51 Ala.App. 426, 286 So.2d 302 (1973). Later in the trial while Mr. H. C. Jordan was being cross-examined by plaintiff the following exchange took place:

Q Now, you say that five to fifteen percent of your work is railroad work, is that right?
A That is correct.
Q I will ask you if it isn’t a fact that you told Mr. Stephens when you received a copy of this lawsuit that fifty percent of your work was railroad work?
A Well, I could not have told him that because we never done twenty-five percent of annual volume in railroad work. So I would not have told him that.
Q Didn’t you, furthermore, refuse to take him back because you were afraid it would offend the railroad and damage your percentage?
MR. STUTTS: Judge, I object to that and I ask that you instruct him not to go into that.
THE COURT: That is not relative to any issue in this case and I instruct the jury not to consider the question and I instruct Mr. Rutledge not to go into it.
MR. RUTLEDGE: It shows bias and prejudice on the witness. They brought the subject up.
THE COURT: I think it is prejudicial and I have ruled that it should not be gone into and I instruct you again not to go into it.
Ladies and gentlemen of the jury, I know that maybe some of this evidence is hard for you to put out of your minds. Now, this is something that I ruled should not go in and I think it is prejudicial and I don’t want it in and I don’t want you to consider it in your deliberations.

Again the court found the evidence irrelevant to the issues involved in the trial. It further stated its conviction that such evidence was prejudicial and we again find no abuse of discretion by the trial court in excluding the evidence. See State Farm Mut. Auto. Ins. Co., Inc., supra, and Gamble, McElroy’s Alabama Evidence, § 21.-01(4)(6) (3d ed. 1977).

Plaintiff last contends that the trial court erred in allowing him only thirty minutes in which to present his argument to the jury, while allowing both the defendant and third-party defendant thirty minutes each to argue what he claims was essentially the same case. Again, the trial record does not reflect a timely objection at trial on this issue and in view of our previous discussion we are unable to reach the issue. See generally on time allowed on closing arguments 75 Am.Jur.2d: Trial, § 212 (1974); Annot., 3 ALR 3d 1341 (1965).

The contentions of plaintiff being without merit on this appeal the judgments below are due to be, and are, hereby affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Ronnie MECHALSKE v. CITY OF TRUSSVILLE.
    6 Div. 623.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.

      Jerry N. Quick, Trussville, for appellant.
    Carl E. Johnson, Birmingham, for appel-lee.
   HARRIS, Presiding Judge.

Appellant was charged by complaint with violation of an ordinance of the City of Trussville, Alabama, which makes it unlawful for any person who is intoxicated by or under the influence of liquor or narcotic drugs to appear or travel upon or be along the public roads and highways of this state. The jury returned a verdict of guilty as charged in the complaint and assessed a fine in the amount of $200.00. Appellant gave notice of appeal and trial counsel represents him on this appeal.

The evidence presented on behalf of the City of Trussville consisted of the testimony of the two arresting officers, John Wilson and Willis Johnson, patrolmen with the Trussville Police Department. The testimony of both officers was substantially the same.

On November 28,1976, while on patrol in the City of Trussville, at 1:03 a. m., the officers noticed a car sitting on a public street and one white male was leaning out the door. It is not disputed that appellant never got out of the car. As the officers pulled up to see what the trouble was and turned the blue light on, the car, which was a private vehicle occupied by two white males, pulled off.

Officer Wilson testified that the occupant who was hanging out the door of the car leaned back in the car and shut the door. The officers followed the vehicle for a distance of around 60 to 70 yards. The car was traveling at approximately 40 miles per hour. The vehicle pulled into the yard of a residence at which time the officers got out of their vehicle as the two men, appellant and a companion, went into the house. They called for the men to stop, telling them that they were police officers and wanted to talk to them, but they kept going.

Officer Wilson testified that appellant was unsteady on his feet. As Wilson passed appellant’s car, he smelled the odor of alcohol. The two men went into the house, slammed the door, and the lock turned automatically. Officer Wilson testified that he knocked on the door around six or eight times. Officer Johnson proceeded to the back of the house. After being refused admittance, Officer Wilson kicked the door open, and both officers entered the house. They found appellant and his companion upstairs in the bedroom in the process of getting ready for bed. Appellant was leaning back on the bed and was intoxicated. Both men were placed under arrest. There was testimony that appellant used vile, profane and obscene language against the officers. Both officers were in uniform and they testified that appellant and his companion were told why they were being arrested.

While the officers were in the house appellant went to the telephone, called the Trussville Police Department, requested that a police car be sent to the scene, then hung up the phone and pulled the cord out of the wall.

Officer Johnson testified that, at the time the officers pulled up to the car on the public street, he was not able to determine whether appellant was drunk.

At the conclusion of the City’s case, appellant moved that the charges be dropped for lack of evidence. The motion was denied.

Patrick Garrison, dispatcher for the Trussville Police Department, testified that he was on duty when appellant and his companion were brought in and that he witnessed the sobriety test on appellant’s companion, Bert Yackee, who was arrested for reckless driving. A test was not administered to appellant. The witness was asked whether appellant was intoxicated at that time, but was not allowed by the court to respond.

Kate Mize, appellant’s grandmother, testified that on the night of November 28, 1976, she was at home. She heard appellant and Yackee come in and go upstairs. A few moments later the police broke the door in and entered the house. She testified that they did not knock first. Mrs. Mize testified that when she asked the police officers what they wanted, they said, “Where is them damn boys?” They called upstairs for the boys to come down and, when they didn’t answer, the police went upstairs and got them. She testified that her grandson did not use profane or abusive language.

On cross-examination Mrs. Mize testified that appellant and Yackee did not have anything to drink after arriving at home. She testified that she later noticed that the telephone had been jerked out of the wall but did not know if this was done by appellant.

Bert Yackee testified that he and appellant had been to a party on the night of November 28, and had stopped to get something to eat around midnight on the way home. Appellant felt sick at his stomach and they stopped beside the road to relieve his nausea. At this point the police officers drove up. Yackee testified that appellant felt better and they started to go on. They drove to the appellant’s house and went in.

Yackee testified that he was arrested for reckless driving and that when the police pulled up beside them on the public street, the blue light was not on. Yackee testified that he and appellant were getting into bed when the police came upstairs. He testified that Officer Wilson jerked appellant by the arm and a struggle ensued. On cross-examination Yackee testified that he only recalled having two beers that night and that he had registered .05 on the sobriety test.

Appellant, Ronnie Mechalske, testified in his own behalf. His testimony was substantially the same as that of Bert Yackee. He also testified that he had maybe two beers that night.

Appellant testified that, when he got sick on the way to his house, the car was stopped and he opened the door and threw up. Appellant also testified that neither he nor the officers ever used any abusive or profane language. He testified that when he asked what he was being arrested for, Officer Wilson told him failure to yield to a blue light. He testified that he was mad, but that to his knowledge he did not jerk the telephone out of the wall.

Appellant filed a timely motion for new trial, setting forth the ground, among others, that the evidence was insufficient to support the verdict and judgment, and that the trial court erred in overruling appellant’s timely motion to exclude the City’s evidence at the conclusion of the City’s case.

Ordinance Number 7, as amended by Ordinance Number 171 of the City of Truss-ville, provides in substance as follows:

“All acts or omissions which are misdemeanors under the laws of the State of Alabama are hereby declared to be offenses against the ordinances and laws of the City of Trussville, and any person, firm or corporation committing any such misdemeanor within the corporate limits of the City of Trussville, or within the police jurisdiction thereof, must on conviction be punished by a fine not exceeding $200.00 or by imprisonment in the City jail or at hard labor upon the streets or public works for not exceeding six months or by both such fine and imprisonment.”

Appellant was charged with violation of this ordinance and Ala.Code, tit. 14, § 120(1) [now Code of Alabama 1975, § 13-6-15] which provides in pertinent part as follows:

“It shall be unlawful for any person who is intoxicated by or under the influence of liquor or narcotic drugs to appear, or travel upon, or be along the public roads and highways of this state. Any person violating this section shall be guilty of a misdemeanor. . . . provided, this section shall not apply to persons traveling along a public highway as passengers in any public or private conveyances.” (Emphasis supplied)

At no time during the trial of this case was any evidence presented by the City of Trussville that appellant was ever out of the car in which he was traveling while on the public highway. The only occasion which officers had to observe appellant outside of the car was at appellant’s private residence after they had followed him home. When Officer Wilson observed him to be “unsteady on his feet”, smelled liquor, and when appellant allegedly used profane language, he was not on a “public street” but at his home.

The testimony of both officers as well as that of appellant and Bert Yackee tended to show that appellant merely leaned out of the car while sitting on the public street. There was absolutely no evidence that he got out of the car until he reached his home. The testimony was also uncontro-verted that Bert Yackee was driving the car and appellant was a passenger. The statute under which appellant was charged specifically excepts from its operation persons traveling along a public highway as passengers in any public or private conveyances.

It cannot be gainsaid that appellant was convicted under a penal law or ordinance. It is axiomatic that a penal statute must be strictly construed and cannot be extended to cases not included within the clear and obvious import of its language. No person is to be made subject to penal statutes by implication, and all doubts concerning their interpretation are to predominate in favor of the accused. Locklear v. State, 50 Ala.App. 679, 282 So.2d 116; Fuller v. State, 257 Ala. 502, 60 So.2d 202(5).

The City of Trussville failed to present any evidence to show that appellant committed any act in violation of the statute under which he was charged. The judgment of conviction must therefore be reversed and rendered.

Reversed and Rendered.

All the Judges concur.


author: ALDERMAN, Justice.

text:
    FLORIDA REAL ESTATE COMMISSION and Casimir Szpak, Petitioners, v. Joan Jones WEBB and Coronet Realty Corporation, Respondents.
    No. 52960.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Rehearing Denied Feb. 28, 1979.
    Howard Hadley and Frederick H. Wilsen, Orlando, for petitioners.
    H. Robert Koltnow, Miami, for respondents.
   ALDERMAN, Justice.

The question before us is whether appellate courts have authority to review the penalties imposed by state agencies in administrative proceedings when they are within the allowable statutory range. Deciding it had such authority, the District Court of Appeal, Third District, in the case now before us on petition for writ of certio-rari, reduced the penalty imposed by the Florida Real Estate Commission from a license suspension of sixty days to a written reprimand. Webb et al. v. Florida Real Estate Commission et al., 351 So.2d 71 (Fla. 3d DCA 1977). This decision conflicts with Carlton v. Florida Real Estate Commission, 354 So.2d 77 (Fla. 1st DCA 1978), wherein the District Court of Appeal, First District, refused to reduce an agency-imposed penalty on the basis that to have done so would have constituted a substitution of judgment by the District Court for that of the agency. In Carlton, the First District determined that Section 120.68(12), Florida Statutes (Supp.1976), prohibits judicial review of the penalty imposed by an agency unless abuse of discretion clearly appears from the record.

We hold that so long as the penalty imposed is within the permissible range of statutory law, the appellate court has no authority to review the penalty unless agency findings are in part reversed. We quash the decision of the District Court of Appeal, Third District, and since our holding is more restrictive than that of the First District in Carlton, to the extent that Carlton is inconsistent, that decision is disapproved.

In the present case, the Florida Real Estate Commission filed a five-count complaint against Joan Webb and Coronet Realty Company, registered real estate brokers. After administrative hearing, the hearing officer recommended that Webb and Coronet be found guilty on three counts of failure to place and maintain earnest money deposits in a proper trust bank account and one count of improper advertising. Considering that Webb and Coronet’s derelictions did not involve fraud or dishonesty, the hearing officer stated that he did not believe license suspension was warranted and recommended the penalty of a written reprimand which would include an order to cease and desist from the prior practice involving the handling of escrow funds. The Florida Real Estate Commission adopted the findings of fact and conclusions of law of the hearing officer but stiffened the penalty recommended and suspended Webb and Coronet for a period of sixty days.

The District Court of Appeal, Third District, held that under the circumstances of this case, where only a minor violation of the rules of the Commission is evident, the penalty imposed was unduly harsh. That court quashed the portion of the order imposing the penalty of suspension, remanded to the Commission, and directed the Commission to amend its order as to the penalty and to enter a written reprimand.

The Florida Real Estate Commission and its authorized representative have filed a petition for review of the District Court’s decision. They maintain that the setting of the penalty in disciplinary proceedings involving real estate brokers is a matter of discretion solely within the delegated discretion of the Commission and argue that the District Court substituted its judgment for that of the Commission in reducing the penalty imposed contrary to Section 120.-68(12), Florida Statutes (1975), which provides:

“(12) The court shall remand the case to the agency if it finds the agency’s exercise of discretion to be:
(a) Outside the range of discretion delegated to the agency by law;
(b) Inconsistent with an agency rule, an officially stated agency policy, or a prior agency practice, if deviation therefrom is not explained by the agency; or
(c) Otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion.”

They contend that the District Court’s reliance on several decisions decided before the new Administrative Procedure Act was error because the language of the Administrative Procedure Act in existence when those cases were decided was substantially different and gave broader authority to the appellate courts than the now prevailing law.

Webb and Coronet respond that none of the new provisions of the Administrative Procedure Act has negated the power of the appellate court to review and modify penalties imposed by administrative agencies and explain that Carlton v. Florida Real Estate Commission, supra, merely held that appellate courts will not reduce a penalty imposed by an administrative agency unless there has been an abuse of discretion clearly appearing from the record. They contend that the record in the present case clearly shows that the Commission abused its discretion in imposing the sixty-day suspension in view of the circumstances of this case and that the District Court correctly decided that imposition of the sixty-day suspension was unduly harsh and that such penalty should be reduced.

We agree with the Commission that the District Court has substituted its judgment for that of the Commission in reducing the penalty in direct contravention of the mandate of Section 120.68(12) that “the court shall not substitute its judgment for that of the agency on an issue of discretion.” The Commission possessed the statutory authority to suspend a license for a period not to exceed two years for a single violation. Section 475.25(1), Florida Statutes (1975). By suspending the licenses of Webb and Coronet for a period of sixty days for four violations, the Commission was properly acting within its range of discretion.

Furthermore, we find that the decisions cited by the District Court which predated the new Administrative Procedure Act insofar as they deal with the scope of review by appellate courts of administrative agencies are not applicable to the present case.

The District Court also refers to Robert’s Drugstore, Inc. v. Florida Board of Pharmacy, 346 So.2d 118 (Fla. 3d DCA 1977), which was decided under the present Administrative Procedure Act. In Robert’s the District Court held that the evidence did not support the finding of the Florida Board of Pharmacy that the licensee drugstore was guilty of the serious offense of permitting its prescription department to remain unlocked without a licensed pharmacist on duty but rather only supported the finding of the relatively minor offense of closing the prescription counter without displaying a prominent sign that the department was closed. Having determined that the evidence supported only a finding of guilty of the minor offense, the District Court reversed the $1,000 fine as excessive and reduced it to $100. Although Robert’s is distinguishable from the present case because, therein, the District Court reversed findings of the Commission, the District Court exceeded its authority when it reduced the penalty. It should have remanded the cause to the Commission to reconsider the penalty in light of the reversal of the Commission’s findings. To the extent that Robert’s is inconsistent with our present decision, it is disapproved.

The scope of judicial review of the penalty under Section 120.68(12) is much more restrictive than the scope of review under its predecessor statute, Section 120.31(2), which “gave the district courts the power to review such action and to enter such orders with reference thereto as it determined appropriate on the record before it.” Florida Real Estate Commission v. Rogers, 176 So.2d 65, 67 (Fla.1965). Section 120.68 provides much more detailed and precise guidelines than its predecessor as to the scope of judicial review of agency action. This change allows for more consistent and predictable results. If the court finds that the agency acted outside its scope of discretion delegated to it by law, in other words abused its discretion, Section 120.68(12) requires that the reviewing court remand the case to the agency. So long as the agency imposes a penalty prescribed by law, it has acted within the range of its discretion and the penalty may not be overturned by the reviewing court except in situations where an agency’s findings were in part reversed. This conclusion is buttressed by Section 120.68(14), Florida Statutes (1975), which provides:

“Unless the court finds a ground for setting aside, modifying, remanding, or ordering agency action or ancillary relief under a specified provision of this section, it shall affirm the agency’s action.” (Emphasis supplied.)

In those situations where the penalty may be overturned, the appellate court may not exercise its judgment as to the proper penalty to be imposed but must remand the cause for further consideration by the agency-

Furthermore, we find no merit to Webb and Coronet’s additional argument that Section 120.57(lXb)9, Florida Statutes (1975), requires the Commission to explain its rationale for increasing the penalty recommended by the hearing officer. This statute provides:

“The agency may adopt the recommended order as the agency’s final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record. In the event a court, in reversing an agency’s order, finds that such agency action was done in bad faith or maliciously, the court may award attorney’s fees and costs to the aggrieved prevailing party.”

Section 120.57(l)(b) requires the agency to explain its rejections or modifications of the hearing officer’s findings of fact contained in the recommended order. Here, however, the Commission adopted the findings of fact set forth in the recommended order of the hearing officer, but after a review of the entire record, rejected the recommended penalty of written reprimand and imposed a sixty-day suspension. Section 120.57(l)(b)9 requires that the agency review the entire record before increasing the recommended penalty but does not require the agency to explain its rationale for increasing the penalty.

Accordingly, having determined that the District Court erred in reducing the penalty, we quash the decision of the District Court and remand for further proceedings consistent herewith.

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

ADKINS and BOYD, JJ., dissent.

      . Ch. 74-310, Sec. 1, Laws of Florida, effective January 1, 1975. This subsection to Section 120.68 was not changed by Ch. 76-131, Laws of Florida, and is therefore the same as Section 120.68(12), Florida Statutes (Supp.1976), referred to by the First District in Carlton v. Florida Real Estate Commission, supra.

      . Pauline v. Borer, 274 So.2d 1 (Fla.1973); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Peck v. Florida Real Estate Commission, 204 So.2d 355 (Fla. 2d DCA 1967) and Rogers v. King, 161 So.2d 258 (Fla. 1st DCA 1964), cert. discharged, 176 So.2d 65 (Fla.1965).

      . Section 120.31(2), provided:
      “(2) In cases where certiorari is granted pursuant to this section, the court may issue its mandate, or order, with directions to the agency to enter such order in the proceedings as is appropriate on the record, or the court may remand the cause for such further proceedings, including the taking of testimony, as may to the court seem necessary or proper:
      (a) To accord the parties due process of law;
      (b) To establish a sufficient record, for review;
      (c) To accord the parties their constitutional, statutory or procedural rights; and
      (d)To accomplish the purposes and objectives of the law pursuant to which the administrative proceeding was initiated.”

      .The legislature’s intent to define and restrict the scope of judicial review is evidenced by the Reporter’s Comments on the Proposed Administrative Procedure Act for the State of Florida developed by the Florida Law Revision Council. As to the scope of judicial review, the reporter comments:
      “This more detailed analysis of how courts should review agency action is designed to provide more precise guidelines in Florida than ambiguous provisions such as RMA 15(g). Present Florida law provides no statutory guidance for judicial review, other than the limited grounds for invalidating a rule which are contained in section 120.30(2). This is one of the key provisions which distinguishes the proposed act from existing practice.”


text:
    Elbert L. FISHER, M.D., Petitioner, v. Oswaldo HERRERA et al., Respondents. DOCTOR’S HOSPITAL, Petitioner, v. Oswaldo HERRERA et al., Respondents.
    Nos. 53646, 53669.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Rehearing Denied Feb. 28, 1979.

      Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for Fisher.
    John W. Thornton and Edward N. Winitz of Thornton, Conroy & Herndon, Miami, for Doctor’s Hospital.
    Edward A. Perse of Horton, Perse & Ginsberg, and Stanley M. Rosenblatt, Miami, for respondents.
    John E. Mathews, Jr., Marion R. Shepard and Jack W. Shaw, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for Florida Medical Association, Inc.; David A. Barrett and Armando Garcia of Barrett, Boyd & Bajoczky, Tallahassee, for Florida Medical Malpractice Joint Underwriting Association and The Florida Patient’s Compensation Fund; Francis W. Sams, Miami, for Dade County Bar Association; Sheldon J. Schlesinger and Jack H. Vital, III, of Simons & Schlesinger; and Frank C. Walker of Stuart, Walker & Jenne, Fort Lauderdale, for Bro-ward County Trial Lawyers Association; J. B. Spence of Spence, Payne & Masington; and Walter H. Beckham, Jr. and Joel D. Eaton of Podhurst, Orseck & Parks, Miami, for The Academy of Florida Trial Lawyers, amici curiae.
   ALDERMAN, Justice.

We have accepted jurisdiction to review the decision of the District Court of Appeal, Third District, in Herrera et al. v. Doctor’s Hospital et al., 360 So.2d 1092 (Fla. 3d DCA 1978). The District Court has certified for our consideration the question of whether a medical malpractice complaint may be dismissed, with prejudice, by a trial judge when the plaintiff has filed a claim pursuant to Section 768.44, Florida Statutes (1977), formerly Section 768.133, Florida Statutes (1975), then failed to submit evidence in support of the claim before the mediation panel, but has accepted the statutory conclusion of the panel as to liability. The District Court answered this question in the negative and held that, as long as the only aspect of the mediation proceedings admissible into evidence at a subsequent trial is the statutorily limited conclusion of the mediation panel, a plaintiff who has submitted his claim to the discretion of the mediation panel is not subject to having his action dismissed for failure to meet the jurisdictional requirements of Section 768.-44, Florida Statutes. We agree with the District Court’s conclusion and rationale expressed in the comprehensive and well-written opinion of the late Judge Nathan.

In December, 1975, the parents and guardians of Aleida Herrera, a minor, filed a request for medical mediation, alleging that the negligence of Doctor’s Hospital and Dr. Elbert Fisher, at the time their child was born in September, 1967, resulted in the child’s permanent injury. The plaintiffs chose not to offer any evidence before the mediation panel when it met to consider the case. The panel thereupon found for the defendants but expressly included in its decision the following language: “ . because the claimants chose not to present any evidence.”

Thereafter, the plaintiffs sued Fisher and Doctor’s Hospital for malpractice. The defendants moved to dismiss, alleging that the Circuit Court lacked jurisdiction because, in not offering any evidence at the mediation proceedings, the plaintiffs had failed to comply with Section 768.44. The trial court dismissed the complaint with prejudice, finding that the plaintiffs were required to present evidence before the mediation panel in order to comply with Section 768.44 and that this was a jurisdictional prerequisite to the bringing of a medical malpractice suit in the courts of this state.

The District Court reversed the trial court and held that Section 768.44 does not require a plaintiff to present evidence in support of his claim at the mediation hearing as a condition precedent to his right to sue since only precatory language is used in the statute when dealing with presentation of evidence before a panel.

The relevant portion of Section 768.44 provides:

(l)(a) Any person or his representative claiming damages by reason of injury, death, or monetary loss on account of alleged malpractice . . . shall sub-
mit such claim to an appropriate medical liability mediation panel before that claim may be filed in any court of this state.
(6) The claim shall be submitted to the hearing panel under such procedural rules as may be established by the Supreme Court; however, strict adherence to the rules of procedure and evidence applicable in civil cases shall not be required. Witnesses may be called; all testimony shall be under oath; testimony may be taken either orally before the panel or by deposition; copies of records, x-rays, and other documents may be produced and considered by the panel; and the right to subpoena witnesses and evidence shall obtain as in all other proceedings in the circuit court. The right of cross-examination shall obtain as to all witnesses who testify in person. Both parties shall be entitled, individually and through counsel, to make opening and closing statements. No transcript or record of the proceedings shall be required, but any party may have the proceedings transcribed or recorded. The judge presiding at the hearing shall not preside at any trial arising out of the claim or hear any application in the case not connected with the hearing itself. No other hearing panel member shall participate in a trial arising out of the claim, either as counsel or witness.
(7) Within 30 days after the completion of any hearing, the hearing panel shall file a written decision with the clerk of the court who shall thereupon mail copies to all parties concerned and their counsel. The panel shall decide the issue of liability and shall state its conclusion in substantially the following language:
(a) “We find the defendant was action-ably negligent in his care or treatment of the patient and we, therefore, find for the plaintiff”; or
(b) “We find the defendant was not actionably negligent in his care or treatment of the patient and we, therefore, find for the defendant.”
The decision shall be signed by all members of the hearing panel; however, any member of the panel may file a written concurring or dissenting opinion. (Emphasis supplied.)

We agree with the District Court’s conclusion that the language used by the Legislature is indicative of its intent not to make introduction of evidence before a mediation panel a mandatory prerequisite to filing a malpractice action in the Circuit Court, and since it is not within the province of the Court to add or detract from the plain language of the statute, we hold that submission of one’s claim to a mediation panel pursuant to Section 768.44 does not require the presentation of evidence. As the District Court explained:

The crux of the problem before us lies in a determination of what constitutes “submission of a claim” for purposes of the Medical Malpractice Act. The word “claim” in the crucial phrase presents no significant problems of definition. Both under the statute itself and under the rules governing mediation procedures, a claim is essentially a statement of facts describing the alleged acts of malpractice; that is, a pleading comparable to a complaint under the Florida Rules of Civil Procedure.
The word “submit” is not subject to similar dispatch in definition. A leading legal dictionary defines “submit” as
“To commit to the discretion of another.” (citations omitted). ... to present for determination. . . .”
Black’s Law Dictionary, Revised Edition, 1968, at 1594. Appellees would have us equate mandatory submission of a claim with mandatory submission of evidence, an equation not apparent in the language chosen by the legislature.

The District Court also found that the mediation panel transgressed the limitations of Section 768.44(7) by including in its decision the language, “. . . because the claimants chose not to present any evidence.” The plaintiffs argue that the District Court’s decision to strike this clause was error. We disagree and find that the District Court correctly limited the conclusion which the panel may reach to a single finding of either actionable negligence or no actionable negligence.

Accordingly, the certified question is answered in the negative. The decision of the District Court of Appeal, Third District, is approved, and the writ is discharged.

It is so ordered.

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

ENGLAND, C. J., concurs in result only.


author: ADKINS, Justice.

text:
    Roy M. SPEER et al., Appellants, v. Mike OLSON et al., Appellees.
    Nos. 54034, 54151 and 54152.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Rehearing Denied Feb. 16, 1979.

      David A. Maney of Gordon & Maney, Tampa, and Leonard W. Cooperman, St. Petersburg, for appellants.
    Gerald A. Figurski, Pasco County Atty., Port Richey, and Judson Freeman, Jr. of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appel-lees.
   ADKINS, Justice.

This is an appeal from a Final Judgment of the Circuit Court of Pasco County validating general obligation bonds issued by a Pasco County Municipal Service Taxing Unit for acquisition of sewer and water systems. We have jurisdiction. Article V, Section 3(b)(2), Florida Constitution.

The Board of County Commissioners of Pasco County enacted an ordinance creating a Municipal Service Taxing Unit to be known as West Pasco Water and Sewer Unit (hereinafter referred to as the “Unit”). The Unit was composed of the entire unincorporated area of the county. The commissioners called a special election by the residents of the Unit for the purpose of securing their approval for the issuance of $41.5 million general obligation bonds by the Unit. The proposed bond issue passed by a majority of 79 percent.

The appellants (taxpayers) initiated suit in circuit court to contest the legality of the election and its results. Immediately thereafter, Pasco County filed a complaint seeking validation of the bonds. The appellants intervened in the latter suit and sought dismissal contending, as in their earlier action, that the commissioners’ use of their emergency powers to establish the Unit was invalid and that the issuance of general obligation bonds for the expansion of sewer and water systems was improper. The actions were consolidated.

The circuit court held the election was valid and validated the bonds. The appellants (taxpayers) have appealed to this Court.

The first question is whether Chapter 125, Florida Statutes, could be utilized by the county to authorize general obligation bonds for the acquisition of sewer and water systems. The pertinent portions of Chapter 125 read as follows:

125.01 Powers and duties.—
(1) The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power shall include, but shall not be restricted to, the power to:
******
(k) Provide and regulate waste and sewage collection and disposal, water supply, and conservation programs.
******
(q) Establish, and subsequently merge or abolish those created hereunder, municipal service taxing or benefit units for any part or all of the unincorporated area of the county, within which may be provided fire protection, law enforcement, beach erosion control, recreation service and facilities, water, streets, sidewalks, street lighting, garbage and trash collection and disposal, waste and sewage collection and disposal, drainage, transportation, and other essential facilities and municipal services from funds derived from service charges, special assessments, or taxes within such unit only. It is hereby declared to be the intent of the Legislature that this paragraph is the authorization for all counties to levy additional taxes, within the limits fixed for municipal purposes, within such municipal service taxing units under the authority of the second sentence of Article VII, Section 9(b) of the State Constitution.
******
(r) Levy and collect taxes, both for county purposes and for the providing of municipal services within any municipal service taxing unit, and special assessments, borrow and expend money, and issue bonds, revenue certificates, and other obligations of indebtedness, which power shall be exercised in such manner, and subject to such limitations, as may be provided by general law. There shall be no referendum required for the levy by a county of ad valorem taxes, both for county purposes and for the providing of municipal services within any municipal service taxing unit.
125.011 Definitions. — As used in ss. 125.-011-125.021.
(1) “County” means any county operating under a home rule charter adopted pursuant to ss. 10,11 and 24 of Art. VIII of the Constitution of 1885, as preserved by Art. VIII, s. 6(e) of the Constitution of 1968, which county, by resolution of its board of county commissioners, elects to exercise the powers herein conferred. Use of the word “county” within the above provisions shall include “board of county commissioners” of such county.
(2) “Project” includes any one or any combination of two or more of the following: Harbor, port, shipping, and airport facilities of all kinds and includes, but is not limited to, harbors, channels, turning basins, anchorage areas, jetties, breakwaters, waterways, canals, locks, tidal basins, wharves, docks, piers, slips, bulkheads, public landings, warehouses, terminals, refrigerating and cold storage plants, railroads and motor terminals for passengers and freight, rolling stock, car ferries, boats, conveyors and appliances of all kinds for the handling, storage, inspection and transportation of freight and the handling of passenger traffic, airport facilities of all kinds for land and sea planes, including, but not limited to, landing fields, water areas for the landing and taking off of aircraft, hangars, shops, buses, trucks, and all other facilities for the landing, taking off, operating, servicing, repairing, and parking of aircraft, and the loading and unloading and handling of passengers, mail, express and freight; administration buildings, toll highways, tunnels, causeways and bridges connected therewith or incident or auxiliary thereto, and may include all property, rights, easements, and franchises relating to any such project and deemed necessary or convenient for the acquisition, construction, purchase, or operation thereof.
125.012 Project facilities; general powers and duties. — Any county and the board of county commissioners thereof shall have the power, in addition to the powers otherwise conferred:
(1) To construct, acquire, establish, improve, extend, enlarge, reconstruct, equip, maintain, repair, and operate any project as defined in s. 125.011, either within or without the territorial boundaries of the county.
125.66 Ordinances; enactment procedure; emergency ordinances; rezoning ordinances or resolutions.—
(1) In exercising the ordinance-making powers conferred by s. 1, Art. VIII of the State Constitution, counties shall adhere to the procedures prescribed herein.
(2) The regular enactment procedure shall be as follows: The board of county commissioners at any regular or special meeting may enact or amend any ordinance, except as provided in subsection (5), if notice of intent to consider such ordinance is given at least 15 days prior to said meeting, excluding Sundays and legal holidays. Such notice shall be made by the clerk of the board of county commissioners and shall be kept in a separate book which shall be open to public inspection during the regular business hours of his office. Certified copies of ordinances or amendments thereto enacted under this regular enactment procedure shall be filed with the Department of State by the clerk of the board of county commissioners within 10 days after enactment by said board and shall take effect upon receipt of official acknowledgment from that office that said ordinance has been filed. However, any ordinance may prescribe a later effective date.
(3) The emergency enactment procedure shall be as follows: The board of county commissioners at any regular or special meeting may enact or amend any ordinance, except an ordinance or resolution which rezones private real property or an ordinance or resolution which enacts or amends land use plans, with a waiver of notice requirements by a four-fifths vote of the membership of such commission, declaring that an emergency exists and that the immediate enactment of said ordinance is necessary. Certified copies of ordinances or amendments thereto enacted under this emergency enactment procedure shall be filed with the Department of State by the clerk of the board of county commissioners as soon after enactment by said board as is practicable. An emergency ordinance enacted by the postal authorities of the Government of the United States for special delivery by registered mail to the Department of State.
(4)Notice as herein set forth shall mean, in addition to the provisions herein contained, publication of the title of the ordinance or amendment to be considered in a newspaper of general circulation within the county. Said notice shall state the substance of the contemplated ordinance, the same as required by s. 10, Art. Ill of the State Constitution.

Proceedings to validate governmental securities determines only issues going directly to the power to issue the securities and the validity of the proceedings with relation thereto. A petition for validation of governmental securities brings into question the right and authority of the taxing unit to issue the bonds, together with all proceedings taken in connection with their issue. The purpose of a judgment validating and confirming bonds is to put in repose any question of law or fact that may be subsequently raised affecting the validity of the bonds. Collateral matters are not adjudicated in bond validation proceedings. See State v. City of Miami, 103 So.2d 185 (Fla.1958), and authorities cited therein.

Chapter 125, Florida Statutes, implements the provisions of Art. VIII, Section 1(f), Florida Constitution (1968), which gives counties not operating under county charters, such as Pasco County, such powers of self-government as are provided by general or special law. This provision of the Florida Constitution also authorizes the board of county commissioners of such a county to enact ordinances in the manner prescribed by Chapter 125, Florida Statutes, which are not inconsistent with general law.

The intent of the Legislature in enacting the recent amendments to Chapter 125, Florida Statutes, was to enlarge the powers of counties through home rule to govern themselves.

The first sentence of Section 125.-01(1), Florida Statutes, (1975), grants to the governing body of a county the full power to carry on county government. Unless the Legislature has pre-empted a particular subject relating to county government by either general or special law, the county governing body, by reason of this sentence, has full authority to act through the exercise of home rule power. There is no statute, general or special, which either specifically authorizes or restricts Pasco County with respect to the issuance of general obligation bonds to acquire sewage and water systems and to pledge for their payment the net revenues to be derived from the operation of such facilities and ad valorem taxes levied within the area of the Unit. The first sentence of Section 125.01(1), Florida Statutes (1975), therefore, empowers the county board to proceed under its home rule power to accomplish this purpose. This was done by the enactment of the ordinance and the adoption of the bond resolution after the bond election.

The precise approach used in authorizing the proposed bonds by Pasco County was previously employed in the case of State v. Orange County, 281 So.2d 310 (Fla.1973). In that case Orange County, a noncharter county, enacted a home rule ordinance authorizing it to acquire and construct county capital projects and to issue revenue obligations to finance the cost thereof, payable from race track funds and jai alai fronton funds. This Court found that there was no prohibition to be found in the Florida Constitution or general or special law, but, on the contrary, that there was delegated authority for implementing by ordinance the issuance of the proposed bonds. This Court noted that the intent of the Legislature in enacting Chapter 125 was to obviate the necessity of going to the Legislature to get a special act passed authorizing bonds of the type proposed:

“Instead of going to the Legislature to get a special bill passed authorizing such building fund revenue bonds, the Orange County Commissioners under the authority of the 1968 Constitution and enabling statutes now may pass an ordinance for such purpose, as they did in this case, because there is nothing inconsistent thereto in general or special law. On the contrary, there is ample delegated authority for such purpose. The object of Article VIII of the 1968 Constitution was to do away with the local bill evil to this extent.”

As a result of this decision, a great many county capital projects have been financed throughout the state by using the device of a home rule ordinance.

Furthermore, in the case of Tucker v. Underdown, 356 So.2d 251 (Fla.1978), the Board of County Commissioners of Brevard County, Florida, established six municipal service taxing units pursuant to Section 125.01(l)(q), Florida Statutes (1975), and county home rule ordinances, in the unincorporated area of the county. Appellants in that case questioned the constitutionality of Sections 125.011(l)(q) and 125.01(l)(r), Florida Statutes (1975), and contended that the levy of ad valorem taxes for the purposes of raising tax revenues to be devoted to solid waste disposal, and its interrelated but optional reduction of user charges imposed to meet debt service and operating costs under the prior bond issue, constituted an impermissible financing scheme to meet solid waste disposal needs. This Court disagreed with the contentions of the appellants and held that the previous sections of Chapter 125 were constitutional and that such a financing scheme was entirely appropriate, thereby affirming the final judgment of the lower court.

Appellants also contend that there is no provision in Chapter 125, Florida Statutes (1975), authorizing the Board of County Commissioners to submit the question of the issuance of the proposed general obligation bonds to the electorate, therefore, the holding of the election was unauthorized and invalid. Article VII, Section 12(a), Florida Constitution (1968), however, requires any indebtedness of a local government body with taxing powers which is payable from ad valorem taxation, matures more than twelve months after issuance and is to be issued to finance capital projects authorized by law, to be approved by the vote of the qualified electors of that body. This provision reads as follows:

“Section 12. Local bonds. Counties, school districts, municipalities, special districts and local government bodies with taxing powers may issue bonds, certificates of indebtedness or any form of tax anticipation certificates, payable from ad valorem taxation and maturing more than twelve months after issuance only: “(a) to finance or refinance capital projects authorized by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation; . . . ”

This provision of the Florida Constitution is implemented by Section 5 of the ordinance which requires that the issuance of bonds for which the full faith and credit of the Unit shall have been pledged as additional security, shall be approved at an election of the qualified electors residing in the Unit, such election to be called, noticed and conducted in the manner provided in the Florida Constitution and statutes for elections. Since the bonds proposed to be issued by the county pledge both net revenues to be derived from the operation of the combined water and sewer system and ad valorem taxes to be levied and collected in the area of the Unit, it was necessary to hold a bond election as part of the authorization for their issuance.

The provisions of Chapter 153, Florida Statutes (1975), have not been sought by Pasco County as authority for the issuance of the proposed bonds. Use of this statute is not mandatory, but is only an additional grant of authority or power to do the things expressed therein. Section 153.20, Florida Statutes (1975), provides insight into the intent of the Legislature in enacting Chapter 153:

“153.20 Alternative method.—
“(1) This chapter shall be deemed to provide an additional and alternative method for the doing of the things authorized hereby and shall be regarded as supplemental and additional to the powers conferred upon the commission by other laws, and shall not be regarded as in derogation of any powers now existing. This chapter being necessary for the welfare of the inhabitants of the several counties of the state shall be liberally construed to effect the purposes thereof. “(2) This chapter shall not repeal any local or specific act or law conferring upon any of the several counties or county commissions the powers and duties or any of them imposed hereby, but it shall be deemed to be an alternative or additional method for such counties or county commissions to effect the purposes of this chapter.”

This language, or language similar to it in other general laws, has been construed by this Court on many occasions and always for the purpose for which the Legislature intended it; not as a limitation or prohibition of a power but as an added grant of authority or power to do a particular thing or perform a particular act the power or authority for which was not contained in, or in fact was in conflict with the authority of, any other law, and then only when the public entity was invoking such additional and supplemental power and availing itself of its use.

In the case of State v. City of West Panama City Beach, 127 So.2d 665 (Fla.1961), the City of West Panama City Beach authorized the issuance of its water revenue bonds pursuant to Chapter 180, Florida Statutes, payable from cigarette taxes and utilities services taxes. Chapter 180, however, did not specifically authorize the pledging of this security for the bonds; therefore, the city sought to rely upon a provision in Chapter 180 similar to that previously quoted in order to secure the benefits and powers granted in other general law. The provision relied upon read as follows:

“The authority and powers granted by this chapter to municipalities shall be in addition to but not in limitation of any of the powers heretofore or hereafter granted to municipalities now existing or hereafter created.”

The Court held that the provision was cumulative and not in derogation of any other powers enjoyed by the city, and it is clear that the city actively sought the protection and comfort of the provision and did not feel it was limited to the provisions of Chapter 180 in accomplishing its purpose. See also, City of North Miami Beach v. Knap, 131 So.2d 747 (Fla. 3d DCA 1961); State v. City of Fort Pierce, 88 So.2d 135 (Fla.1956); State v. City of North Miami, 89 So.2d 8 (Fla.1956).

So, therefore, this Court has not only stated that an act, when it recites that it is an additional and supplemental grant of power, may be used in addition to other laws on the same subject, but may be rejected by a public entity and another applicable law used in its place. So it is in this case. Pasco County has elected to proceed solely under the provisions of Chapter 125, Florida Statutes (1975), as amended, and has rejected the use of any other statute. In so doing it has acted properly and within the scope of its authority as set forth by decisions of this Court.

The trial court was correct in holding that the action of the Appellee Board of County Commissioners in declaring an emergency and using the emergency enactment procedure contained in Section 125.-66(3), Florida Statutes (Supp.1976), for the enactment of the ordinance, should not be disturbed. The law in Florida with respect to declaration of an emergency first appeared in the case of State ex rel. Swift v. Dillon, 75 Fla. 785, 79 So. 29 (1918). In that case a Miami licensing ordinance was attacked on the ground that the emergency measure was not such as was authorized by the city charter and that the ordinance was, therefore, invalid. The court held that the ordinance was presumptively valid and that the question of whether or not such emergency exists as to warrant its being made immediately effective rests in the judgment and discretion of the city council. Dillon was cited with approval in Metropolis Pub. Co. v. City of Miami, 100 Fla. 784, 129 So. 913 (1930), in which a Miami zoning ordinance enacted under the charter emergency provisions was upheld. Both Dillon and Metropolis Pub. Co. were cited by the Court in State ex rel. Skillman v. City of Miami, 101 Fla. 585, 134 So. 541 (1931), which restated and reaffirmed the general law of Florida pertaining to emergency ordinances. See also, Fuller v. Gardner, 138 Fla. 837, 190 So. 442 (1939); McCall v. State ex rel. Daniels, 156 Fla. 437, 23 So.2d 492 (1945).

Although conflicting, there is evidence that prior to November 1, 1977, the date of enactment of the ordinance, there existed a very serious condition in regard to the water service being provided the citizens of west Pasco County. In response to the emergency which it perceived to exist, the Board of County Commissioners duly enacted the ordinance on November 1,1977, pursuant to the emergency procedure contained in Section 125.66(3), Florida Statutes (Supp.1976). The factual dispute as to the existence of the emergency was resolved by the trial court in favor of the Board of County Commissioners. We cannot conclude that the evidence before the trial court compelled a conclusion that the Board’s declaration of an emergency amounted to a sham or fraud. Under such circumstances we will not disturb the ruling of the trial court. Fuller v. Gardner, 139 Fla. 837, 190 So. 442 (1939); City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764 (Fla.1975).

Since time was of the essence, a successful bond election was held at which a 78% majority approved the issuance of the proposed bonds. Shortly thereafter the Appel-lee Board adopted a bond resolution using the procedure approved by this Court in State v. Orange County, supra.

There is competent, substantial evidence to sustain the trial court’s decision as to the existence of an emergency on November 1, 1977. Therefore, it should not be disturbed. Furthermore, the trial judge was correct in holding that the proposed issue of bonds was fully authorized by law.

The final judgment of the trial court validating the proposed issue of bonds is affirmed.

BOYD, OVERTON, SUNDBERG and HATCHETT, JJ., concur.

ALDERMAN, J., concurs in result only.

ENGLAND, C. J., dissents.


author: HATCHETT, Justice.

text:
    Paul B. FAULKNER et ux., Petitioners, v. ALLSTATE INSURANCE CO. et al., Respondents.
    No. 49978.
    Supreme Court of Florida.
    Jan. 4, 1979.
    Rehearing Denied Feb. 28, 1979.
    Bill Wagner and Michael Foster of Wagner, Cunningham, Vaughan & Genders, Tampa, for petitioners.
    Edward M. Waller, Jr. of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for respondents.
   HATCHETT, Justice.

In this case we are called upon to determine whether failure to meet the threshold requirements of the Florida Automobile Reparations Reform Act, hereinafter referred to as the “no-fault” insurance act, (1) deprives an injured person of his right to be compensated for property damages, (2) deprives the injured person’s spouse of his or her claim for loss of consortium, and (3) bars further litigation on the matter. The Second District Court of Appeal answered these questions in the affirmative. Faulkner v. Allstate Insurance Co., 333 So.2d 488 (Fla. 2nd DCA 1976). While we agree that a claim for loss of consortium, being derivative in nature, is barred by the injured spouse’s failure to reach the no-fault threshold, and that failure to reach the threshold bars further litigation on the matter, we do not agree that recovery of property damages is, in any way, dependent on the statutory requirements of the “no-fault” insurance act.

Petitioner, Paul B. Faulkner, instituted a suit to recover damages for personal injury and property damage arising out of an automobile accident, Petitioner’s wife joined in the suit bringing a claim for loss of consortium. At the end of the testimony, petitioners were granted a directed ver-diet on the issue of liability and the case was submitted to the jury on the question of damages. Over petitioner’s objection, the court instructed the jury that if the “threshold” provisions of the Florida Automobile Reparations Reform Act had not been met then the jury was to return a verdict in favor of the defendants on all claims and need not reach the damages issue. By special verdict the jury found that the threshold requirements had not been met. Motion for new trial was denied and final judgment was entered in favor of the defendants. On appeal, the Second District Court affirmed. Faulkner v. Allstate Insurance Co., supra.

Petitioners argue that in its decision below, the Second District Court of Appeal necessarily held that petitioners’ failure to meet the threshold requirements deprived them of their right to recover all damages, including property damages and damages for loss of consortium. Such an interpretation of Florida’s no-fault law is contra to the plain language of the statute. Section 627.737, Florida Statutes (1975) provides tort exemption for damages due to “bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use” of a motor vehicle only to the extent that the benefits described in Section 627.736 (reasonable medical expenses and lost earnings) are payable. Damages for pain, suffering, mental anguish, and inconvenience, are recoverable once a certain threshold is exceeded. The right to property damages exists regardless of the threshold requirements. This Court so held in Kluger v. White, 281 So.2d 1 (Fla.1973). The Legislature’s attempt to abolish the common law right of action for property damages was there held unconstitutional and those provisions of the no-fault law abolishing that right were stricken. The constitutional guaranty of a “redress of any injury” (Article I, Section 21, Florida Constitution) bars the statutory abolition of an existing remedy without providing an alternative protection to the injured party.

Respondents agree that failure to meet the no-fault threshold does not deprive a claimant of his right to be compensated for property damage. It is their position, however, that the trial judge did not instruct the jury otherwise. In his original instruction the trial judge failed to instruct the jury as to property damages. This fact was brought to his attention after the jury had retired and the jury was returned to the courtroom and instructed as follows:

Pardon the interruption, ladies and gentlemen, but counsel pointed out the court did neglect to instruct you concerning property damage.
I charge you that if you find there is any proof of damage to the defendant’s property, you may consider this instruction in evaluating his damages. Any damage to the plaintiffs automobile or other property, personal property. The measure of such damages is the difference between the value of the property, I believe, before the incident complained of, and the value immediately thereafter.
If you find there is any proof of property damage, you may use that to arrive at damages.

Respondents contend that the jury did not award any property damages because they found no proof of such damages, not because they were improperly instructed.

Considering the instruction regarding property damage together with the instruction regarding threshold requirements, a reasonable juror might well have believed that if the threshold requirements were not met, no damages were recoverable, even those for property loss. We therefore find that the combination of instructions given was, at the very least, confusing, probably misleading, and constituted reversible error.

Respondents also argue that, contra to the decision of the Second District Court of Appeal, a husband’s or wife’s claim for loss of consortium cannot be barred by failure of his or her spouse to meet the no-fault threshold, especially where a directed verdict on the issue of liability has been entered in favor of the claimant. Citing Klu-ger, supra, petitioners argue that the Legislature cannot constitutionally abolish the right of access to the courts without providing a reasonable alternative.

Mrs. Faulkner’s claim for loss of consortium is derivative in nature and wholly dependent on her husband’s ability to recover. Gates v. Foley, 247 So.2d 40 (Fla.1971). Since Mr. Faulkner’s claim is barred by his failure to meet the no-fault threshold (except as provided herein) his wife’s claim is likewise barred. The Third District Court of Appeal so held in Marquez v. Maderos, supra. In that case a father’s derivative claim for the loss of services of his injured minor child was barred because the minor child failed to meet the no-fault threshold. The “access to the courts” argument which prevailed in Kluger is not applicable since the spouse’s claim is not abolished. It is merely limited, for reasons of sound public policy, to cases in which the injured spouse has met the threshold requirements. As reasoned by the Second District Court of Appeal in its decision below:

In the case of a husband seeking loss of consortium, other compensable damages such as medical expenses of the wife (which are his obligation to begin with) are recoverable under the no-fault provisions, and his wife, if working, may recover considerable loss of earnings — all of which inure to the direct as well as indirect benefit of the husband seeking the loss of consortium. He thus has reasonable “substituted” court access, or, to put it another way, reasonable alternative relief. Lasky v. State Farm Insurance Co., (Fla.1974), 296 So.2d 9. It would seem, too, that his loss of pure “consortium,” now a nebulous intangible in the first place, would be presumptively de minimis in almost all cases in which the injured party did not reach the threshold, the personal injuries being presumably minor. Lasky, supra. By a parity of reasoning, save for the no-fault recovery of medical expenses, a wife seeking loss of consortium hardly fares worse. We see no unconstitutional infirmity in the application of the no-fault insurance law to the appellant-wife’s claim herein. Faulkner v. Allstate Insurance Co., supra, at 491.

Petitioners’ final issue was resolved in our recent opinion in Calhoun and Contino v. New Hampshire Insurance Co., et al., 354 So.2d 882 (Fla.1977). In that case we held that once a lawsuit has been properly submitted to a jury and the finding made that the plaintiff has not reached the threshold requirements, a plaintiff is forever barred from recovery, even if he can thereafter establish that his damages exceed the threshold.

Accordingly, the opinion of the Second District Court is affirmed in part and reversed in part and the case remanded with directions that it be returned to the trial court for a new trial on the issue of property damages only.

It is so ordered.

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

      . The decision of the Second District Court of Appeals directly conflicts with Kluger v. White, 281 So.2d 1 (Fla.1973), Allstate Insurance Co. v. Ruiz, 305 So.2d 275 (Fla. 3rd DCA 1974), Smith v. U. S. Fidelity and Guaranty Co., 305 So.2d 216 (Fla. 1st DCA 1974), Tucker v. Walker, 335 So.2d 636 (Fla. 2nd DCA 1976), and Johnson v. Liberty Mutual Insurance Co., 297 So.2d 858 (Fla. 4th DCA 1974). Jurisdiction vests pursuant to Art. V, Sec. 3(b)(3), Florida Constitution.

      . The trial court instructed the jury as follows: “In order for the plaintiff, Paul Faulkner to recover damages in this action, he must establish by the greater weight of the evidence either that he sustained a permanent injury as a result of the accident or that he incurred reasonable expenses for necessary medical treatment in excess of $1,000, or that he suffered a total of $5,000 of medical expenses and lost earnings as a result of the accident. The plaintiff, Faulkner, must establish only one of these alternatives to be entitled to recovery in the case today.”
      “If the greater weight of the evidence supports either permanent injury of the plaintiff or reasonable necessary medical expenses in the amount of $1,000 or a total of $5,000 living expenses, loss of earnings, you may then proceed to the issue of damages. However, if you find from the evidence that the plaintiff, Paul B. Faulkner, has not sustained a permanent injury or has not incurred medical expenses totaling $1,000, or has not sustained medical expenses and lost earnings of $5,000 or more, then you will not consider the issue of damages. In this connection, you will be given a special form of verdict with questions thereon to be answered by you, and it will be your duty to answer each of these questions. If you answer each of these three questions “no," you will not consider the issue of damages, but will fínd a verdict for the defendants. [Emphasis added.]

      .Sec. 627.737, Florida Statutes, provides:
      (1) Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.741, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state to the extent that the benefits described in s. 627.736(1) are payable for such injury, or would be payable but for any exclusion or deductible authorized by ss. 627.-730-627.741, under any insurance policy or other method of security complying with the requirements of s. 627.733, or by an owner personally liable under s. 627.733 for the payment of such benefits, unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2).
      (2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.741, or against any person or organization legally responsible for his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the benefits which are payable for such injury under s. 627.736(l)(a) or which would be payable but for any exclusion or deductible authorized by ss. 627.730-627.741 exceed $1,000 or the injury or disease consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function, or death. Any person who is entitled to receive free medical and surgical benefits shall be deemed in compliance with the requirements of this subsection upon a showing that the medical treatment received has an equivalent value of at least $1,000. Any person receiving ordinary and necessary services normally performed by a nurse from a relative or a member of his household shall be entitled to include the reasonable value of such services in meeting the requirements of this subsection.

      . Section 627.736, Florida Statutes, provides in pertinent part:
      (1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection providing for payment of all reasonable expenses incurred for necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices; necessary ambulance, hospital, nursing services; and funeral and disability benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a motor vehicle or motorcycle, all as specifically provided in subsections (2) and (4)(d), to a limit of $5,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
      (a) Medical benefits. — All reasonable expenses for necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and necessary ambulance, hospital, and nursing services. Such benefits shall also include necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies upon spiritual means through prayer alone for healing, in accordance with his religious beliefs.
      (b) Disability benefits. — One hundred percent of any loss of gross income and loss of earning capacity per individual, unless such benefits are deemed not includable in gross income for federal income tax purposes, in which event such benefits shall be limited to 85 percent, from inability to work proximately caused by the injury sustained by the injured person, plus all expenses reasonably incurred in obtaining from others ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed without income for the benefit of his household. All disability benefits payable under this provision shall be paid not less than every 2 weeks.


author: PER CURIAM.

text:
    Petition of CUBAN-AMERICAN LAWYERS PROGRAM.
    No. 54639.
    Supreme Court of Florida.
    Jan. 25, 1979.
    Dr. Alberto Perez-Nodarse, in pro. per. for Cuban-American Lawyers Program Petition.
   PER CURIAM.

On July 12, 1978, Dr. Alberto Perez-No-darse, as Coordinator of the Cuban-American Lawyers General Assembly, presented to this Court a Memorandum in Support of the Cuban-American Lawyers Candidates to the Florida Bar Examination who were participants in the Cuban-American Law Institute (CALI). We treat the memorandum as an application for waiver of the Rules of the Supreme Court Relating to Admission to the Bar. By such memorandum three types of relief are requested: (i) that each Cuban-American lawyer who has taken at least one [Florida] bar examination be permitted to participate in the Law School Civil and Criminal Practice Program which exists by virtue of Florida Bar Integration Rule, article XVIII; (ii) that due to linguistic considerations the minimum passing score be adjusted downward for Cuban-American candidates for admission; and (iii) that, in the event the Court should rule favorably on proposition (ii), Cuban-American candidates who have exhausted the number of examination attempts permissible under the rules governing admissions be granted an additional opportunity to sit for the bar examination under the proposed relaxed grade requirements.

The application has been supported by the state attorney and public defender for the Eleventh Judicial Circuit. Communications have been received also from several academicians specializing in linguistics explaining the significance of the language factor in the examination process. The Commission on Spanish Speaking Populace of Florida also has communicated its support of the application.

After a careful review of all the materials submitted it is the decision of this Court that each form of relief must be denied. Since approximately June of 1975, when applications for relief which transcended the provisions of the 1973 order authorizing the CALI Program began to be addressed to the Court, we have given thoughtful and sincere consideration to many alternatives which would accommodate the problems experienced by the CALI candidates. Among those alternatives were the very suggestions which are here advanced. As a result of our periodic reconsideration of the CALI Program, certain modes of relief were fashioned including the appointment of a special committee to review the grading practices of the Florida Board of Bar Examiners, review of individual examination papers upon the request of an applicant by faculty of the University of Florida with provision for additional faculty assistance to remedy deficiencies, and the conditional admittance of successful CALI applicants pending completion of character and fitness investigations by the Florida Board of Bar Examiners.

While we have continued sympathetic to the condition of the CALI applicants, we have nonetheless remained mindful of our paramount responsibility in the admissions process — to protect the public by ensuring that those who are admitted to practice law in this state have demonstrated a required level of competence. In balancing these considerations, it is our judgment that the exceptions to the admissions process heretofore granted on behalf of the CALI applicants have exhausted the measures which this Court should invoke, consistent with the public interest.

Accordingly, the application of Dr. Alberto Perez-Nodarse is denied.

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

BOYD, J., dissents.


text:
    FLORIDA HOME BUILDERS ASSN. et al., Appellants, v. DIVISION OF LABOR, BUREAU OF APPRENTICESHIP, Appellee.
    No. 53384.
    Supreme Court of Florida.
    Jan. 25, 1979.

      Stephen W. Metz, Tallahassee, for appellants.
    Kenneth H. Hart, Jr., Gen. Counsel, Florida Dept, of Commerce, Tallahassee, for ap-pellee.
   ADKINS, Justice.

The circuit court below passed directly upon the validity of a statute. Article V, section 3(b)(1), Florida Constitution mandates that we review the decision.

Prior to the enactment of Chapter 77-183, Laws of Florida, amending section 446.071, Florida Statutes (1975), and appearing as section 446.071, Florida Statutes (1977), employers could secure state registration of their apprenticeship programs “whenever a demand is made” by filing an application with the Bureau of Apprenticeship and conforming to their regulations. The amendment, however, allows approval only “upon a determination of need” by the bureau.

The appellants (the Florida Home Builders Association and other contractors’ organizations) initiated a court challenge against the statute. The trial court rejected the appellants’ basic contention that the statute unconstitutionally delegated legislative power to an administrative agency.

We agree with the appellants and reverse. The statute is invalid because it violates the principle of separation of powers. Article II, section 3, Fla.Const. Although modern procedural safeguards in the administrative process and the availability of judicial review serve to limit the potential for capricious or arbitrary action by executive agencies, our state constitution wisely requires that the power to make the law reside exclusively with the legislature. Askew v. Cross Key Waterway, No. 52,251 (Fla. Nov. 22, 1978). But for a few exceptions not apposite to this case, discretionary authority granted to the executive branch of government must be limited and guided by an appropriately detailed legislative statement of the standards and policies to be followed. E. g., High Ridge Management Corp. v. State, 354 So.2d 377 (Fla.1977); Sarasota County, et al. v. Barg, et a1., 302 So.2d 737 (Fla.1974); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968); State v. Atlantic Coast Line R., 56 Fla. 617, 47 So. 969 (1908).

The challenged statute assigns to an administrative agency the duty to accept or reject apprenticeship program applications according to “need.” But the statute does not specify what standards or policies are to guide the agency and neither do the preexisting legislative statements of intent that are scattered through the chapter on apprenticeships.

Standing alone as it does, the term “need” is susceptible of so many conflicting applications that the agency and the courts cannot ascertain the legislative intent. Cf. Dickinson v. State ex rel. Bryant, 227 So.2d 36, 38 (Fla.1969) (statute requiring that one wishing to open a cemetery demonstrate the “need for a cemetery” and the “need for further facilities” held unconstitutional because it conferred upon the state comptroller “the authority to grant approval to one yet withhold it from another, at whim, and without guides of accountability”). By granting the agency the ability to choose among many different possible understandings of the statute's requirement without guides of accountability, the legislature unconstitutionally delegated the power to make the law.

Accordingly, we hold the provision of Chapter 77-183, Laws of Florida, requiring “a determination of need” to be null and void. The previous statutory language is reinstated. See In re Advisory Opinion to Governor, 63 So.2d 321 (Fla.1953); State ex rel. Spitzer v. Mayo, 129 Fla. 426, 176 So. 434 (1937); Messer v. Jackson, 126 Fla. 678, 171 So. 660 (1936). The judgment in, favor of the appellee is reversed and the cause remanded with instructions to enter judgment for the appellants.

It is so ordered.

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


author: PER CURIAM. ADKINS, Justice,

text:
    In re CODE OF JUDICIAL CONDUCT.
    No. 46773-B.
    Supreme Court of Florida.
    Jan. 25, 1979.
   PER CURIAM.

On July 13, 1978, the Court, on its own motion, proposed the following amendments to the Code of Judicial Conduct (strike-throughs indicate deletions; underscorings indicate additions):

1. Canon 5 C (4)(c) is amended, to correct an inadvertent typographical error, to read:

(c) a judge may accept any other gift, bequest, favor, or loan only if the donor is a relative or is not a party or other person whose interests have recently come or may likely come before him, in the immediate future, and, if its value exceeds $100, the judge reports it in the manner prescribed in Canon 6.

2. Section C of the compliance provision of the Code of Judicial Conduct is amended, to require from retired judges the same financial disclosures as are now required from active judges, to read:

C. Retired Judge. A judge who has retired from judicial service and who has complied with the procedures established by the Supreme Court of Florida so as to be eligible for recall to judicial service should comply with all the provisions of this Code except Canons 5C(l)-(7), 5D, 5E, 5G, and 6A. A retired judge who is subject to recall shall not practice law and shall refrain from accepting any assignment in any cause in which his present financial business dealings, investments, or other extra-judicial activities might be directly or indirectly affected. The purpose of this admonition is to ensure that his impartiality is not subject to question.
If a retired justice or judge does not desire to be assigned to judicial service, such justice or judge who is a member of The Florida Bar may engage in the practice of law and still be entitled to receive his retirement compensation. He shall then be entitled to all the rights of an attorney-at-law and no longer be subject to this Code.

The Court has considered carefully the comments submitted in regard to these proposals and, after due deliberation, hereby adopts the amendments as proposed, effective January 1, 1979. Each retired judge assigned to judicial service after that date shall file a financial report as required by canons 6 B and 6 C of the Code of Judicial Conduct.

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

ADKINS, J., dissents in part with an opinion.

ADKINS, Justice,

dissenting in part.

I dissent to that portion of section C which requires a retired judge to file the same financial disclosures as required from active judges. He should disclose his business interests so as to avoid a conflict upon assignment, but a complete financial disclosure is unnecessary.