author: HURLEY, Judge.

text:
    STATE of Florida, Appellant, v. Jack P. WEEDON, Phillip G. Adlington, Thomas J. Stewart, Henry J. Eddy, Tina Clawson and Walter Patrick Hagman, Appellees. STATE of Florida, Appellant, v. Robert Andrew MADDOCK and Richard D. Hughes, Appellees.
    Nos. 81-1875, 81-2354.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearings Denied Jan. 26 and Feb. 7,1983.

      Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellant.
    Mark C. Perry, Fort Lauderdale, for ap-pellees Phillip Adlington, Henry Eddy, Robert Maddock and Thomas Stewart.
    Robert P. Foley, Roger B. Colton and Douglas N. Duncan of Foley & Colton, P.A., West Palm Beach, for appellees Walter Hagman and Tina Clawson.
    Robert H. Trachman of Law Offices of Robert H. Trachman, Fort Lauderdale, for appellees Jack Weedon and Richard Hughes.
   HURLEY, Judge.

The state appeals the suppression of evidence obtained pursuant to an order authorizing the use of an electronic listening device. The trial judge determined that the wiretap order was overbroad and that the state failed to exhaust all investigative leads. We reverse.

While conducting investigations into certain drug operations, the state applied for an order authorizing a wiretap to be placed on two telephones within a residence located in Lantana, Florida. The application and accompanying affidavits were reviewed by a judge who, after finding probable cause, signed and issued the order.

Section 934.09(4)(c), Florida Statutes (1981) requires that each order authorizing the interception of any wire or oral communication specify “a particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates.” The order in this case authorized interception of

[conversations pertaining to violations of the laws of this State relating to dealings in dangerous drugs and conspiracy to deal in dangerous drugs. The Court specifically authorizes such interceptions as may be necessary to achieve the objectives described in Paragraph 6 of the application.

The reviewing judge found the foregoing provision to be overbroad because it failed to specify the subject matter to be intercepted, (conversations about marijuana) with sufficient particularity. We respectfully disagree.

The Fifth Circuit dealt with a similar situation in United States v. Cohen, 530 F.2d 43 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976). There, the court upheld an order authorizing the interception of

any and all conversations having discussions related to or concerning sale, possession, smuggling, or unauthorized trafficking in narcotics and dangerous drugs, in violation of Chapter 893 Florida Statutes.

Id., at 45.

In so holding, the court followed the Second Circuit which had held that

a pragmatic approach has been taken with respect to the particularity requirement. A specific crime or a specific series of related crimes must be identified. Although the nature and type of the anticipated conversations must be described, the actual content need not and cannot be stated since the conversations have not yet taken place at the time the application is made and it is virtually impossible for an applicant to predict exactly what will be said concerning a specific crime.... The order must be broad enough to allow interception of any statements concerning a specified pattern of crime. In determining whether the order and application are sufficiently particular, the papers as a whole must be considered, including especially those portions which recite facts intended to establish probable cause.

United States v. Tortorello, 480 F.2d 764, 780 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973).

Viewing the application, affidavits and order in this case, we hold that the wiretap order satisfied the requirement of particularity.

The trial court also found that the order had been improperly issued because the state had not exhausted all investigative leads. Section 934.09(l)(c), Florida Statutes (1981) requires that each application include a complete statement as to whether other investigative procedures have been tried and or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. This “exhaustion requirement” is intended to ensure that wiretap procedures are not routinely used as the initial step in a criminal investigation. However, it is not necessary to show that all possible techniques or alternatives have been exhausted. State v. Birs, 394 So.2d 1054 (Fla. 4th DCA 1981); Hudson v. State, 368 So.2d 899 (Fla. 3d DCA 1979). The application in the case at bar amply demonstrates that normal investigative procedures had been tried and had failed, and that further investigation was not likely to succeed. Consequently, we conclude that the trial court imposed too stringent a standard when it found that the exhaustion requirement had not been satisfied.

Accordingly, the order of suppression is reversed and the cause is remanded for further proceedings, consistent with this opinion.

REVERSED and REMANDED.

HERSEY and DELL, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    MERRILL LYNCH PIERCE FENNER & SMITH, INC., and Brian Sheen, Petitioners, v. Helen MELAMED, Respondent.
    No. 82-603.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 31, 1983.

      Bennett Falk of Ruden, Barnett, McClo-sky, Schuster & Russell, Miami, for petitioner Merrill Lynch Pierce Fenner & Smith, Inc.
    H. Michael Easley of Easley, Massa & Willits, P.A., West Palm Beach, for petitioner Brian Sheen.
    F. Kendall Slinkman, West Palm Beach, for respondent.
   HURLEY, Judge.

When this case was last before us, we held that the substantive portions of the Federal Arbitration Act supersede state law and must be enforced by state courts when the prerequisites of the federal act are satisfied. As a result, we reversed an order denying a motion to compel arbitration and remanded the cause with instructions to reconsider the motion in light of the applicable federal law. Pursuant to our mandate, the trial court conducted a non-evidentiary hearing at which it became evident that there was a dispute between the parties concerning the making of the agreement to arbitrate. But, rather than schedule an evidentiary hearing, the trial court entered a second order denying the motion to compel arbitration. We reverse because the trial court failed to comply with the procedural requirements of section 682.-03(1), Florida Statutes (1981).

Speedy resolution of disputes is the raison d’etre of arbitration. Once parties agree to arbitrate, it is essential that they have an easy and quick means to enforce their agreement to arbitrate. Section 682.03(1), Florida Statutes (1981) and 9 U.S.C. § 4 (1970) mirror these concerns and offer a realistic solution in the form of a carefully crafted “abbreviated and summary procedure.” Fremont Cake & Meal Co. v. Wilson & Co., 9 F.R.D. 243, 244 (D.Neb. 1949). For example, section 682.03(1) calls for minimal pleadings. It permits the filing of an application or motion to compel arbitration, but does not require the filing of an answer or response. Also, the section requires a hearing to determine whether there are disputed issues regarding the making of the agreement to arbitrate or the failure to comply therewith. If the court discerns that there are no disputed issues, it is required to enter an order compelling arbitration pursuant to the terms of the parties’ agreement. On the other hand, if the court finds disputed issues regarding the making of the agreement or the failure, neglect, or refusal to perform the same, the court is mandated to “summarily hear and determine the issue .... ” In our view, the latter requirement contemplates an expedited evidentiary hearing.

In the case at bar, counsel for Ms. Melamed refused to stipulate to the authenticity of the agreement to arbitrate. This was sufficient to indicate that a dispute existed about the making of the agreement which, in turn, required the trial court to afford the parties a full evidentiary hearing on the disputed issue. In defense of the able trial judge, it should be noted that neither party brought the statute’s mandatory language to the court’s attention. Merrill Lynch incorrectly took the position that our mandate left nothing to be done other than to enter an order compelling arbitration. Ms. Melamed, as indicated above, took the opposite tack and argued that Merrill Lynch had failed to carry its burden of establishing the authenticity of the agreement. Under these circumstances, we believe that the interests of justice and the statute’s mandatory language compel us to grant the writ of certiorari and quash the trial court’s order. Furthermore, to promote the purpose of the statute, i.e., a prompt resolution for the parties’ dispute and, at the same time, to permit meaningful appellate review, we request that future orders in this case include express findings of fact and conclusions of law.

Petition Granted; Order Quashed.

DOWNEY and GLICKSTEIN, JJ., concur.

      . Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981).

      . 9 U.S.C. §§ 1 to 14 (1970).

      . See also Ultracashmere House, Ltd. v. Meyer, 664 F.2d 1176 (11th Cir.1981).

      . Because state and federal arbitration procedures are virtually identical, compare § 682.-03(1), Fla.Stat. (1981) with 9 U.S.C. § 4 (1970), we need not decide whether the procedural aspects of the federal act are so entwined with its substantive provisions as to require state implementation of both.

      .Former Chief Judge Kaufman once observed that “[s]peed is one of the great advantages of commercial arbitration.” Necchi Sewing Machine Sales Corp. v. Necchi, S.p.A., 369 F.2d 579, 582 (2d Cir.1966). In fact, the benefits of speedy resolution were among the chief motivating factors behind arbitration legislation. “Arbitration laws are passed to expedite and facilitate the settlement of disputes and avoid the delay caused by litigation. It was never intended that these laws should be used as a means of furthering and extending delays.” Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318, 319 (4th Cir.1938).


text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., and Lucille Weist, Petitioners, v. James F. FALOWSKI, as Trustee under the Last Will and Testament of John J. Falowski, Respondent.
    No. 82-1296.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      i O'Bannon M. Cook and Gill S. Freeman of Walton Lantaff Schroeder & Carson, Miami, for petitioners.
    William C. Davell of Rogers, Morris & Ziegler, Fort Lauderdale, for respondent.
   HURLEY, Judge.

This case comes before us upon a petition for a writ of common law certiorari. Petitioners request that this court quash an order by the trial court denying their application to compel arbitration. We find our recent decisions in Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981) (“Melamed I”), remanded for further proceedings, 425 So.2d 127 (Fla. 4th DCA 1982) ("Melamed II”), to be controlling but for reasons stated herein we decline to grant the writ of certiorari.

Melamed sets forth the procedure for applying Section 682.03(1), Florida Statutes (1981), to determine whether a controversy should be arbitrated or litigated. If the parties have clearly entered into an agreement to arbitrate, then the trial court must compel arbitration. If, however, the making of the arbitration agreement is disputed, then the trial court should undertake an evidentiary hearing to resolve “issues regarding the making of the agreement or the failure, neglect or refusal to perform the same.” Melamed II.

Recognizing the mandate of Me-lamed I, the trial court properly undertook a hearing which yielded a factual determination set forth in the order denying arbitration. The defect in this hearing is that it primarily addressed questions of law, i.e., the hearing was not in essence evidentiary. The order notes that it is based upon legal argument by the parties, memoranda of law, and cases cited therein. The trial court’s review yielded conclusions which, while well reasoned, nevertheless inadequately considered the specific facts in dispute. To conform to the dictates of Me-lamed II, a factual determination in this case must resolve with specificity the parties’ varying renditions of the transactions in question. For example: Whether James Falowski opened account number 750-33539 (for which an agreement to arbitrate was made) on his own behalf, as a trustee, or on behalf of his father’s estate? Whether the transactions and investments in question relate to the aforementioned account, to a second account which Falowski opened as the personal representative of his father’s estate (for which,there was apparently no agreement to arbitrate) or to both accounts? Whether Falowski’s allegations of fraud are based upon events not specifically related to the opening of the accounts, or, alternatively, whether the complaint should be construed to allege fraud in the inducement, as Merrill Lynch suggests?

Despite the fact that an evidentiary hearing to resolve the facts in dispute was not held we decline to issue the writ requested because there is no demonstration that either party sought and was denied the opportunity to present evidence. In the event that a further request for an eviden-tiary hearing is made the court should consider same in accordance with this opinion.

CERTIORARI DENIED.

LETTS, C.J., and BERANEK, J., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Joseph REDMAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-2260.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Feb. 2, 1983.
    Joseph Redman, appellant, pro se.
    No appearance required for appellee.
   PER CURIAM.

Joseph Redman appeals the denial of his motion for post-conviction relief without an evidentiary hearing. We affirm. Appellant’s motion was facially insufficient because it presented issues which were raised and disposed of on direct appeal. Such issues are not proper grounds for a post-conviction motion. Foster v. State, 400 So.2d 1, 4 (Fla.1981). The trial court acted correctly in denying appellant’s motion without an evidentiary hearing. Fla.R. Crim.P. 3.850.

Affirmed.

HERSEY and DELL, JJ., concur.

ANSTEAD, J., concurs specially.

ANSTEAD, Judge,

specially concurring:

I agree that the appellant’s motion for post-conviction relief which merely alleged in a conclusory fashion that the state “lost, destroyed or otherwise suppressed” evidence favorable to the appellant was facially insufficient to require the trial court to conduct an evidentiary hearing.


author: PER CURIAM.

text:
    Doris L. CUNNINGHAM, Appellant, v. LYNCH-DAVIDSON MOTORS, INC., a Florida corporation, Appellee.
    No. AK-56.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1982.
    Rehearing Denied Feb. 7, 1983.

      Wayne Hogan of Brown, Terrell & Hogan, P.A., Jacksonville, and Joseph S. Farley, Jr. of Mahon, Mahon & Farley, P.A., Jacksonville, for appellant.
    William R. Swain of Webb, Swain & Watson, P.A., Jacksonville, for appellee.
   PER CURIAM.

Doris L. Cunningham, as personal representative of the Estate of Rowland H. Cunningham, appeals from a final, summary judgment in favor of the defendant, Lynch-Davidson Motors, Inc., in this wrongful death action. This suit arose out of a tragic incident when, on December 21, 1978, Rowland Cunningham died after being backed over by a loaded dump truck. We reverse.

Lynch-Davidson originally purchased only a new truck cab and chassis from the Ford Motor Company. It then sent the cab and chassis to the Rogers Manufacturing Company, which installed a “Rogers Dump Body” on the cab and chassis. Lynch-Davidson then sold the new dump truck to one Randolph Lewis on October 16, 1974. It was subsequently repossessed by Lynch-Davidson and then resold less than a year later to Carl Sams, who was driving the truck at the time of the accident.

The Estate asserted that the truck was defective in one or more of the following ways: that it was not equipped with any alarm system for warning those in the vicinity of the dump truck that it was moving in reverse gear; that it was not equipped with a reasonably adequate alarm system for warning- those in the vicinity of the dump truck that it was moving in reverse gear; and, that it was not equipped with a reasonably adequate system of mirrors to enable the driver to see persons behind the dump truck when it was moving in reverse. As to specific instances of negligent design, the Estate complained of defects in the audible alarm system for warning those in the vicinity of the truck that it was moving in reverse gear and of the placement of the back-up lights, which were so positioned as to be covered with mud and thus rendered useless. Upon this basic overlay of facts, however, the trial judge granted final summary judgment, including “that this was a used vehicle and there is no duty on the part of a retail seller of a used vehicle to the user of a vehicle with reference to breach of implied warranty or negligence and failure to provide safety devices.” This appeal ensued.

We conclude that, under the particular facts of this case, Lynch-Davidson is, for all practical purposes, the manufacturer of this dump truck and subject to liability under the doctrine enunciated in West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976). In view of this determination, it is unnecessary to determine whether Lynch-Davidson would be liable as the seller of the vehicle. It is well established in Florida that the assembler of a product, which includes a component part manufactured by another, who sells the completed product as its own and thereby represents to the public that it is the manufacturer is also considered the manufacturer of the component part. E.g. Favors v. Firestone Tire & Rubber Company, 309 So.2d 69 (Fla. 4th DCA 1975). While there is no evidence that Lynch-Davidson represented the completed dump truck as being its own particular product, such as the Ford Motor Company might represent that one of its cars is a Ford car, despite the fact that numerous component parts are manufactured by others, we find this to be a distinction without difference. The more important test is whether Lynch-Davidson may be considered to have “assembled” the finished product. While it did not do so itself, it did furnish the cab and chassis to and arrange, set the specifications for, and pay for the assembly of the completed product by the Rogers Manufacturing Company. Thus, since the finished product was done at Lynch-Davidson’s behest, Lynch-Davidson must be considered the manufacturer of the completed dump truck.

Lynch-Davidson has also argued that the evidence demonstrates that the dump truck was indeed properly equipped. While there is evidence that the truck was properly equipped, there is also conflicting evidence and inferences tending to demonstrate the opposite. Accordingly, these factual issues are for the jury to consider.

Finally, Lynch-Davidson urges that the trial court’s decision may be affirmed on the alternative ground that the second amended complaint was filed after the applicable statute of limitations had run. Specifically, it contends that the second amended complaint should be barred because it states a new and substantially different cause of action which does not relate back to the original complaint. Appellant, on the other hand, contends that this point cannot be considered since Lynch-Davidson did not cross-appeal as to the trial court’s adverse ruling on the statute of limitations issue. We have found no Florida cases directly on point. Compare Jessup v. Redondo, 394 So.2d 1031 (Fla. 3d DCA 1981). The federal courts, however, hold that a cross-appeal is only required when the appellee seeks to vary or modify the judgment below. Wright & Miller, Federal Practice and Procedure: Civil § 3904, and cases cited therein. Here, Lynch-Davidson does not seek to modify the judgment but raises an additional basis for reaching the same conclusions. Accordingly, we have considered the trial court’s ruling on the statute of limitations issue and affirm the determination that the claim is not barred.

Reversed and remanded for further proceedings consistent with this opinion.

McCORD, BOOTH and WENTWORTH, JJ., concur.

      . Appellant contends that since Lynch-Davidson sold the dump truck new, repossessed it, and then sold it again, it should be held to the liability of a dealer of a new car. Compare Fuquay v. Revels Motors, Inc., 389 So.2d 1238 (Fla. 1st DCA 1980).


author: ERVIN, Judge. SHAW, Judge,

text:
    PALM BEACH JUNIOR COLLEGE BOARD OF TRUSTEES, Appellant, v. UNITED FACULTY OF PALM BEACH JUNIOR COLLEGE, Appellee.
    No. AF-17.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1982.
    Rehearing Denied Feb. 4, 1983.

      Jesse S. Hogg of Hogg, Allen, Ryce, Norton & Blue, P.A., Coral Gables, for appellant.

      C. Anthony Cleveland, Gen. Counsel, FE A/United, Charles F. McClamma, Staff Counsel, PERC, Tallahassee, for appellee.
   ERVIN, Judge.

Appellant, Palm Beach Junior College, appeals an order of the Public Employees Relations Commission (PERC) which determined that a public employer commits an unfair labor practice by bargaining to impasse its proposal to include within a collective bargain agreement a management prerogatives clause, and, after acting as a legislative body, by requiring that the clause be incorporated within the agreement. As a remedy, PERC set aside the impasse resolution action taken by the Board of Trustees in accordance with Section 447.403(4), Florida Statutes (Supp. 1980), and imposed a modified contract on the parties. Appellant urges numerous points on appeal. We affirm all, but address only one which we find merits extended consideration, urging that the employer’s insistence on the clause was in conformity with a legitimate management interest, and was consistent with case law in the private sector.

Bargaining between United Faculty of Palm Beach Junior College (United Faculty) and Palm Beach Junior College Board of Trustees (Palm Beach) began on April 16, 1980. On June 10, 1980, as part of a package of bargaining proposals, Palm Beach presented to the union a management prerogatives clause, which was rejected by its bargaining representative the following week, and an impasse was declared. A mediator was selected and bargaining sessions were held at which the parties discussed but failed to agree on substitute language for the proposed clause. Among other things, United Faculty union presented the following alternatives: that the clause be withdrawn; that Palm Beach submit a list of subjects to which the waiver would apply; and that the parties bargain over such a list if the section were withdrawn until the parties engaged in negotiations for the 1981-82 contract. Palm Beach refused to withdraw its proposal, declined to formulate a list, stating that it believed it could not develop an adequate list, and responded further that it would proceed only if the matter were included in current negotiations for the 1980-81 contract year.

On August 28, 1980, a special master was appointed by PERC, and on October 10, 1980, he recommended that the proposed clause not be included within the contract. On October 30, 1980, Palm Beach proposed two alternative clauses, but the parties were again unable to reach agreement. On November 19, 1980, the Board of Trustees of Palm Beach Junior College, in accordance with Section 447.403(4), Florida Statutes (Supp.1980), and in its capacity as a legislative body, resolved the impasse by mandating a contract which included the management prerogatives clause originally proposed by Palm Beach. This contract, with salary increases and other terms the parties had tentatively agreed upon during bargaining, was prepared, signed, and offered to United Faculty for a ratification vote in accordance with Section 447.-403(4)(e), Florida Statutes (Supp.1980). United Faculty declined to sign the contract or to submit it to the members for a vote; instead it filed an unfair labor practice charge with PERC.

After a public hearing, the hearing officer’s recommended order found that the proposed clause was not a mandatory subject for bargaining and that Palm Beach had committed an unfair labor practice by bargaining to impasse on the clause. As a remedy, the hearing officer recommended that Palm Beach offer the contract of November 19, 1980, to United Faculty without the clause. In its conclusions of law, the Commission held, among other things, that inclusion of a management prerogatives clause

which operates as a waiver of the [employees’] statutory right to bargain over the effect or impact upon bargaining unit employees of the exercise of management rights prior to the implementation of such management rights or decisions is not a subject over which collective bargaining negotiations are required pursuant to Section 447.309(1), Florida Statutes (1979).

PERC ordered Palm Beach to rescind the action taken on November 19, 1980, and thereafter to offer United Faculty a collective bargaining agreement without the disputed clause, but with the other provisions that the parties had agreed upon during negotiations. This appeal followed.

Essentially, we are asked in this appeal whether PERC’s interpretation of the Public Employees Relations Act (PERA) was in error. The standard to be applied on review of the construction of a statute that an agency is charged to enforce is ordinarily to accord substantial deference to it and decline to overturn it, except for the most cogent reasons, or unless clearly erroneous, unreasonable, or in conflict with some provision of the state’s constitution or the plain intent of the statute. See King v. Seamon, 59 So.2d 859, 861 (Fla.1952); Miami Beach First National Bank v. Dunn, 85 So.2d 556 (Fla.1956); Green v. Stuckey’s of Fanning Springs, Inc., 99 So.2d 867 (Fla.1957); State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla.1973); Ft. Pierce Utilities Authority v. Florida Public Service Commission, 388 So.2d 1031, 1035 (Fla.1980); ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). As we observed in Framat Realty, Inc., 407 So.2d at 242: “[T]he judiciary must not, and we shall not, overly restrict the range of an agency’s interpretative powers. Permissible interpretations of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to some views.”

PERC has been provided with broad powers of administering Part II of Chapter 447 by Section 447.207, Florida Statutes (1979). We are not prepared to state on this record that PERC’s interpretation of the respective statutes was clearly erroneous, unreasonable or in conflict with some provision of the constitution or the plain intent of the statutes involved. We consider that there was, under the circumstances, both competent and substantial evidence, as well as a legal foundation supporting the Commission’s determination that the public employer’s insistence on including the disputed clause within the agreement was an unfair labor practice.

The record reveals that on more than one occasion Palm Beach Junior College refused, in response to the union’s request, to disclose a list of matters over which it proposed to exercise unilateral control. The effect of the public employer’s ultimate action was to force the union to waive, prior to the implementation of any such management decision, whatever right the union might otherwise have following its execution to bargain over the impact the decision could have on mandatory items of bargaining, i.e., the wages, hours, and terms and conditions of employment. See Section 447.309(1), Florida Statutes. The hearing officer amplified upon the ordinary bargaining process as follows:

In the normal course of events, bargaining takes place prior to the management decision involved, or, more properly, in anticipation of management decisions likely to be made. For example, parties may negotiate a clause in a collective bargaining agreement which is only applicable in the event of a layoff to provide an orderly procedure in the event that management decides to lay off employees. The alternative is simply to negotiate layoff at the time the decision to lay off is taken. By opposing so-called “impact” bargaining, the Respondent [employer] simply registers its preference that contingencies be dealt with before the fact, rather than afterwards. To the extent that contingencies can be anticipated and dealt with before the fact, this is entirely appropriate. But to the extent that unforeseen contingencies arise, insisting that no bargaining take place to resolve such unforeseen contingencies represents a lack of good faith in the negotiating process. In this context, impact bargaining simply provides a means of resolving disputes concerning necessary but unforeseen changes in wages, hours, terms and conditions of employment consistent with the public interest....

The only bargaining that occurred between the parties was in essence the inclusion of the clause, or alternative clauses, in the agreement. No negotiations took place, however, as to the scope of subjects the proposed clause would encompass. The college either would not or could not provide a list of matters to which the proposed waiver clause might apply. Under the “take it or leave it attitude” evidenced by the employer, PERC correctly held that Palm Beach refused to bargain collectively in good faith with United Faculty in violation of Section 447.501(l)(c), Florida Statutes.

The public employer’s insistence on including the waiver clause within the agreement, without bargaining over the effect the waiver might have on required subjects of bargaining, is somewhat analogous to the legislative mandate, provided in Sections 447.301(2) and 447.309(5), Florida Statutes (1979), that no collective bargaining agreement shall include any provision relating to retirement. In upholding the First District’s decision invalidating the statutory prohibitions, our supreme court observed that the restrictions “did not simply regulate a particular aspect of collective bargaining — they prohibited it entirely. Article I, section 6, permits regulation of the bargaining process but not the abridgement thereof.” City of Tallahassee v. Public Employees Relations Commission, 410 So.2d 487, 490 (Fla.1981). Similarly, Palm Beach, through its utilization of a management prerogatives clause, has sought to do that which the legislature was forbidden to do: abridge the bargaining process.

In saying the above, we acknowledge that certain decisions must be retained exclusively by management; that there are “those management decisions which are [so] fundamental to the basic direction of a corporate enterprise or [those] which impinge [so] . .. indirectly upon employment security” as to require their exclusion from the area of mandatory bargaining. Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, 223, 85 S.Ct. 398, 410, 13 L.Ed.2d 233, 246 (1964) (Stewart, J., concurring). For example, determinations “such as choice of advertising and promotion, product type and design, and financing arrangements, have only an indirect and attenuated impact on the employment relationship.” First National Maintenance Corp. v. National Labor Relations Board, 452 U.S. 666, 676-77, 101 S.Ct. 2573, 2579, 69 L.Ed.2d 318, 329 (1981). On the other hand, some decisions, “such as the order of succession of layoffs and recalls, production quotas, and work rules, are . .. exclusively ‘an aspect of the relationship’ between employer and employee.” Id. Our state has legislatively recognized the rights of a public employer to make decisions which are consistent with its purpose, including the rights “to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons.” Section 447.209, Florida Statutes.

It remains the responsibility of the Commission, subject to review by the courts, to flesh out and refine those decisions which are the exclusive prerogatives of management, and those which must be subjected to the bargaining process. Here, however, we are not presented with an issue involving simply a prerogative which is peculiar to management. We are instead confronted with the question of whether management has the right to insist on the inclusion of a clause waiving the right to bargain in advance of the implementation of a decision which could affect the required subjects of bargaining. This the public employer is quite properly forbidden to do.

We have considered the college’s references to cases in the private sector, but find them distinguishable both on their facts and on the law upon which they were decided. Although we have recognized federal decisions construing the National Labor Relations Act (NLRA) as persuasive authority to the extent Chapter 447 and the NLRA are analogous, Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977), we must decline to follow them in those instances in which the respective acts follow divergent courses. Thus, notwithstanding the United States Supreme Court’s holding in National Labor Relations Board v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952), that the employer’s bargaining over the inclusion of a management functions clause in a collective bargaining agreement, which would exclude certain subjects from future arbitration, was not, per se, an unfair labor practice, the facts there revealed that the clause — unlike the one before us — enumerated a limited list of matters which the employer desired to be nonarbitrable. As a result, the parties were not denied, during the course of collective bargaining, the right to bargain generally over the effect the matters enumerated in the clause might have on those conditions of employment the parties were required to bargain for collectively under the National Labor Relations Act, 49 Stat. 449 (1935), 29 U.S.C. §§ 151 et seq., as amended, 61 Stat. 136 (1947), 29 U.S.C. (Supp. IV) §§ 151 et seq.

Perhaps a more fundamental difference between the situation presented to the Court in American National Insurance Co. and that before us is that the N.L.R.A. “does not compel any agreement whatsoever between employees and employers.” 343 U.S. at 402, 72 S.Ct. at 828, 96 L.Ed. at 1036. Not so PERA. Section 447.403(4)(d), Florida Statutes, permits the public employer to move a required subject of bargaining through impasse, and, in its capacity as legislative body, to “take such action as it deems to be in the public interest” in order to resolve the issue.

Other federal cases construing pertinent provisions of the NLRA are both supportive and non-supportive of the employer’s position. For example, the Court has stated that a matter which is not a mandatory subject of bargaining may be raised at the bargaining table, unless it is illegal, and the parties may incorporate it into an enforceable collective bargaining agreement. National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). Labor and management may not, however, insist on it to the point of impasse. Id. Again, a management decision to replace existing employees with those of an independent contractor to do the same work under similar conditions of employment, in an effort to reduce labor costs, was deemed one peculiarly suitable for resolution within the collective bargaining framework. Fi-breboard Paper Products Corp. v. National Labor Relations Board. More recently the Court held that a management decision to terminate a cleaning service contract with a third party, caused by a dispute between management and the third party over the amount of fees, was not an unfair labor practice within the meaning of Sections 8(d) and 8(a)(5) of the National Labor Relations Act (29 U.S.C. §§ 158(d) and 158(a)(5)), despite the resulting discharge of employees, because the decision “had as its focus only the economic profitability of the contract with Greenpark [the third party], a concern ... wholly apart from the employment relationship.” First National Maintenance Corp. v. National Labor Relations Board, 452 U.S. at 677, 101 S.Ct. at 2579, 69 L.Ed.2d at 329 (1981). Although the Court concluded that the management decision was not part of Section 8(d)’s “terms and conditions of employment” which the parties were required to bargain, it nevertheless observed that the union had not been certified as the bargaining agent until well after the employer’s economic difficulties with its contractual party had begun; accordingly the Court was “not faced with an employer’s abrogation of ongoing negotiations or an existing bargaining agreement.” 452 U.S. at 688, 101 S.Ct. at 2585, 69 L.Ed.2d at 336 (e.s.). Clearly, a unilateral decision made by management during collective bargaining represents a per se refusal to bargain. National Labor Relations Board v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962).

Perhaps the major distinction between public sector law and that in the private sector is that in the latter the employee has the option to strike — a right specifically denied the public employee in Florida by Article I, section 6 of the Florida Constitution. This distinction was alluded to in First National Maintenance Corp.: “[B]oth employer and union may bargain to impasse over these matters [the matters of required bargaining] and use the economic weapons at their disposal to attempt to secure their respective aims.” 452 U.S. at 675,101 S.Ct. at 2578, 69 L.Ed.2d at 328 (e.s.).

The courts of Florida in numerous instances have noted that Section 447.309(1), Florida Statutes, requires a relatively broad scope of negotiations to help counter-balance the absence of the right to strike by public employees. For example, in School Board of Escambia County v. Public Employees Relations Commission, 350 So.2d 819, 821 (Fla. 1st DCA 1977), we observed that

the constitutional and legislative prohibitions against strikes by public employees were [n]ever intended to give public employers a power advantage over their employees in contract negotiations. Strikes are prohibited to protect the public, not to circumvent the rights of public employees to meaningful collective bargaining with their employer.

Later, in School Board of Orange County v. Palowitch, 367 So.2d 730, 731 (Fla. 4th DCA 1979), the Fourth District Court of Appeal commented:

We do not agree with the petitioner’s position that the right of ultimate decision making instills the right of unilateral action without bargaining because to hold that would effectively gut the life of the statute providing for bargaining by public employees. There are certain tradeoffs in the statutory scheme not the least of which is the lack of right to strike.

On the record before it, the Commission, in our judgment, correctly determined that a provision such as Article XXII, Section C, does not itself constitute a wage, hour, term, or condition of employment within the meaning of Section 447.309(1), and therefore properly required its excision. PERC, drawing upon its expertise in the field regulated, observed that courts in other public sector jurisdictions, with laws prohibiting strikes, have broadly construed the phrase “terms and conditions of employment,” in their development of a test establishing a line between the items to be bargained collectively, and the inherent rights of management. See, e.g., International Brotherhood of Teamsters Local 320 v. City of Minneapolis, 302 Minn. 410, 225 N.W.2d 254 (1975); Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975); Van Buren Public School District v. Wayne County Circuit Judge, 61 Mich.App. 6, 232 N.W.2d 278 (1975).

Upon considering those decisions, as well as the applicable language in Chapter 447, PERC has concluded, rightly we believe, that the stability to be encouraged in the bargaining relationship between public employer and employee requires the parties to conduct negotiations over a broad range of subjects, and that such stability might well be disrupted if one party were to be allowed to implement unilateral management decisions prior to negotiations. We agree also with PERC’s policy determination that a public sector union — unlike a bargaining unit in the private sector — faced with an employer’s insistence upon the inclusion of a waiver clause such as that proposed below, has no effective lawful means to counter that insistence within our statutory scheme if the matter were brought to impasse. Because there is no statutory procedure afforded the public employee to bring pressure upon an employer to make concessions in collective bargaining, either through a strike or binding arbitration, PERC has been provided broad authority under Section 447.503, as a means of allaying a significant imbalance of bargaining power in favor of the employer. The order on review is a policy decision which PERC is well suited to make, compare City of Clearwater (Fire Department) v. Lewis, 404 So.2d 1156, 1161-62 (Fla. 2d DCA 1981), and one which we find to be neither clearly erroneous nor in conflict with a provision of either the constitution or the plain intent of the statutes involved.

AFFIRMED.

McCORD, J., concurs.

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

It should be noted initially that the facts in this case were stipulated and are not at issue. Essentially, the facts are simply a recitation of the course of bargaining between the parties. If one assumes for the purpose of analysis that the management prerogatives clause at issue was a mandatory bargaining issue, then nothing in the course of bargaining justifies a finding that the employer committed an unfair labor practice through bad faith bargaining. Thus, in our scope of review, we are not reviewing an agency’s factual findings which are entitled to substantial deference under the competent substantial evidence rule. Instead, we are reviewing an agency’s conclusions of law based on its interpretation of an enabling statute and case law, or, more specifically, the Public Employees Relations Commission’s (PERC) interpretation of its own power to formulate labor policy for the state.

In interpreting the Public Employees Relations Act (PERA) and case law, PERC establishes two significant precedential propositions of law: it is an unfair labor practice (bad faith bargaining) for management to bargain to impasse over a management prerogatives clause; and PERC has the authority to impose a collective bargaining agreement on a party as a remedy for an unfair labor practice. In its order and its brief, PERC forthrightly supports these propositions on the ground that the constitutional prohibition against public employee strikes and the statutory impasse resolution procedure, section 447.403, Florida Statutes (Supp.1980), create an imbalance of bargaining power bétween the employer and employee which PERC must redress by devising a public labor policy which balances the bargaining power of public employer and employee. Under these circumstances, I disagree with the majority’s position that this Court should accord substantial deference to PERC’s interpretation of the statute and should decline to overturn it, except for the most cogent reasons, or unless clearly erroneous, unreasonable, or in conflict with some provision of the state’s constitution or the plain intent of the statute. Alternatively, I suggest that even if substantial deference is paid to PERC’s interpretation, there are cogent reasons to hold the interpretation erroneous and in conflict with the provisions and plain intent of the statute. The merits of PERC’s interpretation are addressed below but, in my view, the appropriate scope of review should be that adopted by this Court in Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977), and the United States Supreme Court in NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). As the Brown court stated:

[WJhere, as here, the review is not a question of fact, but of a judgment as to the proper balance to be struck between conflicting interests, “[t]he deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” American Ship Building Co. v. Labor Board, 380 U.S. 300 at 318, 85 S.Ct. 955 at 967,13 L.Ed.2d 855 at 867.

Brown at 292, 85 S.Ct. at 988, 13 L.Ed.2d at 849; quoted in part, approvingly, by Pasco at 116. See also Brown at 291-292, 85 S.Ct. at 988-89, 13 L.Ed.2d at 848-849, n. 5, which recognizes the importance of full independent judicial review of the Board (NLRB) analysis even when the Board is sustained.

PERC and the majority predicate their analysis on what they perceive to be an imbalance of bargaining power between the public employer and public employee created by the constitutional prohibition against public employee strikes and the statutorily mandated impasse resolution procedure. From this perceived imbalance they draw several conclusions: (1) For public policy reasons, in order to promote harmonious public labor relations, PERC should redress the imbalance to achieve “a collective bargaining process which is as evenly balanced as possible.” PERC brief at 22-23. (2) Federal private labor law, which is normally recognized as persuasive by Florida courts and which holds that bargaining to impasse over a management rights clause is not, per se, an unfair labor practice, is inappropriate here because of the non-availability of the strike weapon as a method of impasse resolution. (3) Permitting management to bargain to impasse over a management rights clause would constrict the broad range of subjects on which Florida law permits employees to bargain. (4) Employees have no lawful means to counter management’s insistence on a management rights clause waiving employee rights.

I disagree with their perception of an imbalance in bargaining power and each of their conclusions. Initially, I note that if in fact there is an imbalance created by the constitution or PERA, the argument to correct it should be addressed to either the people or the legislature in the form of amendments to the constitution or to PERA. If current provisions of law fail to promote harmonious public employee labor relations, “this is an area to be addressed by the Legislature rather than by this court.” City of Winter Park v. PERC, 383 So.2d 653, 655 (Fla. 5th DCA 1980).

Secondly, in analyzing the balance of bargaining power and distinguishing between federal private labor law and Florida public labor law, PERC concerned itself only with the impact of strike prohibition and impasse resolution. Within this narrow scope of inquiry, one could conclude that public employees are disadvantaged vis-a-vis private employees. However, a comprehensive appraisal should include an analysis of other pertinent distinctions and trade-offs between public and private employments such as the private employer’s use of the lockout, the temporary layoff of employees, the transfer of work, and the liquidation of the business to counter the strike threat and resolve the impasse; and the various constitutional, statutory, and civil service rights enjoyed by public but not private employees. The distinction between public and private labor confers advantages and disadvantages on both the employer and employee. One might argue the balance of the equation created by the constitution, pertinent statutes, and case law in either direction, but PERC’s narrow and incomplete analysis is unpersuasive.

Thirdly, the collective bargaining rights of public employees have been given an expansive reading by this and other courts. See, for example, City of Tallahassee v. PERC, 393 So.2d 1147 (Fla. 1st DCA 1981), affirmed, 410 So.2d 487 (Fla.1982), which held that the constitutional right of public employees to bargain on terms and conditions of employment may not be statutorily abridged; School Board of Orange County v. Palowitch, 367 So.2d 730 (Fla. 4th DCA 1979), holding that a public employer may not make unilateral changes in terms and conditions of employment not covered by an existing agreement but must negotiate with the certified bargaining agent prior to changing them; and School Board of Indian River County v. Indian River County Education Association, Local 3617, 373 So.2d 412 (Fla. 4th DCA 1979), holding that management’s obligation to bargain extends even to a de minimis change of no great moment. Harmony requires that both parties be content with the bargaining agenda and the contract arising therefrom. If collective bargaining and compliance with the contracts arising therefrom are to be harmonious, PERC and the courts should be concerned that they give an equally expansive reading to the collective bargaining rights of management. The agenda should not be restricted to bargaining over issues either raised by the union or accepted at the sufferance of the union. Further, harmony is promoted by anticipatorily raising and agreeing, or disagreeing, on such rights when the master contract is being negotiated; management should be encouraged to raise these issues during these negotiations, not penalized for doing so. It is irrational and counterproductive to exclude such issues from collective bargaining on the master contract and to deal with them on an ad hoc basis as they arise. To do so thwarts the public interest in efficient management of government resources and furnishes a seed bed for continuing labor/management disharmony.

In National Labor Relations Board v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952), the NLRB had held that it was a per se violation of the National Labor Relations Act (NLRA) for an employer to bargain to impasse over a management functions clause and prohibited the employer from bargaining over any management functions clause covering a condition of employment. In rejecting the NLRB holding, the Supreme Court noted that such clauses were not unlawful; that bargaining for management function clauses was common collective bargaining practice; and that Congress had provided expressly that the NLRB was not to pass upon the desirability of the substantive terms of labor agreements, but was to leave such matters to the bargaining table. Finally, the NLRB fear that use of such management function clauses would lead to evasion of the employer’s duty to bargain did not justify the NLRB’s prohibition of all bargaining on such clauses or its holding that such bargaining was a per se violation of the NLRA. This is much the wiser approach to collective bargaining, whether private or public, than that adopted here by the majority. PERC has made no persuasive showing that the rationale for the American National holding is not equally applicable to public labor law, and this Court should adopt the holding as its own.

Finally, and most significantly, the concern of PERC and the majority that bargaining to impasse over a management rights clause will restrict the employees’ right to bargain because employees have no lawful means to counter management’s insistence on a waiver of employee rights is simply misplaced. First, the employee’s bargaining rights are well established; bargaining to impasse neither reduces nor expands these rights. Here, the union itself declared the impasse and there is nothing in the record to suggest, nor does any party argue, that the employees’ right to make any proposal they wished was abridged. Second, the employees’ lawful means to counter management’s insistence on a waiver of employee rights is quite simple: they can say no. In City of Tallahassee this Court held that a “legislative enactment removing retirement as a subject of collective bargaining for public employees abridges or curtails that right and, therefore, violates Article I, Section 6, of the Florida Constitution.” Id. at 1150. In response to an argument by amicus curiae that the elimination of retirement from collective bargaining was necessary in order to protect the actuarial soundness of the public pension funds as required by the constitution, our response was that collective bargaining does not require agreement to an actuarially unsound benefit; management can simply say no. This Court further noted that section 447.309(3), Florida Statutes provides:

If any provision of a collective bargaining agreement is in conflict with any law, ordinance, rule, or regulation over which the chief executive officer has no amend-atory power, the chief executive officer shall submit to the appropriate governmental body having amendatory power a proposed amendment to such law, ordinance, rule, or regulation. Unless and until such amendment is enacted or adopted and becomes effective, the conflicting provision of the collective bargaining agreement shall not become effective.

Id. at 1151. Although City of Tallahassee is factually off point, it presents a legal issue similar to that in the present case: Can the legislative body of Palm Beach Junior College, acting pursuant to section 447.403, mandate the inclusion in a collective bargaining agreement of a provision waiving public employee rights to bargain collectively over wages, hours, terms, and conditions of employment? The parties and the majority assume that the answer is yes. On the authority of City of Tallahassee, which holds that a legislature cannot abridge the public employees’ constitutional rights to collective bargaining, my answer is no. My answer is further supported by the language of section 447.403(4)(e) which recognizes that there are impasse issues which cannot be mandated:

If such agreement is not ratified by all parties, pursuant to the provisions of s. 447.309, the legislative body’s action taken pursuant to the provisions of paragraph (d) shall take effect as of the date of such legislative body’s action for the remainder of the first fiscal year which was the subject of negotiations; however, the legislative body’s action shall not take effect with respect to those disputed impasse issues which establish the language of contractual provisions which could have no effect in the absence of a ratified agreement, including, but not limited to, preambles, recognition clauses, and duration clauses, (emphasis supplied)

To construe section 447.403 as granting the authority to curtail or abridge the bargaining rights of public employees is to say that the Florida Legislature can grant authority which it does not itself possess under the constitution. Accordingly, I would hold that the management prerogatives clause in issue is a nullity in that it exceeds the statutory authority granted to the legislative body of the college: only the employees may waive their constitutional and statutory rights to bargain collectively over wages, hours, terms and conditions of employment by ratifying an agreement pursuant to section 447.309; the public employer may not mandate such a waiver pursuant to section 447.403.

The disposition of the case on this ground has several advantages which the majority decision does not provide. First, it does not restrict the right of the public employer to propose and bargain for management rights. Second, it respects well-settled and persuasive federal case law. Third, it respects the right and burden of both parties to bargain with each other without risking or invoking a premature intervention by PERC. Fourth, it provides fuller protection to the employees’ collective bargaining rights than does the PERC order. The PERC finding of bad faith bargaining appears to assume that if management had forthrightly made a more specific waiver proposal there would have been no unfair labor practice. If this assumption were true, the logic of the PERC analysis would permit the legislative body of the public employer to mandate a specific, but not a general, waiver of employee bargaining rights. Thus, under other circumstances, the unfair labor practice approach would not prevent an abridgement of the employees’ bargaining rights.

Finally, in grounding its disposition on a finding of an unfair labor practice, PERC did not limit its remedy to holding that the management rights clause could not be bargained to impasse. Instead, PERC ordered the College’s Board of Trustees to rescind its action resolving the bargaining impasse and to offer the union an agreement including all provisions agreed to by the parties in negotiations and those mandated by the Board of Trustees, excluding the management prerogatives clause in issue. The PERC notion that preliminary negotiations and tentative agreement on individual terms of a contract, absent final agreement, create a complete contract is contrary to well settled contract law. See 11 Fla. Jur.2d, Contracts, §§ 10-13. More seriously, in establishing the precedent that PERC’s power to remedy an unfair labor practice includes the power to dictate the substantive terms of a contract to a party, PERC is acting ultra vires. Nothing in PERA even suggests that PERC has the authority to act as an Interest Arbitrator; indeed the legislative decision to vest the authority for impasse resolution in the legislative body of the public employer suggests the contrary. The legislature could have tasked PERC with the responsibility and authority under section 447.403 to act as an Interest Arbitrator in resolving bargaining impasses; it chose not to do so. PERC’s assumption of that role in the guise of policy making is contrary to statute and case law. See H.K. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970), where the court faced this very issue and reversed the NLRB’s imposition of a dues check-off on an employer, holding that, “while the Board does have power ... to require employers and employees to negotiate, it is without power to compel a company or a union to agree to any substantive contractual provision of a collective-bargaining agreement.” Id. at U.S. 102, L.Ed.2d 150.

In sum, I agree with PERC and the majority that a public employer cannot be permitted to bargain to impasse over a proposed waiver of employee rights on the founded expectation that the proposed waiver may be mandated during the impasse resolution stage. I am convinced, however, that section 447.403 does not in specific terms authorize the legislative body of the public employer to mandate such a waiver and, further, assuming arguendo that the statute did authorize such action, the statute, or portion thereof, would be unconstitutional. See City of Tallahassee. I appreciate that this case appears to present an issue of first impression, but, in my view, PERC has misperceived the nature of the problem, misconstrued the applicable law, and, consequently, devised new law which not only does not adequately address the true problem, but which, as a side effect, creates serious future problems.

I am also concerned over what I regard as PERC’s unduly expansive view of its role in formulating public labor policy and this Court’s acquiesence under the rubric of judicial deference to agency expertise. Though it may offend theoreticians, we need to understand and accept that contemporary government agencies are not entirely neutral and disinterested arbitrators of the conflicting interests of others. Government agencies have an activist role, functions to perform, and human and institutional interests of their own which are inconsistent with those of the neutral and disinterested magistrate. PERC, for example, is appearing here as a party with full advocacy rights. In the scale of judicial values, deference to agency expertise is an aid to judicial review and a self-imposed restraint against the judicial arrogation of executive and legislative powers; equality before the law is a fundamental precept imposed on the judiciary by our federal and state constitutions. Ritualistic judicial deference to an agency’s interpretation of its statutory power risks abdication of the role of the judiciary. As John Marshall put it:

It is emphatically the province and duty of the judicial department to say what the law is.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60, 73 (1803).

      . The clause, Article XXII, Section C, provides: Whenever the Employer exercises a right to [or] privilege contractually reserved to it or retained by it, the Employer shall not be obliged to bargain collectively with respect to the effect or impact of that exercise on individual unit members or on the unit as a group, or to postpone or delay effectuation or implementation of the management decision involved for any reason other than an express limitation contained in this Agreement.

      . The first alternative clause proposed the following:
      It is clearly and unmistakably understood by the parties hereto, and agreed, that the reservation or retention of a right, or the existence of a right, under this Article or emanating from some other source, within or independent of this Agreement, comprehends, includes and encompasses the authority, without further bargaining, to act and implement, as well as the rights to engage in decision making. It is assumed that decisions lawfully arrived at and which are contractually proper will be so implemented, and questions as to the effects or impacts of such implementations and consequential actions shall not be subject for mandatory bargaining during the term of the Agreement.
      The parties also agree, however, to meet and confer, at the request of either, although not to bargain in the legal sense, as to such impacts or effects.
      The second proposal stated:
      The right to take unilateral action refers to all rights described in Section A, and is not qualified by or subject to any duty to bargain over the effects or impacts of actions taken or of consequential, reasonable changes in terms or conditions of employment made in consonance with such actions.

      . To the contrary, three actions of the union leadership suggest that the union may have bargained in bad faith: by declining to comment on the management prerogatives clause when first proposed and declaring an impasse without offering any counterproposal; by not responding to the alternative management proposals of 30 October 1980, which contained language indicating management was moving toward more restrictive or specific delineation of the scope of the clause; and by not submitting the legislatively-mandated contract to the union membership for ratification or rejection as they were required to do by section 447.403, Florida Statutes (Supp.1980). See City of Orlando v. Int’l Ass’n of Fire Fighters, Local 1365, 384 So.2d 941 (Fla. 5th DCA 1980), which held that it was an unfair labor practice to delay the resolution of a bargaining impasse.

      . See American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965); NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); and The Florida Bar, Collective bargaining for public employees in Florida■ — in need of a popular vote?, October, 1982.


text:
    Martin Keith DONALDSON, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AL-52.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.
    Rehearing Denied Feb. 3, 1983.

      George L. Waas of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellant.
    Robert P. Daniti of Dept, of Health and Rehabilitative Services, Tallahassee, for ap-pellee.
   PER CURIAM.

This is an administrative appeal from a final order of the Department of Health and Rehabilitative Services, suspending for a period of ninety days appellant’s license to sell hearing aids, and imposing a $500.00 fine. We affirm the order with exception of that portion imposing both a fine and a suspension.

We reject appellant’s contention that the administrative complaint filed against him was improperly filed and subject to dismissal because it was not signed by the agency head of HRS. There is no statutory or rule requirement applicable to this case relating to who must sign an administrative complaint. The complaint in this case was signed by Mrs. Beamer, supervisor of the Hearing Aid Licensure Office of the Department of HRS. The complaint was preceded by notice to appellant given in the form of a letter from Mrs. Beamer, informing appellant of the intended action against him, and giving appellant the opportunity to defend his license at an informal conference. Appellant has not challenged Mrs. Beamer’s authority to give such notification, nor her appearance as the agency representative at the informal conference. See, Section 120.60(6). This court has previously approved a hearing officer’s interpretation of this statute as not contemplating a hearing before the agency, but an opportunity to show compliance at an informal conference with the agency or a representative of the agency, which may be its executive director or any other designatee who may be designated at any time by the agency to conduct such conferences. Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA 1980). This court agreed with the hearing officer in Sheppard that an agency is not required to formally designate a representative for purposes of an informal conference. We conclude that the same rule applies to the signing of an administrative complaint, in the absence of a specific statutory or rule requirement to the contrary. This is particularly so in view of the provisions of Model Rule 28-5.110(3), Florida Administrative Code, adopted by HRS, which provides that a determination of probable cause upon which to base an administrative complaint is a “non-adver-sáry executive function . . . . ”

Moreover, there appears in the record evidence of delegation of authority sufficient to authorize Mrs. Beamer’s signing of the complaint. By a communication dated November 30, 1978, authority was delegated by the Director, Central Operations Services, to “Director of the Office of Li-censure and Certification,” to “take such actions required for effective direction and administration of program operations of the Office of Licensure and Certification.” Paragraph C. of that document also provides “this authority may be exercised by any person designated as Director of the Office of Licensure and Certification or acting in that capacity.” Thus, this document delegates the requisite authority to the Director of the Office of Licensure and Certification, regardless of the individual holding that office. Such a general delegation of authority appears to be sufficient. Sheffield v. Department of Highway Safety & Motor Vehicles, 356 So.2d 353 (Fla. 1st DCA 1978). Although appellant argues to the contrary, it appears to us that the cases relied upon by appellant relate to final agency action, as opposed to the initiation of agency action, or to the standing of an agency head to file suit in her representative capacity. Cf. White Construction Co. v. Dept. of Transportation, 281 So.2d 194 (Fla.1973); Kizar v. Wittenberg, 398 So.2d 1002 (Fla. 5th DCA 1981).

Appellant next argues that since under Section 468.138, any violation of Chapter 468, part II, is a misdemeanor of the second degree, the one year statute of limitations for prosecutions of misdemeanor charges under Section 775.15(2)(d) applies, and would bar the Department’s reliance upon any alleged infractions of the licen-sure law committed by appellant more than one year prior to the filing of the administrative complaint. We reject appellant’s argument, because the legislature has provided several methods of enforcing the provisions of Chapter 468, and there is no legislative intent manifested in any portion of the act to indicate that the limitation upon misdemeanor prosecutions would apply to the other enforcement remedies available to the Department. In the absence of specific legislative authority, civil or criminal statutes of limitation are inapplicable to administrative license revocation proceedings. 2 Am.Jur.2d, Administrative Law, § 322.

Next, we find without merit appellant’s argument that the Department’s issuance of a license to appellant during the pendency of administrative proceedings through its own administrative error amounted to a “ratification” of appellant’s unlawful conduct. We are aware of no authority which would produce such a result, and in this case we observe that such an interpretation would be manifestly contrary to the intent demonstrated by the agency in prosecuting the complaint against appellant to a final hearing. Further, we agree with appellee that the hearing officer’s findings of fact are supported by competent substantial evidence, and that the final order of HRS met the requirements of Section 120.57(l)(b)8 and 120.59(2), Florida Statutes.

Finally, by notice of supplemental authority, appellant has challenged the legality of the agency’s action in both suspending his license, and in assessing an administrative fine. We agree that this was error. Section 468.129, Florida Statutes, provides that the Department “may refuse to issue or renew or may suspend or revoke any certificate of registration or may impose an administrative fine not to exceed $500.00 per day for each violation, .. .. ” This case is controlled by the rule followed in Linkous, et al. v. Department of Professional Regulation and Board of Real Estate, 417 So.2d 802 (Fla. 5th DCA 1982), that where listed statutory penalties appear as a series of phrases separate by the disjunctive article “or,” the penalties are thus in the alternative, and the agency may impose one or the other of the penalties, but may not impose two or more penalties for the same conduct.

The order appealed from is affirmed with the exception of the penalty provision, and as to that provision the cause is remanded for entry of a-revised order imposing either fine or suspension, but not both.

LARRY G. SMITH, SHAW and JOA-NOS, JJ., concur.


author: SHAW, Judge. LARRY G. SMITH, Judge, JOANOS, Judge,

text:
    Sherry Lynn PINKERTON, Appellant, v. Robert B. EDWARDS and Frankie Mills, Sheriff of Okaloosa County, Florida, Appellees.
    No. AL-78.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.
    Rehearing Denied Feb. 8, 1983.

      Woodburn S. Wesley, Jr. of Cotton, Wesley & Poche, Shalimar, for appellant.
    Julius F. Parker, Jr. of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellees.
   SHAW, Judge.

The issue on appeal is whether the denial of a motion for a judgment of acquittal at the conclusion of the State’s case creates a presumption of probable cause so as to bar a later action for malicious prosecution. We hold that it does not.

Appellant Pinkerton was arrested and jailed by appellee Deputy Sheriff Edwards. The State Attorney filed a one-count information against Pinkerton charging her with battery on a law enforcement officer. After the conclusion of the State’s case, the trial judge denied Pinkerton’s motion for a judgment of acquittal. The jury returned a verdict of not guilty. Thereafter, appellant filed a four-count civil complaint against appellees alleging: (1) false arrest, (2) false imprisonment, (3) assault and battery, and (4) malicious prosecution. Upon motion of appellees for a summary judgment, the trial court, relying on Gallucci v. Milavic, 100 So.2d 375 (Fla.1958), granted a summary judgment as to counts 1, 2, and 4 on the ground that the denial of appellant’s motion for á judgment of acquittal at her criminal trial constituted a finding of probable cause. We disagree and reverse.

In Gallucci, a justice of the peace held a hearing to determine probable cause for prosecution at which evidence was received from the complainant. The accused appeared at the hearing but chose to remain silent and was bound over for trial. During trial a defense motion for a directed verdict of not guilty was granted. A civil suit for malicious prosecution ensued. On review, the Florida Supreme Court held that the ruling of the justice of the peace that the accused should be held for trial raised a presumption of probable cause which could have been overcome by proof that the complainant had resorted to fraud or other improper means in securing the criminal charge. We have found no dispositive case law which clearly accepts or rejects the analogy between the presumption of probable cause in Gallucci and such a presumption in the denial of a motion for a judgment of acquittal, although K-Mart Corp. v. Sellars, 387 So.2d 552 (Fla. 1st DCA 1980), suggests that such an analogy is invalid. In analyzing Gallucci, however, we consider it significant that the accused appeared at the hearing specifically set for the purpose of determining probable cause and was given an opportunity to testify or present evidence that probable cause did not exist. This significance is reinforced by our sister court’s holding in Johnson v. Strickland, 300 So.2d 50 (Fla.3d DCA 1974) wherein the court recognized the fine line to be drawn between an inquiry into probable cause and the determination of disputed fact, but held that it was error to deny an accused the right to present testimony for the purpose of showing there was no probable cause. In reaching this decision the court relied on Ex Parte Fortune, 126 Fla. 539,171 So. 310, 312 (Fla.1936) where it was held to be error to hold an accused over for trial when it was “affirmatively made to appear that if a trial were duly had of the cause, the trial judge would be compelled to direct a verdict of acquittal . ... ” Thus, as we read these cases, because a Gallucci probable cause hearing permits both parties to present evidence on the issue of probable cause and to have the evidence considered by a neutral and disinterested magistrate, a finding of probable cause by the magistrate creates a presumption of probable cause which serves to shield the original accuser from a suit for malicious prosecution, absent a showing of fraud or other improper behavior by the accuser. In effect, the probable cause hearing acts to transfer the responsibility for the prosecution from the accuser to the neutral and disinterested magistrate.

The entry of a motion for a judgment of acquittal in accordance with Florida Rule of Criminal Procedure 3.380 is a common trial tactic which serves to test the legal sufficiency of the State’s case as to each element of the charged offense and to preserve the issue for appeal. It also provides the trial court with a procedural device to withdraw the case from the jury, thereby saving the time and expense of a lengthy jury determination, in those cases where the State has failed to adduce competent evidence on one or more essential elements of the charged offense upon which the jury could reasonably reach a finding of guilt. Cunningham v. State, 385 So.2d 721 (Fla.3d DCA 1980); Sheehan v. Allred, 146 So.2d 760 (Fla. 1st DCA 1962). In contrast to a hearing where a neutral and disinterested magistrate makes an independent determination of probable cause based on the evidence before him, a trial judge considering a motion for judgment of acquittal is severely constrained as a matter of law from infringing on the responsibilities of the jury. As the court summarized it in Lynch v. State, 293 So.2d 44, 45-46 (Fla.1974) (cites omitted):

A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge. The credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal.

Probable cause has been defined “as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offense charged.” 24 Fla.Jur.2d 556, False Imprisonment, § 21 (1981) (footnote omitted). While the evidence supporting probable cause may overlap with the evidence establishing legal sufficiency of proof, the tests applied are not the same. Indeed, the question of probable cause is not presented to either the trial judge considering a motion for a judgment of acquittal or the jury considering the issue of guilt. Thus, although a favorable termination in a prior criminal proceeding is an essential element in a suit for malicious prosecution, an acquittal in a prior criminal proceeding cannot be relied on to establish a lack of probable cause. Ward v. Allen, 152 Fla. 82, 11 So.2d 193 (1942). Further, the role of the magistrate conducting a probable cause hearing is unlike the role of the trial judge considering a motion for judgment of acquittal. Certainly, for example, a (cautious man) magistrate conducting a probable cause hearing is not obliged to accept all facts adduced and every conclusion drawn therefrom favorable to the State, nor is he precluded from evaluating the probative value and credibility of witnesses and weighing evidence adduced by the accused, Lynch. If the magistrate were so obliged, then a binding over, for trial would not reflect an independent probable cause determination and would be inconsistent with the constitutional role of a neutral and detached magistrate.

In sum, in our view, a motion for a judgment of acquittal does not present the issue of lack of probable cause. Further, the posture of the case at that juncture constrains the judge from making an objective and impartial probable cause determination, and a denial of the motion does not reflect a finding of probable cause. It reflects only a determination that the state has legally sufficient evidence to present a jury question.

Appellees also urge on appeal that appellant was released on her own recognizance by a county judge present in the jail at the time of her release and that this constituted a finding of probable cause. We see nothing in the record to support the notion that the county judge conducted a probable cause hearing or that he entered an order finding probable cause.

REVERSED and REMANDED for reinstatement of counts one, two, and four.

LARRY G. SMITH, J., specially concurs with opinion.

JO ANOS, J., dissents with written opinion.

LARRY G. SMITH, Judge,

specially concurring with opinion.

I concur in the result and with much of the discussion contained in Judge Shaw’s opinion. I agree that the denial of a motion for judgment of acquittal does not create a presumption of “probable cause” in favor of the complaining party who is later sued for malicious prosecution, but for different reasons than Judge Shaw has stated.

In a criminal case, at the preliminary hearing “probable cause” stage, if the evidence satisfies the judicial officer, then we can say that the complainant was presumably justified in making the criminal accusation that started the prosecution. This is essentially the holding of Gallucci v. Milavic, cited in Judge Shaw’s opinion.

By contrast, the evidence available to and adduced by the State at the criminal trial may go far beyond that available to the accusing party at the time the criminal charge was made, or beyond that available to the State at the time of the preliminary probable cause hearing. For example, a criminal charge instituted upon less than probable cause could later develop into a sufficient case against the accused by virtue of the testimony of an accomplice who turns “State’s evidence.”

Because of the temporal separation between the two events, i.e., the probable cause hearing, and the point at which a motion for judgment of acquittal may be made at the criminal trial, the evidence available at the probable cause hearing may bear little resemblance to the evidence presented by the State at the trial. I can agree with Judge Joanos that if the evidence at the criminal trial is sufficient to deny a motion for judgment of acquittal, then the evidence would also have to be deemed sufficient for a finding of “probable cause. However, the difficulty I have with Judge Joanos’ position is that the issue is not whether probable cause exists at the conclusion of the State’s case, but rather, whether probable cause existed at the time the accusing party commenced the prosecution. It seems to me that since it does not follow that the evidence possessed by the accusing party is necessarily the same as that adduced by the State at the criminal trial, I don’t think the application of a presumption in favor of the accusing party can be based upon the state of affairs as they appear at the conclusion of the State’s case in the criminal trial.

For the above reasons, I would concur in reversal of the trial judge’s ruling.

JOANOS, Judge,

dissenting.

I agree with the Circuit Court’s determination that under the circumstances of this case, the denial of the motion for directed verdict and the submission of the criminal proceeding to the jury was the functional equivalent of a determination of probable cause that an offense had been committed. Therefore, pursuant to Gallucci v. Milavic, 100 So.2d 375 (Fla.1958), the order appealed from should be affirmed.

      . In Sellars, the appellant argued that a denial of a motion for judgment of acquittal should be equated to finding probable cause based on an analogy to the rule of law set forth in Gallucci. This Court responded:
      Even if we agreed with appellant’s premises that such an analogy can be made, we would be constrained to affirm on the basis of the entire Gallucci rule and the facts of this case:
      ... the presence of probable cause was adjudicated when the justice of the peace held that the appellant should' answer the charges. This ruling was not an absolute rule but it raised a presumption of the existence of probable cause which could have been overcome by proof that the appellee had resorted to fraud or other improper means in securing the committal ....

        Gallucci, supra, at 377. Here,- of course, there was evidence that K-Mart’s agent used “fraud or other improper means” to force Sellars to go through the ordeal of an unjustified criminal trial.

        Id. at 554.

      . By “sufficient case” I mean sufficient to go to the jury. Of course, the jury may then reject the evidence, and the accused may be acquitted.

      . Even though the evidence may satisfy “probable cause” in the trial judge’s view, the jury may not be convinced beyond a reasonable doubt, and may acquit, furnishing one of the essential elements for the malicious prosecution action. See footnote 1.


author: WENTWORTH, Judge.

text:
    Thomas Rapheal FASENMYER, Appellant, v. STATE of Florida, Appellee.
    No. AL-454.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.
    Rehearing Denied Feb. 7, 1983. •
    Quentin T. Till, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant was convicted of breaking and entering while armed, grand theft, and using a firearm during the commission of a felony. Appellant previously appealed his breaking and entering conviction and in Fasenmyer v. State, 413 So.2d 33 (Fla. 1st DCA 1981), this court determined that there was insufficient evidence of a “breaking” and remanded the cause, “for entry of an appropriate judgment and for resentenc-ing.” On remand the breaking and entering count was reduced to entering without breaking and the sentence therefor was accordingly reduced; however, the court contemporaneously increased the sentences for appellant’s other offenses. Appellant now contends that the lower court erred in resentencing for the other offenses; we disagree, and we affirm the order appealed.

In Brown v. State, 264 So.2d 28 (Fla. 1st DCA 1972), this court indicated that

Where two separate judgments or sentences are imposed together, the legality of each must be determined separately .... It is further established that a trial court is generally without power to set aside a criminal judgment after it has been partly satisfied .... There are, of course, various exceptions to this rule

Accord, Pahud v. State, 370 So.2d 66 (Fla. 4th DCA 1979). Brown was subsequently distinguished in Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982), where the court ruled that if illegal concurrent sentences are challenged, on remand the court may impose consecutive sentences. The present case is unlike Herring in that the defendant in that case challenged both sentences, while appellant in the present case appealed only one of his three convictions. Nevertheless, we conclude that the circumstances of the present case warrant an exception to the general rule announced in Brown and Pahud. In this regard we have determined to follow U.S. v. Busic, 639 F.2d 940 (3d CCA 1981), which involved an appeal of only one conviction in a multiple count verdict. Busic held that

When the defendants successfully appealed their conviction . .. and obtained reversals, the court’s sentencing plan based on the aggregate conviction . .. was thwarted. In such a case, where the sentences were interdependent, we believe an appellate court, vacating one of those sentences, can vacate the other sentence even if its imposition is not specifically raised on appeal.

Chandler v. U.S., 468 F.2d 834 (5th CCA 1972), takes a contrary view. However, we hereby adopt Busic as the better-reasoned opinion; as Busic indicates, the Chandler rule “would allow the guilty to escape punishment through a legal accident,” whereas the Busic approach merely allows the trial court to effectuate its original sentencing intention in a legal manner.

Appellant’s other arguments are without merit. Accordingly, we affirm the order appealed.

BOOTH and THOMPSON, JJ., concur.

      . Herring also suggests that Pahud v. State has been overruled sub silentio by Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981).

      . The offenses all occurred during a single criminal episode and the sentences imposed were clearly interdependent.

      .As Busic indicates, considerations of double jeopardy, as elucidated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), would preclude the imposition of new sentences with a cumulative effect which is more severe than the cumulative effect of the sentences previously imposed.


text:
    FFEC-SIX, INC., Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, Appellee.
    No. AN-53.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.

      B. Kenneth Gatlin of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant.
    Gregory J. Krasovsky, Associate Gen. Counsel, Florida Public Service Com’n, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an order entered by the Public Service Commission upon appellant’s application for a water and sewer permit. We find that the Commission has failed to provide a clear point of entry into the administrative process and we therefore reverse the order appealed.

Appellant applied for certificates to operate a water and sewer utility to service a portion of Lee County, Florida; after much deliberation the Commission granted the certificates but authorized only such revenue as would “allow the utility to recover estimated operation and maintenance expenses and depreciation.” The Commission argues on appeal that it was unable to determine a more reasonable rate of return without further information as to appellant’s capital structure, and that appellant should have petitioned for Commission reconsideration whereby such further information could have been presented. However, the Commission order did not indicate that further information was necessary, nor did the order articulate appellant’s right to request a § 120.57, Florida Statutes, hearing, or the applicable time limit for such a request, or the applicable procedural rules. The Commission has thereby failed to provide appellant with a clear point of entry into the administrative proceeding, thus rendering the Commission action invalid. See Manosata-88 v. State Department of Environmental Regulation, 417 So.2d 846 (Fla. 1st DCA 1982); Sterman v. Florida State University, 414 So.2d 1102 (Fla. 1st DCA 1982).

The order appealed is reversed and the cause remanded for further proceedings.

BOOTH and THOMPSON, JJ., concur.


text:
    William KIRSCH, Petitioner, v. Barbara A. GREADINGTON, Chairperson, J. Mitchell, Clerk, and Florida Parole & Probation Commission, Respondents.
    No. AO-419.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.

      William Kirsch, pro se.
    No appearance for respondents.
   PER CURIAM.

Petitioner, an inmate housed in Florida State Hospital, seeks habeas corpus relief from Florida Parole and Probation Commission action, declining to authorize an effective parole release date (EPRD), § 947.-174(6), and extending his presumptive parole release date (PPRD) 13 months. Kirsch alleges the action was based on a finding that he needs continued in-patient treatment for depression, suicidal thinking and hallucinations, evidenced in a June 3, 1982 psychiatric evaluation. He claims that he should have been released on parole on June 8, 1982, his originally established PPRD.

I.

In our opinion, even if the Commission action extending Kirsch’s PPRD 13 months is illegal, this does not mean the inmate is entitled to immediate release from incarceration. While we are aware of conflict with other districts, we are compelled to follow cases which have found there is no right to parole in Florida. Ha-beas corpus relief requires showing a right or entitlement to immediate release from custody. The Supreme Court of Florida, having treated a petition for writ of habeas corpus as one for a writ of mandamus, stated,

The writ itself ... would not command the respondent’s discretion, but rather would compel the respondent to exercise its discretion as to the granting or denial of parole without consideration of [unconstitutional] convictions.

Moore v. Florida Parole and Probation Commission, 289 So.2d 719, 720 (Fla.1974). Accordingly, habeas corpus is not an available remedy for improper action by the Commission.

Further, the placement of an inmate on parole on the date his PPRD arrives, or legally should have arrived, is not automatic. Section 947.174(6) requires the Commission, at least 46 days prior to arrival of the PPRD, to decide whether it will authorize an EPRD, a decision which appears to lie within the sound discretion of the Commission. See Gobie v. Florida Parole and Probation Commission, 416 So.2d 838 (Fla. 1st DCA 1982). Additionally, § 947.18 requires the Commission to make a finding of

reasonable probability that, if [the inmate] is placed on parole, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society.

See Gobie, supra, and Moats v. Florida Parole and Probation Commission, 419 So.2d 775 (Fla. 1st DCA 1982). Ordering the release by habeas corpus of an inmate when his PPRD arrives or should have arrived would prevent the Commission from exercising its discretion in the parole grant process. We decline to circumvent statutorily prescribed procedures.

II.

In Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), we recognized that the Commission’s final action should be judicially reviewed under § 120.68 of the Administrative Procedure Act. The effect of this decision has been to restore to the mandamus action its original purpose of compelling a public officer to perform a ministerial duty, subject to the judicially imposed restraints of exhausting one’s administrative remedies and of having no adequate legal remedy.

Thereafter, in Holman v. Florida Parole and Probation Commission, 407 So.2d 638 (Fla. 1st DCA 1982), we indicated that review of Commission action by mandamus will not lie when a § 120.68 appeal is available. We stated that petitions for extraordinary writs that state the date of final agency action and that are filed here or with the Commission, within 30 days of the final action, Fla.R.App.P. 9.110(c), would be treated as notices of appeal and the cause would be considered on its merits. If the inmate, whose petition for extraordinary writ was denied under Holman, shows that there has been final action and that he filed his petition within 30 days of that action, we permit an appeal to proceed.

In this case, while Kirsch alleges he has exhausted his administrative remedies, he does not allege he sought and received a § 947.173 review of the Commission action extending his PPRD 13 months. Further, he does not state the date of such final action. Therefore, we dismiss this petition for writ of habeas corpus, without prejudice to petitioner to file for rehearing and affirmatively show he has invoked the jurisdiction of this court by filing his petition within 30 days of the Commission action at his § 947.173 review.

MILLS, ERVIN and WIGGINTON, JJ., concur.

      . See Daizi v. Turner, - So.2d -(Fla. 4th DCA 1982) [1982 FLW 2523]; Taylor v. Wainwright, 418 So.2d 1095 (Fla. 5th DCA 1982); Lowe v. Florida Parole and Probation Commission, 416 So.2d 470 (Fla. 2d DCA 1982); Jenrette v. Wainwrigbt, 410 So.2d 575 (Fla. 3d DCA 1982); Roberson v. Florida Parole and Probation Commission, 407 So.2d 1044 (Fla. 3d DCA 1981); and Hardy v. Greadington, 405 So.2d 768 (Fla. 5th DCA 1981). In Jenrette, supra, the Third District Court of Appeal granted habeas corpus, directing Wainwright to release the inmate from custody because his PPRD had been calculated in reliance on an uncounselled conviction. In Taylor, supra, the Fifth District Court of Appeal granted habeas corpus, “subject to the standard provisions of parole in such cases,” because the Commission had placed petitioner’s offense characteristic in a higher matrix time range than it should have been. In Daizi, the Fourth District also granted habeas corpus, subject to parole provisions. Based on its interpretation of § 947.165(1) and Rule 23-19.03 that the Commission may not use factors relied on in arriving at the salient factor score to aggravate the applicable matrix time range, the court invalidated an aggravation for a concurrent conviction, which the Commission was authorized to impose under Rule 23-19.01(5).

      . See Ivory v. Wainwright, 393 So.2d 542, 544 (Fla.1981); Moore v. Florida Parole and Probation Commission, 289 So.2d 719, 720 (Fla. 1974); Gobie v. Florida Parole and Probation Commission, 416 So.2d 838, 840 (Fla. 1st DCA 1982); Arnett v. State, 397 So.2d 330, 332 (Fla. 1st DCA 1981); Staton v. Wainwright, 665 F.2d 686, 687 (5th Cir.1982). See also Ch. 82-171, § 2, Laws of Florida.


text:
    Spike VON ZAMFT, Ronald I. Baron and James D. Evans, Appellants, v. George S. HELLER, as Trustee, Appellee.
    No. 82-570.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Rehearing Denied Feb. 2, 1983.
    Daniel P. Tunick and Burton Engels, Miami, for appellants.
    Raul Carreras, Jr., Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

We reverse the final judgment dismissing the plaintiffs’ complaint to foreclose the mortgage and remand to the trial court with directions to enter judgment for the plaintiffs in accordance with the terms of the mortgage on the authority of Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970). See also Scarfo v. Peever, 405 So.2d 1064 (Fla. 5th DCA 1981).

Reversed and remanded with directions.