text:
    Jeffrey Joseph DAUGHERTY, Petitioner, v. STATE of Florida, Respondent.
    No. 60709.
    Supreme Court of Florida.
    Sept. 14, 1982.

      Arthur J. Kutsche, of the Law Offices of A. J. “Sonny” Kutsche, Titusville, for petitioner.
    Jim Smith, Atty. Gen., and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for respondent.
   PER CURIAM.

Jeffrey Joseph Daugherty appeals his conviction and sentence of death for the first-degree murder of Lavonne Patricia Sailer. We affirm.

Daugherty, along with his girl friend Bonnie Heath and his uncle, left Michigan in January 1976 and traveled to Florida purportedly to look for jobs and to visit Heath’s children. On February 23,1976, he robbed an Easy Way food store and shot and killed Carmen Abrams and seriously wounded her husband. Continuing on a killing and robbing spree, on March 1,1976, Daugherty and Heath picked up Lavonne Sailer who was hitchhiking in Melbourne, Florida. They took her to an isolated area near the Brevard County dump where Daugherty told her to get out of the car and robbed her. He then shot her five times at close range with a .22 caliber pistol. They then returned to the nearby bar to pick up Daugherty’s uncle. Thereafter for a twenty-day period, Daugherty, along with Heath, continued on a course of robberies and murders, several of which he was convicted and for which he was sentenced prior to being convicted and sentenced for the Sailer murder.

Daugherty pled guilty to the first-degree murder, robbery, and kidnapping of Sailer. A jury was then impaneled for the sentencing phase. The jury recommended a sentence of death, and the judge imposed the death sentence for the first-degree murder and life sentences for the robbery and kidnapping. The trial court found as an aggravating factor that Daugherty was previously convicted of another capital felony or a felony involving the use or threat of violence to the person. It enumerated the previous convictions as follows:

(1) The defendant was convicted and sentenced on July 31, 1980, for First Degree Murder in Flagler County, FI. where he shot and killed a white female in her sixties by shooting her in her left shoulder and right temple during the course of robbing the victim.
(2) The defendant was sentenced on July 14, 1980, for the Murder of a white female by the name of Campbell whom he stabbed after he had robbed her place of business in Volusia County, FI.
(3) The defendant was convicted and sentenced on September 29, 1978, for Criminal Homicide, Criminal Conspiracy, Robbery and crimes committed with firearms. The defendant robbed a gas station and in the process shot the young attendant twice in the side, once in the bridge of the nose and once under the chin.
(4) The defendant was convicted and sentenced on January 4, 1980, for Robbery, Aggravated Assault, Simple Assault and crimes committed with firearms. In Altoona, Pa. the defendant robbed a woman clerk at Rich’s Music Store with a firearm and in the process assaulted the woman a number of times until she lost consciousness.
(5) The defendant was convicted and sentenced on September 29, 1978, in the State of Pennsylvania for the crimes of Simple Assault, Aggravated Assault, Burglary, Robbery and crimes committed with firearms.
(6) The defendant was convicted and sentenced on July 12, 1976, in the State of Virginia for Armed Robbery and using a firearm while committing a felony.
(7) The defendant was convicted and sentenced on January 4, 1980, for Criminal Conspiracy, Robbery and Criminal Homicide. The defendant robbed one Betty Shank at a Jack’s Kwik-Mart in Blair County, Pa. and in the process killed the clerk by shooting her in the body and head.

The trial court also found as an aggravating circumstance that the murder was committed for pecuniary gain. Weighing the aggravating and mitigating circumstances, it concluded the death sentence is justified because there are sufficient aggravating circumstances and insufficient mitigating circumstances.

Daugherty does not challenge his plea of guilty to the charges against him. The transcript of the plea proceeding evidences the voluntariness of his plea. In response to the trial court’s inquiry, Daugherty stated that he was neither coerced nor compelled to plead guilty nor promised any leniency, gain, advantage, probation, or any other benefit to persuade him to plead guilty; that he fully understood the charges against him to which he pled guilty and the possibility of the imposition of the death penalty; and that he was also fully advised of all the rights he waived by pleading guilty. When asked during oral argument by this Court whether there was any question as to the voluntariness of Daugherty’s pleas, Daugherty’s counsel answered in the negative.

Daugherty does challenge his death sentence. He contends that the court erred in allowing the State to present evidence of prior convictions as an aggravating circumstance where the offenses occurred subsequent to the capital felony for which he is now being sentenced and that the trial court erred in considering these prior convictions as an aggravating circumstance. He concedes, however, that we have resolved this argument against him in several recent decisions.

The State responds that not only have our decisions foreclosed this argument, but also Daugherty does not have standing to raise this point since one of the murders for which Daugherty was convicted was committed prior to the murder of Lavonne Sail-er.

In Elledge v. State, 346 So.2d 998 (Fla.1977), we rejected this same argument and held that it is clear from a reading of section 921.141(5)(b), Florida Statutes (1975), that the legislature referred to “previous convictions” and not to “previous crimes.” Prior conviction, we emphasized, is the important element of this aggravating circumstance. See also Lucas v. State, 376 So.2d 1149 (Fla.1979). We likewise held in King v. State, 390 So.2d 315, 320 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981), that “[t]he legislative intent is clear that any violent crime for which there was a conviction at the time of sentencing should be considered as an aggravating circumstance.” See also Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981).

We hold that the trial court did not err in permitting the State to introduce these pri- or convictions and did not err in finding the aggravating circumstance that Daugherty was previously convicted of another capital felony or a felony involving the use or threat of violence to the person.

Daugherty also argues that the court erred in not considering certain mitigating factors. He initially contends that the trial court erred in rejecting the statutory mitigating factor of no significant history of prior criminal activity. He asserts that the court erroneously premised its conclusion that this mitigating factor did not exist on the basis that Daugherty had been previously convicted of four murders. The court also noted that he had been convicted of three other robberies and two aggravated assaults. These crimes, states Daugherty, were committed after the Sailer murder. The State points out that one of these convictions was for a murder committed prior to the Sailer murder.

This prior conviction of the earlier committed capital felony is alone sufficient to negate the mitigating factor of no significant history of prior criminal activity. Moreover, in Ruffin v. State, we held that all of these prior convictions could be properly considered as a basis for rejecting this mitigating factor. In Ruffin, we said that “prior” means prior to sentencing of a defendant and does not mean prior to the commission of the murder for which he is being sentenced. We explained:

The interpretation of “prior” advanced by Ruffin is unreasonable particularly in view of the fact that a defendant may have committed a murder for which he is not apprehended until many years later and during the course of these years he may have a long history of significant criminal activity. Ruffin’s position would prevent the court from negating this mitigating circumstance by considering the defendant’s criminal activity occurring after the commission of the murder. This interpretation would thwart the legislature’s intent when it established this mitigating circumstance.

397 So.2d at 283. Thus, we hold that the trial court properly rejected this mitigating factor. We further find no error in the court’s rejecting the other statutory mitigating factors. Specifically as to other statutory mitigating factors, the trial court properly found:

(b)Whether the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
FINDING:
The Court finds the defendant was not under the influence of extreme mental or emotional disturbance. The defendant, Daugherty, at his trial claimed he did suffer from headaches but at the time he killed the victim in this case he was not suffering from any headaches so the court did not consider this a mitigating circumstance.
(c) Whether the victims were participants in the defendant’s conduct or consented to the acts.
FINDING:
The victim did not participate in the conduct or consent to the acts.
(d) Whether the defendant was an accomplice in the murder committed by another person, and the defendant’s participation was relatively minor.
FINDING:
The defendant was the main participant in the murder and was the one who actually fired the shots into the victim.
(e) Whether the defendant acted under extreme duress or under the substantial domination of another person.
FINDING:
The defendant claimed that he was influenced by his traveling companion, Bonnie Heath. The Court determines that while Bonnie Heath was a participant in many of the crimes she was a small woman in comparison to the defendant and the defendant was not under the extreme duress or domination of Bonnie Heath.
(f) Whether the capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of the law was substantially impaired.
FINDING:
The defendant had the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law.

The evidence introduced at the sentencing hearing does not support a finding of any of these factors. Furthermore, the court did not err in rejecting the mitigating factor of age under the particular circumstances of this case. At the time of this murder, Daugherty was 20 years old. As we said in Peek v. State, 395 So.2d 492, 498 (Fla.), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981), “There is no per se rule which pinpoints a particular age as an automatic factor in mitigation. The propriety of a finding with respect to this circumstance depends upon the evidence adduced at trial and at the sentencing hearing.” We concluded in Peek that the trial court’s rejection of age of 20 as a mitigating factor was supported by the record.

Daugherty finally contends that the court erred in failing to find certain non-statutory mitigating factors, i.e., his alleged remorse, his suicide attempt, his conversion to Christianity, his unstable family life, and the fact that at the time of sentencing, because of previous convictions, he would not be eligible for parole for 107V2 years. Daugherty does not argue that the court failed to consider these circumstances or that it prevented him from introducing any relevant evidence of mitigation, nor would such an assertion be supported by the record. The court expressly stated that it considered and weighed all the testimony and evidence.

We find no merit to this contention. The trial court considered all the evidence and decided that the death sentence was warranted since there were sufficient aggravating circumstances and insufficient mitigating circumstances. His conclusions are supported by the record. As we have previously stated, it is within the province of the trial court to decide whether a particular mitigating circumstance in sentencing has been proven and the weight to be given it. Riley v. State, 413 So.2d 1173 (Fla.1982); Smith v. State, 407 So.2d 894 (Fla.1981); Lucas v. State, 376 So.2d 1149 (Fla.1979).

Accordingly, finding no error, we affirm.

It is so ordered.

ALDERMAN, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, MCDONALD and EHRLICH, JJ., concur.


source: Caselaw Access Project

author: OVERTON, Justice. SUNDBERG, Justice,

license: Public Domain

text:
    DEPARTMENT OF TRANSPORTATION, State of Florida, Petitioner, v. William M. NEILSON, etc., et al., Respondents. HILLSBOROUGH COUNTY, Petitioner, v. William M. NEILSON, etc., et al., Respondents. CITY OF TAMPA, etc., Petitioner, v. William M. NEILSON, etc., et al., Respondents.
    Nos. 61029, 61042 and 61053.
    Supreme Court of Florida.
    Sept. 14, 1982.

      Alan E. DeSerio, Appellate Atty., Ella Jan P. Davis, Trial Atty., and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for Dept, of Transp.
    Joseph W. Clark, Charles P. Schropp and Raymond T. Elligett, Jr. of Shackleford, Farrior, Stallings & Evans, Tampa, for Hillsborough County.
    Bernard C. Silver, Asst. City Atty., Tampa, for City of Tampa.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, for respondents.
    Robert A. Ginsburg, Dade County Atty., and Roy S. Wood, Jr., and Craig H. Coller, Asst. County Attys., Miami, for Metropolitan Dade County, amicus curiae.
   OVERTON, Justice.

These are three petitions to review one decision of the Second District Court of Appeal reported as Neilson v. City of Tampa, 400 So.2d 799 (Fla. 2d DCA 1981). The case involves an interpretation of “operational-level” as distinguished from “judgmental planning-level” functions of government as discussed in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Specifically, the case concerns a governmental entity’s failure to properly control, by traffic control devices, and to properly design or upgrade, a multi-street intersection. We find direct conflict and have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We quash the instant decision and hold that the failure to install traffic control devices and the failure to upgrade an existing road or intersection, as well as the decision to build a road or roads with a particular alignment, are judgmental, planning-level functions and absolute immunity attaches.

The complaint in this action alleged that on August 20, 1975, Patricia Neilson was driving her motor vehicle on West Interbay Boulevard, at or near its intersection with South Westshore Boulevard in the City of Tampa. As the Neilson vehicle passed through the intersection, it collided with a truck owned by Belcher Oil Company. Mrs. Neilson and her passengers, her husband and children, sustained serious injuries. The Neilsons thereafter sued Belcher Oil, the Department of Transportation, Hills-borough County, and the City of Tampa. As against the governmental entities involved in this action, the Neilsons alleged negligence in (1) the initial design and construction of the intersection as a roadway, (2) failing to install adequate traffic control signals and devices, (3) designing, constructing and maintaining confusing traffic control devices at the intersection, and (4) failing to warn motorists through the placement of additional traffic control devices that the intersection was hazardous.

The trial court initially dismissed the governmental entities from the suit on the ground they were immune from this type of action. The Second District Court of Appeal in Neilson v. Department of Transportation, 376 So.2d 296 (Fla. 2d DCA 1979), remanded the case to the trial court for reconsideration in view of our intervening decision in Commercial Carrier. Upon remand, the trial court again dismissed the action against all three governmental entities, finding that the conduct was a judgmental, planning-level function under Commercial Carrier. On appeal the second time, the district court again reversed, holding that the negligence alleged by the Neil-sons fell under the operational level of decision making. The court said that “ ‘once a government decides to act, whether out of obligation or free choice, it must act responsibly and reasonably under the existing circumstances, and in accordance with acceptable standards of care and common sense.’ [0]nce the planning decision was made to intersect the roads, the governmental entities could not negligently design or construct the facility with impunity.” Neilson, 400 So.2d at 800 (quoting in part from Collom v. City of St. Petersburg, 400 So.2d 507, 508 (Fla. 2d DCA 1981)). In effect, the district court held that once the decision is made to have roads intersect, it is for the jury to determine whether the road could have been designed better or whether traffic control devices are necessary. We disagree, and quash the district court’s holding under the circumstances of this case.

The issue here concerns claimed omissions and negligent acts which subject a governmental entity to liability because of its placement of traffic control devices, its decisions concerning the initial plan and alignment of roads, and its failure to improve or upgrade roads or intersections.

In addressing the specific question presented here, the petitioning governmental entities argue that the building of roads, the expansion or alteration of intersections, and the placement of traffic control devices are judgmental, planning-level functions which are immune from suit. The entities contend that the clear weight of the cases arising from the district courts of appeal support this conclusion. They also assert that if the Second District Court of Appeal’s analysis in the instant case is adopted, governmental entities will be substantially impeded in constructing roadways unless they can afford to build “Cadillac” roadways. Further, they argue that no matter how a governmental entity builds a road, the actions taken by such entity would be subject to review by a judge or jury.

In response, the Neilsons contend that for any governmental decision to come within the category of judgmental, planning-level decision-making, such decision must be one of a broad and basic policy nature. They argue that Commercial Carrier did not immunize all discretionary decisions of governmental entities. Rather, they say that government is immune from tort liability only for those broad discretionary decisions made at basic policy-making levels. This, in their view, would include decisions as to the appropriation of money for highway construction, whether a highway is to be two- or four-laned, whether a highway is to be limited or open access, where a highway is to intersect with other streets, what type of construction materials will be used, and the route the highway will take. Apart from these types of decisions, the Neilsons assert, governmental entities are not immune from liability for discretionary decisions made at a level where these broad policies, once established, are implemented. Under this category would come decisions concerning the design of the highway in its entirety and the selection of appropriate traffic control devices. In this regard, the Neilsons say that no logical distinction exists between the initial failure to install a stop sign or to paint the word “stop” on the pavement at an intersection and the decision not to maintain or replace a missing stop sign or repaint the worn letters on the roadway surface. Finally, they contend that the district court’s decision is proper due to the governmental entities’ failure to comply with uniform traffic control standards and criteria in accordance with the provisions of sections 335.075 and 316.131 (renumbered 316.0745), Florida Statutes (1975). These statutory provisions, they argue, render the construction and design of the subject roadway operational-level decisions which are actionable.

In answering the question presented here it is necessary to return to our decision in Commercial Carrier. In that case, Justice Sundberg, in a thorough analysis of the law in this area, distinguished between that part of the sovereign immunity doctrine involving negligent tortious conduct waived by section 768.28, Florida Statutes (1977), and that part of the sovereign immunity doctrine identified at times as official or governmental immunity not waived by the statute. In the latter, absolute immunity attaches to “policy-making, planning, or judgmental governmental functions.” 371 So.2d at 1020. The underlying premise for this immunity is that it cannot be tortious conduct for a government to govern. Our decision recognized that there are areas inherent in the act of governing which cannot be subject to suit and scrutiny by judge or jury without violating the separation of powers doctrine. We reiterate the reason for this immunity as quoted in Commercial Carrier from Evangelical United Brethren Church v. State, 67 Wash.2d 246, 254, 407 P.2d 440, 444 (1965):

The reason most frequently assigned is that in any organized society there must be room for basic governmental policy decision and the implementation thereof, unhampered by the threat or fear of sovereign tort liability, or, as stated by one writer, “Liability cannot be imposed when condemnation of the acts or omissions relied upon necessarily brings into question the propriety of governmental objectives or programs or the decision of one who, with the authority to do so, determined that the acts or omissions involved should occur or that the risk which eventuated should be encountered for the advancement of governmental objectives.” Peck, The Federal Tort Claims Act, 31 WasLL.Rev. 207 (1956).

Commercial Carrier, 371 So.2d at 1019 (emphasis added).

Commercial Carrier established that discretionary, judgmental, planning-level decisions were immune from suit, but that operational-level decisions were not so immune. In applying these principles to the facts in that case, we held that the failure to properly maintain an existing traffic control device was an operational decision and suit could be filed against the governmental entity. Because the line between judgmental, planning-level decisions and operational-level decisions is not easy to define, the four-pronged test set forth in Evangelical United Brethren Church was adopted to assist in distinguishing between these separate levels of decision-making.

Recognizing the severe criticism from courts and commentators concerning the “governmental-proprietary” and “special duty-general duty” analysis of sovereign immunity law as it applied to municipalities, the Court in Commercial Carrier dropped those distinctions in favor of applying the judgmental, planning-level versus operational-level analysis to municipalities. 371 So.2d at 1016. Municipalities were held to be “unequivocally included” within the ambit of section 768.28. “Were it the intent of the legislature merely to make the law of municipal sovereign immunity applicable to the state, its agencies and political subdivisions, there would have been no need to include municipalities within the operation of the statute.” Id. This holding was reaffirmed in Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.1981).

Since Commercial Carrier, numerous district courts of appeal of this state have rendered decisions concerning whether a particular governmental function is a judgmental, planning-level function or an operational-level function. A number of cases have concerned the placement of traffic control devices and the construction of public roadways.

The majority of such decisions have held that immunity attaches, concluding that traffic control methods constitute a judgmental, planning-level decision. A. L. Lewis Elementary School v. Metropolitan Dade County, 376 So.2d 32, 34 (Fla. 3d DCA 1979), held “that the fixing of particular traffic zones, installation of traffic signals and pedestrian control devices are discre-tionarily policy matters, planning or judgment governmental features, and as such cannot be the subject of traditional tort law liability....” Ingham v. Department of Transportation, 399 So.2d 1028 (Fla. 1st DCA 1981), held that constructing the road with a curve, determining the position, shape and size of the median, and failing to provide adequate signaling were activities which constitute judgmental, planning-level functions and were not operational in character. Banta v. Rosier, 399 So.2d 444 (Fla. 5th DCA 1981), held that allegations concerning an improperly designed intersection pled matters which were within the judgmental, planning level of decision making. Payne v. Palm Beach County, 395 So.2d 1267 (Fla. 4th DCA 1981), held that the failure to extend a road and the construction of a guardrail are classic examples of the type of judgmental, planning-level decisions within the protected sphere of sovereign immunity. Romine v. Metropolitan Dade County, 401 So.2d 882 (Fla. 3d DCA 1981), review denied, 412 So.2d 469 (Fla.1982), held that a county’s failure to control an intersection with a more sophisticated device than the one actually used could not give rise to liability because the decision to use a more sophisticated device was of a judgmental, planning-level nature. Ralph v. City of Daytona Beach, 412 So.2d 875, 878 (Fla. 5th DCA 1982), held that the city was not liable for a failure to regulate traffic on the beach because “[wjhether to allow, restrict, or otherwise regulate vehicular traffic on the beach requires a decision which involves a basic governmental policy, program, or objective.... ” Finally, Depart ment of Transportation v. Vega, 414 So.2d 559 (Fla. 3d DCA 1982), held that the placement or non-plaeement of traffic control signals or pedestrian control signals is a judgmental, planning-level function unless mandated by a particular statute.

Ferla v. Metropolitan Dade County, 374 So.2d 64 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 759 (Fla.1980), is a more difficult case to explain. The court in Feria held that the setting of a speed limit by the county and the construction of a causeway with a narrow traffic lane represented judgmental, planning-level decisions which could not be the subject of a tort claim. At the same time, however, the district court held that the design and construction of a median strip along the causeway represented an operational act which was actionable. The court likened the determination of the configuration of the median to the activity involved in properly maintaining existing traffic control devices. In effect, the court held that the design of the median is not immune from suit, but that immunity applies to the design of the width and number of lanes.

A related case expresses the view that the placement of warning-type signs is operational in nature. Department of Transportation v. Webb, 409 So.2d 1061 (Fla. 1st DCA 1981). In that case, the placement of railroad crossing signs was determined to be an operational-level function and not immune from suit.

As stated, the issue to be decided in this case is whether decisions concerning the installation of traffic control devices, the initial plan and alignment of roads, or the improvement or upgrading of roads or intersections may constitute omissions or negligent acts which subject governmental entities to liability. We answer the question in the negative, holding such activities are basic capital improvements and are judgmental, planning-level functions. We also reject suggestions that we should modify our Commercial Carrier decision because of recent decisions in other jurisdictions on the subject matter.

With regard to the installation and placement of traffic control devices, we find the argument that such placement is exclusively the decision of traffic engineers and, as such, an operational-level function, to be without merit. Many municipalities and counties make these decisions, including even the installation of single traffic lights, within the ambit of their legislative function. Moreover, traffic control is strictly within the police power of the governmental entity. Questioning this function necessarily raises the issue of the government’s proper use of its police power. In Wong v. City of Miami, 237 So.2d 132 (Fla.1970), it was determined that the city could not be held accountable for how the police force was deployed. By analogy to Wong, the failure to deploy patrolmen to congested intersections to control traffic would not subject a governmental entity to negligence liability. In our view, decisions relating to the installation of appropriate traffic control methods and devices or the establishment of speed limits are discretionary decisions which implement the entity’s police power and are judgmental, planning-level functions.

We also hold that the decision to build or change a road, and all the determinations inherent in such a decision, are of the judgmental, planning-level type. To hold otherwise, as expressed by the dissent, would supplant the wisdom of the judicial branch for that of the governmental entities whose job it is to determine, fund, and supervise necessary road construction and improvements, thereby violating the separation of powers doctrine. This is not to say, however, that a governmental entity may not be liable for an engineering design defect not inherent in the overall plan for a project it has directed be built, or for an inherent defect which creates a known dangerous condition. To illustrate a situation in which liability may arise in the former instance, a highway could be constructed with a bridge spanning a waterway. If the bridge supports are negligently designed and give way, causing injury, an action could be maintained because there is an engineering design defect not inherent in the overall plan approved by the governmental entity. If, however, the alleged defect is one that results from the overall plan itself, it is not actionable unless a known dangerous condition is established. Illustrations of inherent defects include the construction of a two-lane highway where traffic use indicates four-laning is necessary or the construction of a curved road where a straight road would be more appropriate. Such decisions as the location and alignment of roads, the width and number of lanes, and the placing of traffic control devices are not actionable because the defects are inherent in the overall project itself. The fact that a road is built with a sharp curve is not in itself a design defect which creates governmental liability. If, however, the governmental entity knows when it creates a curve that vehicles cannot safely negotiate the curve at speeds of more than twenty-five miles per hour, such entity must take steps to warn the public of the danger.

The failure to so warn of a known danger is, in our view, a negligent omission at the operational level of government and cannot reasonably be argued to be within the judgmental, planning-level sphere. Clearly, this type of failure may serve as the basis for an action against the governmental entity.

As stated in Commercial Carrier, and reaffirmed here, the failure to properly maintain existing traffic control devices and existing roads may also be the basis of a suit against a governmental entity. We caution, however, that the maintenance of a particular street or intersection means maintenance of xhe street or intersection as it exists. It does not contemplate maintenance as the term may sometimes be used to indicate obsolescence and the need to upgrade a road by such things as widening or changing the means of traffic control.

We further reject the contention that the failure to comply with standards and criteria for design, construction, and maintenance of public roads and highways established pursuant to sections 335.075 and 316.131 (renumbered 316.0745), Florida Statutes (1975), subjects governmental entities to suit. These statutorily directed standards were established by the legislature to set forth standards for governmental entities to follow when building new roads or changing and upgrading present roads or intersections. The legislature had no intent to mandate that all governmental entities immediately upgrade and improve all existing roads to comply with these standards.

Issues concerning engineering design defects establishing a known hazard are more fully addressed in our simultaneous decisions in City of St. Petersburg v. Mathews, and City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982).

In this case, the Neilsons have sought to hold a governmental entity liable for failing to properly design a roadway intersection and maintain suitable traffic control devices. As we read it, the Neilsons’ complaint alleges the failure to properly “design” the intersection, “maintain” traffic control devices, and “warn of hazardous conditions” through the installation of traffic control devices. In our view, the manner in which these allegations are made points to a purported failure by the governmental entity to upgrade and reconstruct the intersection and install additional traffic control devices to meet present needs. In this respect, neither the original alignment of the roadway nor the failure to install traffic control devices at the intersection is actionable. This conclusion is consistent with the four-pronged Evangelical test followed by this Court in Commercial Carrier. If the complaint had alleged a known trap or dangerous condition for which there was no proper warning, such an allegation would have stated a cause of action. The allegations of the complaint in this proceeding, however, concern upgrading the intersection and installing traffic control devices rather than the duty of a governmental entity to warn of a dangerous intersection.

Because, in this case, we have clarified the application of certain legal principles set forth in Commercial Carrier, we believe that the Neilsons should now have an additional opportunity to file an amended complaint. For the reasons expressed, we quash the decision of the district court of appeal in Neilson v. City of Tampa, 400 So.2d 799 (Fla. 2d DCA 1981), and remand with directions that the trial court allow the Neilsons the opportunity to amend their complaint within twenty days, and, if they fail to so amend, the trial court judgment should then be reinstated.

It is so ordered.

ALDERMAN, C. J., BOYD and MCDONALD, JJ., concur.

EHRLICH, J., dissents.

SUNDBERG, J., dissents with an opinion, with which ADKINS, J., concurs.

SUNDBERG, Justice,

dissenting.

The Court today in a trilogy of opinions, including this opinion, attempts to clarify and advance the development of the law of sovereign immunity waiver in this state spawned by section 768.28, Florida Statutes (1975), as interpreted in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). In a laudable effort to simplify the distinction between those acts of governmental agencies which still enjoy immunity and those which do not, it occurs to me that the majority has simply exchanged one set of result descriptive labels for another. Hence, the irreconcilable results among the several district courts of appeal are not harmonized, but rather the confusion is compounded. The enigma is now shrouded in mystery. Because I believe it need not be so, I respectfully dissent.

To take up where we left off in Commercial Carrier, we must first remind ourselves of the holding of that decision and the principles upon which the holding was based. First the holding:

So we, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain “discretionary” governmental functions remain immune from tort liability. This is so because certain functions of coordinate branches of government may not be subject to scrutiny by judge or jury as to the wisdom of their performance.

371 So.2d at 1022 (emphasis added). From the holding of the case, then, it is apparent that a finding of immunity is the exception rather than the rule. This conclusion flows not merely from the express language of the decision, but was necessarily required because unlike the Federal Tort Claims Act there is no express exemption within the provisions of section 768.28 for discretionary acts of governmental agencies or their employees. The judicial gloss supplied by this Court should be narrowly rather than expansively invoked.

Furthermore, the exemption from waiver of immunity engrafted upon section 768.28 by Commercial Carrier concerns not all but only certain “discretionary” governmental functions. Only “planning level” functions, requiring basic policy decisions, were intended to be exempt from the legislature’s waiver of governmental immunity, not all discretionary acts carried out by government. The analysis of Johnson v. State, supra note 2, was specifically adopted by the Court in Commercial Carrier as a means to isolate those discretionary functions of government which should be insulated from tort liability. That analysis is not a- mechanistic one, but rather looks to the reasons for granting immunity to the governmental entity. It requires the Court “ ‘to find and isolate those areas of quasi-legislative policymaking which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.’ ” 371 So.2d at 1021.

Every other jurisdiction which has adopted the rationale of Johnson v. State has found, when confronted with our issue, that if a dangerous condition is created by a highway design, then a duty to at least warn a motorist arises. Thus, in Stevenson v. State Department of Transportation, 290 Or. 3, 619 P.2d 247 (1980), the failure of the state to shield a traffic light to prevent a misleading effect presented a jury question as to negligence, and such a decision was not protected within the ambit of governmental discretion. The court squarely placed the burden of establishing immunity on the state’s shoulders, rejecting any broad grant of immunity:

Like virtually every other activity, both planning and design, as well as maintenance of roads, frequently require the making of decisions which do not involve the making of public policy; for example, the decision whether to make a safety fence two feet rather than three feet high or the decision to first remove the snow from Street A rather than from Street B. These decisions involve the use of “discretion” in the sense that a choice must be made but they do not involve the use of “discretion” in the sense that a policy decision is required.

Id. at 10-11, 619 P.2d at 252. The “level of administration” was also considered as an indication of whether a policy choice had been made. Id. at 14, 619 P.2d at 254. Likewise, the placement of highway signs and no passing stripes at the entrance of a campground was an operational, not a policy or planning, decision. State v. I’Anson, 529 P.2d 188 (Alaska 1974). In another case, a highway barrier made unsafe by several resurfacings subjected the state to liability. Even though the decision to resurface may have involved policy, after that decision failure to safely execute the plan was an operational deficiency. Costa v. Josey, 83 N.J. 49, 415 A.2d 337 (1980). Following Johnson v. State, the Utah Supreme Court held the state must adequately warn motorists when it created a hazardous condition caused by digging a wash across a new, uncompleted road. Placement of road signs to warn of a hazard did not require a basic policy evaluation. Carroll v. State Road Commission, 27 Utah 2d 384, 496 P.2d 888 (1972). Finally, California in applying Johnson v. State to a case like ours held that in spite of a specific statutory grant of immunity for design defects, once the state was placed on notice by a history of injuries at an intersection with no turn lane, a continuing duty to supervise the safe operation of the highways could subject the state to liability because of changed conditions. Baldwin v. State, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121 (1972). No court which has followed Johnson v. State has held as the majority does today.

In any such analysis the governmental agency must additionally demonstrate that a “considered” decision was undertaken. Johnson v. State, 69 Cal.2d 782, 794 n.8, 73 Cal.Rptr. 240, 249 n.8, 447 P.2d 352, 361 n.8. A considered decision is one which consciously balances risks and advantages. Id. As a consequence it will be difficult, if not impossible, to determine the issue of immunity on a motion to dismiss. The sparsity of the record to support a summary judgment in favor of the state was a basis for reversal in Bellavance v. State, 390 So.2d 422 (Fla. 1st DCA 1980), cert. denied, 399 So.2d 1145 (Fla.1981). In that case the trial court had entered summary judgment against plaintiffs who alleged damages resulting from the negligent release by the state of a person committed to Northeast Florida State Hospital. In reversing, the district court of appeal held that the act of the state in releasing the patient did not rise to that level of “basic policy decisions” which would call for judicial restraint and that the state did not demonstrate that the personnel involved, after consciously balancing risks and advantages, made a considered decision in releasing the patient. The Bell avance court properly relied upon and applied the Johnson analysis.

In the instant case involving a motion to dismiss the complaint, there was likewise an absence of proof that the governmental agencies consciously balanced the risks and alternatives inherent in the design of the intersection and then made a considered decision. Even if such evidence were in this record, there can surely be no contention that once on notice of the alleged dangerous and hazardous condition of the intersection, the governmental authorities made a conscious decision to maintain the intersection in that condition without warning to motorists. See Baldwin v. State.

Hence, even assuming the original intersection design was immune from judicial scrutiny, the existence of the hazardous condition, allegedly known to the defendants, which became manifest through actual operation of the public improvement can create liability for negligent failure to remedy or warn. Why should this hazard be permitted to exist after knowledge any more than a hazard created by the collapse of pavement through an act of God? Surely the state should be required to rectify what it has put wrong through its own design.

For the reasons expressed, I would approve the decision of the district court of appeal.

ADKINS, J., concurs.

      . We find that the instant case conflicts with the following decisions: Ralph v. City of Daytona Beach, 412 So.2d 875 (Fla. 5th DCA 1982); Romine v. Metropolitan Dade County, 401 So.2d 882 (Fla. 3d DCA 1981), review denied, 412 So.2d 469 (Fla.1982); Ingham v. Dept. of Transp., 399 So.2d 1028 (Fla. 1st DCA 1981); Banta v. Rosier, 399 So.2d 444 (Fla. 5th DCA 1981); Payne v. Palm Beach County, 395 So.2d 1267 (Fla. 4th DCA 1981); A. L. Lewis Elementary School v. Metropolitan Dade County, 376 So.2d 32 (Fla. 3d DCA 1979). Another case, Ferla v. Metropolitan Dade County, 374 So.2d 64 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 759 (Fla.1980), conflicts in part and is consistent in part with the instant case.

      . The two pertinent paragraphs of the complaint alleged as follows:
      17. That at all times hereinafter mentioned and at the time of the incident complained of, South West Shore, West Inter Bay, Plant Avenue and Shell Drive all merged into a common intersection in the City of Tampa, which said intersection was dangerous and hazardous to motorists proceeding from either Plant Avenue, South West Shore, Inter Bay or Shell Drive because of the angles of approach which the aforesaid streets made when entering said known intersection so that said intersection was dangerously and defectively designed as a roadway; was dangerous and hazardous to motorists traversing the streets merging into said intersection; that said streets merging into said intersection were not adequately controlled with traffic control signs and devices, to-wit: red, green and yellow traffic signals positioned in such a manner as to govern the flow of traffic to said intersections in an orderly manner or blinking and flashing lights clearly indicating to the motorist approaching said intersection that same was a hazardous and dangerous intersection and governing the flow of traffic accordingly and such necessary traffic control devices so as to alert the motorist using said intersecting streets of the nature of the dangerous and defective roadway and intersection.
      18. That [at] all times hereinafter mentioned and at the time of the incident complained of, the Defendants, DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida, HILLSBOROUGH COUNTY, a political subdivision of the State of Florida and the CITY OF TAMPA, a municipal corporation, and each of them, individually, jointly or concurrently, designed, maintained and constructed that certain intersection where the incident complained of occurred which said intersection the traffic control devices placed thereon were so constructed, designed and maintained so as to confuse motorists using the roads at said intersection thereby exposing them to the hazard of meeting oncoming traffic and the Defendants, each of them, knew or with the exercise of reasonable care should have known of the dangerous and hazardous condition of said intersection but failed to warn motorists using said roadway of said condition and were thereby, each of them, negligent and careless, and said negligent condition caused or contributed to cause the incident herein complained of, and with reasonable care, the aforesaid Defendants should have provided the aforesaid traffic control devices for the reason aforesaid, the failure of which was negligent and caused or contributed to the cause of the injuries hereinabove and hereinafter alleged.

      . Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), established a preliminary test of four questions. If these questions could be answered in the affirmative, the challenged act should be classified as a discretionary planning or judgmental function immune from suit. The four questions are as follows:
      (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?
      67 Wash.2d at 255, 407 P.2d at 445.

      . Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982); Ingham v. Department of Transportation, 419 So.2d 1081 (Fla.1982); and City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982).

      . Compare the statement from Johnson v. State, 69 Cal.2d 782, 798, 73 Cal.Rptr. 240, 251, 447 P.2d 352, 363 (1968), which case was so heavily relied upon in Commercial Carrier: “ ‘when there is negligence, the rule is liability, immunity is the exception.’ ” (Quoting from Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 219, 11 Cal.Rptr. 89, 94, 359 P.2d 457, 465 (1961).)

      . In paragraph 18. of the complaint it is alleged that the condition of the intersection was dangerous and hazardous and that the defendants knew or through the exercise of reasonable care should have known of that condition.

      . Because notice of a hazardous condition is alleged, we do not face the issue of whether highway design by itself warrants immunity. Courts following Johnson have not held design sacrosanct. See I’Anson; Stevenson. Notice of hazard arising from changed condition was required in Baldwin v. State only because design defects were specifically given immunity by statute.

      . I observe here that the cases cited in the footnote to the opinion in City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982), to support a holding of liability against the city there are completely supportive of the view expressed here.


text:
    Mark Bradford INGHAM, Petitioner, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, et al., Respondents.
    No. 60994.
    Supreme Court of Florida.
    Sept. 14, 1982.

      Britt Whitaker, Tampa, for petitioner.
    Alan E. DeSerio, Appellate Atty., A. J. Spalla, Trial Atty., and John H. Beck, Gen. Counsel, Dept, of Transp., Tallahassee, for respondents.
   OVERTON, Justice.

This is a petition to review the decision of the First District Court of Appeal reported as Ingham v. Department of Transportation, 399 So.2d 1028 (Fla. 1st DCA 1981). The case concerns the .alleged negligence of a governmental entity in constructing a road with a curve, in determining the position, shape and size of a median, and in failing to provide adequate traffic signals. This decision requires a determination of whether this conduct constitutes an “operational-level” or a “judgmental, planning-level” governmental function as set out in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), and Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982). There is direct conflict with Neilson v. City of Tampa, 400 So. 2d 799 (Fla.2d DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We approve the district court’s decision. We hold that the alleged defects in the construction of the road, the median, and the intersection, if in fact they are defects, are defects inherent in the overall plan of the road. Neither these alleged defects nor the failure to install additional traffic control devices is actionable because each is a judgmental, planning-level function to which absolute immunity attaches. Department of Transportation v. Neilson.

It is so ordered.

ALDERMAN, C. J., and BOYD and MCDONALD, JJ., concur.

ADKINS and EHRLICH, JJ., dissent.

SUNDBERG, Justice,

dissenting:

I dissent for the reasons expressed in my dissent in Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982).


author: OVERTON, Justice.

text:
    CITY OF ST. PETERSBURG, Florida, Petitioner, v. Bert H. COLLOM, etc., Respondent. CITY OF ST. PETERSBURG, Florida, Petitioner, v. Lula Mae MATHEWS, Respondent.
    Nos. 61016, 61017.
    Supreme Court of Florida.
    Sept. 14, 1982.

      Michael S. Davis, City Atty., William N. Drake, Jr. and Kim E. Streeter, Asst. City Attys., St. Petersburg, for petitioner.
    Donald Wm. Giffin, St. Petersburg, for Collom.
    Gary E. Frazier of Akerson & Swisher, St. Petersburg, and Garold L. Morían, Tampa, for Mathews.
    Claude L. Mullis, Legal Counsel, Tallahassee, for Florida League of Cities, Inc., ami-cus curiae.
   OVERTON, Justice.

These are petitions by the City of St. Petersburg to review two decisions of the Second District Court of Appeal reported as Mathews v. City of St. Petersburg; 400 So.2d 841 (Fla.2d DCA 1981), and Collom v. City of St Petersburg, 400 So.2d 507 (Fla.2d DCA 1981). Both cases were heard in a consolidated oral argument with Department of Transportation v. Neilson; Hillsborough County v. Neilson; City of Tampa v. Neilson, 419 So.2d 1071 (Fla.1982); and Ingham v. Department of Transportation, 419 So.2d 1081 (Fla.1982). Each of these cases involves an interpretation of “operational-level” as distinguished from “judgmental, planning-level” functions of government as discussed in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Conflict exists among the above-cited cases heard in the consolidated oral argument. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

In the two cases decided here, we approve the results reached by the district court. We hold that when a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational-level arises to warn the public of, or protect the public from, the known danger. The failure to fulfill this operational-level duty is, therefore, a basis for an action against the governmental entity.

Part I

City of St. Petersburg v. Collom

Collom is a wrongful death action. In Collom, the complaint alleged that during a heavy rainstorm the plaintiffs wife and daughter were walking across private property and unknowingly stepped into a storm sewer drainage ditch located on a city drainage easement, and were sucked into a pipe and drowned. In his complaint, 'Col-lom alleged that the city failed to guard the opening to the storm sewer by failing to place screens, bars, or other protective devices over the opening of its pipe. Further, Collom alleged the city failed to warn of a hazardous condition so that human beings would not be dragged into the sewer during heavy rains and storms.

The trial judge granted the city a summary judgment, holding “that the plan and design of the drainage ditch and pipe ... to exclude the utilization of bars, grates, screens, fencing and/or other protective devices was a matter of discretional immunity” so that liability did not attach as a matter of law. The Second District Court of Appeal reversed, holding that “[i]mmunity of a government for negligently performing an act no longer exists,” so that “once a government decides to act, whether out of obligation or free choice, it must act responsibly and reasonably under the existing circumstances, and in accordance with acceptable standards of care and common sense.” 400 So.2d at 508. The district court rejected the city’s argument that even though the project might be inherently dangerous the city could not be liable because it “planned” the system in that manner. The court held that “a blueprint is not a plan in the sense of the ‘planning’ that is discretionary, and once the ‘planning’ has been done, the plans that are then prepared can indeed give rise to liability.” Id. at 509. Further, in addressing the issue of the availability of funds to the entity to build the project, the court held that a governmental entity could not “be free to adopt an expensive plan for alleviating a problem and then cut costs by eliminating the safety features.” Id. The court held that “governments are expected to exercise [the] prudence and reason” required of individuals. Id.

The city seeks reversal of the district court’s action, contending that the adoption of a drainage system plan entails judgmental, planning-level decisions on the part of both the governmental officials who design the system and the governmental entity which approves and funds the plan. According to the city, decisions concerning when and in what manner to build a drainage system should not be subject to second-guessing by a judge or jury.

Collom contends that the district court decision should be approved because once the city’s decision-making process is complete, liability may attach to the manner in which such plans are implemented. Once the city had notice of the hazardous condition, Collom asserts, an operational-level function arose, requiring the city to remedy or give notice of the hazard, and its failure to do so establishes liability.

City of St. Petersburg v. Mathews

In ■ Mathews, a twenty-month-old child, who had been playing in a public park, fell into a drainage creek and drowned. In the parent’s wrongful death action against the city, the complaint alleged:

7. The water, into which the deceased fell, is a concrete encasement of Booker Creek with vertical sides and sidewalks to the north and south of the concrete edges. On top of the edges, at a distance of approximately ten (10) feet apart, are holes installed in such a manner they may support a barrier or fence. At or about Sixth Street and Roser Park, on the north side of Booker Creek, there is a park or playground which is frequented by children. Nowhere along the edge of or along side of the Booker Creek encasement is there a barrier, fence or other guard against children falling into or playing within the encasement. The waterway is so constructed as to prevent and seriously impede rescue of any child who might fall in. There is no method or manner in which to escape from the waterway should escape be made necessary or should rescue be attempted.
8. The Defendant, City of St. Peters-burg, is negligent in causing to exist and be maintained at Sixth Street and Roser Park Drive an attractive nuisance in that the existance [sic] of the concrete waterway, constructed so as to be a trap, is in such close proximity to and part of a playground and sidewalk as to present a dangerous condition. The Defendant knew or should have known by the exercise of due care and caution, that children are likely to and frequently to play in close proximity to the waterway. The condition, as a trap, is one the Defendant knew or should have known and that it realized or should have realized, involved an unreasonable risk of death or serious bodily injury to such children and that children, because of their immature age, discretion and experience, do not discover the condition or realize the risk involved in intermeddling in a concrete waterway or coming within the area made dangerous by it, and would be lured to and tempted to run and play in and near the Booker Creek encasement.

A motion to dismiss Mathews’ complaint, filed by the city, was granted by the trial judge, who held that:

[I]t is not necessary to discuss the question of attractive nuisance raised by the Motion, because whether or not to “in-case” Booker Creek with vertical concrete sides and whether or not to install a barrier or fence along the sides of Booker Creek are policy decisions of the CITY. These items are “discretionarily policy matters, planning or judgment governmental features, and as such cannot be the subject of traditional tort liabilities.” A. L. Lewis, etc., v. Metropolitan Dade County, 376 So.2d 32 (Fla. 3 DCA 1979); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

The Second District Court of Appeal reversed and remanded for further proceedings, citing its decisions in Collom v. City of St. Petersburg, 400 So.2d 507 (Fla.2d DCA 1981), and Neilson v. Department of Transportation, 376 So.2d 296 (Fla.2d DCA 1979). The district court held that “[w]hile the city had the discretion to decide whether to alter the natural state of Booker Creek, once it decided to do so, the alterations had to be designed and performed in a reasonable manner.” 400 So.2d at 842. On this basis, the court concluded that Mathews had stated a cause of action for negligence against the city, and the case was remanded for a determination of whether the city’s encasement of the creek and its failure to erect a barrier or fence along the encasement created a dangerous condition which proximately caused or contributed to the child’s death.

As in Collom, the city seeks reversal of the district court’s action, contending that the adoption of a drainage system plan involves judgmental, planning-level decisions immune from suit. Mathews agrees that the city’s decision to encase the sides of the creek and alter its natural state is a judgmental, planning-level function. Mathews asserts, however, that the Second District Court of Appeal is correct in holding that once the city decided to alter the natural state of the creek, the alterations had to be designed and performed in a reasonable manner. Mathews further contends that the city’s resources should not be considered because a city may not deliberately eliminate safety features to save money once it has commenced a project.

Part II

We approve the decisions of the Second District Court of Appeal in both Collom and Mathews. We reject, however, the broad language of governmental liability set forth in Collom, and followed in Mathews, because this language implies governmental liability for defects inherent in plans for improvements as approved by governmental entities. Adopting the district court’s reasoning would permit the judicial branch to substantially interfere with the functioning of the legislative and executive branches of government. For the reasons expressed in our Neilson decision, defects inherent in the overall plan for an improvement, as approved by a governmental entity, are not matters that in and of themselves subject the entity to liability. The judicial branch can neither mandate the building of expensive and fail-safe improvements, nor otherwise require expenditures for such improvements. On the other hand, without substantially interfering with the governing powers of the coordinate branches, courts can require (1) the necessary warning or correction of a known dangerous condition; (2) the necessary and proper maintenance of existing improvements, as explained and illustrated in Commercial Carrier, 371 So.2d 1010 (Fla.1979); and (3) the proper construction or installation and design of the improvement plan, as explained in Neilson, 419 So.2d 1071 (Fla.1982).

Both Collom and Mathews illustrate the application of the principle that once a governmental entity creates a known dangerous condition which may not be readily apparent to one who could be injured by the condition, and the governmental entity has knowledge of the presence of people likely to be injured, then the governmental entity must take steps to avert the danger or properly warn persons who may be injured by that danger. Savignac v. Department of Transportation, 406 So.2d 1143 (Fla.2d DCA 1981). The failure of government to act in this type of circumstance is, in our view, a failure at the operational level. We find that a governmental entity may not create a known hazard or trap and then claim immunity from suit for injuries resulting from that hazard on the grounds that it arose from a judgmental, planning-level decision. When such a condition is knowingly created by a governmental entity, then it reasonably follows that the governmental entity has the responsibility to protect the public from that condition, and the failure to so protect cannot logically be labelled a judgmental, planning-level decision. We find it unreasonable to presume that a governmental entity, as a matter of policy in making a judgmental, planning-level decision, would knowingly create a trap or a dangerous condition and intentionally fail to warn or protect the users of that improvement from the risk. In our opinion, it is only logical and reasonable to treat the failure to warn or correct a known danger created by government as negligence at the operational level.

This rule is in part an exception to the principle set forth in Neilson that an inherent defect in a plan for improvement adopted by a governmental entity cannot subject the entity to liability. To illustrate, if a governmental entity plans a road with a sharp curve which cannot be negotiated by an automobile traveling more than twenty-five miles per hour, the entity cannot be liable for building the road because the decision to do so is at the judgmental, planning level. If, however, the entity knows when it builds the road that automobiles cannot negotiate the curve at more than twenty-five miles per hour, then an operational-level duty arises to warn motorists of the hazard.

In Mathews, we find the allegations of the complaint do state a cause of action against the city for creating a known dangerous condition and failing to correct that condition or otherwise reasonably warn of and protect the public from it. In so holding, we do not mean to imply that it is proper to challenge the overall plan for the drainage system.

In Collom, the complaint asserted that a known hazardous condition was created by the city. The summary judgment did not address the issue of whether there was a known dangerous condition created by the city, but instead addressed the issue of whether the failure to place bars or screens on an open storm drain was an inherent defect in the overall plan and, therefore, a judgmental, planning-level decision rather than an operational-level decision. The issue should have been whether the city created a known dangerous condition which may not be readily apparent to one who could be injured because of the condition. This issue, however, was not the basis of the summary judgment in this case. The issue actually addressed is not controlling as to known dangerous conditions as we have interpreted the law pertaining to judgmental, planning-level and operational level functions in Neilson and in this case. The complaint in Collom states a cause of action against the city for creating a known dangerous condition and failing to correct the condition or otherwise reasonably warn or protect the public from it.

Although we do not approve of the broad language used by the Second District Court of Appeal in Collom and Mathews, for the reasons expressed in this opinion, we agree with the district court that the trial court’s granting of the motion to dismiss in Mathews and the motion for summary judgment in Collom were error and the causes should be remanded for further proceedings.

It is so ordered.

ALDERMAN, C. J., and BOYD and MCDONALD, JJ., concur.

ADKINS, SUNDBERG and EHRLICH, JJ., concur in result only.

       Other jurisdictions have reached similar conclusions. In Jezek v. City of Midland, 605 S.W.2d 544, 548 (Tex.1980), the court held “that where a city knowingly maintains an intersection right-of-way in a manner which dangerously obstructs the vision of motorists using the street, they are under a duty to warn of the danger or, if necessary, make safe the defective condition.” In Larson v. Township of New Haven, 282 Minn. 447, 165 N.W.2d 543, 546 (1969), the court held that where municipal employees had actual notice of a dangerous condition resulting from a missing warning sign, the “municipality owed a duty to exercise reasonable care to warn or otherwise protect such traveler from the resulting danger.” In Teall v. City of Cudahy, 60 Cal.2d 431, 386 P.2d 493, 34 Cal.Rptr. 869 (1963), the court, following a statute, held that where the city chose to act in providing a traffic signal, it could be held liable if in doing so it had notice of the creation of a dangerous condition and thereafter did not take steps to protect the public. In Lowman v. City of Mesa, 125 Ariz. 590, 611 P.2d 943 (Ariz.App.1980), the court held that where the city had knowledge of a hazard it had a duty to warn, and the failure to so warn would give rise to liability.


author: PER CURIAM. OVERTON, Justice,

text:
    STATE of Florida, Petitioner, v. Maurine RIPPIE, Respondent.
    No. 61329.
    Supreme Court of Florida.
    Sept. 14, 1982.
    Jim Smith, Atty. Gen., and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for petitioner.
    Edward S. Campbell, III and Joseph E. Frank of LaBarbera & Campbell, Tampa, for respondent.
   PER CURIAM.

The decision of the District Court of Appeal, Second District, in Rippie v. State, 404 So.2d 160 (Fla.2d DCA 1981), is quashed on the authority of State v. Bobbitt, 415 So.2d 724 (Fla.1982), and this cause is remanded for further proceedings consistent with Bobbitt.

It is so ordered.

ALDERMAN, C. J., and ADKINS, BOYD, SUNDBERG and McDONALD, JJ., concur.

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

I again emphatically dissent for the reasons I expressed in State v. Bobbitt, 415 So.2d 724 (Fla.1982). The majority opinion in Bobbitt, as reaffirmed in this case, clearly penalizes spouses, and particularly wives, in defending themselves from an aggressor spouse. To me, it makes no sense for a woman who shoots her live-in paramour in her home to be entitled to the castle doctrine instruction advising the jury that she need not retreat before using deadly force in self-defense, while this same instruction is denied to a woman who shoots her husband in the identical self-defense type of situation. The latter circumstance places the wife under a mandate to leave her. home to avoid her aggressor spouse. Neither the paramour nor the husband is an intruder, but the majority on this Court, by their decision in Bobbitt, as reaffirmed in this case, now distinguish between the two.

In my view, we should adopt the same rule of law for all self-defense situations involving non-intruder aggressors in the home, whether they be spouses, children, or paramours. I would approve the modified castle doctrine instruction for all non-intruder situations specifically set forth in my dissent in Bobbitt. This instruction is a middle ground between the castle doctrine instruction given when the aggressor is an intruder in the home and the “duty-to-retreat” instruction given when an altercation occurs in a place other than the home. It recognizes, on the one hand, that the home is a special place of protection for the occupant and, on the other hand, that, when the aggressor is a non-intruder, either having a right to be on the premises or having been invited into the home, it is necessary to impose a limited duty to retreat which is not as extensive as the duty to retreat imposed when the altercation occurs in a barroom or elsewhere outside the home of the defendant. The rule now applied in Florida allows the same castle doctrine instruction to be given for intruders and non-intruders in the home, except when the defendant is married to the aggressor. Since this is a judicially made rule of law, we should provide a rule that fits this circumstance in order to avoid unequal treatment under the law. The rule as it now exists is unreasonable and illogical. In my view, it would be more reasonable to do away totally with the castle doctrine instruction when a non-intruder is involved than to apply the rule expressed in Bobbitt.

      . See Hedges v. State, 172 So.2d 824 (Fla.1965).

      . See Bobbitt.

      . The instruction suggested is as follows:
      If the defendant was attacked in [his/her] own home, or on [his/her] own premises, by a contenant, family member, or invitee, [he/ she] has a duty to retreat to the extent reasonably possible but is not required to flee [his/her] home and has the lawful right to stand [his/her] ground and meet force with force even to the extent of using force likely to cause death or great bodily harm if it was necessary to prevent death or great bodily harm to [himself/herself] or another.

        Bobbitt, 415 So.2d at 728 (Overton, J., dissenting). See also Judge Boardman’s opinion in Rippie v. State, 404 So.2d 160 (Fla.2d DCA 1981), which supports this view.


author: McDONALD, Justice.

text:
    STATE of Florida, Petitioner, v. Mario Abelardo VAZQUEZ, Respondent.
    No. 61462.
    Supreme Court of Florida.
    Sept. 14, 1982.

      Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender and Elliot H. Seherker, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondent.
   McDONALD, Justice.

The state petitions for review of Vazquez v. State, 405 So.2d 177 (Fla. 3d DCA 1981), on the basis of conflict with Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981), and Orr v. State, 380 So.2d 1185 (Fla. 5th DCA 1980). We have jurisdiction and approve in part and quash in part the instant district court opinion.

A three-count indictment charged Vazquez with first-degree murder, unlawful possession of a firearm by a convicted felon, and unlawful display of a firearm during commission of a felony. After pleading not guilty, Vazquez moved to sever the firearm possession count because evidence needed to prove that count would prejudice his defense to the other counts. The court denied the motion, and the state, over objection, proved that Vazquez had pled guilty to a robbery charge and had been sentenced to ten years in prison. The jury returned verdicts convicting Vazquez of second-degree murder and of the crimes charged in the second and third counts. The district court reversed and remanded for new trials on all counts, finding that Florida Rule of Criminal Procedure 3.152(a)(2)(i) mandated severance of the firearm possession count.

Granting or denying a requested severance is within the trial court’s discretion, and the test on review is whether the trial court abused its discretion. Crum v. State, 398 So.2d 810 (Fla.1981); Menendez v. State, 368 So.2d 1278 (Fla.1979). A severance should be granted liberally when prejudice is likely to flow from refusing the severance. Menendez. The district court agreed with Vazquez that, although admissible as to the firearm possession charge, evidence of Vazquez’ prior conviction was so prejudicial that it deprived him of a fair trial.

Similar fact evidence is admissible if relevant to a fact in issue even though it also points to commission of a separate crime. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). As the district court points out, however,

evidence of any crime committed by a defendant, other than the crime or crimes for which the defendant is on trial, is inadmissible in a criminal case where its sole relevancy is to attack the character of the defendant or to show the defendant’s propensity to commit crime.

405 So.2d at 179 (citations omitted). The test of admissibility is relevancy, Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981); Williams, but relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. § 90.403, Fla.Stat. (1979).

A prior conviction is a substantive element of the crime of possession of a firearm by a convicted felon. State v. Davis, 203 So.2d 160 (Fla.1967). In charging possession of a firearm by a convicted felon “proof of conviction is relevant evidence and is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or needless presentation of cumulative evidence.” Parker v. State, 408 So.2d 1037, 1038 (Fla.1982) (footnote omitted). The district court correctly concluded that the documentary evidence establishing Vazquez’ prior conviction could and should have been introduced to establish count II. The district court also correctly stated, however, that this evidence could not be admitted as to the charges of murder and firearm display because of a lack of relevancy to those charges.

As the third district has stated, the better practice would be to sever a count which requires proof of a prior conviction in order not to deprive a defendant of the presumption of innocence. Maycock v. State, 398 So.2d 495 (Fla. 3d DCA 1981). We agree that introducing this evidence unfairly prejudiced Vazquez. The documentation regarding the prior conviction does not meet the test set out in Williams and would not have been admissible in a trial of the first and third counts. We find that allowing the state to introduce this evidence solely because of the consolidation of the charges precluded Vazquez from receiving a fair trial.

In asking us to quash the instant district court opinion, the state relied on Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981), and Parker v. State, 408 So.2d 1037 (Fla.1982). In Dedmon the first district upheld a trial court’s refusal to sever a charge of possession of a firearm by a convicted felon from a charge of attempted first-degree murder with a firearm. The court stated that

consolidation of the two counts presented the most practical and efficient method of processing the case because the evidence of possession was intertwined and a part of the evidence of the act of shooting. There was no reason to have dupli-cative proceedings. Further, the potential for prejudice was minimized by the stipulation entered into by the parties in which the jury was told that [Dedmon ] had been previously convicted of a felony insofar as it related to the possession count but the prior crime was not named. In addition, when we consider the eyewitness testimony, [Dedmon’s] admissions, and the evidence connecting [Dedmon ] with the weapon used in the crime, we can see no prejudicial effect on the jury with regard to the attempted murder count in having the matters tried together.

400 So.2d at 1043. The stipulation entered into by Dedmon and the state distinguishes Dedmon from the instant case. Parker, holding that the state is not bound to accept a defendant’s offer to stipulate, is also factually distinguishable.

Although differing factually somewhat from Dedmon, we find sufficient conflict with that case to justify our jurisdiction in the instant case. Even if consolidation is the “most practical and efficient method of processing” a case, practicality and efficiency should not outweigh a defendant’s right to a fair trial. “The objective of fairly determining a defendant’s innocence or guilt should have priority over other relevant considerations such as expense, efficiency, and convenience.” Crum v. State, 398 So.2d 810, 811 (Fla.1981). We approve the holding of Vazquez regarding the necessity of a severance and disapprove, to the extent of conflict with this opinion, the language in Dedmon regarding the efficiency and practicality of consolidation. We emphasize that prejudice to the defendant will outweigh judicial economy.

We disagree, however, with the district court’s remand for retrial of the firearm possession count and find conflict with Orr v. State, 380 So.2d 1185 (Fla. 5th DCA 1981), on this point. In a situation very similar to the instant case, the fifth district reached the same conclusion as the third district in Vazquez regarding the necessity of severance, but affirmed the firearm possession conviction while reversing Orr’s other convictions. While the proof of Vazquez’ prior conviction unfairly prejudiced his defense to the first and third counts, that proof was both relevant and admissible and not unfairly prejudicial in the firearm possession count. See Parker v. State. Moreover, while conflicting, the jury found sufficient credible evidence and testimony to convict Vazquez of the second count through the state’s presentation of evidence regarding all three counts. In a trial of counts I and III, it would have had to present the same evidence. We therefore find that a retrial on Count II is not necessary and quash the district court’s remand regarding that count.

It is so ordered.

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

ADKINS, J., dissents.

      . Art. V, § 3(b)(3), Fla.Const.

      . Rule 3.152(a)(2)(i) provides as follows:
      (a) Severance of offenses.
      * * # *! * *
      (2) In case two or more charges of related offenses are joined in a single indictment or information, the court nevertheless shall grant a severance of charges on motion of the State or of a defendant
      (i) before trial upon a showing that such severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense, or

      . 405 So.2d at 180.

      . Id.

      . Dedmon v. State, 400 So.2d 1042, 1043 (Fla. 1st DCA 1981).

      . This is not to say that severance is necessary in every case, particularly when there is a stipulation to the fact of a prior conviction. See Maycock v. State, 398 So.2d 495 (Fla. 3d DCA 1981).

      . While evidence relating to all three counts would be relevant in proving count II, the evidence relating to count II is not relevant to I and III.


author: BOYD, Justice.

text:
    JACKSONVILLE SHIPYARDS, INC., Appellant, v. JACKSONVILLE ELECTRIC AUTHORITY, Appellee. STATE of Florida, Appellant, v. JACKSONVILLE ELECTRIC AUTHORITY, Appellee.
    Nos. 62260 to 62262 and 62268.
    Supreme Court of Florida.
    Sept. 23, 1982.
    Rehearing Denied Oct. 21, 1982.

      Thomas M. Baumer and Michael B. Wed-ner of Gallagher, Baumer, Mikals & Bradford, Jacksonville, for Jacksonville Shipyards, Inc.
    T. Ed Austin, State Atty. and R. Baker King, Asst. State Atty., Jacksonville, for State of Florida.
    Dawson A. McQuaig, Gen. Counsel, City of Jacksonville, and John F. Kelly of Freeman, Richardson, Watson & Kelly, Jacksonville, for appellee.
    Claude L. Mullis, Tallahassee, for Florida League of Cities, Inc., amicus curiae.
   BOYD, Justice.

These consolidated cases are before the Court on appeal from final judgments of the circuit court in Duval County validating two bond issues of the Jacksonville Electric Authority. We have jurisdiction. Art. V, § 3(b)(2), Fla.Const.

The Jacksonville Electric Authority (JEA) and Florida Power and Light Company entered into an agreement entitled “Agreement for Joint Ownership, Construction and Operation of St. John’s River Power Park Coal Units # 1 and # 2.” The purpose of the agreement is for the two parties to jointly construct and operate two new coal-fired electric generating plants. Under the agreement the JEA will finance and own 80% and Florida Power will finance and own 20% of the project. The JEA also agrees to sell and Florida Power agrees to buy 2>Th% of JEA’s 80% share of the electricity to be generated. The JEA will sell the remaining 62V2% of the power, which amounts to 50% of the total output, to its existing electric system, which in turn will supply the electricity to its customers.

Pursuant to chapter 80-513, Laws of Florida, as amended by chapter 82-312, Laws of Florida, the JEA adopted a resolution authorizing the issuance of bonds in the amount of $1.8 billion to finance its 80% share of the cost of the project. The bond resolution specified that the principal and interest on the bonds shall be paid from the revenues earned by the two new coal-fired electric generating plants.

In order to make the bonds more attractive to potential purchasers, the JEA wanted to dissolve all covenants relating to its revenues by retiring all outstanding bonds constituting liens on its revenues. To accomplish this purpose, the JEA adopted a resolution authorizing a separate bond issue in the amount of $487 million. The proceeds of the second bond issue are to be used to refund all the JEA’s outstanding obligations and to carry forward previously authorized but unissued bonds to finance capital projects in connection with the JEA’s existing electric system.

As is required by the same special laws authorizing the JEA to issue these bonds, the Jacksonville City Council adopted, by a two-thirds majority, ordinances approving the two bond issues. The JEA instituted the proceedings to have the bonds validated. The State of Florida answered and Jacksonville Shipyards, Inc., intervened in opposition to the bond issues. The circuit court held a hearing and rendered judgment validating both bond issues.

Appellants argue that the bonds are payable from ad valorem taxation and therefore cannot be issued without a referendum because of the requirement in article VII, section 12(a) of the Florida Constitution. They argue that this constitutional provision is implicated not directly but indirectly in that all of the city’s non-ad valorem revenues are pledged. They argue that this will have the constitutionally impermissible effect of requiring the city to levy ad valo-rem taxation. In support of their argument appellants cite County of Volusia v. State, 417 So.2d 968 (Fla.1982).

The appellants’ assertion that the city has pledged all non-ad valorem revenues to the payment of the bonds is based upon a section of the joint agreement between JEA and Florida Power. But reference to the relevant passage disproves the appellants’ assertion. Section 2.4.2(iv) of the agreement provides:

(iv) the approval of this Agreement by the Council constitutes this Agreement a contract which may not be impaired by subsequent legislative action of the Council and which obligates the Council to make the annual appropriations necessary for JEA to perform all of its obligations under this Agreement and the Bond Resolution, including its contractual obligations to make any and all payments required by the terms of this Agreement and the Bond Resolution, but the Council shall be required to make such appropriations solely from the revenues of JEA’s electric generation, transmission and distribution facilities or other non ad valo-rem revenues or funds of JEA....

Appellant’s Consolidated Appendix at 122 (emphasis added).

Appellants misinterpret section 2.4.2(iv). The underscored words “other non ad valo-rem revenues” are modified by the subsequent prepositional phrase, “of JEA.” It is not all of the city’s non-ad valorem revenues that are pledged. The city pledges certain revenues to the payment of the bonds, but the pledged revenues are those which the city receives from the JEA and are derived from the operation of its electric generating plants. Since the city itself has not pledged all of its non-ad valorem tax revenues, our decision in County of Volusia is not relevant to this case. There is nothing in the agreement which even remotely suggests that the city has pledged any revenues other than those received from the JEA.

The appellants also suggest that the rule of County of Volusia v. State is implicated here because the city has pledged all of the revenues it receives from the JEA. Because all of the JEA’s revenues are pledged to the payment of the bonds, appellants argue, the city is liable to lose the annual contribution it receives from the JEA. Appellants argue that if the city is deprived of this annual contribution, it may be forced to levy ad valorem taxes, which requires a referendum under article VII, section 12 and County of Volusia v. State.

The charter of the City of Jacksonville authorizes the city council to appropriate, for city purposes, up to 30% of the gross revenues of the JEA. There was testimony that for the past several years, the city has annually appropriated to itself only six to seven percent of the JEA’s revenues. The JEA treats the annual mandatory contribution to the city as one of its operating costs and sets its rates accordingly. Thus the JEA sets its rates in such amounts as are necessary to meet all of its costs and debt obligations, and to make the required contribution to the city. Of course, appellants are correct in pointing out that the city has in effect agreed to give up the annual contribution if the JEA’s revenues are insufficient to pay both the bondholders and the city. But the possibility that the city will not receive an annual contribution from the JEA will have at the very most a merely incidental effect on the city’s exercise of its ad valorem taxing power. The situation does not even begin to approach the actual compulsion to increase ad valorem taxes which we found in County of Volusia v. State.

The joint agreement provides that the bonds are not to be deemed an indebtedness of the city which would require it to levy ad valorem taxes. Section 2.4.2(viii) provides:

(viii) neither the Agreement nor the Bond Resolution nor the obligation of the Council to appropriate annually and make funds legally available to JEA nor the Bonds, as defined in the Bond Resolution, constitute an indebtedness of the City within the meaning of any constitutional, statutory or charter provisions requiring the City to levy ad valorem taxes, or a lien upon any properties of or in the City, or of JEA.

Appellants’ Consolidated Appendix at 123. Since the bonds are secured by a pledge of revenues to be derived from a non-ad valo-rem local revenue source — in this case rates paid by electricity users — they are not required to be approved by referendum. See, e.g., State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980); State v. Orange County, 281 So.2d 310 (Fla.1973); State v. City of Miami Beach, 234 So.2d 103 (Fla.1970).

Appellants also argue that an election must be held because the joint agreement authorizes the JEA to mortgage its ownership interest as security for present or future bonds. Paragraph 12.1.1 of the joint agreement provides:

12.1.1 Mortgages, etc. Each Co-owner shall have the right at any time, and from time to time, to mortgage, create, or provide for a lien upon, or a security interest in, or convey in trust all or a part of, its Ownership Interest (or, with respect to JEA, subject to the limitations with respect to the revenues of the Electric System set forth in Section Seven, the revenues to be derived by JEA under Section 6.17) under a deed of trust, mortgage, indenture or security agreement, as security for its present or future bonds or other obligations or securities, without need for the prior written consent of the other Co-owner and without such mortgagee, trustee, or secured party assuming or becoming in any respect obligated to perform any of the obligations of the Co-owners.

Appellee’s Consolidated Appendix at 63-64.

Appellants point out that “revenue bonds secured by a mortgage on the physical properties to be financed cannot be issued by public bodies unless approved at an election.” State v. Putnam County Development Authority, 249 So.2d 6, 11 (Fla.1971). In response the JEA says that the agreement does not require the mortgaging of the facilities to secure payment of the bonds, but rather, merely permits, as between the two parties, the JEA to do so. JEA argues that it will seek the approval of the voters should it ever decide to mortgage its interest in the project.

We agree with the JEA’s interpretation. The main purpose of this paragraph is to allow each co-owner to mortgage its interest without the approval of the other. It does not require either co-owner to mortgage its interest. This paragraph merely allows the JEA to mortgage its ownership interest without the prior consent of Florida Power. Before it can do so, however, the JEA will have to seek the approval by referendum of the electors. Since as of now there has been no attempt by the JEA to mortgage its ownership in the plants to be constructed and pledge such mortgage as payment for the bonds, we need not address this issue.

Next appellants argue that there has been an improper delegation of legislative authority or contracting away of the police power. Jacksonville Shipyards, which had raised this issue as an affirmative defense but later withdrew it, now argues that the trial court did not have the authority to decide this question. We quickly reject this notion as any issue concerning the power to issue bonds is a proper one to be considered in a bond validation proceeding. Speer v. Olson, 367 So.2d 207 (Fla.1978). The question of improper delegation of legislative authority is one that has been considered before in bond validation cases. See State v. Housing Finance Authority, 376 So.2d 1158 (Fla.1979); State v. Florida State Turnpike Authority, 80 So.2d 337 (Fla.1955).

Appellants argue that in the agreement with Florida Power the City of Jacksonville and the JEA have delegated or contracted away their governmental authority to exercise the police power. Since the city and the JEA have acted pursuant to chapter 82-312, Laws of Florida, appellants are in effect attacking the constitutionality of that law, which provides:

Section 13. (a) In order to enable the Authority and any other electric utility or group of electric utilities which enter into an agreement for a joint electric power project under Section 2(a) to coordinate their joint activities with respect to the construction and operation of such joint electric power project in an efficient manner, the Authority shall have the following powers, in addition to the powers otherwise conferred:
(1) Subject to the provisions and limitations contained in subsection (b), to provide in the agreement for the management of the construction and operation of the joint electric power project by one or more committees composed of representatives of parties to the agreement, and to designate one or more representatives of the Authority to serve on any such committee.
(2) Subject to the provisions and limitation contained in subsection (b), to act as agent, or to designate one or more of the other parties to the agreement to act as agent, for all the parties in carrying out the construction or operation of the joint electric power project. Any party so acting as agent for the construction or operation of the joint electric power project need comply with only those laws, rules and regulations which would be applicable if it were acting solely in its own behalf with respect to its interest in such joint electric power project under this act.
(b) The Authority may delegate to any committees referred to in subsection (a), or to any party to the agreement designated as agent in accordance with subsection (a), or to any officer or employee of the Authority, the responsibility and authority to undertake activities in furtherance of the construction and operation of the joint electric power project to such extent as the Authority, in its discretion, may deem proper and appropriate or to such extent as shall be provided in the agreement; provided, however, that, to the extent such activities involve discretionary authority, any such committee, or agent or officer or employee of the Authority, shall be authorized to undertake such activities only in accordance with policies and procedures approved by the Authority and in a manner consistent with prudent utility practice.

Ch. 82-312, § 9, Laws of Fla. This law was intended to implement the provisions of article VII, section 10 of the Florida Constitution. Ch. 82-312, § 5, Laws of Fla. Although that constitutional provision generally prohibits a special district from becoming a joint owner with any corporation, an exception is made for laws authorizing

(d) a municipality, county, special district, or agency of any of them, being a joint owner of, giving, or lending or using its taxing power or credit for the joint ownership, construction and operation of electrical energy generating or transmission facilities with any corporation, association, partnership or person.

Art. VII, § 10(d), Fla.Const.

This law authorizes the JEA to delegate its responsibilities in constructing or operating the joint electric power plant to a committee, a party to the agreement, or to any employee. However, any discretionary activities undertaken by such committee, party, or employee must first be authorized in accordance with policies and procedures approved by the JEA. This provision prohibits the JEA from completely delegating or contracting away any of its discretionary governmental authority. Any delegation of discretionary authority must be done pursuant to guidelines adopted by the JEA which are specific enough to prevent the exercise of completely unbridled discretion. This requirement is reflected in section 5.2 of the agreement between the JEA and Florida Power which provides that the exercise of any discretionary authority shall be done pursuant to specific authorization by the JEA or in accordance with policies and procedures approved by the JEA. Appellee’s consolidated Appendix at 49. Hence there is nothing in chapter 82-312 or in the agreement which constitutes an unlawful delegating or contracting away of the governmental authority to exercise the police power.

Next, appellant Jacksonville Shipyards argues that the 487 million dollar bond issue does not meet the “lower net average interest cost rate” requirement found in article VII, section 12(b) of the Florida Constitution. Since that provision relates only to bonds payable from ad valo-rem taxation, it is not applicable to this case. State v. City of Sunrise, 354 So.2d 1206 (Fla.1978).

Finally, appellants claim that the outstanding obligations will not be refunded in a reasonable period of time as required by this Court’s decision in State Board of Public Instruction, 177 So.2d 214 (Fla.1965). That case, however, involved refunding bonds which were payable from ad valorem taxation and were therefore subject to the constitutional proscription of increasing public debt without the approval of the electors. There is no similar requirement that revenue refunding bonds must refund outstanding bonds within a reasonable period of time.

The proceeds from the sale of these refunding bonds will be deposited in an escrow account and invested in United States Treasury Securities specifically designed for and available only to tax-exempt issuers of refunding bonds. Under this financial plan enough money will be invested at a given interest rate to insure that the principal and earned interest will be sufficient to refund the outstanding obligations as they become due. A similar arrangement was approved by this Court in State v. City of Sunrise.

In conclusion, we .find that the issues raised by the appellants against the validity of the proposed bond issues are without merit. Therefore, the judgments of the circuit court validating these two bond issues are hereby affirmed.

It is so ordered.

ALDERMAN, C. J., and ADKINS, OVERTON, MCDONALD and EHRLICH, JJ., concur.