author: ROBERT P. SMITH, Jr., Chief Judge. ERVIN, Judge,

text:
    Jim SMITH, Attorney General of the State of Florida, the Department of Veterans and Community Affairs, and Transgulf Pipeline Company, Petitioners, v. Ben C. WILLIS, as Judge of the Circuit Court of the Second Judicial Circuit in and for Gadsden County, Florida; and Board of County Commissioners of Gadsden County, Florida, et al., Respondents.
    No. AC-469.
    District Court of Appeal of Florida, First District.
    June 18, 1982.

      James M. Corrigan, Asst. Atty. Gen., Tallahassee, for Jim Smith, Atty. Gen.
    C. Lawrence Keesey, Tallahassee, for Dept, of Veterans and Community Affairs.
    Gary P. Sams, of Hopping, Boyd, Green & Sams, P. A., Tallahassee, for petitioners.
    John Shaw Curry, of Johnson, Harnett, Curry & Slay, Quincy, Marva Davis, Havana, and Ernest W. Welch, of Welch & Munroe, Tallahassee, for respondents.
   ROBERT P. SMITH, Jr., Chief Judge.

By petition for a writ of prohibition or common law certiorari the Attorney General and others question the circuit court’s denial of a motion to dismiss and its jurisdiction to proceed upon the amended complaint of the Gadsden County Board of County Commissioners for a declaratory judgment declaring among other things that section 380.07(3), part of the Environmental Land and Water Management Act of 1972, is unconstitutional on its face. Although the circuit court action arises out of pending section 120.57 proceedings before the Land and Water Adjudicatory Commission, we find that determining that discrete facial constitutionality question is not inappropriate in circuit court declaratory judgment proceedings, and that the court did not depart from the essential requirements of law in denying the Attorney General’s motion to dismiss for failure to exhaust chapter 120 remedies.

Section 380.07(3) governs proceedings before the Land and Water Adjudicatory Commission, which is the Governor and Cabinet, on appeals from development orders issued by local governments in areas of critical state concern or regarding developments of regional impact. The text of the challenged statute is:

(3) Prior to issuing an order, the Florida Land and Water Adjudicatory Commission shall hold a hearing pursuant to the provisions of chapter 120. The commission shall encourage the submission of appeals on the record made below in cases in which the development order was issued after a full and complete hearing before the local government or an agency thereof.

The Board of County Commissioners mounted this attack on section 380.07(3) after Transgulf Pipeline Company appealed to the Adjudicatory Commission from the County Commissioners’ order denying Transgulf a permit to build a petroleum products terminal, a development of regional impact, in Gadsden County. The Adjudicatory Commission referred Transgulf’s appeal for hearing to the Division of Administrative Hearings, whose hearing officer, on December 21, 1979, ordered a new eviden-tiary hearing on the Transgulf application and scheduled the hearing in April 1980. The County Commissioners had urged to the hearing officer that the hearing be conducted on the record made before the County Commission. The hearing officer evidently determined that there was no “full and complete hearing before the local government.”

The scheduled DOAH hearing was postponed when the County Commissioners complained to the circuit court for declaratory relief. The original complaint alleged both that section 380.07(3) is unconstitutional on its face, because it purports to “vest judicial power in the executive department agency contrary to Article V, Section 1, Florida Constitution,” and that “Sections 380.06 and 380.07 as attempted to be applied in this case by the hearing officer” are unconstitutional as “a denial of equal protection under the law to Plaintiffs.” An amended complaint later elaborated the County Commissioners’ attack, first, on the facial constitutionality of section 380.07(3) and, second, on the correctness of the DOAH hearing officer’s decision to convene a new evidentiary hearing. On the second issue, the amended complaint couched its attack on the hearing officer’s decision in terms of the County Commissioners’ professed “doubt” about Transgulf’s entitlement to a new evidentiary hearing under circumstances that seemed to the County Commissioners to compel a contrary result:

Plaintiffs are in doubt as to the right of Transgulf to knowingly and wilfully choose not to be represented by an attorney at the hearing before the Board of County Commissioners and choosing not to cross-examine any witness or to have any witnesses of its own testify under oath, and subsequently, by filing Notice of Appeal under Section 380.07, Florida Statutes (1977), having the matter removed from the local forum of the Board of County Commissioners and to obtain a complete full new hearing by the Hearing Officer in Tallahassee.

The amended complaint alleged the facial unconstitutionality of section 380.07(3) in the following terms:

11. Plaintiffs contend that Section 380.07(3) is in violation of Article II, Section 3 and Article V, Section 1 of the Constitution of the State of Florida in that: (1) Chapter 120 contains no provisions which relate to appellate review proceedings by an administrative agency thus denying Plaintiffs equal protection of the law by granting unbridled discretion to the Hearing Officer; (2) there is a failure to set forth adequate standards for the determination by the Hearing Officer of facts, exercise of discretion, application of priorities, application of agency policy, differences of expert opinion and final recommendations; (3) the provisions of the statute are so vague and uncertain that persons affected thereby cannot determine whether actions and procedures are proper or improper, thus violating due process clauses of both Federal and State Constitutions; and (4) the provisions of the statute contain no procedural or substantive safeguards to permit the Governor and Cabinet, acting as the Florida Land and Water Adjudicatory Commission, to carry out their constitutional duties and prerogatives through the utilization of the Department of Environmental Resources, the Department of Natural Resources, State Planning Agency, and related groups as is required by Article II, Section 7 of the Constitution of the State of Florida.

On this petition the issue is whether the circuit court, by entertaining the amended complaint notwithstanding complainants’ failure to exhaust available chapter 120 administrative and judicial remedies, acted without jurisdiction or so in excess of its jurisdiction as to justify issuance of the prohibitory writ, or departed from the essential requirements of law in a way irremediable on appeal from the court’s final judgment. That determination is controlled by principles settled in Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978); Com munities Financial Corp. v. Florida Department of Environmental Regulation, - So.2d - (Fla. 1st DCA 1982) [1982 FLW 866]; Ortega v. Owens-Corning Fiberglas Corp., 409 So.2d 530 (Fla. 1st DCA 1982); Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 400 So.2d 66 (Fla. 1st DCA 1981); Rice v. Dept. of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); and State ex rel. Dept. of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977).

The complaint asserting “doubts” that an evidentiary hearing before the hearing officer is proper in this particular case, and asserting the unconstitutionality of section 380.07(3) as applied by the hearing officer, is transparently a collateral attack on an order which if erroneous was and is remediable by ordinary chapter 120 processes, even by immediate district court review if review of the final order would not be adequate relief, section 120.68(1). As to those questions, for the reasons particularly stated in the cited decisions of this Court and in Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979), the circuit court would depart from the essential requirements of law by entertaining a collateral attack on pending administrative proceedings. Those questions and the factual issues associated with them are to be determined, if necessary, on direct review of the administrative action, and on the record underlying that action.

The facial constitutional questions are another matter. The cited decisions establish that the circuit court does not exceed its lawful powers by entertaining a contest of the facial constitutionality of a statute judged to be an essential predicate for all administrative proceedings to follow. The questions pleaded by the County Commissioners, quoted above, seem conspicuously imprecise, especially when considered (as they must be on a facial attack) independently of the circumstances that are said to make the statute unconstitutional as applied. Nevertheless, those are facial constitutional questions, and the able circuit judge declared the questions “substantial” after an examination into their merits. In the interests of judicial economy, we choose not to descend into the merits of the constitutional questions. They have not been briefed here; therefore we cannot pronounce them “spurious or frivolous.” Gulf Pines, supra, 361 So.2d at 699.

Judge Ervin’s dissenting opinion presents powerful arguments, based on this Court’s decisions in Rice and Key Haven, that might have influenced the circuit court to allow the unresolved question of facial statutory validity to accompany other issues through the administrative process for decision, if necessary, upon direct appeal following final agency action. As we said in Ortega, our decisions in Rice and Key Haven

counseled judicial adherence to the principle of exhaustion of administrative remedies even in the presence of a constitutional question, when it is made to appear that a district court of appeal can effectively decide that question, if necessary, upon an appeal from the agency’s decision on nonconstitutional issues. [409 So.2d at 531.]

Forceful as Judge Ervin’s opinion is, we decline to say the circuit court was obliged in these circumstances to take the course of judicial abstention on the facial constitutionality question. Whatever the merits of that substantive question, it concerns the facial validity of the statute that is the very predicate for the administrative review proceedings — the new hearing before the Land and Water Adjudicatory Commission — in which the unresolved constitutional question would be carried if the circuit court were to abstain. The circuit court might reasonably have concluded, in Ortega terms, that “in no sense” are the challenged administrative proceedings available to remedy any unconstitutionality in their statutory authorization; that “in no sense” are those questioned proceedings adequate to remedy the alleged invalidity of their own statutory birthright. 409 So.2d at 532.

The facial constitutional issue urged upon the circuit court can be decided only by constitutionally authorizing or deauthoriz-ing the de novo review proceedings scheduled before the Land and Water Adjudicatory Commission by authority of section 380.07(3). No relief that those administrative proceedings might gain for the Board of County Commissioners, on the question of permitting a petroleum products terminal, would be equivalent to the relief requested of the circuit court. And in the same sense as we found in Ortega, the County Commissioners’ constitutional claims “are inconsistent with and in derogation of” the scheduled proceedings, however correctly they may be conducted, before the Land and Water Adjudicatory Commission. 409 So.2d at 532. To the extent of entertaining the facial constitutionality issue, therefore, the circuit court may properly have regarded the case as the Supreme Court regarded Gulf Pines, holding that “it is pointless to require applicants to endure the time and expense of full administrative proceedings ... before obtaining a judicial determination as to the validity of that statutory prerequisite.” 361 So.2d at 699.

Even as we again recognize the narrow futility doctrine enunciated in Gulf Pines as an exception to the exhaustion requirement, it is again appropriate that we reaffirm, for the guidance of circuit courts importuned to take and decide facial constitutionality issues inhering in pending or available administrative proceedings, the principles drawn from Gulf Pines, Rice and Key Haven : judicial abstention is the indicated course except when the essential statutory underpinnings of the administrative process are substantially questioned on facial constitutionality grounds, and it is shown that an immediate judicial decision on the constitutional question is desirable for pragmatic reasons. This latter condition is not to be casually assumed; for, as we said in Rice,

[T]here is precious little sound policy to justify dividing an administrative controversy into non-constitutional issues and two kinds of constitutional issues and parceling them out to separate agency and circuit court litigations which may eventually merge again in the same district court of appeal or, worse, in different district courts. [386 So.2d at 848]

If further proof of this proposition is required, the history of this litigation surely provides it. It should be clear by now that collateral circuit court litigation interrupting chapter 120 processes does not and, because of the district court’s responsibility to guard the integrity of chapter 120 processes, cannot uncritically be depended on to end a dispute such as this swiftly and surely, relieving the contenders of expending “the time and expense of full administrative proceedings.” Gulf Pines, 361 So.2d at 699. When it is asserted in circuit court that a threshold issue of facial statutory validity controls the case, and should be decided preliminarily, that court must bear in mind also that the constitutional question is invariably accompanied by a question of the propriety of intervening. That latter question necessarily implies the possibility of such proceedings as these in a district court, especially when as here the complaint seeks impermissibly to draw other issues along after the statutory validity question. The full consideration of this case in this Court since early 1981, and the preparation of opinions, have required the expenditure of “time and expense” by the parties and the Court substantially beyond that previously incurred in the circuit court. Inasmuch as we do not propose to pass lightly over the embedded question of whether the purpose or effect of circuit court litigation is to frustrate or delay executive branch action unjustifiably, the circuit court must consider the lost “time and .expense” of collateral proceedings, as well as that which collateral proceedings may avoid, when pondering whether to carve out the facial constitutionality question or permit it to rise to the district court through normal chapter 120 processes.

We decline Judge Ervin’s invitation to import into Florida law the unruly mass of federal court decisions on exhaustion, some of which support the idea that an administrative agency may initially decide questions of statutory validity, therefore counseling judicial abstention, while others appear to allow judicial intervention willy-nilly in nonconstitutional cases, based on “balancing” or discretionary factors. Florida courts have wisely avoided seduction by these litigious propositions. While our decisions teach that a Florida agency may construe a statute or apply it mindful of constitutional influences, questions of facial statutory validity must either be carried un-parsed through the administrative process to a district court of appeal, for decision there if necessary, or they must be decided collaterally in circuit court. We see no reason to venture such a fundamental reordering of mature Florida exhaustion law as Judge Ervin suggests, least of all on the basis of imported federal precedent which, Professor Davis rightly says, is anything but coherent and predictable in application:

The [federal] answer to the question whether administrative remedies must be exhausted before a court may review administrative action has always been yes and no, with no clear guides as to when it is yes and when it is no. Since 1975 the law of exhaustion has become even more disorderly than it previously was. The lack of predictability is strong enough to raise the question whether the requirement is governed by discretion rather than by law.
What deters the development of principle is the judicial inclination to decide exhaustion questions on the basis of the equities of whole cases, including the merits as well as the aspects related to exhaustion. Then conclusions are often stated in the form of an observation about exhaustion law. The result is a body of generalizations about exhaustion law that are largely or mostly contradictions.

K. Davis, Administrative Law Treatise § 20.11 at 279-80 (1982 Supp.).

The circuit court did not exceed its jurisdiction or depart from the essential requirements of law in denying a motion to dismiss this complaint seeking a declaration that section 380.07(3) is unconstitutional on its face. As we have said, no other pendent questions on the merits of the permitting dispute, on questions of the constitutional application of statutes, or on the correctness of administrative processes past or in prospect, will be entertained. The petition for writs of prohibition or certiorari is DENIED.

McCORD, J., concurs.

ERVIN, J., dissents, with written opinion.

ERVIN, Judge,

dissenting.

I must respectfully disagree with the majority’s determination that the Board of County Commissioners’ complaint raises so substantial a constitutional question as to require judicial intrusion into the on-going administrative process. As the majority is well aware, the mere assertion of a constitutional issue does not automatically entitle a party to bypass administrative channels. See Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978); State ex rel. Florida State Board of Nursing v. Santora, 362 So.2d 116 (Fla. 1st DCA 1978); Metropolitan Dade Cty. v. Dept. of Commerce, 365 So.2d 432 (Fla. 3d DCA 1978). In regard to the county’s vague allegations of agency encroachment upon a judicial prerogative by reason of a superior agency reviewing the action of an inferior agency, I should have thought by now that review by one agency over the actions of another was fairly well recognized by Florida courts. See, e.g., School Board of Flagler County v. Hauser, 293 So.2d 681 (Fla.1974); School Board of Pinellas County v. Noble, 372 So.2d 1111 (Fla.1979); Friends of the Everglades v. State Dept. of Environmental Regulation, 387 So.2d 511 (Fla. 1st DCA 1980); Booker Creek Preservation, Inc. v. Dept. of Environmental Regulation, 369 So.2d 655 (Fla. 2d DCA 1979). I fail to find any allegation in the county’s complaint of such substance as to require an interruption of the administrative proceeding.

On a much broader, fundamental basis, however, I must take issue with my colleagues’ views that seem to support the theory that any time a litigant levels a constitutional attack upon the facial validity of a statute, the agency is disabled from considering the case until the issue is resolved within a judicial forum. I do not think that Gulf Pines, relied upon by the majority, supports that position. Gulf Pines does not state that the judiciary is the sole branch of government possessing the power to interpret the constitution. To the contrary, certain language in that opinion undergirds my view that the requirement of exhaustion depends more upon considerations of policy than upon jurisdiction: “[WJhether the circumstances of a particular controversy warrant judicial intervention ... is ultimately one of policy rather than power, .... ” Id. at 699 (e.s.). Other language in Gulf Pines implies that the court was following that great wealth of federal authority recognizing that exhaustion is generally required even as to constitutional challenges unless the case fits into one of several narrow exceptions to the rule: “[A]s a general rule, the circuit court should refrain from entertaining declaratory suits except in the most extraordinary cases, where the party seeking to bypass the usual administrative channels can demonstrate that no adequate remedy remains available under Chapter 120.” Id. at 699. The opinion further emphasizes the exhaustion requirement by quoting with approval the following statement from Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla.1961): “[CJourts must refrain from ‘promiscuous intervention’ in agency affairs ‘except for the most urgent reasons.’ ” Id. at 698.

The Gulf Pines court no doubt was aware that Odham involved a facial assault upon the constitutionality of the statute conferring jurisdiction upon the agency to act. Yet Odham required the affected party to exhaust first its administrative remedies before seeking judicial relief. Odham’s holding was apparently motivated by two factors: (1) the existence of unresolved, disputed nonconstitutional issues, which, if decided in favor of the party, might moot the constitutional question, and (2) the fact that no irreparable harm could inure to the party seeking judicial relief because it had the right of immediate review to the appellate court from the agency’s final action.

Given the above language endorsing the doctrine of exhaustion, I remain unpersuaded that Gulf Pines intended to disable an agency from entertaining under any circumstances a challenge to the facial validity of a statute. I think it quite possible that the court decided, because of the Department’s demonstrated inability to handle a relatively uncomplicated point of law, that further referral to the administrative forum would prove futile, and therefore applied one of the generally recognized exceptions to the doctrine of exhaustion — the futility exception.

There is, to be sure, other language in Gulf Pines that implies its holding dispensing with agency designation is based upon a jurisdictional foundation — not upon policy considerations. Observe the following: “[T]he administrative hearing officer lacks jurisdiction to consider constitutional issues .... ” Id. at 699. The literal effect of this statement would preclude agencies from determining a constitutional question as applied to a given factual situation. I doubt that the court intended such an all-encompassing result, particularly in view of the other contradictory dicta in the opinion, and neither, apparently, does a trend of recent appellate court decisions. See, e.g., Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979); Rice v. Dept. of HRS, 386 So.2d 844 (Fla. 1st DCA 1981); Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Fund, 400 So.2d 66 (Fla. 1st DCA 1981).

Regardless of Gulf Pines’ purpose, the rule that only the judiciary possesses jurisdiction to consider constitutional claims finds support in a long line of Florida cases. See, e.g., State v. State Board of Equalizers, 84 Fla. 592, 94 So. 681 (1922); Pickerill v. Schott, 55 So.2d 716 (Fla.1951); State ex rel. Howarth v. Jordan, 105 Fla. 322, 140 So. 908 (1932); Barr v. Watts, 70 So.2d 347 (Fla.1953). This rule of judicial exclusivity, despite its observance through many years, is, in my judgment, based upon a faulty premise. State Board of Equalizers, supra, drawing upon certain statements from Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), holds that an administrative officer, sworn to obey the constitution, cannot, consistent with that oath, declare invalid a statute which he believes to be repugnant to the constitution. His oath to obey the constitution means “to obey the constitution, not as the officer decided, but as judicially determined.” 94 So. at 683 (e.s.). The next logical step in the court’s syllogism was for it to deduce “that the power to declare an act unconstitutional is lodged nowhere but in the courts .... ” 94 So.2d at 682. Yet, as one commentator tellingly observes, Marbury v. Madison never required that the Court’s right to review constitutional issues “implied a limitation upon the power of the other departments of government to interpret the constitution in discharge of their functions .... ” Swan, Administrative Adjudication of Constitutional Questions: Confusion in Florida Law and a Dying Misconception in Federal Law, 33 U.Miami L.Rev. 527, 570 (1979). Rather, Mar bury s claim of judicial power to interpret was a defensive power — not an affirmative power — and was limited to the withholding of concurrence from a prior legislative or executive interpretation of the constitution only in a particular case in controversy. The power asserted in Marbury was entirely consistent with the doctrine of separation of powers; it was a concept of government so constrained by the people as to require the concurrence of two, if not three, independent branches of government. Id. Professor Swan concludes that

if the power of judicial review should ever become something more than a defensive power, it would immediately encounter a serious question under the separation of powers doctrine. It means that if the “subject matter” of substantive constitutional interpretation were ever thought to so “inhere” in the judiciary as to be a subject for judicial cognizance alone — a subject given exclusively to the courts — then the power of judicial review might well constitute an assertion of judicial supremacy tantamount to usurpation.

Id. at 572. The views advanced by Professor Swan are reflected in the more recent decisions of the United States Supreme Court, and intermediate federal courts, rejecting any broad rule of agency disability to entertain, under any circumstance, a facial attack on the constitutionality of a statute.

Not since its opinion in Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), has the United States Supreme Court spoken of an agency’s inability to consider constitutional issues in terms of separation of powers. In Crowell, the Court was confronted with the question of whether a portion of the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. §§ 901-50 (Supp. V 1975)) was an unwarranted administrative intrusion into the judicial powers in violation of Article III of the United States Constitution. The challenged Act provided in part that the deputy commissioner’s findings of fact, if supported by substantial evidence, would be conclusive in any later judicial action to enforce or set aside a compensation award. The Court replied that in cases involving a public right — i.e., cases between the government and persons subject to its authority— Congress was free to commit the determination of all facts, constitutional or otherwise, to a non-Article III court, subject only to compliance with the substantial evidence test. Id., 285 U.S. at 50, 52 S.Ct. at 292. However, as to cases relating to a private right — those involving the liability of one individual to another — any initial administrative determination of facts pertaining to jurisdictional requirements of a constitutional nature could not be assigned any degree of finality, but had to be tried by an Article III court de novo. Id.

In his dissent to the latter facet of the majority’s opinion, Justice Brandéis argued that the grant of judicial power under Article III did not limit Congress’s power to vest fact-finding authority in an administrative tribunal. In his view, the only limitation upon Congress’s power to delegate existed within the Due Process Clause:

[I]f there be any controversy to which the judicial power extends that may not be subjected to the conclusive determination of administrative bodies or federal legislative courts, it is not because of any prohibition against the diminution of the jurisdiction of federal courts as such, but because, under certain circumstances, the constitutional requirement of due process is a requirement of judicial process.

Id., 285 U.S. at 87-88, 52 S.Ct. at 306-307.

It appears that the second portion of the majority’s opinion in Crowell has since been rejected by the Court, and the views of Justice Brandéis endorsed. Six years following the Crowell decision, the Court in Myers v. Bethlehem Shipbuilding Corp., supra, at n. 1, was again faced with the question of whether administrative remedies were required to be exhausted in a case which involved a constitutional challenge. There, an employer alleged that an agency, the National Labor Relations Board, had no authority pursuant to the Wagner Act (29 U.S.C. § 151 (1964)) to conduct a hearing on charges lodged against it, on the ground that the Act, under the circumstances, was not applicable, since no showing was made that the employer’s activities occurred within interstate commerce. Because there remained disputed factual issues as to the constitutionality of the Act as applied to the employer, the Court held that the Board was required to make the initial decision on the constitutional challenge to its jurisdiction. More significantly, the Court rejected the argument that the Board lacked the authority to entertain the action until the constitutional power to consider the case was judicially established, answering that Congress could appropriately place jurisdiction in the Board to conduct the initial trial of such issues. The Court was of the view that by legislatively committing the Board to do so, Congress would not in any way deprive the employer of due process protections because the Act provided it appropriate quasi-judicial procedures before the Board, as well as a direct right of appeal to an Article III court. 303 U.S. at 49-50, 58 S.Ct. at 462-463.

Professor Jaffee summarizes the federal approach to the requirement of administrative exhaustion of remedies as follows:

Certain proceedings “involving public rights” may be adjudicated either by an agency or if they have the requisite constitutional characteristics of “a case or controversy,” by the constitutional courts. Congress may make the choice as it has done with claims against the United States to use either or both. Furthermore, even a suit involving “private right,” that is “the liability of one individual to another,” may also be adjudicated by an agency provided that a court is empowered on appeal to determine the law, and provided that the matter is not one at “common law” entitling the parties to a jury trial.

Jaffee, Judicial Control of Administrative Action 91 (1965).

It would seem that the above view has not, until recently, been shared by the Florida courts. Indeed, the rule of judicial exclusivity was extended even to the disabling of an agency from considering the validity of its own rules. See Department of Administration v. Department of Administration, 326 So.2d 187, 189 (Fla. 1st DCA 1976); Department of Revenue v. Young American Builders, 330 So.2d 864, 865 (Fla. 1st DCA 1976). And it has been extended also to bar an agency from ruling on the validity of a proposed rule. Adams Packing Ass’n. v. Fla. Dept. of Citrus, 352 So.2d 569 (Fla. 2d DCA 1977). Contra, Dept. of Environmental Reg. v. Leon Cty., 344 So.2d 297 (Fla. 1st DCA 1977).

The rule of agency disability was provided another curious interpretation by the Second District’s application of the doctrine of res judicata to a constitutional challenge. Coulter v. Davin, supra, holds that if a constitutional violation is alleged to have occurred in the taking of the action by the agency in the proceeding to which the plaintiff was a party, the issue may not be decided in circuit court, but if the violation is not in the taking of action, but inheres in a statute or rule on which the agency bases its proposed action, such violation is not one which could have been asserted in the administrative proceeding or in the district court of appeal on review of the agency action. Accord, Dependable Air Cond. v. Office of Treasurer, 400 So.2d 117, 120 (Fla. 4th DCA 1981). The first facet of the Coulter rule is merely a restatement of the view, long recognized by Florida courts, that agencies have the power to rule upon the constitutionality of the statute as applied. See Wood v. Twin Lakes Mobile Home Village, Inc., 123 So.2d 738 (Fla. 2d DCA 1960). The primary difficulty with the second facet of CoultePs holding is its assumption that an administrative agency may not determine, under any circumstances, the facial validity of a statute or rule — a view that has, until very recently, been indiscriminately endorsed by all district courts.

Something was seriously wrong with the Florida courts’ perception of how the exhaustion doctrine should be applied to constitutional issues. Fortunately, a different approach was taken in the breakthrough case of Rice v. Dept. of HRS, supra. Notwithstanding the existence in Rice of a facial attack on the constitutionality of Section 382.16(5)(a), authorizing HRS to enter on a child’s birth certificate the surname of the husband to whom the wife was married at the time of the child’s conception, we directed the agency to build a record relating to the reasonableness of its statutory interpretation, although we reserved to ourselves the responsibility of passing initially upon the statute’s constitutionality. On remand, the prophesy uttered in McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 583 (Fla. 1st DCA 1977), regarding the potential effects of scrupulous adherence to APA processes, was realized: The ensuing hearing and recommended order of the hearing officer subjected the “agency [head] to the sobering realization [that its] policies lack[ed] convincing wisdom .... ” Specifically, HRS adopted the hearing officer’s recommended interpretation that the statute did not require exclusive use of the father’s name, and thereupon ordered that the hyphenated surname of both parents be entered on an amended birth certificate, thereby obviating the need for further judicial review. Key Haven Associated v. Board of Trustees, supra, 400 So.2d at 73, n. 15, review docketed no. 61,027 (Fla., orally argued April 14, 1982). Had we adopted the inflexible approach of Coulter v. Davin, supra, which implies that administrative agencies are dispossessed of subject matter jurisdiction from entertaining constitutional challenges to the facial validity of statutes or rules, the agency would have been disabled from initially considering the limited questions we directed to it to enable us to resolve the constitutional issue. In remanding the case to the agency for further findings which ultimately granted appellants the relief they requested — their application for change of name — Rice, more than any other case, offered hope that the broad rule of agency disability was now ripe for reexamination. Unfortunately, such hopes were shortlived.

Our more recent opinion in Key Haven Associated v. Board of Trustees, supra, although declining to authorize a collateral attack in circuit court on the purported constitutional action of an agency, because the case involved a question of the constitutionality of the statute as applied, in dicta continued to accept the questionable judicial wisdom that agencies are disabled from considering “constitutional questions of facial statutory or rule validity.” Key Haven, supra, at 71. Given the Rice decision, our reasons for clinging to such a preclusive view are unclear. In remanding the Rice case to the agency, we permitted it to make the initial interpretation of the statute, an interpretation which ultimately avoided the constitutional questions raised. If the broad principles of Rice were followed by us in the present case to their logical extension, it would not seem improper to permit the Land and Water Adjudicatory Commission to make the initial interpretation of the statute under attack — provided there is an avenue of relief available that could conceivably moot the constitutional issue.

Rice did not of course involve a situation in which the party affected by agency action sought — as here — an interruption of the on-going agency process by filing a declaratory suit in circuit court, attacking the facial validity of a statute. By seeking review from the agency action, and by challenging the validity of the statute de novo in this court, the appellants in Rice chose this court — not the circuit court — as the proper forum for litigating their constitutional grievances. The conclusion now reached by the majority suggests that had the affected parties in Rice importuned collateral circuit court intervention before the administrative processes were concluded, and had the trial court granted it, we in turn would have deferred to the trial court’s ruling — thereby denying to us a fact-finding record directed to the constitutional question, denying to the agency the respect owed to its own autonomy, and, perhaps ultimately, precluding a determination of the case on nonconstitutional grounds. The majority’s opinion also provides a signal to parties subjected to proposed administrative action that claims of marginal constitutional substance will continue to be honored only within a judicial forum.

The resulting costs to an orderly, efficient disposition of administrative issues in future cases could prove immeasurable. Because of the requirement that the circuit court should stay any pending administrative issues during a judicial determination of the constitutional claim, E.T. Legg & Co. v. Franza, 383 So.2d 962 (Fla. 4th DCA 1980), a nonconstitutional claim, which could possibly moot the constitutional issue, must nevertheless await resolution of the latter. Additionally, the bifurcation of the issues into separate forums produces a waste of judicial and administrative energies — a result that was emphatically denounced in Rice:

[W]e think there is precious little sound policy to justify dividing an administrative controversy into nonconstitutional issues and two kinds of constitutional issues and parceling them out to separate agency and circuit court litigations which may eventually merge again in the same district court of appeal or, worse, in different district courts.

386 So.2d at 848. Considering the present congestion of caseloads in both appellate and trial courts, I question whether on balance any benefit resulting from maintaining a broad theory of judicial exclusivity in the face of a constitutional challenge offsets its recognizable costs.

As was observed in a recent article in the Florida Bar Journal, there is at present little agreement among the various district courts of appeal relating to whether a constitutional question may await resolution at the appellate level while the nonconstitu-tional issues are first administratively determined. As previously stated, the First District, represented by Rice, differs with the decision of the Second District in Coulter, holding that an appellate court may not consider de novo a constitutional issue which could not have been considered by the agency. The Third and Fourth Districts, although initially accepting the approach of the Second, F.O.P. and AFSCME v. City of Miami, 384 So.2d 726 (Fla. 3d DCA 1980); Dependable Air Cond. v. Office of Treasurer, supra, now have adopted Rice’s view. See Solimena v. State Dept. of Business Reg., 402 So.2d 1240, 1245, n. 6 (Fla. 3d DCA 1981), and 2829 Corp. v. Division of Alcoholic Beverages, 410 So.2d 539 (Fla. 4th DCA 1982). All apparently, however, accede to the view that an agency may not, under any circumstances, initially address the facial validity of a statute or the validity of its own rule; that such questions are reserved exclusively for judicial determination.

If the determination of judicial intervention is truly “one of policy rather than of power,” Gulf Pines, supra, at 699, I consider that the Florida courts would be well advised to consider the balancing approach that has long been followed by the federal system in determining whether to require exhaustion, even in the face of a constitutional question. Some of the factors influencing a decision in favor of going forward with the administrative process include an avoidance of premature or unnecessary judicial labor, an assurance of agency action by the authentic agency head, an encouragement of agency decisionmaking processes, the availability of remedies simpler and less expensive than court litigation, and an encouragement of a responsible automony in the executive branch of state government. Key Haven, supra, 400 So.2d 73, citing Patsy v. Florida Int'l. University, 634 F.2d 900, 911-912 (5th Cir. 1981). Restated, adherence to the exhaustion doctrine promotes deference to agency expertise, facilitation of judicial review through creation of a factual record by the agency, and, not insignificantly, conservation of judicial energy if the judicial controversy is mooted by the agency granting the relief sought by the affected party. Baldwin Metals Co., Inc. v. Donovan, 642 F.2d 768, 771-72 (5th Cir. 1981).

Balanced against these considerations favoring exhaustion are three general exceptions: (1) the subordinate role theory — an acknowledgement that because the agency’s existence is derived from the legislature, it would be incongruous for an agency to ignore what the legislature has said on a point of statutory law; (2) the lack of competence theory, holding that since agencies, because of their selection, do not always follow the procedures necessary to inform the decisionmaker on subtle points of constitutional law, they should therefore be precluded from addressing such issues; (3) the ultra vires theory, stating that agencies should not be permitted to entertain challenges to their own jurisdiction, since to permit them to do so presupposes the existence of the very jurisdiction under attack.

These exceptions are, of course, not all-inclusive. The federal courts often decline to require exhaustion, if, for example, they deem the prescribed administrative procedure clearly “inadequate to prevent irreparable injury ... ”, American Fed’n. of Gov’t. Employees, Local 1904 v. Resor, 442 F.2d 993, 994-95 (3d Cir. 1971); accord, Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 24, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123 (1974); McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), or if agency involvement has already resulted in blatant violations of constitutional or statutory rights. Rhodes v. United States, 574 F.2d 1179 (5th Cir. 1978); Susquehanna Valley Alliance v. Three Mile Nuclear Reactor, 619 F.2d 231 (3d Cir. 1980). Perhaps the above stated reasons for dispensing with the exhaustion requirement in such cases can generally be lumped into the “futility” classification, which is a refinement of the ultra vires exception — a recognition that an affected party will not be required to pursue an administrative remedy that is highly unlikely to be forthcoming.

There would appear to be no sound reason under any of the above exceptions why an agency — assuming its competency to act — could not consider a constitutional objection to its own rule. Federal agencies have done so on numerous occasions.

We see from the above survey of federal cases that there is no broad, inflexible rule disabling agencies from entertaining an attack on the facial validity of a statute. Rather, the requirement of exhaustion is there determined on a case-by-case basis and turns more often than not on a balancing of pragmatic considerations. One commentator concludes from his analysis of pertinent federal authority that such a determination is comparable to and coextends with normal summary judgment practice. Thus, in a case where the issues as framed by the pleadings involve a challenge to the facial validity of a statute, the challenger should still be required to exhaust his available administrative remedies — subject to the usual exceptions — if the constitutional question could not be decided upon motion for summary judgment.

This approach is exemplified by Aircraft & Diesel Equipment Co. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947), in which the Court dismissed a petition that had combined a nonconstitutional attack on a decision of the War Contracts Adjustment Board with a challenge to the constitutionality of the Renegotiation Act (50 U.S.C. App. § 1191 (1945)). The Court held that judicial intrusion was premature due to the failure of the petitioner to pursue its administrative remedies by appeal to an administrative tribunal, the Tax Court, noting that the Tax Court was empowered to pass on all questions, “constitutional or otherwise.” 331 U.S. at 769, n. 30, 67 S.Ct. at 1501, n. 30. A more important reason advanced for the Court’s requirement of exhaustion was that if the contractor prevailed on statutory grounds, the necessity to decide the constitutional issue would be avoided. Id. at 772, 67 S.Ct. at 1503.

The potential mooting of a constitutional question is an often cited consideration in a determination of whether exhaustion should be required. See, e.g., Dubois Clubs of America v. Clark, 389 U.S. 309, 312, 88 S.Ct. 450, 452, 19 L.Ed.2d 546 (1967); Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir. 1979); Baldwin Metals Co., Inc. v. Donovan, supra. In Donovan, the defendant was charged with certain violations of the Occupational Safety and Health Act (OSHA), but before the administrative process had been concluded, a complaint was filed by defendant in a federal district court, seeking both a declaration that the inspection warrant which had been issued was unconstitutional, and an order suppressing the use of any evidence obtained pursuant to the warrant, as well as an injunction prohibiting OSHA officials from taking any further action. The injunction was granted, and the Secretary of Labor appealed to the Fifth Circuit. In reversing, the court initially observed that the interests of agency expertise did not require exhaustion since agency officials had no special expertise which would make them adept at handling issues concerning the constitutional validity of warrants, but it nevertheless concluded that the exhaustion doctrine should be adhered to because the constitutional issues might eventually be mooted by the agency’s decision on the merits in favor of the allegedly aggrieved party-

Even in a situation where the issue as framed by the pleadings involves only a challenge to the validity of a statute, exhaustion might yet be required if the constitutional decision is likely to resolve into a decision as applied to a given factual situation, for example, where the challenge rests upon due process or equal protection grounds. Rice was such a case. The challenge to Section 382.16(5)(a), relating to the name that should be placed on the child’s birth certificate, was launched on grounds of denial of equal protection of the law, due process and freedom of speech. The case ultimately turned on a simple interpretation of the statute, after remand to the agency, for the purpose of building a record as an aid to the appellate court in determining, among other things, “the availability of less restrictive alternative means of achieving the goals of the statute.” 386 So.2d at 850. Rice, thus, was a recognition of the principle that an informed judicial opinion often requires an appraisal of the utility and necessity of legislative decisions in light of constitutional norms. This principle is frequently applied in those cases where neither the handiwork of the legislature nor that of the framers is free from ambiguity. In such instances, an informed opinion cannot be reached without a record apprizing the courts of the agency’s factual conclusions, potential alternative actions and general policy decisions. Clearly, a record prepared for the purpose of clarifying the legislative intent may often assist the courts in avoiding an unnecessary and hence unjustified conclusion affecting constitutional costs.

If, however, no factual dispute is at issue, if no agency exposition is required to resolve intricate and uncertain questions of statutory interpretation, under the subordinate role theory, the agency would be deemed to lack the power to consider the case. This principle is perhaps best illustrated by the following quote from Public Utilities Commission of California v. United States, 355 U.S. 534, 539-40, 78 S.Ct. 446, 450-451, 2 L.Ed.2d 470 (1958):

If * * * an administrative remedy might leave no remnant of the constitutional question, the administrative remedy should plainly be pursued. But where the only question is whether it is constitutional to fasten the administrative procedure onto the litigant, the administrative agency may be defied and judicial relief sought as the only effective way of protecting the asserted constitutional right

We recently applied the above reasoning to an issue involving whether administrative exhaustion was required as a predicate to a litigant bringing a judicial claim, seeking there both a declaration that the workers’ compensation act was constitutionally invalid and a common law tort remedy for redress of his injuries. Ortega v. Owens-Corning Fiberglass Corp., 409 So.2d 530 (Fla. 1st DCA 1982). We concluded that the issues, as framed, involved no question that required answer by a deputy commissioner, since they were totally inconsistent with and in derogation of any compensation claim.

With the above precepts in mind, upon turning to the relief sought in the complaint below, we find that the complainants request a declaratory judgment (1) declaring Section 380.07(3) unconstitutional, as it permits a hearing officer of the Division of Administrative Hearings to conduct a de novo hearing on appeal from an order of the local government made upon a development of regional impact application, and (2) declaring the rights of the county to be decided by the duly elected officers of Gadsden County. The latter request apparently relates to the administrative hearing, which, it is alleged, if allowed to proceed and an administrative order were entered, reversing the decision of the county, the result would impact adversely on the environment of the county, as well as on the general welfare, health, safety and economy of the community. Simply put, most of the county’s vague, “imprecise” allegations refer to a potential, future injury, occurring only if its permit order is reversed by the hearing officer. Without addressing any question whether the scope of Florida’s Declaratory Judgment Act extends to facts which are hypothetical, speculative, and uncertain of occurrence, see Williams v. Howard, 329 So.2d 277, 282 (Fla.1976), I think it reasonable to conclude that the complaint involves allegations of nonconstitutional issues which may ultimately be determined in favor of the county, as well as allegations of constitutional deficiencies which might be clarified by an interpretation by the agency of its responsibilities under the statute in answer to the complainants’ over broad delegation argument.

Given the abundant safeguards built into our Administrative Procedure Act, there can hardly be any compelling, logical reason for the courts to continue carving out indiscriminately a discrete class of cases from agency review, unless the case is one which fits into one of the recognized exceptions to the exhaustion requirement. The central purpose of the Act is to provide

basic fairness which should surround all governmental activity, such as the right ... to present viewpoints and to challenge the view of others, the right to develop a record which is capable of court review, the right to locate precedent and have it applied, and the right to know the factual bases and policy reasons for agency action ....

Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, p. 5 (March 9,1974) (unpublished article in the Florida Supreme Court Law Library).

Nor can it be logically argued that the agency lacks the competency to confront the constitutional issue since there is available a legally trained, independent hearing officer of the Department of Administration who unquestionably possesses all qualifications necessary to consider such issue. And should the agency, on review of the hearing officer’s recommendations, seek to displace them, McDonald v. Dept. of Banking and Finance, supra, in no uncertain terms requires the agency, in its final order, to take into account the officer’s findings of fact, conclusions of law and any exceptions the parties may have filed to those conclusions. Moreover, its order “must display the agency’s rationale. It must address countervailing arguments addressed in the record and urged by a hearing officer’s recommended findings and conclusions .... ” McDonald, supra, at 583. Because the final order and the record on which it is based is, by operation of Section 120.68, subject to direct review by an Article V Court, any conceivable argument that the county would be irreparably harmed by permitting the agency to address the constitutional question is, in my judgment, frivolous. Cf. Odham v. Foremost Dairies, Inc., supra.

By authorizing an administrative determination of the constitutional issue, we would not be advocating any change in our position, stated in previous cases, that the Administrative Procedure Act cannot displace the circuit court’s jurisdiction to consider the facial invalidity of statutes. See, e.g., Dept. of Revenue v. Young American Builders, supra; State ex rel. Dept. of General Serv. v. Willis, supra; School Bd. of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). The thrust of our inquiry should now be, not whether there is a lack of jurisdiction within either forum, but whether on balance there is any compelling exception that would require judicial intrusion. If we can accept the premise that there is no broad rule disabling agencies in all circumstances from considering a constitutional challenge, then we could conclude — no less than we did in either Willis or Mitchell — that the circuit court’s jurisdiction over the class of suit involved (in Willis, injunctive relief, and in Mitchell, a declaration of rights) yet abides, but because the complainants avoided a clear avenue of administrative relief, the judicial remedy sought must be denied.

If, however, we must continue to embrace the view — unsound in either practical effect or legal theory — that the agency may not consider the facial validity of a statute, notwithstanding the existence of nonconsti-tutional issues, then I see no reason why, as was done in Rice, the agency should not be permitted to establish a record directed to the constitutional issue, reserving to ourselves — rather than the circuit court — a de novo determination of the constitutional question — should that issue yet remain.

In my view, the benefits of permitting the agency to entertain the constitutional question far outweigh any potential costs. We would have before us a record of the administrative proceeding addressed to all issues; we could be provided with any estimate for the need of the challenged provision and the efficacy of potential alternatives that could aid us in avoiding potentially unnecessary constitutional actions; we would avoid a bifurcation of the administrative and constitutional issues into two different forums, and finally, by authorizing the administrators to act, we would acknowledge that agencies can also make determinations appropriate “ ‘to the dignity and burden of their own responsibility.’ ”

      . See, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938): “[N]o one is entitled to judicial relief for a supposed or theoretical injury until the prescribed administrative remedy has been exhausted.” See also cases cited at pp. 1343-1344, infra.

      . See page 1343 infra.

      . The Florida Supreme Court had earlier in Dickinson v. State, 227 So.2d 36 (Fla.1969), held the need criteria of Section 559.39(2), Florida Statutes (1969), to be an unconstitutional delegation of legislative authority. After Oak-lawn had filed an application to establish a new cemetery, the legislature in 1976 amended Section 559.39(2) to cure the defect noted in Dickinson by providing more specific criteria upon which a determination of need could be based. Gulf Pines, supra, at 697. The request for the license was denied by the Department’s retroactive application of the need criteria of Section 559.39(2), as amended.

      . Interestingly, an opinion of the California Supreme Court arrived at the opposite conclusion. It holds that the oath to uphold the constitution required of all public officials creates a duty not to enforce invalid laws, but rather a duty to inquire into and pass judgment on legislative pronouncements. Southern Pacific Transportation Co. v. Public Utilities Commission, 18 Cal.3d 308, 134 Cal.Rptr. 189, 556 P.2d 289, 290-91, n. 2 (1976). It therefore permitted the agency to declare invalid a state statute which had delegated to it certain powers to regulate railroads.

      . See cases cited at pp. 1343-1344, infra.

      . Professor Davis approves such an approach. He explains that an agency must be empowered to pass upon the constitutionality of a statute as applied, otherwise it would be incapable of executing the intent of the legislature, whether expressed, implied or presumed. 3 K. Davis, Administrative Law Treatise, § 20.04, 74 (1958). He would deny to agencies, however, the power to rule upon the facial validity of a statute, stating: “Only the courts have authority to take action which runs counter to the express will of the legislative body.” Id.

      . There is of course no general subject matter distinction between judicial and quasi-judicial power. The great weight of authority recognizes that whatever a court may decide, an agency has the power to decide, so long as it acts in a judicial mode and so long as its decisions are reviewable by a court and its functions are subject to legislative revision. State, Dept. of Administration v. Stevens, 344 So.2d 290, 293 (Fla. 1st DCA 1977) (quoting from 1 Am.Jur.2d, Administrative Law, §§ 138, 145, 154, 157 and 161). Curiously, however, Stevens refused to apply this general rule to an agency’s power to decide the validity of a statute or rule. See Stevens at 295, n. 2.

      . There is no issue before us relating to a stay of the administrative proceeding since the lower court’s order did not require a stay; nevertheless, it does not appear from the record that the administrative proceeding has continued.

      . Consider the number of multiple actions that were sought in 2829 Corp. v. Division of Alcoholic Beverages, 410 So.2d 539 (Fla. 4th DCA 1982): After Kit Kat was served by the agency with both an order to show cause why the license should not be suspended, and an emergency order of suspension, Kit Kat appealed, and sought a stay which the Fourth District granted, directing, however, the parties to proceed with the hearing scheduled on the show cause order. Later Kit Kat demanded a Section 120.57 hearing before the Division but, notwithstanding its request, it subsequently filed in circuit court a suit for declaratory relief, alleging the facial invalidity of Section 120.-68(7). The Division next filed in the appellate court a petition to vacate the stay earlier entered. While the petition was still pending, the circuit court issued a temporary injunction prohibiting further administrative proceedings pending a decision on the constitutional claim. Shortly thereafter, the district court acted on the petition to vacate, denying it without prejudice to the Division’s renewal of it after final agency action. In the meantime the Division appealed the entry of the temporary order. At that point, the district court, perhaps then judicially exhausted by the barrage of motions and interlocutory appeals, held, contrary to what it had earlier stated in Dependable Air Cond. v. Office of Treasurer, supra, that the constitutionality of the statute could be initially considered by it and then set aside the temporary injunction.

      . Linn, Constitutional Issues in Administrative Practice, 55 Fla.B.J. 840, 843 (1981).

      . See, Swan, supra, at 532-34.

      . Federal cases representing this view include Public Utilities Comm. of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958) (state agency could hardly be expected to address question whether the United States can be subjected to the discretionary authority of a state agency to regulate rates charged by intrastate carriers for the transportation of government property): Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (widow seeking survivor’s benefits under Social Security Act was not required to exhaust her administrative remedies because the only asserted claim was the facial invalidity of the statute that provided a survivor married to a spouse for less than nine months was ineligible to receive benefits).

      . See, for example, Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 242-43, 89 S.Ct. 414, 418-19, 21 L.Ed.2d 402 (1968) (composition of draft boards and their administrative procedures rendered them unsuitable forums for adjudicating attacks on the constitutionality of the draft laws) (Harlan, J., concurring).

      . See, Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) (remand to state administrative board would be futile because it was unconstitutionally constituted).

      . Swan, supra, at 591.

      . See, Note, The Authority of Administrative Agencies to Consider the Constitutionality of Statutes, 90 Harv.L.Rev. 1682, 87-88 (1977).

      . Although our opinion in State ex rel. Dept. of General Serv. v. Willis, 344 So.2d 580, 591 (Fla. 1st DCA 1977), did not address a question involving an agency’s consideration of the facial validity of a statute, it nevertheless parallels the federal authority by providing the following catalogue of potential abuses which might require judicial intervention:
      No lack of general authority in the Department is suggested; nor is it shown, if that is the case, that the Act has no remedy for it. No illegal conduct by the Department is shown; nor, if that is the case, that the Act cannot remedy the illegality. No departmental ignorance of the law, the facts or the public good is shown; nor, if any of that is the case, that the Act provides no remedy for it. No claim is made the Department ignores or refuses to recognize relators’ substantial interests, or refuses to afford a hearing, or otherwise refuses to recognize that relators’ grievance is cognizable administratively. The respondent contractors have made no showing that remedies available under the Act are inadequate.

      . Swan, supra, at 536.

      . Id

      . See, generally Note, supra, n. 16, and Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970).

      . A. Bickel, The Least Dangerous Branch 24 (quoted in Key Haven, supra, at 73.


source: Caselaw Access Project

author: ANSTEAD, Judge.

license: Public Domain

text:
    FIREMAN’S FUND INSURANCE COMPANY, Appellant, v. Harry J. VORDERMEIER, Jr., and Vordermeier Company, Appellees. FIREMAN’S FUND INSURANCE COMPANY, Appellant, v. Adam MOLOT, and Harry J. Vordermeier, Jr., et al., Appellees.
    Nos. 81-763, 81-1503.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Rehearing Denied July 23, 1982.

      Gerald E. Rosser of Corlett, Merritt, Killi-an & Sikes, P. A., Miami, for appellant.
    Scott D. Sheftall and Robert L. Floyd of Floyd, Pearson, Stewart, Richman, Greer & Weil, P. A., Miami, for appellees Molot.
    Ray Ferrero and Timothy P. Beavers of Ferrero, Middlebrooks & Strickland, P. A., Miami, for appellees Vordermeier.
   ANSTEAD, Judge.

These consolidated cases present two issues for resolution. We must review the trial court’s determination that an insurance policy clause covering “any person (other than an employee of the named insured) or organization while acting as real estate manager for the named insured” should be interpreted to provide coverage for a receiver appointed by the court to manage the property at the request of the named insureds. We must also review a post-judgment order awarding the receiver and his agent company $75,000 in attorney’s fees and $9,575.19 in costs.

On April 8, 1975, Adam Molot, age four, fell from the fifth floor of the Golden Isles Professional Building in Hallandale and suffered substantial permanent injuries. At the time of the accident, a three-year insurance policy issued on May 31, 1972 by the appellant, Fireman’s Fund Insurance Company, was in force. The relevant named insureds under the policy were S. Lee Crouch, Trustee for S. Lee Crouch, Dr. and Mrs. Bret Lusskin, and Sage Construction a/k/a Golden Isles Professional Building.

When the policy was issued, the Lusskins owned the land on which the building was constructed and were lessors of a 99-year leasehold interest to S. Lee Crouch d/b/a Golden Isles Professional Building as lessee. Sage Construction initially managed the building. On August 23,1974, the Lusskins received a mortgage on the leasehold interest of the remaining named insureds in the building. The Lusskins then assigned this mortgage to the First National Bank of Hollywood. Subsequently, financial disagreements arose among the parties, and on March 7,1975, First National, as assignee of the Lusskins, filed a foreclosure action against the remaining named insureds to foreclose the mortgage. On March 20 the trial court, pursuant to paragraph 11 of the parties’ 1974 agreement that “[u]pon default by the Mortgagor, the Mortgagee shall have the right to have a receiver appointed,” issued an order designating Harry Vordermeier as receiver. At that point Vordermeier assumed responsibility for management of the property and he in turn engaged the Vordermeier Company to manage the building as his agent. On the day Adam Molot was injured management of the building was Vordermeier’s responsibility.

Molot and his parents brought suit against Vordermeier, the Vordermeier Company, S. Lee Crouch d/b/a Golden Isles Professional Building, S. Lee Crouch, Dr. and Mrs. Lusskin, Sage Construction, and others, alleging that their negligence was the proximate cause of Molot’s injuries. Fireman’s Fund agreed to cover and defend the named insureds, but refused to cover or defend Vordermeier and the Vordermeier Company on the grounds that a court-appointed receiver could not be considered “a real estate manager for the named insured” such that he and his agent would be covered under the clause of the policy defining the persons insured. In response, Vordermeier and the Vordermeier Company filed a cross-claim against Fireman’s Fund to establish coverage.

On December 31, 1980, Vordermeier and the Vordermeier Company entered into a settlement agreement with the Molots. Vordermeier agreed to the entry of a $1,200,000 judgment against him, while the Molots agreed to seek execution of the judgment only against Fireman’s Fund. Vordermeier Company agreed to the entry of the same $1,200,000 judgment against itself, with the Molots agreeing to first seek execution against Fireman’s Fund. On February 3,1981, the settlement agreement was approved by the trial court and a final judgment was entered accordingly. Vor-dermeier and the Vordermeier Company, then moved for a summary judgment on the insurance coverage issue against Fireman’s Fund, which was granted on April 16, 1981 in an order which provided in part:

Section 11(d) of the policy obligated FIREMAN’S FUND INSURANCE COMPANY to provide insurance coverage for plaintiffs’ claims to:
II. PERSONS INSURED
******
(d) Any person (other than an employee of the named insured) or organization while acting as real estate manager for the named insured.
FIREMAN’S FUND INSURANCE COMPANY denied the requests of the VOR-DERMEIERS for coverage pursuant to the above definition of “Persons Insured”. The VORDERMEIERS, as well as FIREMAN’S FUND INSURANCE COMPANY, filed opposing crossclaims, respectively, on this insurance coverage issue.
The Court specifically finds as a matter of law that the above language of the insurance policy is clear, certain and unambiguous, and that the VORDERMEI-ERS are “Persons Insured” under this definition. They are a “person” and “organization”, respectively, who were “acting as real estate managers for the named insured” at the time of the subject accident.
HARRY J. VORDERMEIER, JR. was managing the Golden Isles Professional Building, having been appointed as a Receiver by the Broward Circuit Court before the date of the accident. HARRY J. VORDERMEIER, JR. had employed VORDERMEIER COMPANY to assist him in the day-to-day duties of managing the Golden Isles Professional Building. The record is uncontroverted that the VORDERMEIERS were acting as real estate managers. There is no competent admissible evidence, or inferences therefrom, to create a question of fact whether the VORDERMEIERS were acting as real estate managers. FIREMAN’S FUND’S mere denial of that fact is not sufficient to preclude summary judgment.
To avoid an obligation to provide coverage in this case, FIREMAN’S FUND has advanced several arguments that the VORDERMEIERS were not acting “for the named insureds”. The Court has considered all arguments presented by FIREMAN’S FUND to sustain this theory and finds them to be totally without merit. FIREMAN’S FUND, by these arguments, is simply trying to add to or change the clear, certain and unambiguous language in the subject policy.
When a receiver takes over management of real property during the penden-cy of legal proceedings, the ownership of the property remains with the title owners. There can be no question that a court appointed receiver as a matter of law manages property as the representative of the court for all interested parties, including the owners and named insureds. 42 Am.Jur.2d § 901 Insurance and cases cited therein; see also, Chiesur v. Superior Court, [76 Cal.App.2d 198] 172 P.2d 763 (Cal.App.1946).
The mere fact that a receiver may manage the real property for creditors or other interested parties in addition to the named insureds is not sufficient to defeat coverage. The above language in FIREMAN’S FUND’S form policy does not restrict coverage to those acting as a real estate managers (sic) exclusively for the named insured.
In summary, the Court finds that there is no genuine issue of material fact that HARRY J. VORDERMEIER, JR. and VORDERMEIER COMPANY were acting as real estate managers, and that pursuant to the clear, certain and unambiguous terms of the FIREMAN’S FUND policy, they were acting as real estate managers for the named insureds.

Vordermeier and the Vordermeier Company also sought attorney’s fees and costs against Fireman’s Fund. The trial court received expert testimony on this issue which fixed the reasonable value of the legal services received by Vordermeier and the Vordermeier Company at anywhere from $35,000 to $225,000. The court then entered an order assessing $75,000 in attorney’s fees and $9,575.19 in costs.

We believe that the trial court’s finding of coverage was correct. An insurance company, as drafter of the policy, has the obligation of spelling out in clear, unambiguous language exactly who is covered by the policy and who is to be excluded. Any ambiguity in the language of the policy will be construed against the company. This is especially true when the insurance company seeks to limit the coverage provided in the policy contrary to the plain meaning of the provisions defining persons insured. In such instances coverage will be denied only if the language of the policy appears to unambiguously limit coverage. See Rigel v. National Casualty Co., 76 So.2d 285 (Fla.1954); Nixon v. United States Fidelity & Guaranty Co., 290 So.2d 26 (Fla.1973); and United States Fire Ins. Co. v. Morejon, 338 So.2d 223 (Fla. 3d DCA 1976); cert. denied 345 So.2d 426 (Fla.1977). The policy at issue here does not appear to have been clearly intended to deny coverage to a court-appointed receiver who carried out the duties of real estate manager.

In addition, we believe public policy considerations favor, in the absence of explicit language in the policy to the contrary, the extension of insurance coverage to court-appointed receivers who undertake responsibilities identical to those which were previously handled by private individuals or organizations clearly covered under a policy of public liability insurance. Public policy requires, where possible, the uninterrupted continuation of public liability insurance for ongoing business ventures, regardless of the fact that business may be carried on by a receiver. To hold otherwise would result in increased uncertainty as to continuing financial responsibility to the public dealing with the business and might discourage responsible individuals from assuming the duties of receivership. Fireman’s Fund has also failed to demonstrate that any substantial additional risks were created when management of the premises was undertaken by the receiver.

We also find that the court's order assessing attorney’s fees should be affirmed. Since there was expert testimony before the lower court fixing the reasonable value of the legal services received by Vordermeier and the Vordermeier Company at anywhere from $35,000 to $225,000, we cannot conclude that the lower court’s award of $75,000 in attorney’s fees was in error. See Maine Ins. Co. v. Raser, 240 So.2d 163 (Fla. 3d DCA 1970). The lack of any direct contractual relationship between Vordermeier, the Vordermeier Company, and Fireman’s Fund does not present any bar to the statutory award of attorney’s fees. Cf. Prygrocki v. Industrial Fire & Casualty Ins. Co., 407 So.2d 345 (Fla. 4th DCA 1981). There is, however, a problem with the costs award of $9,575.19. Vordermeier and the Vordermeier Company sought a total costs award of only $9,633.16. $3,487.00 of this amount was for the services of Andrew Geller, an accountant. However, the record contains no evidence upon which any calculation of the value of Geller’s services could be based. For this reason the costs awarded for Geller’s services must be deleted.

Accordingly, we affirm the judgment of the trial court, except for correction of the costs levied for which purpose we remand this cause to the trial court.

DOWNEY and GLICKSTEIN, JJ., concur.

      . The record reflects that Vordermeier informed Fireman’s Fund of his appointment and of his desire to renew the policy on the building, which was due to expire shortly. However, it also appears that Vordermeier was under the impression that Travelers Insurance Company had issued a policy on the building.

      . There is no dispute here about the propriety of the settlement.

      . Fireman’s Fund claims that not even “the most cautious underwriter” would have felt the need to have appended the clause in question with the phrase “this provision does not cover or include [a] court appointed receiver.” We do not see anything unreasonable in expecting an insurance company to take such a precaution. It would appear to be reasonably foreseeable that a certain percentage of jointly-operated business ventures will eventually fall into receivership. In addition, the appointment of a receiver to manage the property was clearly contemplated by the named insureds, since provision for the receiver was made in the agreement executed by the named insureds.


author: JOANOS, Judge.

text:
    Earl DEMPSEY, Appellant, v. STATE of Florida, Appellee.
    No. AE-16.
    District Court of Appeal of Florida, First District.
    July 2, 1982.

      Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   JOANOS, Judge.

In this appeal from a judgment and sentence entered upon a conviction for grand larceny, appellant argues that the trial court erred in denying his motion to disqualify the trial judge and that the trial court did not have subject matter jurisdiction. We disagree and affirm.

We agree with the trial court’s ruling that the motion to disqualify the trial judge was legally insufficient. First of all, the motion was technically deficient in that there was no certificate of counsel that the motion was made in good faith. Rule 3.230(b), Fla.R.Crim.P. Secondly, the facts set out in the motion and affidavits are insufficient to establish prejudice on the part of the judge against appellant. The documents stated that the trial judge had presided over two previous trials in which appellant had been the defendant and had in each case received verdicts of not guilty, and that the trial judge had shown anger and displeasure toward the appellant earlier that day when the appellant was held in direct criminal contempt because of appellant’s appearance in court. For a trial judge to indicate anger and displeasure in a direct criminal contempt proceeding in which the defendant was found guilty does not in and of itself indicate that the trial judge is prejudiced against the defendant. The record in this case reflects that if the trial judge was angry and displeased prior to trial, it was caused by the defendant’s conduct. Further, there is nothing in the record to reflect any prejudice of the trial judge during the trial and later proceedings.

As to the second issue, the relevant facts are that the original information charging appellant with grand theft alleged sufficient facts as to value, but that immediately before trial the assistant state attorney amended the information with the intent of changing only the allegation of ownership. However, the amendment omitted any allegation as to the value of the items taken. It was entitled, “Grand Theft”, referred in the text to Section 812.014, Florida Statutes, and at the bottom referred to Section 812.014(2)(b)(l), the grand theft statutory provision, as the master criminal law number. The defendant waived the reading of the information and the case went immediately to trial. After the state rested its case, defense counsel urged as one of the grounds for the motion of judgment of acquittal that the information on which appellant had been tried alleged only petit larceny and that petit larceny was not within the jurisdiction of the circuit court. After extensive discussion and a recess to allow further research, the trial court allowed the state to reopen its case and amend the information to insert the allegation of value.

While we agree with appellant’s assertions that subject matter jurisdiction may be raised at any time and that jurisdictional defects are fatal, we decline to view the inadvertent and technical error presented by the narrow circumstances of this case as jurisdictional.

Where the record establishes that the defendant was properly charged with grand theft, an offense within the jurisdiction of the court, and the trial judge permitted the information to be amended immediately prior to trial without objection by defendant for the sole purpose of changing the allegation of ownership, we hold that the ministerial error committed by the state in failing to re-allege the value of the items taken was harmless error and did not deprive the trial court of jurisdiction. Further, the trial court did not abuse its discretion in permitting the state to reopen its case to cure the technical defect.

The circumstances here of allowing the amendment by the state are distinguishable from those present in Turner v. State, 376 So.2d 429 (Fla. 1st DCA 1979). In Turner, the defendant was originally charged with a felony count of receiving stolen property. After a motion to suppress was granted, the charge was reduced to a misdemeanor because of the aggregate value of the remaining items of property. Then, on the morning of trial the state was allowed to amend the information to add a television set and to change the date of the offense from one particular day to a time range of more than one month. Under those circumstances, this court ruled that the amendment was a change of substance and that it could not be deemed harmless “due to its serious potential for surprise and for denying a fair trial to the defendant.”

The facts here are significantly different, and lack any potential for surprise. Appellant was initially charged with a felony offense and was presumably prepared to go to trial for that offense. In the absence of any allegation or indication of prejudice to appellant, we find that the error here was harmless.

AFFIRMED.

THOMPSON, and WIGGINTON, JJ., concur.


author: HERSEY, Judge.

text:
    David Michael PARR, Appellant, v. STATE of Florida, Appellee.
    No. 81-567.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.

      Richard L. Jorandby, Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

The first issue addressed in this appeal is whether an Information alleging a felony filed against a juvenile after the expiration of the forty-five day period established by Subsection 39.05(6) Florida Statutes (and, indeed, after the ninety day period established by Subsection 39.05(7) Florida Statutes and by Rule 8.180(a) Florida Rules of Juvenile Procedure) is thereby rendered fatally defective. The one hundred eighty day adult speedy trial rule has not been violated.

Appellant, David Michael Parr, a juvenile, was taken into custody on a charge of burglary and was later released in the custody of his parents. One hundred and four days later the state filed an Information. No petition for delinquency was ever filed. Appellant filed a motion to dismiss, which was denied. He then pled nolo contendere reserving his right to appeal, inter alia, the denial of his motion to dismiss.

The applicable statute provides:

(6) On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 45 days from the date the child was taken into custody. The court may grant an extension of time, not to exceed an additional 15 days, upon such motion by the state attorney for good cause shown.
(7)(a) If a petition has been filed alleging that a child has committed a delinquent act, the adjudicatory hearing on the petition shall be commenced within 90 days of the earlier of the following dates:
1. The date the child was taken into custody.
2. The date the petition was filed.
(b) If the adjudicatory hearing is not begun within 90 days or an extension thereof as hereinafter provided, the petition shall be dismissed with prejudice. (emphasis added.) § 39.05, Fla.Stat. (1979).

Rule 8.180, Florida Rules of Juvenile Procedure provides:

(a) Time. Every case in which a petition has been filed alleging a child to be delinquent or dependent shall be brought to an adjudicatory hearing without demand within ninety (90) days of the earliest of the following dates:
(1) The date the child was taken into custody.
(2) The date the petition was filed.
(b) Dismissal. If the adjudicatory hearing is not begun within ninety (90) days or an extension thereof as hereinafter provided the petition shall be dismissed with prejudice, (emphasis added.)

Special treatment of juveniles is neither constitutionally mandated nor even recognized by the common law. State v. Cain, 381 So.2d 1361 (Fla.1980). As carefully noted in Cain, “a child has the right to be treated as a juvenile delinquent only to the extent provided by our legislature.” It follows that a juvenile has such rights to special treatment as the legislature establishes.

In recent years the legislature has created procedures allowing, in certain circumstances, juvenile offenders to be treated as adults. § 39.04(2Xe), Fla.Stat. (1979). Pursuant to this statutory provision, the state attorney may (a) file a petition for delinquency with a motion to transfer and certify the child for prosecution as an adult, (b) directly file an information against a child who is 16 or 17 years old, when such a course of action is deemed to be in the public interest or (c) refer the case to the grand jury. Any one of these methods may be employed by the state attorney to obtain adult treatment of juveniles. Thus, there is a somewhat complex interplay between adult and juvenile proceedings and the rules applicable to each.

When the state attorney files a petition for delinquency and motion to transfer, it is obvious that juvenile procedures and rules govern until the child is actually transferred to adult court and an Information is filed since the action is initiated in juvenile court and, without the transfer, remains there. Further, as to “speedy file” and speedy trial, the previously quoted statute and rule are applicable because they specifically refer to petitions. A problem arises, however, when a juvenile case is referred to the grand jury or, as here, the state attorney files an Information against the juvenile. The question left unanswered by the statutory scheme and procedural rules is whether the juvenile “speedy file” and speedy trial mandates have viability where a child, without ever having been charged as a juvenile, is treated as an adult.

In State v. Perez, 400 So.2d 91, 94 (Fla.3d DCA 1981), the court held that:

[U]ntil such time as the State notifies a juvenile that he is to be considered as an adult as to certain charges the juvenile has the right to rely on the statutes and rules that protect him in the status of a juvenile; the State cannot wait until the expiration of the 90-day speedy trial time applicable to juveniles and then file an information and contend that the juvenile is an adult and therefore be governed by the 180-day speedy trial rule.

However, as previously discussed, nothing in the statute or court rules indicates that the time limitations relating to juvenile proceedings were intended to apply where adult court proceedings are initiated by information or indictment. Rather, by specifically referring only to petitions and adjudicatory hearings thereon, the legislature (and court) contemplated that the time restrictions would govern only those cases involving petitions or adjudicatory hearings which, by definition, means those cases pending before the juvenile court. Thus, a child who is subject to adult proceedings and sanctions cannot rely upon the special treatment established for juvenile proceedings. See State v. Puckett, 384 So.2d 660 (Fla. 2d DCA 1980).

The legislature, then, has reposed broad discretion in the state attorney to prosecute certain juveniles as adults and if a child meets the statutory criteria, he should be treated as an adult in all respects. This brings us to the second issue on appeal: whether appellant satisfied the requirements for treatment as an adult.

When a child is initially charged by Information in adult court, he may move to transfer the case to juvenile court for adjudicatory proceedings. If the child demonstrates that he has not previously been found to have committed two delinquent acts, one of which is a felony, the case must be transferred as requested. § 39.-04(2)(eX4), Fla.Stat. (1979). Here, appellant had been found guilty of the requisite delinquent acts. However, in requesting that the case be transferred to juvenile court for disposition, appellant claimed that those findings were the result of guilty pleas obtained without the proper inquiries and determinations as to whether they were voluntarily and intelligently entered. After reviewing the transcript of the plea hearing conducted in juvenile court, the adult trial court denied appellant’s motion to transfer. When entering his nolo con-tendere plea to the present charge, appellant also reserved the right to appeal this ruling.

Rule 8.130(a), Florida Rules of Juvenile Procedure provides that the court shall not accept a plea of guilty or nolo contendere “without first determining that the plea is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of such plea and that there is a factual basis for such plea.” This rule reflects the constitutional mandate of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The record before us affirmatively discloses that the juvenile court made no inquiry into appellant’s understanding of the charges nor did the court determine whether the plea was voluntary. Further, the plea was accepted without any supporting factual basis.

The State argues that the proper method of collaterally attacking the findings of delinquency would be by motion in the juvenile court, not the adult court. Appellant, however, did not seek to have the findings of delinquency vacated or set aside. Rather, the validity of the prior findings of guilt was challenged by appellant solely for the purpose of invoking the mandatory transfer provision of Chapter 39 in order to avoid treatment as an adult. An analogous situation is presented in those cases where a court predicates a sentence, at least in part, on a defendant’s prior convictions. If the defendant demonstrates that a prior conviction is constitutionally invalid then he must be resentenced without consideration of that conviction (or if sentence has not been imposed, the trial court is prohibited from considering the invalid conviction). It is not always necessary for the defendant to first have the invalid conviction vacated. See Garcia v. State, 358 So.2d 561 (Fla. 2d DCA 1978); Lloyd v. State, 346 So.2d 1075 (Fla. 2d DCA 1977). Thus, in the instant context, the trial court was the proper forum for appellant’s claim.

As previously discussed, the findings of guilt on which appellant’s treatment as an adult was based are constitutionally infirm. Accordingly, the trial court erred in denying appellant’s motion to transfer the case to juvenile court. On that basis we reverse the judgment and sentence. Since the juvenile speedy trial time expired prior to the charges being filed, thus entitling appellant to discharge, we do not remand.

REVERSED.

LETTS, C. J., and DELL, J., concur.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Robert Louis PLACHTA, Respondent.
    No. 82-268.
    District Court of Appeal of Florida, Second District.
    July 7, 1982.

      Jim Smith, Atty. Gen., Tallahassee, Robert J. Landry, Asst. Atty. Gen., Tampa, James T. Russell, State Atty., and C. Marie King, Asst. State Atty., Clearwater, for petitioner.
    Douglas Prior, Clearwater, Jerry Hill, Public Defender, Bartow, and Allyn Giam-balvo, Asst. Public Defender, Clearwater, for respondent.
   PER CURIAM.

The state brings this petition for writ of certiorari to review an order granting respondent’s motion to exclude a witness from testifying at the trial. The state argues that the sanction was too severe. We agree.

Respondent was charged with manslaughter on September 30, 1981. He was originally represented by the public defender. The state furnished discovery to the public defender on October 13, 1981, in the form of a “prosecution cover sheet” consisting of two pages, along with other documents which included seven pages of witness statements and a witness list. The prosecution cover sheet listed John Gormley as a witness and gave his correct address. However, the witness list recited a former and consequently incorrect address for Gormley.

On November 17, 1981, private counsel Douglas Prior was appointed to represent respondent. Upon Prior’s demand for discovery, the state purported to furnish him with the same discovery items previously delivered to the public defender. An acknowledgment of discovery form was stamped “received December 4, 1981 Douglas Prior.”

Trial was set for January 20, 1982, and then rescheduled for February 1, 1982. On January 20, Prior asked an assistant state attorney for Gormley’s address, but was given the incorrect address as stated on the witness list. Prior was unable to locate Gormley at this address. When the parties assembled for trial on February 1, Gormley appeared pursuant to a state subpoena. At this time Prior was permitted to take Gormley’s deposition. Since some of Gorm-ley’s testimony seemed to implicate his client, Prior moved to exclude him from testifying at the trial as a sanction for the state having furnished the wrong address.

When asked at the hearing which occurred on the same date why he failed to note Gormley’s correct address on the prosecution cover sheet, Attorney Prior responded as follows:

MR. PRIOR: Your Honor, I did not see it, receive the cover sheet whether by clerical error or other case, I did not see it. I admit it was stamped into my office which my secretary did on December 4th, 1981, that she does in the normal course, returns this acknowledgement of discovery without me seeing anything. I did not specifically review the acknowl-edgement myself to see whether I got everything. It was stapled together and given to me. I reviewed the information. It was given to me and as I submit, as an officer of the Court I did not receive a cover sheet.

After further argument, the court held that Gormley would not be permitted to testify at the trial. In support of his ruling, the judge stated:

THE COURT: ... I find specifically based upon the testimony of the lawyer who is an officer of this Court that he never received the cover sheet with the address here and even if he had received the sheet, that shows the St. Petersburg address for Gormley, he specifically and unequivocally on the record requested the address of this man, so that his man could have a week and he asked for the exact address you would be using to try and get a-hold of Gromley (sic) and it was relayed to him the address in Dunedin.

The extent to which sanctions should be imposed for discovery violations depends upon whether the violation was inadvertent or willful, whether the violation was trivial or substantial, and what effect, if any, it had upon the ability of the affected party to properly prepare for trial. Richardson v. State, 246 So.2d 771 (Fla.1971). Relevant evidence should not be excluded unless no other remedy suffices. Cooper v. State, 336 So.2d 1133 (Fla.1976). It is undisputed that the existence of witness Gormley was timely disclosed both to predecessor counsel and to appointed counsel Prior. The discovery violation was in giving the wrong address for Gormley. Of course, the right address was also given to predecessor counsel, and it may have been given to Attorney Prior though he did not see it. There was nothing to indicate that the violation was intentional. Moreover, Prior had already taken Gormley’s deposition so his only basis for asserting prejudice was that he would not have the opportunity to investigate the details of Gormley’s version of the occurrence or to effectively impeach him. We have no doubt that Prior could have obtained a continuance of the trial to give him time to prepare a defense against Gormley’s incriminating testimony. In any event, we believe the drastic remedy of prohibiting an important state witness from testifying was too severe a sanction for what was obviously an inadvertent discovery violation. See State v. Bowers, No. 82-359 (Fla.2d DCA June 2, 1982), in which the court reached the same conclusion on facts somewhat analogous.

We grant the petition for writ of certio-rari, vacate the order excluding Gormley as a witness and remand the case for further proceedings consistent with this opinion.

GRIMES, A. C. J., and SCHEB and SCHOONOVER, JJ., concur.


text:
    John D. AGNEW and Ernest L. Agnew, Appellants, v. Murray M. BANKS; Coral Sea Enterprises, Inc., a Florida corporation, d/b/a Anchorage Marina; and J. D. Carpet Brokers, Inc., a Florida corporation, Appellees.
    No. 81-1921.
    District Court of Appeal of Florida, Second District.
    April 28, 1982.
    Rehearing Denied May 25, 1982.
    Robert W. Beaudry of Lyons & Beaudry, P.A., Sarasota, for appellants.
    James R. Dirmann of Dirmann & Scott, Sarasota, for appellee Murray M. Banks.
   PER CURIAM.

Affirmed. See Snyder Electric Co. v. Fleming, 305 N.W.2d 863 (Minn. 1981); Robar Development Corp. v. Minutello, 268 Pa.Super. 406, 408 A.2d 851 (1979); Tigrett v. Pointer, 580 S.W.2d 375 (Tex.Civ.App. 1979); 15A W. Fletcher, Cyclopedia of the Law of Private Corporations §§ 7468-70 (rev. perm. ed. 1981).

SCHEB, C. J., and HOBSON and GRIMES, JJ., concur.


text:
    Jose R. MENENDEZ, M.D., Appellant, v. EMERGENCY PHYSICIAN ASSOCIATES, P.A. — J. C. Findeiss, M.D. — Jere Dahl Creed, M.D. — Robert Williams, M.D. — Julio A. Esquivel, M.D. — Neil J. Principe, M.C., a professional corporation, Appellees.
    No. 81-1422.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Rehearing Denied July 21, 1982.
    Patton, Kanner, Segal, King & Kubit and Dennis G. King, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and John R. Kelso, Miami, for appellees.
    Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Akey v. Murphy, 238 So.2d 94 (Fla.1970); Suave Shoe Corporation v. Hernandez, 390 So.2d 799 (Fla. 3d DCA 1980); Twenty-Four Collection, Inc. v. Keller, 389 So.2d 1062 (Fla. 3d DCA 1980); Chessick Clinic, P.A. v. Jones, 367 So.2d 1028 (Fla. 2d DCA 1979).


text:
    GENERAL MOTORS CORPORATION, a foreign corporation, Appellant, v. Raymond ROMINE, as Administrator of the Estate of Donna Romine, and Raymond Romine, individually, Appellees.
    No. 80-1273, 80-1295.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing Denied July 20, 1982.
    Jones, Paine & Foster and Marjorie Ga-darian, Vero Beach, Mershon, Sawyer, Johnson, Dunwody & Cole and Edward T. O’Donnell, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Tew, Spittler & Berger, Miami, for appellees.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

The defendant’s failure to timely and properly object: to the introduction of plaintiffs’ expert; to the use of a special interrogatory verdict form; and to the inconsistent verdict returned by the jury precludes appellate review of these matters. Consequently, we affirm.

Affirmed.