author: PER CURIAM.

text:
    James T. KIMBALL, etc., Petitioner, v. Robert T. MANN et al., Respondents.
    No. 58187.
    Supreme Court of Florida.
    April 17, 1980.
    James T. Kimball in pro. per.
    Prentice P. Pruitt, Legal Director, and M. Robert Christ, Staff Counsel, Florida Public Service Commission, Tallahassee, for respondents.
   PER CURIAM.

Certiorari denied.

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


source: Caselaw Access Project

author: PER CURIAM. OVERTON, Justice,

license: Public Domain

text:
    Carl DeMARCO, Appellant, v. PUBLIX SUPER MARKETS, INC., a Florida Corporation, Appellee.
    No. 54653.
    Supreme Court of Florida.
    May 1, 1980.
    Rehearing Denied July 21, 1980.
    Theodore L. Tripp, Jr., of the Law Offices of Tobias Simon, Miami, for appellant.
    Frank B. Pridgen and R. Bruce Wallace, Jr. of Taylor, Brion, Buker & Greene, Miami, for appellee.
   PER CURIAM.

This is an appeal from a decision of the Third District Court of Appeal, reported at 360 So.2d 134 (Fla. 3d DCA 1978). Appellant DeMarco alleged in his complaint that Publix wrongfully terminated his employment solely because he brought suit against Publix in his daughter’s behalf for injuries occurring when she was shopping with her mother in a Publix market. DeMarco contends that the employment termination violated the access to the courts provision, article I, section 21, of the Florida Constitution. The trial court dismissed the complaint with prejudice, and the district court affirmed, holding: “[Wjhere the term of employment is discretionary with either party or indefinite, then either party for any reason may terminate it at any time and no action may be maintained for breach of the employment contract.” 360 So.2d at 136. The district court concluded there is no civil cause of action for interference with the exercise of one’s right under article I, section 21, of the Florida Constitution. Because of the constitutional construction, we have jurisdiction under article V, section 3(b)(1), Florida Constitution. We affirm the district court of appeal and adopt the reasoning expressed in its opinion.

It is so ordered.

BOYD, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.

OVERTON, J., dissents with an opinion, with which ADKINS, Acting C. J., concurs.

OVERTON, Justice,

dissenting.

I dissent. In my view, an action for compensatory damages for termination of DeMarco’s employment should be allowed to ensure that the individual rights of his minor child will be protected.

The material facts alleged in the complaint reflect that DeMarco was an employee of Publix Super Markets, Inc., working as a laborer at one of their warehouses. His wife, accompanied by their two-year-old child, was shopping at a supermarket owned and operated by Publix when a glass container exploded, causing a piece of glass to enter the eye of the child. The child suffered permanent injuries as a result of the accident. The insurer, acting as an agent of Publix, offered the sum of $200 as full and complete settlement for the injuries sustained by the child. DeMarco rejected the offer and filed suit on behalf of his daughter against Publix and the manufacturer of the container. The vice president in charge of the Miami division of Publix notified DeMarco that he would be fired unless he withdrew the suit. DeMarco refused to withdraw the suit, and his employment was terminated.

In his complaint, DeMarco sought compensatory and punitive damages and reinstatement to his employment on four separate grounds. The primary issue, distinctly framed because Publix does not dispute the facts, is whether DeMarco has a cause of action against Publix for interference with his access to the courts. This action is premised upon article I, section 21, of the Florida Constitution. In his other grounds, DeMarco claimed relief due to interference with the exercise of his statutory right under section 447.09, Florida Statutes (1975), damage to his reputation in that his firing imputed he was unreliable or incompetent, and severe emotional distress and mental anguish.

I would hold that DeMarco has asserted a proper cause of action for interference with that access to the courts necessary to protect the interests of his minor daughter. Section 21 of our Declaration of Rights provides: “Access to courts. — The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” It is my view that this provision is not limited to governmental acts infringing upon an individual’s right of access to the courts. The termination of discretionary or indefinite employment, solely because of a cause of action filed by an employee against an employer, may be justified in accordance with the views of the majority when the employee files the suit only in his own right. I do not believe, however, that this doctrine is constitutionally valid when its application substantially interferes with the right of access to the courts by a third-party minor child.

In Spafford v. Brevard County, 92 Fla. 617, 110 So. 451 (1926), this Court stated that the right of access and due process provisions “secure individual rights against unconstitutional invasion by the state, as well as from violation by other governmental agencies and individuals.” 92 Fla. at 621, 110 So. at 454 [emphasis added]. This statement, in my view, supports a cause of action for compensatory damages for this father’s loss of employment. I recognize that such a holding, although consistent with Spafford, would be contrary to Kirkpatrick v. Parker, 136 Fla. 689, 187 So. 620 (1939). To the extent necessary, I would recede from Kirkpatrick and reaffirm our decision in Spafford.

I do agree with the majority that, for the reasons expressed by the district court of appeal in its opinion, there is no cause of action for denial of access to the courts under the authority of chapter 447, nor is there a cause of action for emotional distress or damage to DeMarco’s reputation.

For the reasons expressed, I would reverse in part and affirm in part.

ADKINS, Acting C. J., concurs.

       It should be noted, as appears from the district court opinion, that DeMarco’s suit on behalf of the daughter was pending at the time of the district court opinion. Therefore, neither he in his representative capacity nor the daughter as beneficiary has been denied access to the courts to vindicate the claim for her injuries.


author: McDONALD, Justice. ALDERMAN, Justice,

text:
    T. R. CARTER, Petitioner, v. STATE of Florida, Respondent.
    No. 56084.
    Supreme Court of Florida.
    May 1, 1980.
    Rehearing Denied July 21, 1980.
    Richard A. Kupfer, David Roth and Robert Q. Wyokoff, Jr. of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Marc E. Kirk and Max Rudmann, Asst. Attys. Gen., West Palm Beach, and David H. Bludworth, State’s Atty., and Barry Krischer, Asst. State’s Atty., West Palm Beach, for respondent.
   McDONALD, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Fourth District, in State v. Carter, 364 So.2d 1249 (Fla. 4th DCA 1978), which is in apparent conflict with Brannen v. State, 94 Fla. 656, 114 So. 429 (1927). This Court has jurisdiction.

The facts are fully stated in the trial judge’s order in which he concluded as a matter of law that Dr. Carter was not guilty of perjury. That order reads as follows:

Defendant, T. R. Carter, is a licensed and practicing chiropractor charged with perjury in an official proceeding under section 837.02(1), Florida Statutes. His co-defendant therein is Carrie Jones Brun-son, his patient. Brunson had filed a civil suit against Archie William Squibb, et al. in case number 76-441 CA(L) 01-E alleging certain injuries resulting from an automobile accident on June 20, 1975 and subsequent treatment by defendant, Carter.
On January 5,1977, pursuant to subpoena duces tecum, Carter appeared before Roy R. Watson, Esquire, attorney for the civil defendants, and gave his sworn deposition concerning his examination and treatment of Brunson’s alleged injuries, producing his medical records as they related to the June 20, 1975 accident and subsequent treatment. Carter testified under oath unequivocally that he had neither seen nor treated Brunson prior to the June 20, 1975 accident. See pages 3, 6 and 16-17 of defendant’s deposition. Attorney Watson had reason to believe otherwise, that is that Carter had seen and treated Brunson over an extended period of time prior to June 20,1975 for a pre-existing condition and so advised Carter on pages 22-24 of said deposition. Watson requested Carter to search for additional records to verify same, if possible, and to call him (Watson) the following day to advise him of the results of the search and to furnish him with any additional records, but excused Carter from any further personal appearance for deposition purposes. See pages 28-29 of said deposition.
On the day following the deposition, January 6,1977, Carter wrote Attorney Watson a letter enclosing a copy of his statement for professional services rendered, dated January 18,1975, to Brunson in the amount of $881.00 for numerous visitations and treatment of Brunson beginning on June 6, 1974 and ending on January 17, 1975, showing approximately 79 visitations. Apparently, Attorney Watson was satisfied and did not depose Carter further in this regard. However, Judge James R. Stewart, Jr. before whom the civil trial was subsequently heard referred the matter to the State Attorney for investigation and possible perjury charges. The State Attorney investigated pursuant thereto and filed the information herein charging Brunson with perjury in count one and Carter with perjury in count two. Brunson was apparently deposed on December 16, 1976, prior to Carter.
The matter is now before the Court on Carter’s Motion to Dismiss filed pursuant to Rule 3.190(c)(4) alleging there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt as to Carter, citing Brannen v. State, 94 Fla. 656, 114 So. 429 (1927). The State filed a “traverse”, but admitted the truth of the facts contained in the Motion to Dismiss, contending the undisputed facts nevertheless did constitute a prima facie case of guilt, citing Sherman v. State, 135 Fla. 243, 184 So. 843 (1938). The matter came on for hearing upon the pleadings, defendant Carter and his counsel being present. The defense introduced a copy of Carter’s aforementioned deposition, letter of January 6, 1977 and statement of services rendered dated January 18, 1975 for identification pu* poses only. However, the Court has considered same as though they are in evidence. The Court has considered the pleadings, the exhibits and argument of respective counsel. The defense contends that defendant recanted his false or erroneous testimony and therefore a perjury prosecution cannot be sustained under Bran-nen, supra. The State counters that Sherman, supra, and section 837.021(1), Florida Statutes, have effectively abolished the defense of recantation recognized in the Brannen case. No case has been cited as to holding, nor has the Court’s research found such a case.
The Court has carefully read and considered both Brannen and Sherman and feels bound to follow Brannen. The Sherman case is readily distinguishable in that the defendant in that case did not actually recant his false testimony in the same proceeding wherein it was given, but merely admitted the falsity thereof in a separate proceeding months later. In the present case, Carter fully corrected the falsity of his testimony essentially in the same proceeding, having been excused by Attorney Watson from reappearing at deposition, and did so the day following his false testimony. It matters not whether Carter knew his original testimony was false or whether he was merely mistaken. “The law encourages the correction of erroneous and even intentionally false statements on the part of a witness, and perjury will not be predicated upon such statements when the witness, before the submission of the case, fully corrects his testimony.” Brannen, 114 So. p. 431.
As to the State’s contention that section 837.021(1), has effectively abolished the defense of recantation, the Court feels otherwise where full recantation is forthcoming in the same proceeding before final submission. “A judicial investigation or trial has for its sole object the ascertainment of the truth, that justice be done. It holds out every inducement to a witness to tell the truth by inflicting severe penalties upon those who do not. This inducement would be destroyed if a witness could not correct a false statement except by running the risk of being indicted and convicted of perjury.” Brannen, 114 So. p. 431. This Court cannot find, and does not believe, the Legislature by enacting section 837.021(1) ever intended to preclude a search for the truth in the judicial process. In reaching this conclusion, the Court has not overlooked Brown v. State [354 So.2d 597] wherein a closely divided Supreme Court upheld the constitutionality of section 837.021(1). What the majority of that Court implied regarding unavailability of recantation of wilful perjured testimony as a defense is dictum. It is therefore ORDERED AND ADJUDGED that count two only of the information herein be and the same is hereby dismissed as to the defendant, T. R. Carter.

The district court of appeal reversed that order. It felt it significant that Dr. Carter may have made the correction because he knew that the falsity of a prior statement might be discovered. In stating that recantation is not a viable defense when it is made after it has become manifest that such falsity has been or will be exposed, the district court engraved an exception upon the rule of law declared in Brannen that was not intended and that should not be perpetuated. There are some jurisdictions that rule differently on this issue but the policy reasons to faithfully adhere to Bran-nen are sound.

Dr. Carter corrected the facts he had related in his deposition promptly and voluntarily. He gained nothing from the false statement made. No one was prejudiced by his false statement and the proceedings were not affected thereby. His subsequent testimony was consistent with the recanted version. Under these circumstances the fear of being caught should not vitiate the defense of recantation.

We adopt the order of the trial judge and the dissenting opinion of Judge Cross as being correct in this cause. In doing so, we specifically hold that section 837.021(1), Florida Statutes, has not abolished the defense of recantation. Accordingly, the opinion of the Fourth District Court of Appeal is quashed, with directions to reinstate the order of the trial judge dismissing this action.

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

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

I would approve the decision of the district court. In my opinion, the trial court’s order granting Dr. Carter’s motion to dismiss the information was in error. As stated by the district court:

Our system of justice cannot endure per-jurious testimony and individuals should be encouraged to voluntarily make corrective statements. Nevertheless, perjury is complete upon the willful false swearing to any material matter. Recantation is a defense to an allegation of perjury only where there is an acknowledgment of the falsity of the original sworn statement, a voluntary retraction of that statement, and a new statement which discloses the true facts. It is not a viable defense where the perjured testimony has substantially affected the proceeding or it has become manifest that such falsity has been or will be exposed. Otherwise, one could rest on his lie, allowing it to substantially affect a proceeding, and never retract unless the falsity had been exposed. This would provide no inducement or encouragement to tell the truth.

364 So.2d at 1250.

It may be that the false deposition testimony by Dr. Carter was inadvertent and without criminal intent. Likewise, his subsequent recantation of the false statement may have been a good faith attempt on his part to retract a knowingly false statement and to make a new statement disclosing the true facts before the perjured testimony had substantially affected the proceeding or before it had become manifest that such falsity had been or would be exposed. These, however, are factual issues and should be resolved by a jury rather than by the trial court on a motion to dismiss.

      . Art. V, § 3(b)(3), Fla.Const.

      . 60 Am.Jur.2d Perjury § 47.

      . “A judicial investigation or trial has for its sole object the ascertainment of the truth, that justice may be done. It holds out every inducement to a witness to tell the truth by inflicting severe penalties upon those who do not. This inducement would be destroyed if a witness could not correct a false statement except by running the risk of being indicted and convicted for perjury.” People v. Gillette, 126 App.Div. 665, 111 N.Y.S. 133. “The law encourages the correction of erroneous and even intentionally false statements on the part of a witness, and perjury will not be predicated upon such statements when the witness, before the submission of the case, fully corrects his testimony.” People v. Brill, 100 Misc.Rep. 92, 165 N.Y.S. 65.
      94 Fla. at 663, 114 So. at 431.

      . As contrasted to Sherman v. State, 135 Fla. 243, 184 So. 843 (1938).

      . 364 So.2d at 1250.


author: ADKINS, Justice.

text:
    Iva C. O’MALLEY, Petitioner, v. PAN AMERICAN BANK OF ORLANDO, N. A., as Personal Representative of the estate of Joseph E. O’Malley, Respondent.
    No. 53547.
    Supreme Court of Florida.
    May 8, 1980.
    Rehearing Denied July 21, 1980.

      G. Thomas Ball of Mesmer, Robbinson & Ball, Orlando, for petitioner.
    Alexander C. Mackinnon, Lawrence G, Mathews, Jr., and Robert E. Meale of Faw-sett, Smith, Mackinnon & Mathews, Orlando, for respondent.
   ADKINS, Justice.

This cause is before us on petition for writ of certiorari form the Fourth District Court of Appeal on the ground that its decision, Pan American Bank of Orlando v. O’Malley, 353 So.2d 856 (Fla. 4th DCA 1977), conflicts with our decisions in Johnson v. Every, 93 So.2d 390 (Fla.1957), and First National Bank in St. Petersburg v. Ford, 283 So.2d 342 (Fla.1973). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972).

On February 3, 1972, the petitioner, Iva C. O’Malley, and James E. O’Malley were divorced. The final judgment incorporated by reference a written separation agreement of the parties which provided in pertinent part: “Husband agrees to pay unto wife as and for permanent alimony the sum of eight hundred fifty and no/100 dollars ($850.00) per month beginning March 1, 1972, and monthly thereafter until wife becomes remarried or deceased.” Mr. O’Mal-ley subsequently died, survived by petitioner, who had not remarried. Petitioner filed a claim for continued alimony payments against the estate of Mr. O’Malley. The estate denied her claim, and petitioner began the instant action.

The trial court held that the written separation agreement was sufficient to obligate Mr. O’Malley’s estate to continue alimony payments after his death. This holding was based on our decision in Johnson v. Every, 93 So.2d 390 (Fla.1975), which the trial court stated it felt bound to follow. The Fourth District Court of Appeal reversed the trial court’s decision stating that Johnson had in effect, though not expressly, been overruled, or alternatively that John son had little precedential value and its holding was limited to its facts.

Initially, it must be established whether the periodic payments provided for in the separation agreement are, in substance, alimony or an integral part of the property settlement rights of the parties. Both of the courts below found these payments to be alimony. We agree. The periodic payments were designed to provide support and maintenance for petitioner. They were not tied to any property rights, and they were set-up to terminate upon the remarriage of petitioner. Furthermore, this is clearly periodic alimony as opposed to lump sum alimony payable in installments. The latter would have to be considered to be a vested property interest. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

Having found the periodic payments provided for in the agreement were alimony, the question remains as to whether the language of the agreement is sufficient to obligate the estate of Mr. O’Malley to continue to pay the alimony.

Alimony was originally established in Florida as a corollary to the common law obligation of a husband to provide his wife with the day-to-day necessities of life. At common law, this support obligation terminated upon the death of the husband. Aidrich v. Aldrich, 163 So.2d 276 (Fla.1964). Consequently, the well established rule is that an obligation to pay alimony ceases upon the death of the obligor, unless that person expressly agrees that the estate shall be bound to continue to pay alimony after his death. In Re Estate of Freeland, 182 So.2d 425 (Fla.1965); Allen v. Allen, 111 Fla. 933, 150 So.2d 237 (1933).

Petitioner contends that since termination of the permanent periodic alimony was conditioned solely upon her death or remarriage, neither of which event has occurred, Mr. O’Malley’s estate is obligated to continue the payments until the occurrence of either event. Petitioner reasons, therefore, that the language is an expression of Mr. O’Malley’s intent to bind his estate. We disagree.

The language of the separation agreement is not sufficient to obligate Mr. O’Malley’s estate to continue making those alimony payments. Since the law is so clearly established that the obligation to pay alimony dies with the obligated party, such a provision is implicit within the language of the agreement. In order to overcome this implied provision, there must be an express indication of an intention to the contrary. As the district court pointed out, the language in question is similar to that used in separation agreements and divorce decrees to indicate that periodic alimony is permanent in nature, rather than temporary or lump sum, and had Mr. O’Malley intended to bind his estate, it would have been a simple matter for him to have included language to that effect in the agreement. 353 So.2d at 857. Certainly, considering the settled nature of the law in this area, Mr. O’Malley should not have been required to add a provision stating that payments were to terminate upon his death.

Accordingly, we recede from our decisions in Johnson v. Every, 93 So.2d 390 (Fla.1957), and First National Bank in St. Petersburg v. Ford, 283 So.2d 342 (Fla. 1973), to the extent that they conflict with our decision today.

Since we have held that Mr. O’Malley’s estate is not obligated to continue the periodic alimony payments, it is unnecessary to reach the other issues raised by petitioner.

The petition for certiorari is granted and the decision of the Fourth District Court of Appeal is approved.

It is so ordered.

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


text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. CRAGGS AND PHELAN CONSTRUCTION CO., Appellee.
    No. 55802.
    Supreme Court of Florida.
    May 22, 1980.
    Margaret-Ray Kemper, A. J. Spalla and H. Reynolds Sampson, Tallahassee, for appellant.
    Joseph G. Thresher and J. Rex Farrior of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
   PER CURIAM.

Affirmed. State of Florida, Department of Transportation v. Edward M. Chadbourne, Inc., 382 So.2d 293 (Fla.1980).

It is so ordered.

ENGLAND, C. J., and BOYD, SUND-BERG and McDONALD, JJ., concur.

OVERTON, J., dissents for reasons expressed in his dissent in Chadbourne, with which ADKINS and ALDERMAN, JJ., concur.


text:
    Albert L. CARRICARTE, Appellant, v. The STATE of Florida, Appellee.
    No. 55640.
    Supreme Court of Florida.
    June 5, 1980.

      Stephen J. Kogan, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., Miami, for appel-lee.
   ADKINS, Justice.

The Circuit Court of the Eleventh Judicial Circuit in and for Dade County has upheld the constitutionality of sections 836.-05 and 877.02, Fla.Stat. (1977). Jurisdiction vests in this Court by direct appeal pursuant to article V, section 3(b)(1), Florida Constitution (1972). The parties are referred to as they appeared in the trial court.

Acting in concert with the state attorney’s office, a representative of the Cocoa Plum Development Company engaged the defendant, a resident of the development, in a recorded phone conversation. During that conversation the defendant made the following statement:

If you do not hire me as your lawyer and if you do not pay me a fee to be your lawyer, I will do a number of things to you, including attempting to stop your marina, go to the Miami Herald and see that articles against the project are printed and will organize and represent the people who live in the development against the construction of the marina.

The defendant was charged with felonious extortion and solicitation of legal business. §§ 836.05 and 877.02, Fla.Stat. (1977). Upon the trial court’s denial of his motions challenging the statutes’ constitutionality, the defendant pled nolo contendere, expressly reserving his right to appeal. The trial court withheld adjudication on both counts and placed the defendant on five years probation for the extortion with the special condition that he undergo regular psychiatric treatment and one year probation with a $1,000 fine for the solicitation. We affirm.

The defendant challenges both statutes on the grounds of vagueness and over-breadth. U.S.Const. Amends. I, V, XIV; art. I, § 9, Fla.Const. His standing to attack the facial validity of the statutes under the overbreadth doctrine rests upon his contention that these statutes impermissi-bly affect First Amendment rights. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). It is not necessary for him to demonstrate that his own activity is constitutionally protected. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).

Legislation may be overly broad if it is susceptible of application to conduct protected by the First Amendment. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Statutes which punish only the spoken word will withstand an overbreadth challenge only if they may be narrowly construed to delete application to protected speech. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). Since each of the statutes in this case proscribes purely verbal communication, we must determine whether and to what extent they apply to speech falling within the ambit of the First Amendment. Constitutional immunity from regulation does not necessarily extend to any and all utterances without reference to their effect or the context in which they appear. S. H. B. v. State, 355 So.2d 1176 (Fla.1977).

The extortion statute prohibits only those utterances or communications which constitute malicious threats to do injury to another’s person, reputation, or property. Furthermore, the threats must be made with the intent to extort money or the intent to compel another to act or refrain from acting against his will. § 836.05, Fla. Stat. (1977). See State v. McInnes, 153 So.2d 854 (Fla. 1st DCA 1963). These are significant limitations which direct the statutory prohibition to communications undeserving of First Amendment protection. The state’s interest in shielding its citizens from these types of strong-arm tactics can only be designated as compelling. To hold otherwise would transform the First Amendment into an instrument of leverage for the influential. See Harris v. Beneficial Finance Co., 338 So.2d 196 (Fla.1976).

In Matthews v. State, 363 So.2d 1066 (Fla.1978), the defendant led other demonstrators in a chant which urged the assassination of the local sheriff. He was convicted of maliciously threatening injury to another’s person in violation of this section. This Court affirmed the conviction in the face of challenges similar to those raised herein. The Court held that the district court had correctly found that Matthews’ chanting constituted a real and substantial threat as opposed to mere political hyperbole. Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); see State v. McInnes. Carnearte attempts to distinguish Matthews by arguing that there the threat was to do an illegal act, i. e., murder, whereas here the defendant threatened to take legal steps, e. g., give statements to the press and organize or represent parties in legal actions. This argument fails to recognize the additional elements of malice and intent required to convict under the statute. In Moore v. Newell, 401 F.Supp. 1018 (E.D.Tenn.l975),aff’d 548 F.2d 671 (6th Cir. 1977), the defendant, a Black Panther leader, sought contributions for various charities in the black community from the manager of a supermarket in a predominantly black neighborhood. When the manager refused, the defendant and others picketed the store for several hours without violence or actually blocking the entrance. Moore was convicted under the Tennessee extortion statute which closely resembles our own. See § 39-4301, Tenn. Code Annot. (1973). The federal district court noted that the defendant was not convicted for engaging in the constitutionally protected activity of picketing “but for threatening to picket for the purpose of extorting a payment.” 401 F.Supp. at 1021. In affirming, the Sixth Circuit reiterated that the worthiness of the charitable cause in no way justified the use of picketing to coerce a contribution from an unwilling merchant. 548 F.2d at 673. In the same vein, we cannot sanction the use of threats to take legal action where those threats are made maliciously and with the intent to acquire pecuniary gain.

Defendant’s contention that the extortion statute is impermissibly vague by virtue of the term “malicious” is without merit. This Court has repeatedly upheld the terms “malice” and “malicious” against a vagueness challenge. See, e. g., State v. Gaylord, 356 So.2d 313 (Fla.1978); Faust v. State, 354 So.2d 866 (Fla.1978); Jordan v. State, 334 So.2d 589 (Fla.1976). Just as the elements of malice and intent prevent over-broad application of the statute, they lend sufficient clarity to provide adequate notice of the proscribed activity to persons of ordinary intelligence and understanding. We hold that section 836.05, Florida Statutes (1977), is constitutional.

The lawyer anti-solicitation statute was upheld in State ex rel. Farber v. Williams, 183 So.2d 537 (Fla.1966), and more recently in Pace v. State, 368 So.2d 340 (Fla.1979). In Pace this Court analyzed the statute in light of pertinent intervening decisions of the United States Supreme Court. See Ohralick v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978); In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978); and Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). There have been no subsequent decisions to persuade us to revisit Pace. Indeed, we specifically refrained from condoning direct personal solicitation in our authorization of certain forms of advertising. The Florida Bar Re: Amendment to The Florida Bar Code of Professional Responsibility, 380 So.2d 435 (Fla.1980).

The order of the trial court is affirmed.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. William J. NEALE, Respondent.
    No. 57732.
    Supreme Court of Florida.
    June 5, 1980.
    David G. McGunegle, Branch Staff Counsel and Bar Counsel, Orlando; and John A. Boggs, Asst. Staff Counsel, Tallahassee, for complainant.
    Jerrold A. Bross, Titusville, for respondent.
   PER CURIAM.

William J. Neale, a member of The Florida Bar, petitions this Court for review of a referee’s recommendation in a bar grievance procedure. We have jurisdiction. Art. V, § 15, Fla.Const.

In 1978 the Eighteenth Judicial Circuit Grievance Committee “C” found probable cause in four complaints made against Nea-le. The referee found for Mr. Ne~le on three of those but recommended that he be found guilty of violating Disciplinary Rule 6-101(AX2) and 6-101(A)(3) on the remaining complaint. He further recommended an eighty-nine-day suspension followed by a two-year conditional probation. At its September 1979 meeting, the bar’s board of governors voted to accept the referee’s recommendation of dismissing the three cases. The board voted to reject the referee’s recommendations concerning the fourth case, however, believing a one-year suspension with required proof of rehabilitation to be more appropriate. Following the board’s action, Neale filed his petition for review.

This complaint against Neale arose from his representation of a Mrs. Mitchell for a claim of injuries she suffered as a result of being bitten by a dog in 1970. After attempts to negotiate a settlement failed, Neale filed suit on Mitchell’s behalf in 1973. A few days before trial, Neale learned that the dog had a history of biting and that punitive damages might be available. His motion to amend the original complaint in order to allege punitive damages was denied, and Neale, believing that a four-year statute of limitations controlled, took a voluntary nonsuit with his client’s concurrence. At that time, however, the statute of limitations on strict liability arising from dog bites was three years, and the defendants successfully raised this defense in the subsequent suit. On appeal, the district court affirmed the trial court’s judgment against Mrs. Mitchell.

The referee found that Neale’s late discovery of the dog’s propensity to bite reflected inadequate preparation under the circumstances because Neale did not properly interrogate his client or make an independent investigation that would have resulted in his learning of the dog’s history of biting.

Neale learned a fact that he deemed important late in the game. He then overlooked or misconstrued the statute of limitations on his statutory remedy. This neglect, however, is not of sufficient magnitude to warrant conviction of an ethical violation under Canon 6.

The power to disbar or suspend a member of the legal profession is not an arbitrary one to be exercised lightly, or with either passion or prejudice. Such power should be exercised only in a clear case for weighty reasons and on clear proof. State ex rel. The Florida Bar v. Bass, 106 So.2d 77 (Fla. 1958).

There is a fine line between simple negligence by an attorney and violation of Canon 6 that should lead to discipline. The rights of clients should be zealously guarded by the bar, but care should be taken to avoid the use of disciplinary action under Canon 6 as a substitute for what is essentially a malpractice action.

Neale had prepared to go to trial on his original complaint. Late in the proceeding he discovered a theory upon which he might have obtained a larger recovery for his client but then made the mistake of dismissing the action. His conduct might well be the basis of a negligence action against him, but, in our minds, it is insufficient to warrant a disciplinary action.

We therefore reject the recommendations of both the referee and the bar and dismiss the charges against the respondent.

It is so ordered.

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

      . A lawyer shall not:
      * * * * * *
      (2) Handle a legal matter without preparation adequate in the circumstances.
      ts) Neglect a legal matter entrusted to him.

      .The portions of § 95.11, Fla.Stat. (1973), pertinent to this petition read as follows:
      95.11 Limitations upon actions other than for the recovery of real property. — Actions other than those for the recovery of real property can only be commenced as follows: * * * * * *
      (4) WITHIN FOUR YEARS. — -Any action for relief not specifically provided for in this chapter.
      (5) WITHIN THREE YEARS.—
      (a) An action upon a liability created by statute, other than a penalty or forfeiture;

      . House of Maddox, 46 Ill.App.3d 68, 4 Ill.Dec. 644, 360 N.E.2d 580 (App.Ct.1977), holds that an attorney’s allowing the statute of limitations to run in a dog bite case is malpractice.

      . We note that Neale has sought to compensate his client for the loss occasioned by hi. taking the dismissal. We presume he will continue to do so.


text:
    THE FLORIDA BAR, Complainant, v. Jack F. WHITE, Jr., Respondent.
    No. 58466.
    Supreme Court of Florida.
    June 5, 1980.
    Michael C. Whittington, Bar Counsel, Tampa, for complainant.
    Joseph F. McDermott, St. Petersburg, for respondent.
   PER CURIAM.

We have for review a report of a referee recommending that respondent, Jack F. White, Jr., be suspended from the practice of law for a period of ten days and continuing thereafter indefinitely until he makes an appropriate disclosure of certain records relating to his trust account.

The complaint of The Florida Bar alleged that petitioner Jack White, Jr., issued two checks on his trust account which were returned to the office of the clerk of the circuit court marked “insufficient funds”; that The Florida Bar was advised of this by the clerk; that the grievance committee of the sixth judicial circuit directed an audit for cause pursuant to Florida Bar Integration Rule, article XI, Rule 11.02(4); and that petitioner refused to produce his trust account records for inspection and review by the Florida Bar auditor and refused the request of the grievance committee to produce his trust records for inspection at the committee hearing.

White moved to dismiss the complaint. The motion was based upon his invocation of Fifth Amendment and attorney-client privileges. He asserted the complaint was tantamount to penalizing him for the exercise of his constitutionally protected rights. In recommending that the motion to dismiss be denied, the referee recited that he had considered the following cases cited by The Florida Bar and White:

Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967)
Shapiro v. U.S., 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1947)
Wilson v. U.S., 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1910)
Kozerowitz v. Florida State Commission, 289 So.2d 391 (Fla. 1974)
State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973)

The referee then said:

It is recommended that the Motion to Dismiss be denied on the authority of Shapiro v. U.S.. The Supreme Court of Florida in the Integration Rule of The Florida Bar, Rule 11.02(4)(b), requires that a member of The Florida Bar in the practice of law maintain and preserve for a period of not less than six (6) years a record of transactions involving his trust account. The obvious purpose of the record maintenance requirement is to enable the Supreme Court of Florida and The Florida Bar to supervise and regulate the handling of funds and property of clients by members of The Florida Bar. The rule states that such records “. have a public aspect relating to the protection of clients and to fitness of a member of The Florida Bar to practice law.”. Compulsory compliance with a subpoena duces tecum requiring production of trust account records by a member of The Florida Bar, notwithstanding that such records may be incriminating to the attorney, does not violate the attorney’s constitutional privilege against self-incrimination mandated by the Fifth and Fourteenth Amendments to the Constitution of the United States. These conclusions and recommendations are submitted on the basis of the law as announced in Shapiro.
Due consideration has been given to the pronouncements of the Supreme Court of the United States in Spevack. It is to be noted that in Spevack the Supreme Court of the United States reversed on Certiorari. It is clear that the Fifth Amendment to the Constitution of the United States does apply to the various states of the United States through the Fourteenth Amendment. In Spevack the Court stated that it was asked to overrule Shapiro, but found it unnecessary so to do. In Spevack the petitioner had been disbarred on the theory that the privilege was applicable to the records, but that the invocation of the privilege could lead to disbarment. Mr. Justice Fortas in a concurring opinion stated “However, I agree that the required records issue is not appropriately presented here, for the reasons stated by my Brother Douglas.”. Thus, it must be concluded that Spevack did not overrule Shapiro.
The records involved in the instant case are required to be maintained by The Florida Bar and the Integration Rule. These records are deemed to be affected with a public interest, necessary to be maintained for the protection of the public as well as The Florida Bar. The privilege arising from the Fifth Amendment through the Fourteenth Amendment is not applicable thereto.

We adopt this recommendation of the referee and deny the motion to dismiss.

In his findings of fact the referee found that The Florida Bar had sustained the allegations of the complaint by clear and convincing evidence. The final report of the referee contains the following:

III RECOMMENDATION OF GUILT
The undersigned Referee hereby recommends that the Respondent, Jack F. White, Jr., be found guilty of misconduct as alleged on the basis of the Findings of Fact hereinabove set forth, which misconduct justifies disciplinary measures. Said misconduct violates The Florida Bar Integration Rule, Article XI, Rule 11.02(4)(b) and The Florida Bar Code of Professional Responsibility, D.R.1-102 (A)(6).
IV RECOMMENDATIONS OF DISCIPLINARY MEASURES
The undersigned Referee does hereby recommend that the Respondent, Jack F. White, Jr., be suspended from the practice of law as a member of The Florida Bar for a period of ten (10) days and continuing thereafter indefinitely until the said Jack F. White, Jr. shall have complied with Florida Bar Integration Rule, Art. XI, Rule 11.02(4)(b) by appropriate disclosure of the records relating to his trust account, as provided by Rule 11.10(3).

In view of the fact that the motion to dismiss presented a justiciable issue, we do not believe that we should follow the recommendation of disciplinary measures. Respondent Jack F. White, Jr., is given a period of twenty days from the date of the filing of this opinion within which to comply with Florida Bar Integration Rule, Article XI, Rule 11.02(4)(b), by appropriate disclosure of the records relating to his trust account. Upon his failure to produce these records as ordered herein, the said respondent shall be suspended for a period of ten days and continuously thereafter until he complies with this order.

Costs in the amount of $532.10 are hereby taxed against the respondent.

. It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Thomas Paul WEIGEL, Appellee.
    No. 58601.
    Supreme Court of Florida.
    June 5, 1980.
    Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Raymond 0. Gross, Clearwater, for appel-lee.
   PER CURIAM.

Reversed. State v. Bender, 382 So.2d 697 (Fla.1980).

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Jose Luis PELLEYA, Respondent.
    No. 59006.
    Supreme Court of Florida.
    June 5, 1980.
    Jacquelyn S. Plasner, Asst. Staff Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    Jack M. Denaro, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of article XI, rule 11.02(3)(a) of the Integration Rule of The Florida Bar and Disciplinary Rules 1-102(A)(3), (5) and (6). We approve the Petition, and Respondent, Jose Luis Pelleya, is hereby suspended from the practice of law for a period of eight (8) months with proof of rehabilitation prior to reinstatement, effective July 7, 1980, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients. Respondent is to accept no new clients from the date of this order.

Costs in the amount of $246.75 are hereby taxed against the Respondent, payable within ninety (90) days of the Court’s opinion.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Frank B. BYRON, Respondent.
    No. 59092.
    Supreme Court of Florida.
    June 5, 1980.
    Lance J. Thibideau, Asst. Staff Counsel, Fort Lauderdale, and James P. Holla way, Deputy Staff Counsel, Tallahassee, for complainant.
    Joel O. Lederer, Punta Gorda, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of Disciplinary Rules 1-102(A)(3), (4) and (6) of the Code of Professional Responsibility and article XI, rule 11.02(3)(a) of the Integration Rule of The Florida Bar. We approve the Petition, and Respondent, Frank B. Byron, is hereby reprimanded and suspended from the practice of law for a period of thirty (30) days effective July 7, 1980, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients. Respondent is to accept no new clients from the date of this order. The publication of this opinion in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $1,159.69 are hereby taxed against the Respondent.

It is so ordered.

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


author: OVERTON, Justice.

text:
    STATE of Florida, Appellant, v. Talmadge Wayne Buda/k/a Buddy Whiddon, Horace Cullen Williams a/k/a Buster Williams, Linda Pippen, Leonard Nelson, James Catrett, Terry Williams, Roger Van Fleet, Floyd Allen Simpson, Delmer Stringfield a/k/a “Peewee” Stringfield, ColAdrian Col-  Appellees.*
    No. 55741.
    Supreme Court of Florida.
    July 17, 1980.

      Jim Smith, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Clifford L. Davis, Tallahassee, for Tal-madge Wayne Whiddon.
    Arthur N. Eggers, Tampa, for Horace Cullen Williams.
    Jack 0. Johnson, Public Defender, and Karal B. Rushing, Asst. Public Defender, Bartow, for Terry Williams and Adrian Collins.
    John Demmi, Tampa, for Roger Van Fleet.
    Wayne S. Timmerman, Tampa, for Floyd Allen Simpson.
    Pat Whitaker, Tampa, for Delmer String-field.
    No appearance for Linda Pippen, Leonard Nelson and James Catrett.
   OVERTON, Justice.

This is an appeal from a trial court order holding section 943.462, Florida Statutes, known as the Racketeer Influenced and Corrupt Organization [RICO] Act, unconstitutional as applied to appellees. We have jurisdiction under article V, section 3(b)(1), as it existed prior to April 1, 1980, and we reverse in part. We find the RICO Act may be imposed constitutionally as long as one act occurred after the effective date. It cannot, however, be retroactively applied when none of the alleged acts occurred after the effective date.

Appellees, Talmadge Wayne Whiddon, Horace Cullen Williams, Linda Pippen, Leonard Nelson, James Catrett, Terry Williams, Roger Van Fleet, Floyd Allen Simpson, Delmer Stringfield, and Adrian Collins, were indicted by the Third Statewide Grand Jury for violation of the RICO Act, section 943.462, Florida Statutes. In nine additional counts appellees were individually charged with various offenses, distinct from the RICO charge, of grand theft, grand larceny, burglary, arson, and arson +o defraud.

The instant indictment charges in Count I that the ten named appellees violated RICO by:

. constituting and being associated with an enterprise, to-wit: a group of individuals associated in fact for the purpose of engaging in . criminal activities, did . . . participate . in said enterprise through a pattern of racketeering activity.

The RICO Act became effective October 1, 1977. Whiddon and Horace Williams were charged under RICO for acts occurring subsequent to its effective date, specifically between November, 1977, and January, 1978. The remaining eight appellees were charged for various acts, all occurring prior to the Act’s effective date, specifically in a period between June, 1976, and June, 1977.

The trial judge (1) dismissed the RICO charge, count one, as to all appellees on grounds of unconstitutional application because the indictment failed to allege the statutorily required pattern of racketeering activity; (2) dismissed the RICO charges as to eight appellees on the basis of improper retroactive application because no acts were alleged to have occurred after the effective date of the statute; (3) dismissed counts two through ten without prejudice as to all appellees because each count constituted a single-county offense over which a statewide grand jury has no jurisdiction.

We find the trial court was correct in its application of the law as to grounds two and three, but was in error in dismissing the RICO charge because of a failure to properly allege a pattern of racketeering activity as to appéllees Whiddon and Horace Williams.

The trial court dismissed the RICO charge as to appellees Pippen, Nelson, Ca-trett, Williams, Fleet, Simpson, Stringfield, and Collins, because there was no allegation of an act of racketeering after the effective date of the statute, October 1, 1977. The state contends that no specific act need be alleged after the effective date because the defendants were part of an ongoing enterprise. We hold that under the statute two offenses must be proven and only one must have occurred after the effective date. We cannot extend the statute further. We find the trial court properly rejected the state’s proposed wholly retroactive application.

We further hold the trial court correctly dismissed counts two through ten because only single-county offenses were alleged. The state concedes that existing precedent requires allegations of multi-county activity to support statewide grand jury jurisdiction. McNamara v. State, 357 So.2d 410 (Fla.1978). We reject the state argument to reconsider that opinion.

As to appellees Whiddon and Horace Williams, we find the trial court erroneously dismissed count one on the grounds that no “enterprise” was alleged or established within the meaning of the statute. Appel-lees argue that beyond the mere citation to the statutory language, the state has totally failed to describe or even suggest exactly what the criminal enterprise was or how it operated. They assert that the mere listing of a series of thefts and fires in the indictment, even granted the statutory language, fails to sufficiently allege a criminal enterprise within the meaning of the statute. We disagree.

The indictment closely tracked the language of the statute, and alleged the existence of an “enterprise.” We note the term “enterprise” is defined by statute and thus appellees were on notice as to that aspect of the charge. § 943.461(3), Fla.Stat. We have recently held the term “enterprise” as defined is sufficiently clear of itself to preclude any vagueness attack; Moorehead v. State, 383 So.2d 629 (Fla.1980). While we have not previously addressed the overall sufficiency of a charging instrument under RICO, we note that the federal courts have examined indictment sufficiency under the federal RICO statute, 18 U.S.C. §§ 1961-68, after which the Florida Act is closely patterned. See Note, Racketeers and Non-Racketeers Alike Should Fear Florida’s RICO Act, 6 F.S.U.L.Rev. 483 (1978). The Fifth Circuit has found an indictment similar to that in the instant case to be legally sufficient. United States v. Elliott, 571 F.2d 880 (5th Cir. 1978). Cognizant that Florida Rule of Criminal Procedure 3.220 provides a defendant with full discovery, which is unavailable in federal court, defendants Whiddon and Williams are in a much better position in terms of knowledge of the charges than are their federal counterparts. Consistent with the Fifth Circuit opinion, we hold that an instrument charging a RICO violation need not specify the relationship among crimes or defendants on its face. If the instrument tracks the statute and alleges the existence of a criminal “enterprise,” defendants are sufficiently on notice as to the nature of the charge. We find this indictment sufficient to charge a RICO offense against Whiddon and Horace Williams.

For the reasons expressed, we reverse the dismissal of the RICO charge against appel-lees Whiddon and Horace Williams and affirm the trial court’s dismissal of the remaining charges as to all appellees. We remand to the trial court for further proceedings in accordance with this opinion.

It is so ordered.

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


text:
    CITY OF NEW SMYRNA BEACH, Petitioner, v. William J. FISH, Individually, and as representative of a class consisting of condominum unit owners within the City of New Smyrna Beach, Florida, Respondents.
    No. 57043.
    Supreme Court of Florida.
    July 17, 1980.

      C. Allen Watts of Watts & Biernacki, DeLand, for petitioner.
    John F. Bolt, New Smyrna Beach, for respondents.
   ADKINS, Justice.

This is a petition for writ of certiorari seeking review of a decision of the First District Court of Appeal holding that Ordinances 40-76 and 45-75 of the City of New Smyrna Beach are unconstitutional. The court certified that its decision passes upon a question of great public interest. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. (1972).

Prior to October of 1975 the City of New Smyrna Beach provided garbage and trash collection services to residential units and business establishments in accordance with City Ordinance 907. Single-family residences, duplexes, and multi-family dwellings containing up to six units per building were charged $3.50 per month per unit for semi-weekly garbage collection and weekly collection of uncontainerized trash. All other multi-family dwellings, including apartments and condominiums were classified as business establishments and paid charges based on number and size of containers provided by the city, and the frequency of pickup. All garbage for apartments and condominiums, as well as businesses, were deposited in bulk containers or “dumpsters.”

In October of 1975 the City passed Ordinance 45-75, amending Ordinance 907. The ordinance increased charges to both residential and business customers and reclassified the types of residential units that service was provided to. The fee for single-family residences and duplexes was increased to $4.00 per unit. Condominiums, multi-family dwellings and mobile homes in mobile home parks were now charged $2.50 per month per unit for garbage collection only. Trash collection would be provided on request of the management office and be paid for in accordance with Section 13-25 of the City Code of Ordinances.

In December of 1976 Ordinance 40-76 was passed amending Ordinance 45-75. As the City was running a deficit for the collection of garbage and trash, it was resolved that all dwelling units would be served on an equal schedule and be billed equally. All units were charged $2.50 per month for semi-weekly garbage collection and $1.50 per month for weekly collection of uncontained trash.

On May 26, 1977, the respondent (plaintiff below) filed a class action suit on behalf of the condominium unit owners of the City. He sought declaratory relief concerning the validity of garbage and trash collection rates established by Ordinance 40-76, and reimbursement of overcharges based upon the allegedly arbitrary and discriminatory rates established by Ordinances 40-76, and 45-75. The trial court found that, (1) the classification by the City of condominium units as “residential” was reasonable, and not arbitrary or capricious; (2) the rates for garbage and trash collection were uniform within the residential class, were neither arbitrary nor discriminatory, nor did they deny the members of the class equal protection of the law; and (3) the imposition of a flat rate for garbage and trash collection for all residential units was constitutional.

The First District Court of Appeal held that “ordinance 40-76 imposes on condominium residents, garbage collection fees which are disproportionately higher than the fees charged for the same [bulk] service, rendered at the same cost, to businesses. These ordinances are unconstitutional in their preferential treatment of businesses as contrasted with condominiums, but not otherwise.” Fish v. City of New Smyrna Beach, 382 So.2d 307, 310 (Fla. 1st DCA 1979).

The issues presented are whether the City’s classifications and charges discriminate unconstitutionally against condominium residents and in favor of business users and residents of single family dwellings; and whether the respondents are entitled to a refund.

Judge Melvin in an opinion concurring in part and dissenting in part, wrote:

The ordinance, in my opinion, does not discriminate against, or subject to uneven tax consideration, those within the same classification. The majority holds it to be constitutionally permissible for the City to levy the same garbage and trash collection rates on condominium units as are levied for similar service to units of house residents. With this I agree, because whether the service is rendered to 55 families under one roof (condominium) or to 55 families each under a separate roof, there is no discrimination as to rates applied when measured by the service rendered.
The ordinances equate in an evenhanded way to businesses, and that is a proper and distinct classification. In my view, logic does not permit equating the flat charge for garbage and trash service as to one place of business to that of collecting from one dumpster the garbage from 55 separate families living in one condominium. [Footnote omitted.]

382 So.2d at 310-11.

We agree with Judge Melvin. We perceive no constitutional infirmity. When all factors are considered, we find that the ordinances and the rates charged, are neither arbitrary, unreasonable, nor discriminatory.

Section 180.13(2), Florida Statutes (1977) reads in part as follows:

The city council, or other legislative body of the municipality, by whatever name known, may establish just and equitable rates or charges to be paid to the municipality for the use of the utility by each person, firm or corporation whose premises are served thereby.

With respect to utility rates set by municipalities:

A municipality has the right to classify consumers under reasonable classifications based upon such factors as the cost of service, the purpose for which the service or the product is received, the quantity or the amount received, the different character of the service furnished, the time of its use or any other matter which presents a substantial difference as a ground of distinction. Accordingly, a lack of uniformity in the rate charged is not necessarily unlawful discrimination. The establishment of classifications and the charging of different rates for the several classes is not unreasonable and does not violate the requirements of equality and uniformity. Discrimination to be unlawful must draw an unfair line or strike an unfair balance between those in like circumstances having equal rights and privileges. Discrimination with respect to rates charged does not vitiate unless it is arbitrary and without a reasonable fact basis or justification.

12 McQuillin, Municipal Corporations (3d Ed. 1970), § 35.37(b); quoted with approval in Pinellas Apartment Association, Inc. v. City of St. Petersburg, 294 So.2d 676 (Fla. 2d DCA 1974).

In determining reasonable rate relationships, a municipality may sometimes take into account the purpose for which a customer receives the service. . Courts have recognized that differences in sewer use rates for residential customers and various other customers may be reasonable. Some customers may be subject to a flat rate while other customers are subject to rates based on water consumption or type and number of receptacles. Rutherford v. City of Omaha, 183 Neb. 398, 160 N.W.2d 223, 228 (1968) (authorities omitted).

Contractors and Builders Association v. City of Dunedin, 329 So.2d 314, 320 (Fla.1976).

In State v. City of Miami Springs, 245 So.2d 80 (Fla.1971), appellants contended that the rates charged for sewer services to different classes of users were arbitrary and discriminatory. Single family residences were charged a flat fee of $7.00 per month while all other users were charged a variable rate based on actual use, with a minimum charge of $7.00 per month. This Court held that these classifications were not unreasonable or arbitrary or in conflict with the state or federal constitutions or laws. 245 So.2d at 81.

In Stone v. Town of Mexico Beach, 348 So.2d 40 (Fla. 1st DCA 1977), appellants refused to pay the $3.50 monthly fee for garbage collection. The first occupied his home only four months of the year and refused to tender payment for the other eight months; the second, a year-round resident, testified that he never had any garbage for the town to collect, and refused to pay. The court held that there was “no constitutional infirmity in Mexico Beach imposing a flat rate, regardless of use, to fees charged for the collection and disposal of garbage.” 348 So.2d at 42.

In Charlotte County v. Fiske, 350 So.2d 578 (Fla. 2d DCA 1977), after an area of the county became inundated with garbage the county charged a $51.00 annual “special assessment” to each residential unit owner in the sanitation district for a mandatory garbage disposal system. Commercial property owners were not assessed, but were required by the ordinance to contract for collection service with the franchised disposal company or obtain a permit to haul their own garbage. Recognizing there was a widely varied production of garbage among commercial units, the court held that the ordinance was not clearly shown to be arbitrary, oppressive, discriminatory or without basis in reason. 350 So.2d at 580.

In the instant case, the First District Court of Appeal stated:

[Plaintiff] contends that condominium residents receive significantly less garbage and trash collection service than house residents and that the City unlawfully charges them the same fees. That position is not substantiated by this record. Admittedly, there is no separate collection of uncontained “trash” at condominiums, and each condominium residence pays $1.50 monthly for that service. It appears also that the time and labor required to empty a single six-yard container, serving 55 condominium families at Coronado Cove, is demonstrably less than the time and labor necessary to handle numerous garbage cans at the curbside of 55 single family residences in New Smyrna neighborhoods. Yet there are significant countervailing factors: individual homeowners must supply their own garbage cans, carry them to the curb and back, and wash, maintain, and replace their garbage cans; whereas the dumpsters used by condominiums and businesses are provided by the City, at a cost to the City of several hundred dollars each, and the City washes and disinfects the containers at each pickup. This record does not permit quantification of the similarities and differences in the cost of garbage collection from the dumpsters used by a given number of condominium units and the multiple cans used by an equivalent number of houses.

382 So.2d at 310.

We agree with the district court that it is impossible to quantify the similarities and differences in the cost of garbage collection from the different classes of residential owners. Nevertheless, we also recognize that there are dissimilarities between the services provided not only to multi-unit residences and business customers, but that there are also different classifications of business customers.

As the garbage output produced by a condominium unit and a single-family residence may be uniform, and not vary to a large degree, a flat fee is both just and equitable. Unlike residential customers, business customers’ garbage varies by type and quantity. A restaurant; an office; a supermarket; a manufacturing or industrial concern; each produces a different type as well as a different quantity of garbage. When these variables are taken into account, it becomes difficult to set a flat fee for all business customers. The City points out, and we recognize that if a business doubles its garbage output, its rates will increase; however, if a condominium doubles its garbage output, the City will either provide another dumpster, or make more frequent collections, without additional charge.

We conclude that the ordinances enacted by the City of New Smyrna Beach are not unconstitutional as the rates charged are just and equitable. The establishment of different classifications and the charging of different rates for each class is not unreasonable or discriminatory. We find that by classifying its customers as residential or business customers, there is no discrimination within each class.

The City’s classifications are both valid and reasonable, and are based upon legitimate distinctions between the classes. There is a presumption that legislative determinations or findings of fact are correct and should not be voided absent a clear showing that they are arbitrary, oppressive, discriminatory or without basis in reason or justification. Charlotte County, 350 So.2d at 580. No such showing was made here.

Finding the ordinances to be constitutional, it is unnecessary to pass upon plaintiff’s entitlement to a refund.

The decision of the First District Court of Appeal is quashed, and the cause is remanded with instructions to affirm the judgment of the trial court.

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

ENGLAND, J., dissents.


author: SUNDBERG, Justice. ALDERMAN, Justice,

text:
    Jeanne C. SPAULDING, Appellant, v. ST. JOHNS COUNTY, Florida, etc. et al., Appellees.
    No. 55100.
    Supreme Court of Florida.
    June 12, 1980.

      Franklin Reinstine of Reinstine, Rein-stine & Panken, Jacksonville, for appellant.
    Willard Howatt of Howatt & Bennett, St. Augustine, for St. Johns County; and Malcolm L. Stephens, Jr. of Stephens & Stephens, St. Augustine, for Flagler Hospital, Inc., appellees.
   SUNDBERG, Justice.

This case comes to us on direct appeal from a summary judgment entered by the Circuit Court of the Seventh Judicial Circuit for St. Johns County, Florida, construing article VIII, section 6 of the Florida Constitution. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Appellant, a citizen and taxpayer of St. Johns County, brought this action to have declared illegal and void a contract awarded by appellee St. Johns County, a non-charter county, to appellee Flagler Hospital, Inc., a nonprofit corporation. Under the contract, Flagler Hospital was to furnish county-wide rescue and ambulance services for St. Johns County. Appellant also sought to enjoin permanently the performance of the contract and the payment of any public monies under the contract, and demanded an accounting and repayment of monies already disbursed under the contract. Appellant contended that the contract between St. Johns County and Flagler Hospital was illegal and void because St. Johns County had failed to submit the contract to competitive bidding pursuant to the provisions of a local law relating to St. Johns County, chapter 65-2173, section 1, Laws of Florida, which provides:

The Board of County Commissioners of St. Johns County, Florida, shall not let any contract for the working of any road or street, the construction or building of any bridge, the erecting or building of any house, nor shall any goods, supplies or materials for county purposes or use be purchased when the amount to be paid therefor by the county shall exceed $3,000.00, unless notice thereof shall be advertised once each week for at least two weeks in some newspaper of general circulation in the county, calling for bids upon the work to be done or for goods, supplies or materials to be purchased by the county, and in each such case the bid of the lowest responsible bidder shall be accepted, the availability of service and equipment to be considered in such acceptance, unless the county rejects all bids because the same are too high.

Appellee St. Johns County admitted that the contract for ambulance service had been entered into without competitive bidding, but asserted the following as affirmative defenses: (1) That the Board of County Commissioners properly acted pursuant to St. Johns County Ordinance 77-10 (April 26, 1977), which authorizes the Board “to provide for rescue and ambulance service in said county, and to appropriate, in its discretion, necessary funds for such purposes, and to contract with or without competitive bidding with any municipality, person or other entity on such basis as it may deem fair and equitable.” (2) That the Board of County Commissioners validly amended chapter 65-2173, section 1, Laws of Florida, pursuant to article VIII, section 6(d), Florida Constitution, through St. Johns Ordinance 77-7 (April 12, 1977), which authorizes the Board to “purchase fire fighting equipment, equipment to assist in the fighting, control or prevention of fires, and/or emergency rescue equipment, at a cost greater than $3,000 without the advertisement or bids required above.” (3) That the contract is a contract for services which does not require compliance with the bid requirements of chapter 65-2173, section 1, Laws of Florida. (4) That in accordance with section 125.38, Florida Statutes, the Board of County Commissioners may lease personal property to Flagler Hospital, a nonprofit corporation, for such price as the Board of County Commissioners may fix, provided that the property is used in the community interest and welfare.

Finding there to be no genuine issue of material fact, the circuit court entered summary judgment denying appellant’s claim for relief. The court found (1) that under the home rule provisions of article VIII, section 6, of the Florida Constitution, St. Johns County may amend chapter 65-2173, Laws of Florida, by local ordinance, and (2) that the contract for ambulance service between St. Johns County and Flagler Hospital is a valid contract not requiring competitive bidding and is in accord with local ordinance 77-10 of St. Johns County.

Appellant argues on appeal that the trial court misconstrued article VIII, section 6(d) of the Florida Constitution, since the constitutional provision grants a non-charter county the power to amend a local law which relates only to the unincorporated areas of a county and the local law, chapter 65-2173, is by its terms applicable to all of St. Johns County. Appellant then contends that because the county is required under the disputed contract to furnish the hospital with such vehicles and equipment as might be needed for future operations, the contract involved the purchase .of items listed in chapter 65-2173, and, consequently, was subject to its bidding requirements. We agree with appellant’s first point on appeal but disagree with her second.

Article VIII, section 6(d), provides: “Local laws relating only to unincorporated areas of a county on the effective date of this article may be amended or repealed by county ordinance.” Although the local law at issue here, chapter 65-2173, did exist at the time the constitution was adopted in 1968, nothing in the statutory language, quoted above, suggests that it is to be limited in its operation to the unincorporated areas of the county. Hence, the Board of County Commissioners was, contrary to the ruling of the trial court, without power to amend the local law by ordinance or otherwise. See Davis v. Gronemeyer, 251 So.2d 1 (Fla. 1971). Since ordinance 77-7 purports to amend chapter 65-2173 by permitting the purchase of rescue and fire-fighting equipment in an amount in excess of $3,000 without competitive bidding, it is invalid.

We affirm, however, the remainder of the summary judgment upholding the validity of the contract between appellees St. Johns County and Flagler Hospital. Chapter 65-2173 mandates bidding upon contracts exceeding $3,000 “for the working of any road or street, the construction or building of any bridge, the erecting or building of any house, ... [or the purchase of] any goods, supplies or materials for county purposes.” It is apparent from the language that chapter 65-2173 does not purport to regulate the manner in which a county contracts for the provision of county rescue and ambulance services. Appellant, however, argues that the contract calls for the county to purchase such rescue vehicles and equipment as are needed for the hospital’s rescue operations, thus involving the purchase of goods, supplies or materials for county purposes under chapter 65-2173. In support of her argument, appellant cites paragraphs 9, 10, and 12 of the contract which state:

9) The County agrees to furnish to the Contractor for its use all presently-owned rescue vehicles and its present radio equipment and such other medical and related supplies as are presently utilized by the County Rescue Service, as well as such other vehicles and/or equipment which are presently on order or required for future operations as agreed to by the parties.
10) The County agrees to continue to provide, if legally possible, at County prices, fuel, tires, batteries, repair services and supplies necessary to maintain the County-owned rescue vehicles, etc.
12) The County agrees to provide to Contractor all non-expendable items and equipment which shall be required from time to time, as determined by mutual agreement of the parties.

We do not read these contractual provisions as prescribing the manner in which the county is to obtain the mentioned vehicles, equipment and supplies in carrying out its contractual obligations to the hospital. Nor do these or other provisions of the contract attempt to absolve the county from compliance with the bidding requirements of chapter 65-2173 in making its purchases of the listed items. Accordingly, we hold that the disputed contract is not in conflict with chapter 65-2173.

We affirm in part and reverse in part and remand this case to the Circuit Court for St. Johns County for proceedings not inconsistent with this decision.

It is so ordered.

ADKINS, BOYD and McDONALD, JJ., concur.

ALDERMAN, J., dissents with an opinion, with which ENGLAND, C. J., and OVERTON, J., concur.

ALDERMAN, Justice,

dissenting.

This case comes to us on direct appeal on the basis that it construes a provision of the Florida Constitution within the contemplation of article V, section 3(b)(1), Florida Constitution. Although I would agree with the majority’s resolution of the merits, I dissent from the opinion because we have no jurisdiction of this cause. The trial court, in entering summary judgment for appellees, did not construe a provision of the constitution but merely applied article VIII, section 6, Florida Constitution, in its order, the trial court said:

THIS MATTER coming on to be heard, on the first day of August, 1978, after due notice, upon the motion of the Defendant, St. Johns County, Florida, for a Summary Judgment on the ground that there is no genuine issue as to any material fact, and the joinder in said motion by the Defendant, Flagler Hospital, Inc., a non-profit corporation, and the Court having heard argument of counsel for the respective parties, it is upon consideration thereof,
ORDERED AND ADJUDGED as follows:
1. That under the home rule provisions of Article VIII, Section 6, of the Florida Constitution, St. Johns County may amend Chapter 65-2173, House Bill Number 28, Special Acts of Florida, by local ordinance.
2. That the contract for ambulance service between St. Johns County, Florida, and Flagler Hospital, Inc., a non-profit corporation, is a valid contract, not required to be let by competitive bidding, and is in accord with local Ordinance 77-10 of St. Johns County, Florida.
3. That the purchasing policy of St. Johns County, Florida was not adopted by the Board of County Commissioners, and is not binding on their actions.

The court’s statement in paragraph one of the ordering portion of the summary judgment is not a construction as we have defined that term in Ogle v. Pepin, 273 So.2d 391 (Fla. 1973), wherein we said:

By definition it is apparent that some language is essential to construe a provision. In judicial terminology we defined “construing” in its constitutional sense in the case of Armstrong v. City of Tampa, 106 So.2d 407 (Fla. 1958). As Armstrong puts it, an opinion or judgment does not construe a provision of the constitution unless it undertakes: (p. 409)
“. . .to explain, define or otherwise eliminate existing doubts arising from the language or terms of the constitutional provision.”

273 So.2d at 392.

The judgment before us does not explain or define any constitutional terms or language, and we are therefore without jurisdiction in this cause.

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

      . The circuit court also found that the contract was not void for alleged failure to comply with the county’s purchasing policy manual on the basis it had never been adopted by the Board of County Commissioners and, therefore, was not binding on its actions. Appellant does not challenge this finding on appeal.


author: ENGLAND, Chief Justice. BOYD, Justice,

text:
    FLORIDA CITIES WATER COMPANY, Petitioner, v. FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    No. 55722.
    Supreme Court of Florida.
    June 12, 1980.

      John W. Costigan and B. Kenneth Gatlin of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for petitioner.
    Prentice P. Pruitt, William E. Sundstrom and Richard V. Neill, Tallahassee, for respondent.
    Debra E. Cohen of Myers, Kaplan, Levin-son, Kenin & Richards, Miami, for Florida Waterworks Association, amicus curiae.
   ENGLAND, Chief Justice.

We have been asked to review an order of the Public Service Commission which, in the course of a rate proceeding, denied Florida Cities Water Company depreciation deductions for contributions in aid of construction [CIAC] and for advances in aid of construction [AIAC].

A hearing examiner assigned to consider Florida Cities’ request for a rate increase had allowed the company, as has been customary in water and sewer cases, depreciation deductions for both CIAC and AIAC. Contrary to the hearing examiner’s recommendation, the Commission disallowed these deductions on review, offering no reason for the abrupt discontinuance of prior agency policy other than that it was “wrong as a matter of law.” Florida Cities and amicus curiae, Florida Waterworks Association, now assert that the Commission’s unanticipated declaration of a new policy with respect to CIAC and AIAC violates administrative due process as articulated in chapter 120, Florida Statutes (1977).

Petitioner first argues that the Commission has announced a rule, as that term is defined in section 120.52(14), but that in doing so the Commission failed to follow appropriate procedures for rulemaking as set out in section 120.54. Quite clearly the Commission did not announce its new policy in a rule proceeding — nor was it required to do so. Administrative agencies are not required to institute rulemaking procedures each time a new policy is developed, McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), although that form of proceeding is preferable where established industry-wide policy is being altered. City of Plant City v. Mayo, 337 So.2d 966, 974-75 (Fla.1976).

Nonetheless, when an agency elects to adopt incipient policy in a non-rule proceeding, there must be an adequate support for its decision in the record of the proceeding. McDonald at 583-84. In this case, there is absolutely no record foundation for the Commission’s disallowance of CIAC and AIAC deductions. Consequently, we must quash the Commission’s order and remand this cause for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, OVERTON and SUNDBERG, JJ., and VANN, Associate Justice, concur.

ALDERMAN, J., concurs in the result only.

BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

I agree with the majority’s decision that “there is absolutely no record foundation for the Commission’s disallowance of CIAC and AIAC deductions.” However, I disagree with the majority’s statement that the Commission is not required to adopt this new policy in a rule making proceeding.

The Administrative Procedure Act, chapter 120, Florida Statutes (1977), applies to all forms of agency decision making. Every policy statement an agency relies upon in reaching a decision must be either codified as a rule or expressly stated in an order. A rule is defined as “each agency statement of general applicability that implements, interprets, or prescribes law or policy . . ..” § 120.52(14), Fla.Stat. (1977). An order is a “final agency decision which does not have the effect of a rule . . ..” § 120.52(9), Fla.Stat. (1977). In adjudicating individual cases, agencies may find themselves developing policy which will be generally applicable to future cases. Such policy statements are a hybrid of a rule and an order and have been characterized as “incipient policy.” McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The purpose of recognizing incipient policy is to encourage agencies “to structure their discretion progressively by vague standards, then definite standards, then broad principles, [and] then rules. . . . ” Id. at 580.

Thus an agency may implement changes in its policy by adopting rules in rule making proceedings or by developing incipient policy by adjudicating individual cases. Both procedures fulfill administrative due process requirements of notice, hearing, and judicial review. The procedure to be used is often left to the agency’s discretion. City of Plant City v. Mayo, 337 So.2d 966 (Fla. 1976). However, there are times when this discretion may be abused and an appellate court may require a particular policy statement to be codified as a rule.

I believe the Commission abused its discretion by making a fundamental change in policy that is only tangentially related to this case. Rule making proceedings are especially designed for deciding one basic issue affecting numerous parties, whereas adjudicative proceedings are basically designed for deciding numerous issues affecting a single party. Baker, Policy by Rule or Ad Hoc Approach — Which Should It Bel, 22 J.L. & Contemp.Prob. 658 (1957). Rule making proceedings have broader notice requirements and evidentiary standards which allow for maximum input from all affected parties without any discrimination. Requiring a single party to present evidence and argue against a fundamental change in policy places that particular party at a severe disadvantage and postpones any decision as to that party’s case until the broader policy considerations are finally decided by the agency and reviewed by a court. Additionally, that party may not have the financial resources necessary for gathering evidence and hiring legal representation in arguing against the broader policy changes. By limiting the quantity and quality of evidence presented, an agency’s decision to change its policy through adjudicating a single case also has the effect of curtailing the effectiveness of judicial review.

In the case at hand, the agency’s decision to disallow CIAC and AIAC deductions was only incidentally related to approving petitioner’s rate structure. The case did not present any unique facts or issues. Since the Commission’s customary practice had been to recognize such deductions, the hearing examiner did not listen to any evidence or arguments on this point. The Commission’s decision to change its policy came almost as an afterthought and was not intricately related to the facts of this case.

The Commission has failed to provide us with any reason why this particular issue had to be decided while adjudicating this particular case. The Commission was not embarking on a process by which it would progressively develop vague standards into rules. At oral argument the Commission’s counsel conceded that this new policy would be uniformly applied in all future cases where depreciation was being claimed for property contributed by ratepayers. In its present form the Commission’s policy is final and not subject to any further modification.

The Commission argues that it was required to change its policy because Its prior policy was unlawful. But it fails to point to any statute or court decision which expressly states that a sewer and water utility may not deduct its depreciation expenses on CIAC and AIAC assets. Instead the Commission refers us to section 367.081(2), Florida Statutes (1977), which states that the Commission shall consider the “cost of providing the service” and argues that depreciation expenses on contributed property are not part of the cost of providing services. Thus the Commission argues that its decision was precluded by its own, new reinterpretation of the statute. To give credence to this argument would allow every agency total discretion in deciding whether to use rule making procedures in implementing changes in policy. All an agency would have to do to insulate itself from the rule making requirements of section 120.54, Florida Statutes (1977), would be to say that it is reinterpreting the law.

Since there was no evidence presented to support the Commission’s change in policy, I would vacate only that portion of the Commission’s order that does not allow petitioner to collect the depreciation on contributed assets. Since the allowing of depreciation of contributed assets is an issue that is only incidentally related to this case, I see no reason for using this case as a yo-yo by sending it down for further proceedings which may be appealed again. If this Court is going to review the legality of the Commission’s new policy, it would be better for that issue to be thoroughly thrashed out in a rule making proceeding where no party is singled out to be placed in limbo until a final determination is made.