author: WIGGINTON, Judge. ERVIN, Judge,

text:
    AURORA PUMP, DIVISION OF GENERAL SIGNAL CORPORATION, a New York corporation, Appellant, v. GOULDS PUMPS, INC., a corporation and Jacksonville Electric Authority, a body politic and corporate, Appellees.
    No. AO-212.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.

      Charles T. Boyd, Jr., of Boyd, Jenerette, Leemis & Staas, P.A., Jacksonville, for appellant.
    John B. Macdonald, of Franson, Brant, Dearing & Moore, Jacksonville, for appellee Goulds Pumps, Inc.
    No appearance for appellee Jacksonville Elec. Authority.
   WIGGINTON, Judge.

This appeal follows the final judgment of the lower court permanently enjoining Jacksonville Electric Authority (JEA) from entering into any contract for the work described as the St. Johns River Power Park General Centrifugal Pumps and arising out of its Invitation for Bids, and directing JEA, should it wish to proceed, to resubmit an invitation for bids with rules and regulations made equally applicable to all present and subsequent bidders. We affirm.

JEA promulgated and issued the Invitation for Bids and Instructions to Bidders in July, 1981, inviting bids for the manufacture of the general centrifugal pumps to be installed in the St. Johns River Power Park Units 1 and 2. Pursuant to the invitation, eligibility for bidding on the contract was limited to a list of seven pump manufacturers prequalified by JEA and included on JEA’s “responsible bidder list.” Bids were ultimately submitted by five bidders: ap-pellee Goulds Pumps, Inc., appellant Aurora Pump, Worthington Pump Company, Allis-Chalmers Corporation, and Ingersole-Rand Corporation (whose bid was later declared non-responsive).

The bidding documents set forth the framework for a two-step bidding procedure. The instructions provided that the initial bids were to be submitted in two separate documents, a technical proposal and a cost proposal. As provided by paragraph M of the instructions, the bidders’ technical proposals would be opened first to permit evaluation of their content. Subsequent negotiations would then commence between JEA and each bidder regarding exceptions taken by the bidder to the technical and commercial terms of the proposed contract. During the evaluation and negotiation period the cost proposals would remain unopened. The Invitation for Bids further provided that bidders would be afforded an opportunity to submit plus and minus price adjustments to their still unopened cost proposals occasioned as a result of the negotiations on their exceptions to the technical and commercial terms of the proposed contract. Following the completion of technical evaluations and negotiations on the bidders’ exceptions, the sealed cost proposals retained by JEA would then be opened, and the contract would be awarded to the lowest responsible bidder whose now opened cost proposal, plus or minus additions or deductions submitted in connection with the negotiations, offered the lowest fully evaluated cost for the contract.

The only published procedures and guidelines available to the bidders governing the manner by which bids were to be submitted, received, evaluated, or modified were contained in the Invitation for Bids and Instructions to Bidders, as supplemented by Ordinance 80-113-169 of the City of Jacksonville and JEA Procedure No. MD311. Although the invitation specified the date by which the initial technical and cost proposals were to be submitted, which as amended was September 29, 1981, neither it, the instructions, nor any other published material set forth the actual procedures utilized by JEA for conduct of the negotiations regarding bidders’ exceptions; methods by which the bidders could submit plus or minus price adjustments occasioned by those negotiations; or, most important, as we finally conclude, any deadline after which price adjustments could no longer be submitted. According to John Cole, JEA’s project administrator responsible for the contract, the submission of price adjustments was governed by unwritten procedures based only on the customary practices of JEA.

Goulds, through one of its regional salesmen, Ernest Lary, prepared and submitted a bid before the initial “bid opening date” on September 29, 1981. At that time, Goulds’ original cost proposal of $1,195,356 for Units 1 and 2 represented its most competitive price possible, considering the commercial terms of the contract initially proposed by JEA. Those initial terms required the bidders to be exposed to substantial financial risks should any one of them be awarded the contract. Although Goulds’ initial cost proposal was computed assuming that the contract would be awarded on the terms proposed by JEA, in its technical proposal Goulds took exception to certain commercial contractual terms. Goulds’ initial cost proposal included a cushion to compensate it for the financial risk it perceived those contractual terms would entail in the event Goulds was awarded the contract.

Subsequent to opening of the technical proposals on September 29,1981, JEA’s consulting engineers for the St. Johns River Power Park Project, Ebasco Services, Inc., commenced evaluation of the respective technical proposals and the bidders’ exceptions to the original technical and commercial terms proposed by JEA. Negotiations between Ebasco and the respective bidders commenced informally in November, 1981, culminating in formal private negotiation meetings between JEA, Ebasco, and each respective bidder on December 15 through 17, 1981. As a result of communications with Ebasco, Goulds had resolved all of its exceptions to the technical specifications of the contract by the time of the formal meeting on December 16, 1981. However, its exceptions to the proposed commercial terms of the contract, which exceptions were included in the technical portion of the proposal, had not yet been resolved by that date.

Occasioned by the formal negotiations held on December 16, substantial changes to the proposed commercial terms of the contract were agreed upon by the parties, eliminating much of the previous financial risk to the ultimate contractor. Both JEA and Ebasco understood that as a result of the commercial changes Goulds was afforded an opportunity to assess the impact of such changes on its financial analysis of the proposed contract and to submit any resulting price modification to its cost proposal. Aurora, Allis-Chalmers, and Worthington all similarly understood that they were afforded the opportunity to submit price additions or deductions resulting from alteration of any commercial terms during their individual negotiations with JEA and Ebasco. However, Goulds interpreted the instructions to bidders, particularly paragraph J(l), to provide for submission of price modifications so long as negotiations regarding the contract were continuing, but in any event before the cost proposals were opened.

The representatives of all bidders, including Goulds, knew that Ebasco would prepare a preliminary evaluation of the respective bids and transmit it to JEA. Computer projections based on the information contained in the preliminary evaluation would permit each bidder to estimate within a reasonable degree of certainty the amount of its competitors’ respective cost proposals. Accordingly, JEA intended that all cost adjustments were to be submitted no later than the date of the preliminary evaluation. The representatives of Worthington and Al-lis-Chalmers both knew the general time frame for preparation of the preliminary evaluation by Ebasco and therefore knew that all their price adjustments were required to be submitted prior to that date; however, they acted with that knowledge and understanding as the result of their personal familiarity with JEA’s unwritten procedures and their individual experience in bidding on prior JEA contracts. Goulds had no prior experience in bidding on JEA’s contracts and was thus not aware of the unpublished procedures governing the time for submission of price modifications. Although the preliminary evaluation was in fact completed and transmitted to JEA by Ebasco on January 26, 1982, Goulds alleges that it was neither advised of the completion of that evaluation nor provided a copy thereof.

Subsequent to the December 1981 negotiations, Goulds’ home office personnel began their evaluation of the revised financial risk under the contract as it was affected by the extensive commercial changes negotiated. Although that evaluation was not completed until February 15, 1982, Goulds submitted preliminary cost deductions while it continued with its evaluation to keep negotiations active from its perspective. Goulds submitted a first deduction in the amount of $50,000 by a letter to Ebasco on December 22, 1981. A second deduction in the amount of $88,000 was delivered by letter to Ebasco dated January 11, 1982. Both of these deductions were accepted as tendered. Telephone conversations between Ernest Lary and representatives of Ebasco, coordinating evaluation of the respective bids, continued through January and into early February of 1982. Although Ebasco’s preliminary evaluation had been transmitted to JEA on January 26, 1982, Ebasco continued thereafter to contact Goulds to determine whether an addition or deduction might be offered in the event further technical changes were made to specified pumps. Goulds thus believed that a continuing line of discussion remained open through early February, 1982, regarding potential changes to the contract which might precipitate still further authorized additions or deductions to the as yet unopened cost proposals.

The time for opening of the cost proposals was ultimately set for February 18, 1982. On February 16, Ernest Lary attempted to hand deliver a revised cost proposal, incorporating Goulds’ final cost deduction, to the Purchasing Department of the City of Jacksonville, the authorized recipient of bids for JEA. This revised cost proposal, when considered in conjunction with the $88,000 deduction already submitted by their January 11 letter to Ebasco, yielded a final cost proposal of $950,424. However, the purchasing department refused to accept the revised cost proposal and on February 17, Lary attempted to hand deliver a letter proposing a final cost deduction of $244,932 to the city hall. This deduction superseded Goulds’ prior revised cost proposal, but when applied to their original one of $1,195,356, yielded the same final cost proposal of $950,424 for Units 1 and 2. The deduction was also refused.

Finally, on the morning of February 18, 1982, prior to the opening of the cost proposals at 9:00 a.m., Goulds had a telegram delivered to JEA containing the above final cost deduction; but again, the deduction was refused. Thus, Ebasco’s evaluation did not include Goulds’ final cost deduction and concluded that Aurora was the lowest responsible bidder with a fully evaluated bid for the entire project of $6,953,063. Were JEA to have accepted the deduction offered by Goulds, however, Goulds’ fully evaluated bid would have been $6,923,963, establishing it as the lowest responsible bidder for the contract.

At its regular meeting held on April 19, 1982, the JEA bid review committee recommended approval of the contract to Aurora. Goulds thereafter filed its complaint in the action below; and on April 20, 1982, the court entered a temporary restraining order subsequently superseded by the preliminary and then permanent injunctions. This appeal by Aurora followed.

Aurora primarily contends that neither the Invitation for Bids nor the Instructions to Bidders authorized the modification attempted to be made by Goulds to its cost proposal, and that it would be error for a public authority to award a contract based upon a revised cost bid. Such an award, contends Aurora, would be in violation of the competitive bidding laws. Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931); American Totalisator Co., Inc. v. Seligman, 384 A.2d 242 (Commw.Ct.Pa.1977). On the contrary, Goulds submits that the bidding documents, specifically paragraph J(1), clearly afford the bidders an opportunity to submit any price adjustments to their cost proposals precipitated by changes negotiated in either the technical specifications of the equipment required or the commercial terms of the contract to be awarded.

Notwithstanding, Aurora asserts Goulds’ cost deductions neither specifically arose from negotiations on items of its technical proposal, nor bore a direct relationship to the negotiated changes to the commercial terms of the contract. In response, Goulds maintains that both contractual changes affected the bidders’ financial analyses of the contract as a whole, and in Goulds’ case, could not be correlated to any specific dollar amount inserted in its original proposal. Nevertheless, Goulds repeatedly argues there existed no published guidelines or procedures available to the bidders which clearly specified the method and manner by which price adjustments were to be submitted.

Goulds distinguishes American Totalisator, relied on by Aurora, as involving circumstances under which one bidder was improperly allowed to revise a cost proposal with the foreknowledge of the pricing contained in his competitor's proposals. Rather, Goulds remains steadfast in its position that it submitted the final cost deduction without knowledge of the prices offered by the other bidders. Goulds maintains it was never provided a copy of Ebasco’s preliminary evaluation or advised that the evaluation had been prepared until Goulds’ final cost deduction had been submitted; under those circumstances, Goulds argues, it was not placed in an unfair advantage over any of the other competitors, including Aurora.

Although at times we may react to a party’s position with raised eyebrows, it is not within this Court’s realm of authority to reverse a lower court’s well-reasoned opinion merely because we regard the successful party’s position as highly improbable. The lower court’s finding that neither JEA nor Ebasco advised Goulds that the preliminary evaluation had been submitted, or provided Goulds with a copy thereof, is supported by the record.

Yet, whether Goulds had knowledge of the evaluation, or of when it was submitted, is not the pertinent issue where the question is, in the first instance, whether the bidding documents were sufficiently specific to assure fair competition to all the bidders. Wester v. Belote, 138 So. at 723-724. The record supports the lower court’s finding that both the invitation and the instructions were silent as to a specific procedure for conduct of the negotiations and as to a deadline by which cost proposal modifications resulting from the negotiations could be submitted. On the contrary, paragraph J of the instructions, and Ebasco’s continuing line of communications with Goulds, which extended into the first week of February, could reasonably have led Goulds to believe that negotiations would be honored until the opening of the cost proposals.

Regardless of whether all the other companies, including Aurora, understood that no modifications would be made after the evaluation was submitted, the other companies’ operating their negotiations from a vantage obtained through prior dealings with JEA, worked to create the appearance of favoritism and impropriety. Further, had JEA accepted Goulds’ eleventh-hour cost deduction, where the other companies believed last minute modifications were precluded by the instructions, Goulds would have received an unfair economic advantage. Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla.1982).

Aurora argues that if Goulds was confused, it could have requested in writing an interpretation of the instructions; yet, Aurora’s argument misses the point. Because of its lack of knowledge of the “unwritten rules,” and due to its reasonable interpretation of the instructions, Goulds did not know it was “confused.” Whether the deadline for submitting modifications was a date, or an event, as Aurora alleges, is irrelevant in this case where the instructions did not specify one or the other, and all involved apparently were unaware of the imbroglio.

Our holding today will not, as Aurora fears, encourage a bidder who feels that it is necessary to lower its cost bid, and who is precluded from doing so, to petition the courts to declare the bid documents ambiguous and to delay the process. Instead, those who we hope to encourage are the public agencies and authorities to responsibly prepare and disseminate clear and precise bidding instructions so the public may be protected against collusive contracts; to secure fair competition upon equal terms to all bidders; and to remove temptation for favoritism and fraud at the public expense. Wester v. Belote.

The lower court correctly concluded, under these circumstances, that JEA exercised its discretion in an arbitrary and capricious manner. William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550 (Fla.2d DCA 1960). Accordingly, its final judgment is hereby AFFIRMED.

MILLS, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I respectfully dissent. I disagree with the conclusion that the trial court was correct in finding that the JEA acted arbitrarily and capriciously in rejecting Goulds’ untimely attempt at modification of its cost proposal and would therefore reverse the judgment in this case.

In my view the record fails to support a finding of arbitrary and capricious action on the part of the JEA. In its “Invitation to Bids”, the JEA expressly reserved its right to “reject any or all bids in whole or in part with or without cause; or to accept the bid that, in its judgment, will be for the best interest of the Jacksonville Electric Authority.” The JEA further reserved its right to reject any bids in which collusion was suspected or in which the prices were “unbalanced.” Goulds’ representative, Mr. Lary, acknowledged that such reservation gave the JEA or its consulting engineer, Ebasco, the power to refuse to consider any of the submitted proposals. Additionally, Lary testified that he understood Ebasco’s evaluation of the proposals would be submitted to the JEA for use in making the final decision regarding the contract award.

The trial court, in its final judgment, found that it was “apparent that when the ‘evaluation’ was made that no further changes in a bid were possible as the evaluation became a public document and anyone could take the evaluation and determine within a very narrow margin the amount of the competitor’s cost bid .... ” In light of that finding, the JEA could well have acted arbitrarily and capriciously if it had elected to accept Goulds’ modified proposal. Finally, Goulds’ representative admitted that he did not know when the bidding was to close. It was therefore incumbent upon him, pursuant to the terms of the Instructions to Bidders, paragraph B, to seek an interpretation of those portions of the bidding documents which he did not understand. Goulds instead chose to rely on its own interpretation of paragraph J of the Instructions (cited at page five, ante, n. 2) and attempted to modify its original cost proposal at the eleventh hour.

It has long been recognized that public entities charged with the responsibility of awarding contracts for public works projects may exercise broad discretion in carrying out those duties. See William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550 (Fla. 2d DCA 1960); 26 Fla.Jur., Public Works and Contracts § 22 (1959). The Florida Supreme Court has recently amplified upon this rule, observing that

... a public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of its discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.

Liberty County v. Baxter’s Asphalt & Concrete, Inc., 421 So.2d 505 (Fla.1982).

In this case, although “reasonable persons may disagree” with the JEA’s refusal to accept Goulds’ untimely modification of its cost proposal, such action was clearly within its discretion and did not amount to an arbitrary and capricious act. I would therefore reverse the trial court’s entry of permanent injunction in this case.

      . Paragraph M provides:
      “At the time and place announced for the opening of proposals, each technical proposal from a qualified bidder which has been received prior to the announced time for opening of proposals, except those which have been properly withdrawn, will be publicly opened. Cost proposals will be retained unopened until completion of technical evaluations and negotiations with respect to exceptions." (Emphasis added).

      . Paragraph J provides in pertinent part:
      “(1) Except as otherwise specified, a modification of a proposal already received will be considered only if the modification is received prior to the time announced for opening of proposals. All modifications except telegraphic shall be made in writing, executed and submitted in the same form and manner as the original proposal. Telegraphic modifications showing only add to or deducts from bid prices will be accepted. Telephone modifications will not be considered.”

      . Id.

      . In support of its argument, Aurora points to language in the invitation, to wit:
      Following the public opening of the technical proposal, such proposal, including all exceptions, will be evaluated with subsequent negotiations on those items of the technical proposal, both technical and commercial, requiring same, to include plus or minus price adjustments to the still unopened cost proposal;
      and to paragraph E(2) of the instructions, which states:
      (2) Technical and commercial exceptions to the proposed contract shall be clearly stated in each Bidder’s technical proposal. Negotiations will be limited to only those exceptions to the Bidding Documents which are clearly stated as such and included in that section of the proposal dealing with same.


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    Samuel M. PUDER, Appellant, v. Robert REVITZ, Flagler Center Building Loan Corp., a Florida corporation d/b/a Flagler Building Center, Nutting Engineers, Inc., and Maurice Noble & Associates, Appellees.
    Nos. 81-145, 81-146.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Jeanne Heyward, Miami, for appellant.
    Sibley, Giblin, Levenson and Glaser and Irving B. Levenson, Miami Beach, Marks, Aronovitz & Leinoff and Tod Aronovitz, Miami, Papy, Poole, Weissenborn & Papy and Charles Papy, Coral Gables, for appel-lees.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   HENDRY, Judge.

These consolidated appeals are the culmination of Samuel Puder’s suit against defendants Revitz and Flagler Center Building Corporation (Flagler) to recover the remaining balance of his architectural fee on the Flagler Center Building. Revitz and Flagler counterclaimed for breach of contract and negligence alleging that the work performed by Puder and his design team was defective. Puder, in turn, filed third party complaints for indemnity and contribution against M. Noble and Associates (structural engineers), Nutting Engineers (soil engineers), Jack Axelrod (the general contractor), and Raymond International (the pile drivers). The third party complaints alleged that if Flagler prevailed on its counterclaim, then these various parties were primarily responsible for damages while Puder was only vicariously or secondarily liable and entitled to indemnification from each. Various motions for summary judgment and judgment on the pleadings were denied and the case proceeded to trial on all issues.

After the jury returned a verdict for Puder on his claim against Revitz and Fla-gler for the balance of his architectural fee, and in his favor on the Revitz/Flagler counterclaim, the trial court entered an amended final judgment for Puder in the sum of $23,773.21 for professional fees, $7,298.33 in interest, and $60.50 as costs, plus a cost judgment in the amount of $31,701.76 to be assessed against Revitz and Flagler. The trial court also entered the following six orders from which Puder has appealed:

1. Final judgment for Noble & Associates on Puder’s third party claim;
2. Order awarding costs to Noble against Puder;
3. Order awarding costs to Nutting Engineers against Puder;
4. Order denying Puder’s motion to tax costs and attorney’s fees awarded on behalf of Raymond International to Flagler Center;
5. Order denying Puder’s motion to tax costs awarded on behalf of Noble and Nutting to Flagler Center;
6. Order denying Puder’s motion to tax costs against Flagler Center.

We have carefully considered the record, briefs, and argument of counsel in light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. An award of costs rests within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of an abuse of that discretion. Warner v. Caldwell, 354 So.2d 91 (Fla.3d DCA 1977), cert. denied, 361 So.2d 836 (Fla.1978); White v. Means, 280 So.2d 20 (Fla. 1st DCA 1973); General Capital Corp. v. Tel Service Co., Inc., 239 So.2d 134 (Fla.2d DCA), cert. denied, 240 So.2d 815 (Fla.1970). Appellant Puder has not clearly demonstrated that the trial court abused that discretion by taxing costs in favor of the successful third party defendants, who were brought into the lawsuit by Puder, and refusing to charge such costs against the defendant counterclaim-ants, Revitz and Flagler. Section 57.041, Florida Statutes (1979). Accordingly, we decline to disturb the trial court’s orders and affirm the judgments below in their entirety.

Affirmed.

      . See Puder v. Raymond International Builders, Inc., 424 So.2d 78 (Fla.3d DCA 1982) for additional background on this case.

      . Puder did not appeal the final judgment entered in Nutting’s favor on the third party claim.


text:
    Samuel M. PUDER, Appellant, v. RAYMOND INTERNATIONAL BUILDERS, INC., Appellee.
    Nos. 80-2128, 80-2129.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Rehearing Denied Jan. 21, 1983.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Jeanne Heyward, Miami, for appellant.
    Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   HENDRY, Judge.

Appellant Samuel Puder, plaintiff/counter-defendant/third party plaintiff below, appeals from orders awarding attorney’s fees and costs to Raymond International (Raymond). We affirm.

The instant appeal arises out of a suit filed by Puder to recover payment for architectural services rendered in connection with construction of the Flagler Center Building. The building owner counterclaimed for breach of contract and negligence for design and construction defects and Puder filed a second amended third party complaint seeking indemnity and contribution from Raymond, a subcontractor on the project. Raymond’s motions for summary judgment were denied, and the cause proceeded to trial. Following presentation of all the evidence, Puder voluntarily dismissed his third party action against Raymond. The court below then granted Raymond’s motions for costs, and attorney’s fees pursuant to section 57.105, Florida Statutes (1979). Appeals from the orders were consolidated by this court.

Our review of the record leads us to agree with the trial court’s finding that there was a complete absence of a justiciable issue of law or fact raised with regard to Puder’s claims against Raymond, thus entitling Raymond to attorney’s fees under section 57.105. The basis for our holding is that (1) Puder had no valid claim for contribution from Raymond since Raymond had previously settled its obligations via a mechanics’ lien action and there was no evidence of bad faith in connection with the settlement, Metropolitan Dade County Transit Authority v. Simmons, 375 So.2d 858 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980); Seaboard Coast Line Railroad Co. v. Gordon, 328 So.2d 206 (Fla. 1st DCA 1976); (2) the legal relationship between Puder and Raymond would not support an indemnity claim and, in addition, there was no evidence that Raymond, the potential indemnitor, was negligent, Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); General Portland Land Development Co. v. Stevens, 395 So.2d 1296 (Fla. 4th DCA 1981); Walter Taft Bradshaw & Associates v. Bedsole, 374 So.2d 644 (Fla. 4th DCA 1979); see generally Krestow v. Wooster, 360 So.2d 32 (Fla. 3d DCA 1978); (3) Puder ultimately dismissed all claims against Raymond after failing to present any evidence of Raymond’s negligence or bad faith in connection with the settlement, see MacBain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979); (4) the attempt to create a controversy was frivolous as Raymond was brought into the lawsuit solely for tactical purposes, see Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982); T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla. 3d DCA 1980); and (5) the trial court’s denial of Raymond’s motion for summary judgment is insufficient to demonstrate a justiciable issue of law or fact, see White v. Montebello Corp., 397 So.2d 326 (Fla. 5th DCA 1981); City of Deerfield Beach v. Oliver-Hoffman Corporation of Deerfield Beach, 396 So.2d 1187, 1188 n. 2 (Fla. 4th DCA), petition for review denied, 407 So.2d 1104 (Fla.1981).

Affirmed.

      . A second consolidated appeal was taken by Puder from subsequent orders entering final judgment for other third party defendants, taxing their costs against him, and denying his motion to tax costs against Flagler Center. See Puder v. Revitz, 424 So.2d 76 (Fla. 3d DCA 1982).


author: PER CURIAM.

text:
    Lorraine CUSHEN as personal representative of the estate of Lawrence Cushen, Appellant, v. GROSSMAN HOLDINGS, LTD., Bleeman Holdings, Ltd. and Hartford Insurance Group., Appellees.
    No. 81-2452.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Rehearing Denied Jan. 19, 1983.
    Horton, Perse & Ginsberg and Edward Perse, and Samuel Sheradsky, Miami, for appellant.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The issue in this case is identical to the one involved in Evans v. Southern Holding Corp., 391 So.2d 231 (Fla.3d DCA 1980), cert. denied, 399 So.2d 1142 (Fla.1981) and the judgment for the defendants below is consequently affirmed on the authority of that case. We do not believe, as the appellant suggests, that Evans and this decision are in constitutional direct conflict with Cook v. Martin, 330 So.2d 498 (Fla. 4th DCA 1976), cert. denied, 339 So.2d 1170 (Fla.1976), or Pope v. Carl Hankins, Inc., 411 So.2d 898 (Fla.2d DCA 1982) and therefore will not certify to that effect pursuant to Fla.R.App.P. 9.030(a)(2)(A)(vi). Art. V § 3(b)(4), Fla.Const.

Affirmed.

      . We note that if the supreme court disagrees, it may review the decision, even in the absence of our certificate, under Fla.R.App.P. 9.030(a)(2)(A)(iv).


text:
    Manuel BASCOY and Angel Sotolongo, Appellants, v. The STATE of Florida, Appellee.
    Nos. 81-2661, 81-2663.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Rehearing Denied Jan. 21, 1983.
    Pollack, Komorowski & Headley and John Lipinski, Miami, for appellants.
    Jim Smith, Atty. Gen. and Charles A. Stampelos and William Thomas, Asst. At-tys. Gen., for appellee.
    Before HUBBART, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Where the defendants were stopped by an officer for minor traffic infractions of such a nature that any citizen committing them could have routinely been stopped, that the officer “possibly” would not have stopped defendants but for further suspicion that they were also engaged in criminal activity did not render it an unlawful “pretext” stop. See State v. Holmes, 256 So.2d 32 (Fla. 2d DCA 1972), writ discharged on different issue, 273 So.2d 753 (Fla.1973) (where defendant was observed by an officer to have committed an offense of a nature for which any citizen would have been arrested, the arrest for the traffic offense was not a “pretext” though officer also suspected that defendant was a robber). The other issues raised as error are without merit.

Affirmed.


text:
    Ecir PARDILLO, Appellant, v. STATE FARM FIRE & CASUALTY CO., Appellee.
    No. 82-314.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Rehearing Denied Jan. 24, 1983.
    Grable, Dieguez & De La Torre and Anthony Dieguez, Hialeah, for appellant.
    Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Miami, for appellee.

      Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. New Amsterdam Casualty Co. v. Hart, 153 Fla. 840, 16 So.2d 118 (1943); Florida Insurance Guaranty Assn. v. Cope, 405 So.2d 292 (Fla. 2d DCA 1981); Mackoul v. Fidelity & Casualty Co. of New York, 402 So.2d 1259 (Fla. 1st DCA 1981), pet. for review denied, 412 So.2d 467 (Fla.1982).


text:
    The FURR COMPANY, Appellant, v. Magaly SADIN and Engracia Sadin, Appellees.
    No. 82-496.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Rehearing Denied Jan. 24, 1983.
    William A. Meadows and Mark Hektner, Miami, for appellant.
    Diaz-Silveira & Associates and Frank Diaz-Silveira, Miami, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Taco Bell of California v. Zappone, 324 So.2d 121 (Fla. 2d DCA 1976); Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981); Martin v. Paskow, 339 So.2d 266 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 951 (Fla.1977).


text:
    Aldo BUSOT, Appellant, v. ARVIDA CORPORATION, a Delaware corporation, Appellee.
    No. 82-1110.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Rehearing Denied Jan. 17, 1983.
    Busot, Mellman, Iglesias, Romero & Lamar and Richard Mellman, Coral Gables, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and James M. McCann, Jr. and Harvey W. Gurland, Jr., Miami, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. See and compare, Frissell v. Nichols, 94 Fla. 403, 114 So. 431 (1927); Harry Pepper & Associates, Inc. v. Lasseter, 247 So.2d 736 (Fla. 3d DCA 1971); Schweiger v. Hoch, 223 So.2d 557 (Fla. 4th DCA 1969); U.S. Properties, Inc. v. Marwin Corp. 123 So.2d 371 (Fla. 3d DCA 1960).


author: DOWNEY, Judge.

text:
    Donald TOPLEY a/k/a Donnie Tarpley, Appellant, v. STATE of Florida, Appellee.
    No. 81-920.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 19, 1983.

      Richard L. Jorandby, Public Defender, Marcy Karr Allen and Ellen Morris, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, James P. McLane and Russell S. Bohn, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

On June 9, 1982, we issued an opinion in this case remanding the cause to the trial court for an evidentiary hearing to determine whether appellant could have obtained suitable clothing for trial from his family, friends, or social agencies. The trial court has held an evidentiary hearing and found therefrom that appellant did have clothing available to him to wear at his trial.

On this appeal appellant contended that he was compelled to go to trial in prison garb, which constituted a violation of his constitutional right to due process because it impinges upon the presumption of innocence. We thoroughly discussed that aspect of the case in the former opinion, Topley v. State, 416 So.2d 1158 (Fla. 4th DCA 1982).

The record reflects that appellant on two occasions requested the trial court to require the State to furnish him with funds to obtain civilian clothing to wear to trial. The trial court refused to grant those requests, but suggested to appellant that he try to obtain clothes from some of the social agencies in the area. The record is absolutely silent regarding any attempt by appellant to obtain clothes from such agencies. However, there is an abundance of evidence adduced at the evidentiary hearing on remand that local agencies, the Salvation Army, St. Vincent de Paul Society, a specific church, and the Red Cross would furnish clothes upon such a request.

Accordingly, we hold that there is substantial competent evidence to support the trial judge’s finding that appellant was not compelled to go to trial in prison garb.

The judgment appealed from is affirmed.

LETTS, C.J., and WALDEN, J., concur.


text:
    Elbert LEONARD, Appellant, v. STATE of Florida, Appellee.
    No. 81-1614.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 19, 1983.

      Richard L. Jorandby, Public Defender, and Marcy Karr Allen, 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.
   PER CURIAM.

Affirmed. Although we believe the trial court erred in admitting an arrest affidavit into evidence, we do not believe such error prejudiced the rights of appellant since the affidavit was cumulative and duplicative of other evidence properly admitted. We find no error in the admission of opinion evidence by the arresting officer. See § 90.702, Fla.Stat. (1981). If such evidence were precluded, we believe that any error would have been harmless. We further find no error by the trial court in denying an instruction on self-defense because of the lack of a factual predicate in the evidence to support such an instruction.

ANSTEAD, HERSEY and WALDEN, JJ., concur.


author: HERSEY, Judge. ANSTEAD, Judge,

text:
    MARINE MIDLAND BANK, N.A., a national banking association, Appellant, v. Morton SMITH, Appellee.
    No. 81-2334.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 24, 1983.
    J. Robert Olian of Britton, Cohen, Kaufman, Benson & Schantz, Miami, for appellant.

      Jeffrey S. Altman of Abramowitz, Altman & Usdan, P.A., Plantation, for appel-lee.
   HERSEY, Judge.

Marine Midland Bank appeals an adverse final judgment in favor of defendant/ap-pellee, Morton Smith. This case arises from a loan by the bank to Bernard Tedlis, taking back a promissory note for $49,712.50 plus interest. Smith executed an agreement guaranteeing the repayment of this or any other obligation of Tedlis to the bank. Tedlis defaulted on the note and the bank filed suit in New York resulting in a judgment for the bank on the principle amount due plus interest and a separate judgment for attorneys’ fees. The bank and Tedlis subsequently entered into a written settlement agreement whereby Tedlis would pay the bank $20,080 in installments, in full satisfaction of the judgments.

The bank then filed the present action against Smith to recover on his guaranty although there has been no default by Ted-lis on his obligations under the settlement agreement. The trial court held that Smith is not indebted to the bank.

Except for the instant litigation in Florida these events transpired in New York and the parties agree that New York law controls. As we view the issues the result would be the same under either Florida or New York law.

The issue is not whether the parol evidence rule applies or was improperly applied as argued by appellant. Nor is the issue release, either in fact or by operation of law, as contended by appellee. The issue is whether Tedlis has an outstanding obligation to the bank which is encompassed by the terms of the guarantee agreement and, if so, whether the duty of the guarantor to pay has ripened.

It is clear that Smith was liable to the bank in the event of default on the original promissory note. However, that obligation (the note) was merged into the final judgment entered in the New York proceedings. The second judgment, for attorneys’ fees, constituted a new and different, although related, obligation of Tedlis to the bank and thus falls within the ambit of the guarantee. After the initial default the bank could have successfully pursued its remedies against Smith. Instead of doing so, the bank entered into the new agreement with Tedlis substituting an installment obligation in a lesser amount for the two judgments. This is the obligation which the guarantee covered when the present litigation was instituted. We note that there has been no default on that obligation, and thus the guarantor’s duty to pay has not ripened.

Accordingly, the trial court was eminently correct in entering final judgment adversely to the bank and we therefore affirm.

AFFIRMED.

LETTS, C.J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

The question is whether a guarantor remains liable on the debt when a satisfaction of judgment has been filed.

Generally, a satisfaction of a judgment against one of several persons jointly and severally liable discharges the liability of others. Weaver v. Stone, 212 So.2d 80 (Fla. 4th DCA 1968). In addition, there is case law that a release of debtor has the same effect as a satisfaction, Movielab, Inc. v. Davis, 217 So.2d 890 (Fla. 3d DCA 1969). Nevertheless, where the principal debtor has not made complete payment, but the effect of the creditor’s act is to release him, the guarantor is also discharged, unless the guarantee’s right of recourse against the guarantor is expressly reserved in the guaranty contract. §§ 673.603 and 673.606, Fla.Stat. (1981).

A reading of the language contained in the guaranty agreement here indicates that the guaranty is absolute and that the guarantor is liable even if the debtor is discharged from liability. It provides:

Guarantor consents that without the necessity for any additional endorsement or guarantee of said Obligations or any reservation of rights against Guarantor and without notice to or further assent by Guarantor, the liability of Borrower or of any co-guarantor or of any other party for or upon any of said Obligations may, from time to time, in whole or in part, be renewed, extended, modified, prema-tured, compromised or released by Bank, as it may deem advisable, and that any collateral or liens for any of said Obligations may, from time to time, in whole or in part, be exchanged, sold or surrendered by Bank, as it may deem advisable, all without impairing, abridging, affecting, diminishing or releasing the liability of Guarantor hereunder. Bank shall not be liable for failure to collect or demand payment of or protest or give any notice of nonpayment of said collateral security, or any part thereof, or for any delay in so doing, nor shall Bank be under any obligation to take any action whatever in regard to said collateral security or any part thereof. Any stocks, bonds or other securities held by Bank as part of said collateral security may, whether or not a default exists, be registered and held in the name of Bank or its nominee and Bank or said nominee may exercise all voting and corporate rights as if the absolute owner thereof, including the right to exchange, at its discretion, any and all such securities or other property upon the reorganization, recapitalization or other readjustment of any corporation and in connection with such reorganization, recapitalization, or other readjustment to deposit any and all of said securities with any committee or depositary upon such terms and conditions as it may determine, all without notice and without liability except to account for property actually received by it.

Other courts have construed a guaranty provision similar to this one as being absolute and an unconditional waiver of the defense of discharge of the principal obligor. Duke v. Reconstruction Finance Gorp., 209 F.2d 204 (4th Cir.1954); United States v. Houff, 202 F.Supp. 471 (W.D.Va.1962); United States v. Perez, 528 F.Supp. 206, 208 (D.P.R.1981). For example, in United States v. Beardslee, 562 F.2d 1016 (6th Cir. 1977), cert. denied, 439 U.S. 833, 99 S.Ct. 113, 58 L.Ed.2d 128 (1977), the creditor entered in a settlement agreement with the debtor, which stated “FULLY PAID, SATISFIED & DISCHARGED.” The creditor then sought payment directly from the guarantor for the balance of the promissory notes. Under a provision in the guarantee agreement similar to the one involved herein, the guarantors were held liable despite the discharge of the debtor.

Following the reasoning of these cases, the guarantor here was not released from liability because of the settlement reached with the debtor. I also believe that the guarantor has an. implied right to reimbursement or indemnity from the debtor for the sum paid under the guarantee. See §§ 46.011 and 46.041, Fla.Stat. (1981); 38 C.J.S. Guaranty § 111.


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

text:
    Michael R. PUCCIO, Appellant, v. STATE of Florida, Appellee.
    No. AJ-264.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.

      John W. Pafford, Sr., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   ON PETITION FOR REHEARING

ROBERT P. SMITH, Jr., Chief Judge.

Our decision announced October 29, 1982, was in error in setting aside Puccio’s judgment of conviction and his nolo contendere plea, which was conditionally offered, reserving the right to appeal the matters addressed by the opinion. Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff’d, 392 So.2d 1324 (Fla.1981), and Alexander v. State, 399 So.2d 110 (Fla. 1st DCA 1981), make clear that an appeal such as this must be supported by the State’s stipulation that the confession evidence Puccio sought to have suppressed is and was dispositive of the case, which is to say “the State has no case and would be unable to proceed with the prosecution without the confession.” Jackson, supra, 382 So.2d at 750. Here there is no such stipulation by the State, and the sentencing judge, having no knowledge of the matter except as he was informed by the parties, cannot be held to have declared the subject evidence “disposi-tive” simply by accepting the representation of Puccio’s counsel. The case is therefore governed by Brown v. State, 376 So.2d 382 (Fla.1979), and the suppression issue was not properly reserved for appeal. Because Puccio’s plea and appeal came some time after Brown was decided, Puccio is not entitled either to appeal the issue or to withdraw his plea.

The State’s motion for rehearing is GRANTED and the judgment of conviction is AFFIRMED.

SHIVERS and THOMPSON, JJ., concur.


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

text:
    GULF COAST HOSPITAL, INC., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Office of Community Medical Facilities and Fort Myers Community Hospital, Appellees.
    No. SS-432.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.

      Jean Laramore of Laramore & Aye, Tallahassee, for appellant.
    Eric J. Haugdahl, Asst. Gen. Counsel, Tallahassee, E.G. Boone, Venice, Art Forehand and Bruce J. Smith, Tallahassee, for appellees.
    E. Philip Blank of Tucker & Blank, P.A., for Florida Osteopathic Medical Ass’n, Inc., amicus curiae.
   BOOTH, Judge.

This cause is before us on appeal from a final order of the Department of Health and Rehabilitative Services (HRS) which denied the application of Gulf Coast Hospital (Gulf Coast) for a certificate of need to construct and operate a 116-bed acute care hospital in Fort Myers, Florida. Since the proposed facility would be an osteopathic facility, the application is governed by Section 381.494(2), Florida Statutes (1979), which provides that:

When an application is made for a certificate of need to construct or to expand an osteopathic facility, the need for such facility shall be determined on the basis of the need and availability in the community for osteopathic services and facilities.

There are two issues presented in this appeal: (1) whether the need and availability of osteopathic services and facilities is to be determined independently of existing no-nosteopathic facilities; and (2) whether the application in this case supports the need for a 116-bed facility as proposed.

The determination of the first issue depends on the interpretation of “osteopathic facility” as that term is used in Section 381.494(2). The term “facility” in this context is commonly understood to include a hospital. This is the interpretation given by HRS rules which use the term “osteopathic health care facility” and further define “health care facility” to be, among other things not pertinent here, a “hospital.”

Florida Statutes contain various references to osteopathic hospitals. For instance, an osteopathic residency and internship program authorized by Sections 459.005 and 459.021, Florida Statutes, is required to be carried out in “osteopathic hospitals.” The record also shows that there are some 18 separate, identifiable osteopathic hospitals licensed in Florida, a fact presumably within the knowledge of the Legislature at the time of its enactment of Section 381.-494(2), supra.

The term “osteopathic facility,” then, would include an osteopathic hospital, a separate medical facility devoted primarily to the practice of osteopathy.

A question could be raised as to whether something less than an entire or separate hospital would also constitute an “osteopathic facility.” We note that Section 381.-494(2) does not require that the osteopathic facilities considered in determining need be separate or “free-standing.” Presumably some portion of an existing facility devoted to the practice of osteopathy would come within the statutory definition and would be a factor considered in determining need for expansion or construction of other osteopathic facilities in the area. In the instant case, however, neither party relies on such an interpretation of the statute. Further, no evidence was presented that any part of existing medical facilities in the area constituted an “osteopathic facility,” by any definition.

In these proceedings, HRS has not sought to define or interpret the term “osteopathic facilities,” but rather to present evidence and arguments which would tend to disclaim the need for such facilities.

The Legislature, with the enactment of Section 381.494(2) and other statutes previously referred to, has determined the public policy of this state with regard to the need for identifiable osteopathic facilities. This issue must be considered as settled by the Legislature and is not one for the agency or for this court to redetermine.

The record established that osteopathy and allopathy are two primary and separate schools of medicine which differ substantially in philosophy and practice, a difference which has been and continues to be “extremely divisive.” For a hundred years, osteopathy has afforded a choice to patients, a minority group of some ten percent of the population of the United States, who prefer to be treated by osteopathic physicians. Osteopathic facilities may not differ significantly as to physical plant and equipment but are highly distinctive because of the purpose for which they are constructed and maintained. That purpose includes the care and treatment of patients in accordance with the principles of osteopathy, the teaching and the study of osteopathic medicine, and the association in practice of doctors of osteopathy, including osteopathic specialists, with support from staff personnel suitably trained in the principles and philosophy of osteopathy. The management and control of the facility so as to actively further all of the above activities rather than to merely tolerate them, must be in the hands of osteopaths or those sympathetic to that school of medicine. In the absence of separate consideration of need and availability under Section 381.494(2), the valuable contribution of osteopathy and the freedom of choice to patients made available through this distinctive school of medicine will be jeopardized.

The appellant here proved the criteria necessary for issuance of a certificate of need and, in addition, proved present discrimination against osteopaths and their patients in existing medical facilities. Despite the plain meaning of Section 381.-494(2), Florida Statutes, however, the hearing officer adopted the position of HRS and ruled that need and availability for osteopathic facilities is not established within the meaning of Section 381.494(2) where non-osteopathic hospitals already in the area are overbedded and staff privileges are, or will be, available to osteopaths in these already existing facilities.

The hearing officer also adopted the contention of HRS that need for osteopathic facilities should not be considered separately from other, non-osteopathic facilities because to do so “would authorize the construction of an osteopathic hospital in every community in which one did not presently exist.”

To state this last contention is to reveal its total lack of merit. Certificates of need for osteopathic hospitals are subject to the same myriad of requirements, including financial feasibility, which pertain to other facilities licensed by HRS. Further, the record does not support the dire predictions of HRS that a plain meaning construction of the statute would authorize the construction of an osteopathic hospital in every community. On the contrary, although HRS has, in the past, treated applications for expansion and purchase of new equipment for existing osteopathic hospitals under Section 381.494(2) separately, as required by the express terms of the statute, there is no showing of a great influx of applications for expansion or construction of osteopathic facilities has occurred. Even were it otherwise and the agency’s predictions of an osteopathic explosion correct, HRS would not be empowered to rewrite and administratively repeal the legislation in question. Arguments concerning the potential effect of the legislation or questioning the wisdom of such legislation are matters which should be presented to the Legislature itself.

We next consider the hearing officer’s conclusion that, where non-osteopathic hospitals in the area have more beds for patients than patients, an osteopathic facility would not be certified unless discrimination against osteopaths prevented access to such facilities.

The hearing officer, in the recommended order adopted by the agency, determined that there was discrimination against osteopaths. The order finds that at the time of the hearing two of the four existing allo-pathic hospitals had bylaws which prohibited osteopathic physicians from using those facilities; that, at the time of the filing of the application in this case, only one osteopathic physician, Dr. Centafont, had been admitted to practice in any of the four existing hospitals; and that several other osteopaths were admitted to consulting privileges only after the letter of intent to construct the osteopathic hospital in these proceedings had been filed. The hearing officer’s order concludes, however, that, in view of the professed willingness of two of four hospitals (Lehigh Acres General Hospital and Fort Myers Community Hospital) to consider the applications of osteopaths and the anticipated effect of Section 395.0653, Florida Statutes, the so-called “anti-discrimination statute,” facilities would be available in the future for osteopaths, and the certificate of need should be denied.

Proof of discrimination is not required under Section 381.494(2). This is not to say, however, that the hearing officer is required to ignore evidence of discrimination, evidence which, in the instant case, exacerbates the need for the osteopathic facility in question. Thus, although there was considerable evidence of discrimination, as found by the hearing officer, this showing was not a required part of the applicant’s burden under Section 381.494(2).

Nor is the anticipated effect of Section 395.065(3) to eradicate discriminatory practices in hospital staffing procedures a basis for the denial of a certificate of need for an osteopathic facility. The potential availability of staff privileges for osteopaths in allopathic hospitals, even if it becomes something more than a “token,” is not a substitute for the practice of osteopathy in an osteopathic hospital. The Legislature, in the enactment of Sections 381.-494(2) (certification proceedings for osteopathic facilities) and 395.065(3) (staff privileges for osteopaths in existing facilities), has clearly spoken in recognition of both these interests.

We also reject the contention of HRS that, since the proposed hospital will afford staff privileges to non-osteopaths the facility cannot be classified as “osteopathic.” An osteopathic hospital must comply with the anti-discrimination statute affording opportunity to staff privileges to non-osteopaths. The staff need not be 100 percent osteopathic. The nature of the facility is controlled by the purpose for which the facility is maintained and operated.

The application here establishes that the proposed facility will be devoted primarily to the practice of osteopathic medicine and that it includes a provision for residency and internship programs for osteopaths, programs not shown to be available in any other facility in the area.

In summary, Section 381.494(2), Florida Statutes, requires that the needs of osteopaths and their patients for osteopathic facilities be recognized as a factor in the certification process. Potential or actual access to allopathic facilities by osteopaths, discrimination against osteopaths or the lack thereof are not factors referred to expressly or by implication in Section 381.-494(2). Had the Legislature intended that these considerations enter in the agency’s determination of need, it quite simply would have said so. Had the intent been to evaluate need and availability of osteopathic facilities in terms of all existing medical facilities, Section 381.494(2) would not have been enacted.

We conclude, therefore, that the order below misinterpreted Section 381.494(2) and that the certificate of need for the osteopathic facility should have been granted.

The other issue on appeal is the sufficiency of the evidence adduced by the applicant to substantiate its need for a 116-bed facility in the Fort Myers service area. On appeal, appellee correctly contends that insufficient statistical evidence was adduced to establish the need for 116 beds. Lack of historical data on the number of patients admitted to hospitals in the area by osteopaths may be attributed to the history of discrimination and to the failure of area hospitals to admit but one of the osteopaths to staff, thus requiring the patients of osteopaths to be admitted to hospitals and treated while in the hospital by staff physicians.

Accordingly, the cause is remanded pursuant to Section 381.494(7)(c), Florida Statutes, with directions that HRS authorize such sized facility as the evidence already adduced or further evidence which may be adduced establishes.

In view of our holding on the primary issues in this case, it is unnecessary to determine issues relating to the failure of the hearing officer to rule on a number of proposed findings of fact, Stuckey’s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), and the application of the rule in Miller v. Agrico Chemical Company, 383 So.2d 1137 (Fla. 1st DCA 1980), as pertains to the agency’s prior, inconsistent interpretations of Section 381.494(2), Florida Statutes.

We have considered Gulf Coast’s request that we authorize the granting of costs and attorney fees under the doctrine of Jess Parrish Memorial Hospital v. Florida Public Employees Relations Commission, 364 So.2d 777 (Fla. 1st DCA 1978), and that request is denied.

Accordingly, the order below is reversed and the cause remanded for further proceedings consistent herewith.

SHAW, J., concurs.

ROBERT P. SMITH, Jr., C.J., specially concurs with written opinion.

ROBERT P. SMITH, Jr., Chief Judge,

specially concurring:

The interpretation given section 381.-494(2), Florida Statutes (1979), by the Department of Health and Rehabilitative Services was one reasonably permitted by the health planning statutes it administers. HRS legitimated that non-rule interpretation by building a record foundation of evidence to support its sound policy reasons for that choice of meaning, fully satisfying APA disciplines on agency policy-making within statutory bounds. Ordinarily, therefore, I would unhesitatingly affirm the department’s resulting order. However, I am persuaded to concur in the result in this case because the 1982 legislature exercised its undoubted power to veto the department’s position by changing the substantive law on which it rested.

Gulf Coast proposes to build a 116-bed “osteopathic” hospital in Lee County at a cost projected in 1978 to be $12.8 million. Its application for a certificate of need for this project, required by section 381.494, Florida Statutes, was rejected both by the regional health systems agency, making the initial recommendation under section 381.-494(6), and by the department on reviewing the recommendation under section 381.-494(7)(c). Those agencies concluded that there is no need for this hospital because similar services are available in existing inpatient facilities and because there are less costly and more appropriate alternatives to the project, two of the many statutory criteria to be considered by the health systems agency and the department in determining whether to issue a certificate of need.

At the section 120.57 hearing challenging this decision, Gulf Coast took the position that those general statutory criteria for issuing a certificate of need did not apply to its application to build an “osteopathic faeility.” It contended that, since section 381.-494(2) requires the department to determine “the need and availability in the community for osteopathic services and facilities,” the only pertinent consideration is whether the area contains a subpopulation of osteopaths who are without “their own” hospital to which to send patients. If that is the case, the osteopaths said, the department must authorize a new osteopathic hospital without regard for the number of unused beds in existing hospitals characterized as non-osteopathic.

HRS adduced proof that there are few, if any, significant physical differences between “osteopathic” and “non-osteopathic” hospitals. The record also establishes that in 1983 the four non-osteopathic hospitals operating in Lee County — all managed by M.D. physicians — will have 265 “excess” hospital beds. In light of the surplus of beds suitable for osteopathic hospital care, HRS found that Gulf Coast could not satisfy general certificate of need criteria. However, it construed section 381.494(2) as allowing osteopaths their own facility if by reason of discrimination they have no access to an existing non-osteopathic hospital. But, HRS maintained, if osteopaths have access to an existing hospital however denominated, the public has no need to build or buy, with health care dollars, a separate osteopathic hospital. Thus finding that osteopaths are reliably assured of nondiscriminatory access to one or more existing Lee County hospitals, HRS found no need for another new hospital under section 381.-494(2).

This view of the statute, adopted in the recommended and final order, is a thoroughly sensible interpretation by the agency charged by the legislature with the formulation of health planning policies within general statutory bounds. As the state health planning agency, HRS is designated the “provider of information, consultant, stimulator, and advisor to all health care institutions, health service providers, hospices and consumers” participating in the required process of deciding when new health services are needed. The legislature has commanded the department and health systems agencies to give “[e]very consideration ... to the elimination of unnecessary duplication of health services.” Even if a health systems agency finds a need for a new service, it is directed “to consider available alternatives to meet the needs.” (emphasis supplied) Section 381.493(2), Fla.Stat. (1979). When considering an application to construct or expand inpatient facilities, such as hospitals particularly, the health systems agencies and HRS must make specific findings of whether the proposed new project would duplicate existing facilities.

And so of course unused beds in existing hospitals are pertinent to the “need” for a new hospital; of course it is pertinent that osteopaths have access to those beds, or do not. Seen in this light, the task before the department, and now before us in reviewing the department’s work, is not simply a dry exercise of abstracting from section 381.494(2) one exclusive meaning, as a matter of law, for the words “osteopathic services and facilities.” In construing these words, the department was necessarily engaged in formulating “policy within the agency’s exercise of delegated discretion.” Section 120.68(7), Fla.Stat. Recognizing that, the judiciary must defer to the constitutional role of the executive branch and to the interpretative authority of its agencies. E.g., School Board of Leon County v. Hargis, 400 So.2d 103, 109 (Fla. 1st DCA 1981); Cenac v. Florida State Board of Accountancy, 399 So.2d 1013, 1018 (Fla. 1st DCA 1981); Smith v. School Board of Leon County, 405 So.2d 183, 185 (Fla. 1st DCA 1981); Hartnett v. Department of Insurance, 406 So.2d 1180, 1184 (Fla. 1st DCA 1981); Ortega v. Owens-Corning Fiberglas Corp., 409 So.2d 530, 532 (Fla. 1st DCA 1982).

So, too, if the question is phrased as one of statutory interpretation, the agency’s interpretation must prevail where, as here, the agency has built a record foundation of proof from its own experts and others supporting the cost-containment rationale for its non-rule interpretation. Florida Cities Water Co. v. Florida Public Service Commission, 384 So.2d 1280, 1281 (Fla.1980); Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177, 1182-83 (Fla. 1st DCA 1981). The contemporaneous construction of a statute by the executive officials who administer it should be rejected only if clearly erroneous. King v. Seamon, 59 So.2d 859 (Fla.1952); ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981).

Despite any prior department history of having maintained separate certificating systems for osteopathic hospitals and other kinds, the department was surely entitled to recognize the need for a different view of the statute when the legislature in 1979 explicitly prohibited hospitals from denying privileges to osteopaths solely because they follow a different school of medicine. Section 395.0653(1), Fla.Stat. (1979); Sarasota County Public Hospital Board v. Shahawy, 408 So.2d 644, 646 n. 1 (Fla. 2d DCA 1981). See also Hackett v. Metropolitan General Hospital, 422 So.2d 986 (Fla. 2d DCA 1982) (osteopathic hospital denying privileges to M.D.). HRS surely was entitled to decide that section 381.494(2) should not be employed to perpetuate old discriminatory practices now prohibited, practices fostered by duplicating separately staffed hospitals so that both doctors of medicine and doctors of osteopathy may have “their own.”

Absent any further legislative direction, I would conclude that the majority has failed to give due credence to the agency’s authority, and to the administrative process that was legislatively created and judicially refined with some care, to assure that agencies act deliberately, responsibly and with regard for competing interests. HRS most certainly observed APA disciplines in entering its October 1979 order.

However, on decisions of statutory purpose and agency policy the legislature always holds a trump, which is to amend the substantive statute. That is precisely what the 1982 legislature did, April 21, 1982, while this appeal was pending. Section 395.011(6), Florida Statutes (1982 Supp.), effective October 1, 1982, now provides:

Nothing herein shall be construed by the department [HRS] as requiring an applicant for a certificate of need to establish proof of discrimination in the granting of or denial of hospital staff membership or professional clinical privileges as a precondition to obtaining such certificate of need under the provisions of s. 381.494(2).

Since the HRS order on appeal essentially requires proof of discrimination against osteopaths by an existing hospital before a separate osteopathic hospital will be authorized under section 381.494(2), this new legislation quite obviously changes the predicate of the department’s position as expressed in its final order filed October 31, 1979. The legislature presumably acted in direct response to the department’s order, previously published in 1 FALR A-1368. Unlike the majority, I think the department’s process was entirely appropriate and the action taken was well within the department’s prerogatives when taken; but the legislature has simply exercised its trumping prerogative to change significantly the law governing the issuance of this license.

In these circumstances, Gulf Coast is entitled to a final decision in accord with the law now in effect, and no purpose would be served by returning the case to the depart ment for further consideration.

I therefore agree that the order must be reversed and remanded for the department’s consideration and determination of the size of the facility Gulf Coast is to be authorized to build.

      . Webster’s Third New International Dictionary, Unabridged, at 812:
      Facility ... something (as a hospital ...) that is built, constructed, installed or established to perform some particular function or to serve or facilitate some particular need.

      . Fla.Admin.Code Rule 10-5.10(11):
      When an application is made for a certificate of need to construct or expand an osteopathic health care facility, the need for such facility shall be determined on the basis of the need and availability in the community of osteopathic services and facilities, (emphasis added)
      Rule 10-5.02(8):
      Health care facility includes hospitals, skilled nursing homes, intermediate care nursing homes, intermediate care facilities for the mentally retarded, ambulatory surgical centers, and chronic renal dialysis centers, (emphasis added)
      Sections 394.455(10) and (14), Florida Statutes, define “facility” and “private facility,” respectively, to mean a hospital. Further definitions of “hospital” are found in Section 395.-01(1) and 394.455(1).

      . Subsections 1, 3 and 5 of Section 459.021, Florida Statutes, provide that:
      (1) Any person who holds a degree of Doctor of Osteopathy from a college of osteopathic medicine recognized and approved by the American Osteopathic Association who desires to serve as a resident or as an intern in an osteopathic hospital shall apply to the Department for a certificate of registration. Upon certification by the Board that the applicant holds a valid degree and that the hospital where he intends to serve is approved by the Bureau of Hospitals of the American Osteopathic Association, the Department shall issue the certificate, (emphasis added)
      (3) Every osteopathic hospital having a resident or intern training program shall furnish in January and July of each year, to the Department a list of all residents and interns who have served in the hospital during the preceding six-month period, (emphasis added)
      (5) It is hereby constituted a misdemeanor ... for any osteopathic hospital ..

      (a) To employ the services in the hospital of any person as an intern or as a resident, unless such person is the holder of a valid certificate under the law or the holder of a license to practice osteopathic medicine under this chapter.

      . Since 1961, there have been 18 osteopathic hospitals in Florida, a number which has remained unchanged at least through 1981. 1 Lawyer’s Medical Cyclopedia § 1.19 (1966); 1 Lawyer’s Medical Cyclopedia § 1.19 (3d Ed. 1981). A list of licensed hospitals for 1978-79 published by the Department of HRS Office of Licensure and Certification, shows 18 osteopathic hospitals in this state, located in the eight most populous counties. There is no osteopathic facility presently in Planning District 6 (Polk, Hardee, Desota, Highlands, Sarasota, Charlotte, Glades, Hendry, Lee and Collier Counties), which includes the immediate area to be served by the proposed hospital.

      . For instance, HRS contends that there is only one type of certifícate of need and only one license, which is for all acute care facilities or hospitals. However, it is undeniable that the certification proceeding encompasses a number of “types of hospitals.” See § 395.07, Fla.Stat. Further, the statute here in question, § 381.494(2), states at the outset that it applies “when an application is made for a certificate of need to construct or to expand an osteopathic facility.” In the instant case, the application begins with this qualification, thereby bringing into play the specific requirements of § 381.494(2).

      . The record establishes that Florida is one of eight states which has adopted a statute requiring separate consideration of osteopathic facilities when determining need and availability of medical facilities in an area. Testimony at the hearing below described legislation then pending in the United States Congress at the time of the hearing which would require separate consideration of the facilities needed for osteopathic and allopathic medicine. That legislation has subsequently been adopted and will apply to states seeking federal funds for medical facilities. 42 U.S.C. § 300m-6(f).

      . § 459.002(3), Fla.Stat.:
      “Practice of osteopathic medicine” means the diagnosis, treatment, operation or prescription for any human disease, pain, injury, deformity or other physical or mental condition, which practice is based in part upon educational standards and requirements which emphasize the importance of the mus-culoskeletal structure and manipulative therapy in the maintenance and restoration of health.
      Osteopathic physicians are licensed under Ch. 459.

      . Allopathy is defined in Webster’s Third New International Dictionary as “a system of medical practice that aims to combat disease by use of remedies producing effects different from those produced by the special disease treated.”
      Doctors of medicine are licensed under Ch. 458, Fla.Stat.

      . The record is replete with instances of discrimination against osteopaths and extreme diversity between osteopaths and allopaths existing at the time the letter of intent was filed August 1, 1978, and continuing at the time of the hearings, April-July, 1979. A few examples follow:
      James Steven, the Administrator of Lehigh Acres General Hospital, when asked if Dr. Lip-man, an osteopath, was rejected by Lehigh Acres on September 5, 1978 for staff privileges because he was an osteopath, testified:
      That was never said, but I believe that was probably correct. I think it is probably generally conceded in this hearing that the issue of allopathic and osteopathic physicians is an extremely divisive one in this part of the country and perhaps in other parts of the country, (emphasis added)
      Dr. Laboda, one of the founders of Fort Myers Community Hospital and an allopathic physician, was asked:
      Q Why did you wait to act on it [application for staff by Dr. Picola, osteopath, initially filed in 1974 and not acted on until September of 1978, after the certificate of need application was filed in this case] until you did?
      A Because of our fear of alienating the medical staff.... This has been a very difficult problem in the medical community here in Lee County and we need the support of our medical staff to run the hospital. And we are not in a position, particularly as a new hospital ..., to alienate a large majority of our medical staff.
      Testifying further regarding disparaging remarks made in existing hospitals about osteopaths and the difficulty of controlling the attitude of employees in those institutions who make these remarks in the presence of patients, Dr. Laboda stated:
      But it is difficult, well difficult is not the word, but it has been an impossible situation in the other hospitals (Cape Coral and Lee Memorial) as well as in this department as to open staff. There have been heated feelings. The medical staff at Cape Coral have a very heated feeling about it and it wouldn’t surprise me if those remarks [derogatory remarks about osteopaths] were made in the emergency room, (emphasis added)
      Dr. Centafont, who is the only osteopathic physician accorded active staff privileges at any of the four allopathic hospitals in Lee County, testified as to his difficulty in obtaining sponsorship:
      A ... I was first admitted to the staff — 1 received my letter of notification in August of ’77, but I was not able to admit any patients to the hospital until November of 1977.
      Q Why was there such a long lapse between your official appointment and being able to admit patients?
      A It was great difficulty in being able to obtain sponsors, people who would be sponsors for me in the hospital.

        Q What are sponsors?
      A Sponsors usually are physicians on the staff who oversee the work of the new physician and help to guide him in the hospital procedures and to see if he is indeed carrying on his work in a competent manner.
      Q Okay. What was the difficulty in your obtaining the sponsors?
      A No one would volunteer.
      Q Is that the usual procedure?
      A Apparently in Lehigh Acres that was the usual procedure that sponsors usually volunteered. It got to the point where no one was volunteering and so I had to go out and solicit physicians myself to act as my sponsors.
      Q And what type physicians finally consented to be your sponsors?
      A A pathologist, a urologist and a radiologist.
      Q Was that particularly helpful in your practice or, was that within the scope of your practice?
      A Well they are not family practitioners as I am, and I had to take what was available.
      Regarding the present attitude of the staff at Lehigh towards Dr. Centafont, the doctor was questioned as follows:
      Q What is the attitude of the staff towards you? Are they friendly and cooperative or do they treat you in any way different than your allopathic colleague, or their allopathic colleagues?
      A There is a difference in their attitude.
      Q That’s what I mean.
      A There is a, quite a free interchange between all of the allopathic physicians and, there is a coolness in attitude towards me.

      . The applicant in the instant case has proved, inter alia, discrimination and lack of sympathetic treatment received by osteopathic physicians and patients in existing hospitals and that there are, conservatively, more than 23,000 osteopathic patients in the immediate service area as well as at least seven practicing osteopathic physicians in Lee County who need the proposed hospital. The record also shows that there are no existing facilities in Lee County meeting the definition of an osteopathic facility.

      . HRS and the intervenor have shown that two of four non-osteopathic facilities have recently made available opportunities to oesto-paths to be admitted to staff privileges. HRS has not shown that the concessions made, and promised to be made, by existing facilities constitute the equivalent of an “osteopathic facility.” The contention is rather that, despite the statute, there should be no distinction between the two schools of medicine and no distinction between hospitals devoted to either school of medicine and that osteopaths should be required to use the existing non-osteopathic facilities so long as there are extra patient beds available in those facilities.

      . The undersigned Hearing Officer concludes that the respondent’s [HRS] interpretation of § 381.494(2) is the correct one. Where an area is already overbedded, an applicant for a new 116-bed osteopathic hospital must demonstrate that osteopathic services and facilities are not otherwise available in the community. To adopt the petitioner’s construetion of the statute would be contrary to the purpose and intent of the certificate of need law, and would authorize the construction of an osteopathic hospital in every community in which one did not presently exist.

      The proper issue is whether other facilities in the area are available to osteopathic physicians. The evidence establishes that they are and this fact cannot be erased or negated by the unwillingness of the D.O.’s to avail themselves of the use of such facilities, (emphasis added)

      .On the contrary, the testimony of Art Forehand, Administrator of the Office of Community Medical Facilities, Department of HRS, is that this is the first application for the construction of a new osteopathic hospital he has seen under § 381.494(2), Fla.Stat., effective October 1, 1975.

      . This finding is more than amply supported by the record. Merely a few examples of discrimination are cited in Footnote 7, supra.

      . § 395.0653, Fla.Stat., provides, in pertinent part, that:
      (1) Any hospital licensed under this chapter in considering and acting upon applications for staff membership or professional clinical privileges shall not deny the application of a qualified doctor of medicine licensed under Chapter 458, doctor of osteopathy licensed under chapter 459, doctor of dentistry licensed under chapter 466, or doctor of podiatry licensed under chapter 461 for such staff membership or professional clinical privileges within the scope of his respective licensure solely because the applicant is licensed under any of said chapters.
      (2) Nothing herein shall restrict in any way the authority of the medical staff of the hospital to review for approval or disapproval all applications for appointment and annual reappointment to all categories of staff and make recommendations on each to the governing authority, including delineation of privileges to be granted in each case. In making such recommendations and in delineation of privileges, each applicant shall be considered on an individual basis pursuant to criteria applied equally to all other disciplines.

      . It is hoped that § 395.0653, Fla.Stat., will improve relations between the two schools of medicine, a hope which is not supported by the past history of such legislation, unfortunately. For instance, in Munroe v. Waugh, 66 N.M. 15, 340 P.2d 1069, 1071 (1959), the court held that:
      Based upon the history of the osteopathic statutes, a fair analysis of the statute in question would be that the first paragraphs thereof place osteopaths on equal footing with medical doctors, but that a third paragraph reserves to the governing boards of public hospitals full control over the making of regulations to determine who should be on staff, irrespective of the so-called rights given to osteopaths.
      The court in the Munroe v. Waugh case, supra, cited with approval the decision of the Florida Supreme Court in Richardson v. City of Miami, 144 Fla. 294, 198 So. 51, 56 (1940), wherein the court held that a municipal hospital could by regulation expressly preclude osteopaths from practice despite the revisions of Fla.Stat.Acts 1927, Ch. 12287, § 13:
      Osteopathic physicians and surgeons licensed hereunder shall have the same rights as physicians and surgeons of other schools of medicine with respect to the treatment of cases and the holding of offices in public institutions.

        See also, “Exclusion of or Discrimination Against Physician or Surgeon by Hospital Authorities,” 24 A.L.R.2d 850, and “Exclusion of or Discrimination Against Physician or Surgeon by Hospital,” 37 A.L.R.3d 645.
      Initially, it must be noted that § 395.0653, Fla.Stat., does not ensure to any degree that an applicant will be admitted to staff privileges in a hospital. The only requirement is that the hospital, “[i]n considering and acting upon” applications, not deny the application because of the particular school of medicine of the applicant. The second paragraph of that statute ensures continued control by the hospital staff over approval and disapproval of applications. Such statutes have in the past proved extremely difficult to enforce by an individual applicant. As summarized in Vol. 1 of Lawyer's Medical Cyclopedia § 1.19:
      Statutes exist in a number of states which in substance provide: “No preference shall ever be given to any school of medicine” or “in the management of any public hospital, no discrimination shall be made of any school of medicine recognized by the laws of the state, and all such legal practitioners shall have equal privileges in the treating of patients in such hospitals.” •
      In view of the differing opinions of the Supreme Court interpreting nondiscrimination statutes, all that may be said with safety is that a majority of the courts which have considered such statutes have concluded that such language does not require the admission of osteopaths to medical staff privileges.

      . Gulf Coast’s application and testimony presented showed that it is Gulf Coast’s intent to be established as, and that there is a need for, a teaching institution for osteopathic medicine. The 1979 version of § 381.496(6)(c)6 provided that, when evaluating a certificate of need, consideration should be given to, among other things, “the need for research and educational facilities.” The current version of the statute defines that consideration as “[t]he need for research and educational facilities, including, but not limited to, institutional training programs for doctors of osteopathy and medicine at the student, internship and residency training levels.” HRS presented no testimony that the need for educational facilities for osteopaths can be or are being met in any of the four non-osteopathic facilities.

      . Change in the numbers of proponents of the application also affected the projected patient count relied on by expert witnesses.

      . Section 381.494(6), Fla.Stat. (1979), provides in part:
      (6) FUNCTION OF HEALTH SYSTEMS AGENCY.—
      (a) The health systems agency, upon commencement of the review period on a proposal, shall make such investigations and inquiries as necessary to enable it to make a recommendation to the department for approval or denial of a certificate of need.
      The regional health systems agencies are comprehensive health planning councils made up of both consumers and providers of health services. Section ?.81.393(3)(h), Fla.Stat. (1979).

      . Section 381.494(6)(c), Fla.Stat. (1979), requires consideration of the following criteria:
      1. The need for health care facilities and services and hospices being proposed in relation to the applicable health systems plan, annual implementation plan, and state medical facilities plan adopted pursuant to Titles XV and XVI of the Public Health Service Act.
      2. The availability, accessibility, extent of utilization, and adequacy of like and existing health care services and hospices in the applicant’s health service area.
      3. The availability and adequacy of other health care facilities and services and hospices in the applicant’s health service area, such as outpatient care and ambulatory or home care services, which may serve as alternatives for the health care facilities and services to be provided by the applicant.
      4. Probable economies and improvements in service that may be derived from operation of joint, cooperative, or shared health care resources.
      5. The need in the applicant’s health service area for special equipment and services which are not reasonably and economically accessible in adjoining areas.
      6. The need for research and educational facilities.
      7. The availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishments and operation.
      8. The immediate and long-term financial feasibility of the proposal.
      9. The special needs and circumstances of health maintenance organizations for which assistance may be provided under Titie XIII of the Public Health Service Act.
      10. The needs and circumstances of those entities which provide a substantial portion of their services or resources, or both, to individuals not residing in the health service area in which the entities are located or in adjacent health service areas. Such entities may include medical and other health professions, schools, multidisciplinary clinics, and specialty services such as open heart surgery, radiation therapy, and renal transplantation.
      11. The probable impact of the proposed construction project on the costs of providing health services by the applicant.
      12. The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective, methods of construction.
      See also Rule 10—5.11(1)—(12), Fla.Admin.Code.

      . Although the question of whether an osteopathic “facility” may consist of something less than a free-standing hospital may not have been fully articulated on appeal, appellee Fort Myers Community Hospital’s attorney clearly took the position below that a manipulative medicine department for osteopaths within an existing non-osteopathic hospital would be a reasonable alternative to a completely new $12.8-million building.

      . The differences, as articulated in the hearing officer’s recommended order fully supported by substantial competent evidence, were as follows:
      The only real difference in the physical plants of allopathic [non-osteopathic] and osteopathic hospitals are the treatment rooms for manipulative medicine. Many D.O.’s do not practice manipulative medicine and only ten to fifteen percent Of those who do require a hospital setting. There is some small difference in the medical charts used by D.O.’s with regard to a space for the structural examination. Otherwise, there is no substantial difference in the day-to-day function or operation of an osteopathic hospital.
      The administrator of Fort Myers Community Hospital testified that he would purchase any equipment requested by osteopaths for manipulative treatment, at a possible cost ranging from several hundred to several thousand dollars.

      .The federal health planning regulations note:
      There is general agreement that the number of general hospital beds in the United States is significantly in excess of what is needed and that utilization of acute in-patient care resources is often higher than necessary. Excess bed capacity and use contribute to the high cost of hospital care with little or no health benefits. Empty beds are often filled by patients who could be cared for as well or better in less expensive ways, such as ambulatory care or home care. 42 CFR § 121.201(b)(1981)
      Representatives of the existing Fort Myers hospitals testified that they would have to raise their rates if Gulf Coast built a new hospital further decreasing use of their extra beds.

      . “In cases of capital expenditure proposals for the provision of new health services to inpatients,” a health systems agency must justify the project on the following additional grounds under section 381.494(6)(e), Fla.Stat. (1979):
      1. That less costly, more efficient, or more appropriate alternatives to such inpatient services are not available and the development of such alternatives has been studied and found not practicable.
      2. That existing inpatient facilities providing inpatient services similar to those proposed are being used in an appropriate and efficient manner.
      3. That, in the case of new construction, alternatives to new construction, e.g., modernization or sharing arrangements, have been considered and have been implemented to the maximum extent practicable.
      4. That patients will experience serious problems in obtaining inpatient care of the type proposed, in the absence of the proposed new service.
      5.That, in the case of a proposal for the addition of beds for the provision of skilled nursing or intermediate care services, the addition will be consistent with the plans of other agencies of the state responsible for the provision and financing of long-term care, including home health services.
      The department may not issue the certificate unless those additional findings are documented in writing. Section 381.494(7)(c), Fla.Stat. (1979).

      . The 1982 legislature amended section 395.-0653, Fla.Stat., to prevent hospitals from using a more subtle form of discrimination against osteopaths by limiting staff privileges to those who have participated in residency programs established by the American Medical Association, typically M.D.s. Section 395.011(2), Fla.Stat. (1982 Supp.), the renumbered antidiscrim-ination statute, provides that a hospital may not require an AMA-sponsored graduate education as a precondition to obtaining staff privileges unless it also makes such privileges available to those who have completed similar programs sponsored by the American Osteopathic Association. Section 395.011(3) spells out criteria to be used in determining whether to grant privileges in an individual case. For discussion of the need for these changes in the anti-discrimination statute, see Staff of the Florida House of Representatives Committee on Regulatory Reform, Sunset Review of Chapter 395, Part I, Florida Statutes, General Provisions of Hospital Licensing and Regulation, 47-48, 69-70 (1982).

      . Ch. 82-182 §§ 26, 31, Laws of Fla.