author: MOORE, Judge.

text:
    The SCHOOL BOARD OF BROWARD COUNTY, Florida and Pacific Indemnity Insurance Company, a foreign corporation, Appellants, v. Virginia L. SURETTE, as administratrix of the Estate of Diane Surette, deceased, Joan M. Galiardo and Liberty Mutual Insurance Company, a foreign corporation, Appellees.
    No. 78-191.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1981.
    Rehearing Denied March 16, 1981.

      William S. Gardella of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, and James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellants School Board of Broward County and Pacific Indemnity Ins. Co.
    Frank E. Maloney, Jr., and Paul R. Re-gensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees/cross appellants, Joan M. Galiardo and Liberty Mutual Ins. Co.
    Edward A. Perse of Horton, Perse & Ginsberg, Miami, and Robert M. Sussman, Miami, for appellee, Virginia L. Surette.
   MOORE, Judge.

The tragedy in this case has spawned a number of cases in the trial court as well as a number of appeals and petitions in the appellate system. The appellees’ decedent, Diane Surette, age thirteen, was struck by an automobile owned by Arthur Galiardo, Jr. and driven by Joan Galiardo on September 15, 1971 while she was waiting for a school bus. She passed away twenty-nine days later.

Two suits were commenced as a result of this unfortunate accident. In Case No. 1, Virginia and Gilbert Surette, as parents of the decedent, sued the School Board of Bro-ward County, its insurer, Pacific Indemnity Insurance Company, Joan Galiardo, her insurer, Liberty Mutual Insurance Company, and others who are not parties to this appeal. The parents sought damages pursuant to Section 768.03, Florida Statutes (1971) for the wrongful death of their minor child. Although this case is not before us, we will necessarily refer to it as Case No. 1 in this opinion.

In Case No. 2, Virginia Surette, as admin-istratrix of the Estate of Diane Surette, sued the School Board, Pacific Indemnity, Arthur and Joan Galiardo, Liberty Mutual and others who are not parties to this appeal. In a single complaint damages were sought for the wrongful death of Diane pursuant to Section 768.02, Florida Statutes (1971) and for survivorship damages pursuant to Section 46.021, Florida Statutes (1971). A jury returned a verdict in favor of the plaintiff against the School Board, Pacific Indemnity, Joan Galiardo and Liberty Mutual. The jury found the School Board 50% negligent, Joan Galiardo 15% negligent, and the decedent 35% negligent. Wrongful death damages were found to be $25,000 and the survival action damages were found to be $121,000. After an appropriate final judgment was entered, the School Board and Pacific Indemnity appealed. We affirm the judgment against the School Board and Pacific Indemnity. Gal-iardo and Liberty Mutual cross-appealed and we reverse the judgment against Gal-iardo and Liberty Mutual.

The School Board and Pacific Indemnity argue four grounds for reversal of the final judgment. They contend that the Pacific Indemnity Insurance Policy was a general comprehensive liability policy which specifically excluded liability for bodily injury arising out of the ownership, maintenance, operation, use and loading and unloading of school busses. In this regard, they contend the trial court erred in not severing Pacific Indemnity as a defendant pursuant to Fla. R.Civ.P. 1.270(b) because there was a genuine and justiciable issue concerning insurance coverage. Their second ground for reversal is the alleged error in denying their motion to sever the insurance company and suppress any mention of insurance coverage to the jury pursuant to Section 234.03(4), Florida Statutes (1973). The appellants’ next contention is that the trial court erred in admitting the expert testimony of a safety engineer in proof of the Board’s negligence in the selection and maintenance of the school bus stop. Their final contention is that the evidence was insufficient, as a matter of law, to establish a breach of any duty owed by the School Board to the decedent. Rather, they contend the evidence established, as a matter of law, that the proximate cause of the accidental death was the intervening negligence of Galiardo and the decedent.

On the cross-appeal, Galiardo and Liberty Mutual contend that the trial court erred in denying their motion to dismiss the survival action because the statute of limitations had run prior to the commencement of the action.

I.

The School Board had a policy of insurance with Continental Casualty Insurance Company which provided coverage for injuries arising from the ownership, maintenance, operation, or use of school busses and other vehicles while transporting pupils to and from school. This policy was designed to provide coverage concomitant with the School Board’s waiver of sovereign immunity pursuant to Section 234.03(4), Florida Statutes (1971). The appellants contend that if the School Board is liable, its liability is covered under the Continental policy as opposed to the Pacific Indemnity policy. This contention is erroneous. As we opined in Surette v. Galiardo, 323 So.2d 53 (Fla. 4th DCA 1975) in discussing the Pacific policy:

The record reflects that the school board purchased a comprehensive general liability insurance policy from Pacific Indemnity which provided for bodily injury and property damage liability coverage for an “occurrence” which was defined to embrace “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured .... ”
The policy in question specifically excluded bodily injury or property damage liability arising out of the ownership, maintenance, operation or use of any automobile owned, leased or operated by the school board. Clearly, therefore, as the trial court correctly observed, the policy in question did not cover an accident resulting from an automobile (or bus) owned, leased or operated by the school board. However, the circumstances in the instant case do not involve the ownership, maintenance, operation, use, loading or unloading of a school bus. The plaintiff’s minor child was allegedly struck and killed by an automobile driven by one Joan Galiardo who had no relation to the school board or any of its activities. The presence of the school board and its insurer in the action below was not occasioned by the ownership, maintenance, operation, use, loading or unloading of a school bus, but, rather, by the school board’s alleged negligence in its selection, designation, location and maintenance of school bus stop sites. Id. at 55-56.

Thus, although we decline to expressly hold that the Pacific policy provided coverage for the accident involved here, we certainly intimated that the language of that policy was sufficiently broad to encompass this accident. Since we are now asked to determine coverage, we hold that the Pacific Indemnity policy issued pursuant to the Board’s waiver of immunity under Section 455.06, Florida Statutes (1971), provided coverage for the alleged injuries. We therefore find no merit in the appellants’ arguments that severance should have been granted pursuant to Fla.R.Civ.P. 1.270(b). Severance under the rule is a discretionary matter and the decision of the trial court will not be disturbed absent a clear showing of an abuse of discretion. That showing is conspicuously absent in this case.

II.

Our determination of appellants’ next contention necessitates a brief summary of the parallel courses which these cases have taken through the courts.

In Case No. 1, Pacific Indemnity moved for severance pursuant to Section 455.06(2), Florida Statutes (1971) which provides for the waiver of governmental immunity of political subdivisions of the State to the extent of their insurance coverage, and prohibits the suggestion of such coverage in any trial. The trial court held Section 455.-06(2) unconstitutional and Pacific Indemnity sought common law certiorari review in this Court. We transferred the cause to the Florida Supreme Court. School Board of Broward County v. Surette, 277 So.2d 604 (Fla. 4th DCA 1973). The Supreme Court affirmed the trial court holding Section 455.06(2) unconstitutional to the extent that it prohibited the suggestion of insurance coverage. School Board of Broward County v. Surette, 281 So.2d 481 (Fla.1973).

Trial then commenced in Case No. 2. A direct verdict was entered in favor of the School Board and Pacific Indemnity; the plaintiff thereupon voluntarily dismissed her claim against the Galiardos and Liberty Mutual. The final judgment which was entered pursuant to the directed verdict was reversed by this Court and the cause was remanded for a new trial. Surette v. Galiardo, 323 So.2d 53 (Fla. 4th DCA 1975), cert. denied, 339 So.2d 194 (Fla.1976).

In Case No. 1, the School Board and Pacific filed a renewed motion to sever the insurance company and to suppress the mention of insurance, notwithstanding the Supreme Court’s prior ruling. They contended that Carter v. Sparkman, 335 So.2d 802 (Fla.1976) impliedly overruled the Supreme Court’s prior holding in School Board v. Surette, 281 So.2d 481 (Fla.1973) and that Carter should control the disposition of their motion. After the trial court held that the principle of law announced in School Board v. Surette, 281 So.2d 481 (Fla.1973) was the established and controlling law of the case, a direct appeal was taken to the Supreme Court. The trial court was affirmed, the Supreme Court stating:

This marks the third appearance of this cause in this Court. School Board of Broward County v. Surette, 281 So.2d 481 (Fla.1973); School Board of Broward County v. Surette, 339 So.2d 194 (Fla. 1976). The occasion for its most recent visit stems from an order entered by the Circuit Court of the Seventeenth Judicial Circuit for Broward County, Florida, ruling upon a motion by the appellants to suppress and to sever. By their motion appellants urged that the appellant insurance carrier named in the third amended complaint be severed from the trial “and/or” any mention of insurance to the jury be suppressed. Appellants contended that such result is compelled by the provisos contained in Sections 234.03(4) and 455.06(2), Florida Statutes (1975).. ..
Although jurisdiction vests in this Court by virtue of the trial court’s ruling upon the constitutionality of the indicated sections of the Florida Statutes, we do not deem it necessary or appropriate to reach the constitutional issue presented. This is so because the trial court was eminently correct in determining that our decision in School Board of Broward County v. Surette, 281 So.2d 481 (Fla.1973), established the law of the case in this cause which is unaffected by our decision in Carter v. Sparkman, supra. See Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976); Harwell v. Sheffield, 112 So.2d 377 (Fla.1959); 2 Fla.Jur. Appeals § 398 (1963).
School Board of Broward County v. Surette, 348 So.2d 301 (Fla.1977).

Appellants now argue that the Supreme Court’s decision reported at 281 So.2d 481 does not operate as the “law of the case” in Case No. 2 (the present action). It is therefore argued that the trial court should have granted appellants’ motion to sever and suppress mention of insurance coverage pursuant to Section 234.03(4), Florida Statutes (1973) which states:

(4) WAIVER OF IMMUNITY. — In consideration of the premium at which each policy shall be written it shall be a part of the policy contract between the company and the named insured that the company shall not be entitled to the benefit of the defense of governmental immunity for the insured by reason of exercising a governmental function on any suit brought against the insured. Immunity of the school board against liability damages is waived to the extent of liability insurance carried by the school board. Provided, however, no attempt shall be made in the trial of any action against a school board to suggest the existence of any insurance which covers in whole or in part any judgment or award which may be rendered in favor of the plaintiff, and if a verdict rendered by the jury exceeds the limit of the applicable insurance, the court shall reduce the amount of said judgment or award to a sum equal to the applicable limit set forth in the policy. (Emphasis supplied).

Thus, the language of Section 234.03(4) prohibiting the suggestion of insurance coverage at trial is identical to the language of Section 455.06(2). Although the Supreme Court in School Board v. Surette, 281 So.2d 481 (Fla.1973) was concerned only with the constitutionality of Section 455.06(2), we are constrained by the language employed by the court in School Board v. Surette, 348 So.2d 301 (Fla.1977) to hold that the former decision is also the “law of the case” in the present case. At 348 So.2d 301, 302, the Supreme Court stated that “This marks the third appearance of this cause in this Court.” The Court then cited the previous two appearances as School Board v. Surette, 281 So.2d 481 (Fla.1973) (Case No. 1) and School Board v. Surette, 339 So.2d 194 (Fla.1976) (Case No. 2). Thus, the Supreme Court has considered both Case No. 1 and Case No. 2 to be parts of the same cause and has held that the decision at 281 So.2d 481 is the “law of the case” as to that cause. See, School Board v. Surette, 348 So.2d 301 (Fla.1977) at 303. Therefore, even though the suggestion of insurance coverage may be prohibited under either Section 234.03(4) or Section 455.06(2), the law of this case is otherwise pursuant to School Board v. Surette, 281 So.2d 481 (Fla.1973).

The trial court was therefore correct in denying appellants’ motion to sever and suppress the mention of insurance coverage.

III.

Appellants’ third point of error concerns the admission of testimony of a safety engineer to establish the dangerous condition of the school bus stop. An expert’s testimony is admissible if the subject about which he testifies is beyond the common understanding of the average layman and the witness has such knowledge as will assist the jury in arriving at the truth. Buchman v. Seaboard Coast Line R. Co., 381 So.2d 229 (Fla.1980). Considering these criteria, we find the trial court correctly admitted the testimony of the safety engineer in this case. Moreover, we are persuaded that even if it was error to allow the introduction of expert testimony, such error was harmless. Improper expert testimony may be considered harmless error where there is other sufficient evidence to justify the jury in reaching the conclusion supported by the opinion of the expert. Hughes v. Canal Insurance Company, 308 So.2d 552 (Fla. 3rd DCA 1975); Seaboard Coast Line R. Co. v. Hill, 250 So.2d 311 (Fla. 4th DCA 1971); Brevard County v. Apel, 246 So.2d 134 (Fla. 4th DCA 1971) and Delta Rent-A-Car, Inc. v. Rihl, 218 So.2d 469 (Fla. 4th DCA 1969).

IV.

The appellants’ final point on appeal is that the trial court erred in denying their motion for a directed verdict because:

(1) The evidence was insufficient, as a matter of law, to establish a breach of any duty owed by the School Board to the decedent; and
(2) The evidence did establish, as a matter of law, that the proximate cause of the accident was not the negligence of the School Board, but rather the efficient and intervening negligence of the driver and the decedent.

Diane Surette died as a result of the injuries she sustained when the automobile driven by Joan Galiardo struck her. At the time of the accident, Diane was standing approximately three feet in the roadway in front of a designated school bus stop at a vacant lot. Joan Galiardo claimed that she was unable to see Diane because she was blinded by the glare of the early morning sun. The plaintiffs’ case was founded upon the negligence of the School Board in designating the particular corner as a school bus stop because the weeds in the vacant lot were overgrown and the lot was in such a debris strewn condition that the students were effectively forced to stand near or on the roadway. The plaintiffs also alleged that a bus driver for the School Board had contributed to the accident by failing to report students standing near or on the roadway on previous occasions which the bus driver witnessed. The plaintiffs also read to the jury numerous statutes and State regulations dealing with the obligation of the School Board to insure a safe bus system. There was also testimony that some parents had complained to employees of the School Board about the hazardous bus stop.

Appellants first argue that there was no evidence that the school bus stop was maintained in an unsafe condition. We find substantial competent evidence to support the plaintiffs’ claim of negligence in this regard. Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977); Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

Appellants next assert that the School Board did not owe a special duty to the decedent, and thus, was shielded from liability under the doctrine of Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967). Although Modlin is of doubtful validity in view of Cheney v. Dade County, 371 So.2d 1010 (Fla.1979), this contention is nevertheless without merit. The decedent was not just a member of the general public; she was a member of a special class of persons, i. e., students to whom the School Board owed a duty to provide a safe transportation system. Under such circumstances, the Modlin doctrine is not applicable.

Appellants finally argue that the trial court should have found, as a matter of law, that the negligent acts of Joan Galiardo were an active and efficient intervening cause which broke the chain of causation initiated by the appellant Board. We summarily reject this contention under the facts of this case.

Accordingly, for all of the foregoing reasons, we affirm the judgment against the School Board of Broward County and Pacific Indemnity Insurance Company.

V.

The cross-appellants, Galiardo and Liberty Mutual, contend the trial court erred in denying their motion to dismiss the plaintiffs’ complaint as it related to the survival cause of action. We are concerned only with the survival cause of action because the trial court properly denied recovery against these cross-appellants on the wrongful death aspects of the complaint.

As grounds for their motion to dismiss, the cross-appellants raised the statute of limitations. The pertinent sequence of events is as follows: Diane Surette was injured in an accident on September 15, 1971. On October 4, 1973, the administra-trix of her estate filed a complaint for wrongful death and survival damages against the School Board, Pacific Indemnity, Joan Galiardo and Liberty Mutual. We have referred to this as Case No. 2. A separate complaint was filed by Diane’s parents for their own pain and suffering and for the loss of support of their minor child. We have referred to this as Case No. 1 which remains pending in the trial court.

Case No. 2 was voluntarily dismissed as to the cross-appellants in June, 1974. Apparently attempting to revive that cause of action, the parents filed a new complaint in August, 1975 wherein they sought damages for their own pain and suffering and for loss of support of their minor child, a complaint identical to the one in the pending Case No. 1. Because it was identical to the pending case, the cross-appellants moved to dismiss the second complaint. That motion was subsequently granted; however, on September 22, 1975, the administratrix of Diane’s estate filed an amended complaint without leave of court wherein the estate sought damages for the decedent’s pain and suffering, loss of prospective earnings, and funeral expenses.

When the survival cause of action arose in 1971, the applicable statute of limitations was four years. § 95.11(4), Fla.Stat. (1971). Thus, the statute of limitations became a bar to the survival action on September 16, 1975, four years after the accident. The “amended complaint” which was filed without leave of court on September 22, 1975 was therefore untimely unless the “relation back doctrine” as stated in Fla.R. Civ.P. 1.190(c) applies. Rule 1.190(c) provides:

(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.

Although amendments should be permitted liberally, one cannot defeat the bar of the statute of limitations by filing a new cause of action labelled as an amended complaint. The rule of liberality does not authorize a new cause of action. Cox v. Seaboard Coast Line R. Co., 360 So.2d 8 (Fla. 2nd DCA 1978); Versen v. Versen, 347 So.2d 1047 (Fla. 4th DCA 1977).

It is obvious that the amended complaint in the present case not only alleged a different cause of action from that alleged in the original complaint, but it was also filed by a different party. The original complaint was filed by the parents of the deceased for their own damages; the amended complaint was filed by the estate for different damages. We hold that the bar of the statute of limitations was apparent on the face of the complaint and the trial court erred by denying the cross-appellants’ motion to dismiss.

Accordingly, the final judgment is reversed as to the cross-appellants, Joan Gal-lardo and Liberty Mutual, and this cause is remanded with directions to enter judgment for the cross-appellants.

AFFIRMED IN PART and REVERSED IN PART.

ANSTEAD, J., and TENDRICH, MOIE, J. L., Associate Judge, concur.

      . The Supreme Court formally receded from its holding in School Board of Broward County v. Surette, 281 So.2d 481 (Fla.1973) in School Board of Broward County v. Price, 362 So.2d 1337 (Fla.1978); however, the Court reaffirmed the Surette holding and confined it to that case only.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John PORTEOUS, II, Appellant, v. Donald W. FOWLER, Jr., and Holly Ann Fowler, Appellees. John PORTEOUS, II, Appellant, v. HARGRAVE YACHT SALES, INC., Appellee. John PORTEOUS, II, Appellant, v. AMERICANA YACHT BROKERAGE, INC., Appellee.
    Nos. 79-749 and 79-2501, 79-1511 and 79-1834, and 79-1813.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1981.
    Rehearing Denied March 10, 1981.

      Paul D. Mark Lucas and Stuart E. Gold-enberg of Hamilton, James, Merkle & Young, West Palm Beach, for appellant.
    Ronald A. Fitzgerald of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees-Donald W. Fowler, Jr. and Holly Ann Fowler.
    W. Peter Burns of Burns, Middleton, Farrell & Faust, Palm Beach, for appellee-Har-grave Yacht Sales, Inc.
    Eugene L. Heinrich of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellee-Americana Yacht Brokerage, Inc.
   PER CURIAM.

We affirm each of the summary final judgments involved in these consolidated appeals, finding that no cause of action was sustained, nor, indeed, stated, as to any of the defendants below and that there are no genuine, material issues of fact.

We reverse the judgments awarding attorneys’ fees on behalf of appellees, Har-grave and Fowler. In each instance the award was based upon Section 57.105 Florida Statutes. The amended complaint was filed in January, 1978, five months prior to the effective date of that statute. We determine that the statute has no retroactive effect, for the reasons expressed in Tuggle v. Government Employees Insurance Company, 220 So.2d 355 (Fla.1969) which involved attorneys’ fees for services rendered in appellate proceedings. That rationale is equally applicable here.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HERSEY and GLICKSTEIN, JJ., and WETHERINGTON, GERALD T., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    G. L. ROYAL, Jr., and Charles F. Royal, d/b/a Charles F. Royal & Son, a partnership, and Bob Bell Construction, Inc., Appellants, v. Oscar CLEMONS, d/b/a Clemons Construction Company, Appellee.
    No. 79-1761.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1981.
    Rehearing Denied March 12, 1981.

      Richard M. Sauls, Okeechobee, for appellants.
    Jeffrey C. Fulford of Adams & Hill, Orlando, for appellee.
   DOWNEY, Judge.

This case involves an appeal from a final judgment foreclosing a mechanics lien and awarding appellee $51,043.15, together with interest, costs and attorney’s fees.

Appellants, G. L. Royal, Jr., and Charles F. Royal, owners of certain real property in Okeechobee County, contracted with Bell Construction Company to build a shopping center on said land. Bell, as general contractor, engaged the services of appellee Oscar Clemons to perform preliminary site preparation by furnishing fill. Clemons prepared a written proposal, signed by Bell, in which Clemons agreed to “strip and haull (sic), sod & muck” and to “haul, grade and compact to specifications” the land fill material removed from borrow pits to the construction site. The proposal indicated that “[approximately 40,000 yards” would be required at 73 cents per yard, for a projected estimated cost of $31,050. This figure was not definite, however, as the agreement further stated that “Upon completion of this job the final measurement will determine total cost of job.”

Clemons began work on the project on December 5, 1977, and last furnished materials and services on February 6, 1978. During the course of the contract, partial payment was made to Clemons in the amount of $23,479.17. The total cost of the work completed was, according to Clemons’ calculation, $80,169.80. Therefore, a balance of $51,883.80 remained due. A dispute arose between the parties as to the meaning of the contract language regarding payment for services rendered. Clemons’ calculations were based upon the total amount of fill removed from the borrow pits; whereas, Bell contended the determination should be made based upon the amount of fill actually compacted in place. The amount due was decidedly different depending on the method of calculation. No further payment was made to Clemons.

Clemons filed a claim of lien on April 25, 1978, and a notice to owner on or about the same date. It is undisputed that the notice to owner was untimely. Notice of commencement was not filed by the owner until June 19, 1978, and thus also exceeded the statutory time period. In July of 1978, Clemons filed his complaint seeking to foreclose his mechanics lien. A transfer bond in the amount of $61,322.29 was posted by Bell in compliance with Section 713.24, Florida Statutes (1977), thereby transferring the claim of lien from the real property to the security.

The two primary issues at trial were the validity of appellee’s mechanics lien and the amount due on the contract. With regard to the latter issue, based on conflicting evidence the trial court found that the parties intended the contract price would be determined by a final measurement of the fill which appellee hauled from the borrow pit. Appellants’ second point on appeal challenges these findings; there is, however, substantial competent evidence in the record to support that finding and thus we must accept it.

With regard to the mechanics lien, the trial judge stated the issue as whether the lien was valid in view of the fact appellee did not timely file his notice to owner pursuant to Section 713.06(2)(a), Florida Statutes (1977). Based on the evidence adduced the trial court found appellee had a valid mechanics lien and that the failure to file the notice to owner simply limited the lien to a fund made up of (a) monies due the general contractor at the time the notice to owner was served and/or (b) improper payments made by the owner prior to that time. Since the evidence showed there was a balance of $1,603,855 due the general contractor from the owner at the time the notice to owner was served, the trial court found there was a sufficient fund remaining in the hands of the owner to cover appellee’s lien and appellee was entitled to a judgment therefor.

The appellants present a threefold challenge to the validity of the statutory mechanics lien. First, appellants contend that Section 713.06(2)(a), Florida Statutes (1977), amended by the Legislature in 1977, as reflected in Chapter 77-353, Section 5, Laws of Florida, precludes recovery on a statutory mechanics lien where the claimant untimely files a notice to owner. This provision, as revised, became effective July 1, 1978, prior to the commencement of this suit. Although the notice to owner was filed before the effective date of the amended statute, appellants maintain that this court must apply the law prevailing at the time of appeal and cite a host of authority for that proposition.

While the above rule of statutory construction is often dispositive of an appellate case, that rule does not apply in this instance. In Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977), the Florida Supreme Court delineated certain standards by which a court can determine whether prospective or retroactive application of a statutory amendment is appropriate. The court reiterated the well known principle that a new law or amendment is presumed to operate only prospectively in the absence of clear legislative expression to the contrary. However, retroactive application is permitted in a limited few cases where the “nature of the statutes involved was inherently procedural or affected only the measure of damages for vindication of a substantive right.” 344 So.2d at 243.

It is the opinion of this court that Chapter 77-353, Section 5, Laws of Florida, the amendment which amends Section 713.-06(2)(a), Florida Statutes (1977), and effectively abrogates one’s right to recover on a statutory mechanics lien where the claimant untimely files the notice to owner, may not be applied retroactively. The Legislature did not incorporate within the statutory amendment a clear expression of intent for retroactive application. More importantly, the amendment alters a vested substantive right by extinguishing all form of statutory relief where the prescribed time period for filing notice to owner is not adhered to. As such, the amendment could never be the subject of retroactive application. See: Sarasota Commercial Refrigeration and Air Conditioning, Inc. v. Schooley, 381 So.2d 1141 (Fla. 2d DCA 1980).

In the alternative appellants argue that, assuming Chapter 77-353, Section 5, Laws of Florida, the amendment to Section 713.-06(2)(a), Florida Statutes (1977), does not apply, appellee would nevertheless be precluded from recovery because appellee failed to timely file a notice to owner pursuant to Section 713.06(2)(a), Florida Statutes (1977). Appellant contends this leaves available as the only form of relief, recovery on an equitable lien. Relying on Crane Co. v. Fine, 221 So.2d 145 (Fla.1969), appellants assert that an equitable lien will only be imposed where special or peculiar equities exist and, since appellee did not plead or prove this special equity, he is foreclosed from recovering under this theory.

Appellants have misconstrued the case law as applied to former Section 713.-06(2)(a), Florida Statutes (1977). Under this statute, late notice to owner merely affects one’s status as a priority lienor. We must adhere to the pronouncement of the Florida Supreme Court in Konsler Steel Co. v. Partin, 356 So.2d 264 (Fla.1978), wherein it stated:

In the leading case of Crane Co. v. Fine, 221 So.2d 145 (Fla.1969), the Florida Supreme Court held that while a notice to the owner given in compliance with the time limitations provided in Section 713.-06(2)(a) placed the lienor in a priority position, such a notice given after the expiration of the 45-day period could be the basis for perfecting a valid lien provided such notice was given within the requisite 90-day period and before the owner has properly paid that portion of the sums due under the direct contract to which such lienor would be entitled. (Citations omitted.) at 265.

See also Warren v. Bill Ray Construction Co., Inc., 269 So.2d 25 (Fla. 3rd DCA 1972).

Next appellants argue that the owner’s failure to timely file a notice of commencement is vitiated by the appellee’s dereliction in untimely filing its notice to owner. As such, appellants contend payments made by the owner before filing a notice of commencement can not be deemed “improper payments” and do not therefore comprise a fund from which the appellee can recover. However, such is not the law. Appellee’s misfeasance in adhering to the statutory time for filing a notice to owner does not relieve or otherwise abrogate appellants’ responsibility for timely filing a notice of commencement prior to payments made on the contract. Wool Wholesale Plumbing Supply, Inc. v. Abdo, 365 So.2d 216 (Fla. 4th DCA 1978).

Section 713.06(3)(a), Florida Statutes (1977), provides that an owner may not pay any money on account of a direct contract prior to recording the notice of commencement provided for in Section 713.13, Florida Statutes (1977), and any amount so paid shall be deemed an improper payment. The record in this case reflects appellants paid over $300,000 on the contract prior to filing the owner’s notice of commencement. Therefore, the payment of those funds was improper and appellee, albeit his untimely notice, was entitled to share in those improper payments despite this untimely notice to owner.

In support of appellants’ contention that appellee cannot participate in any improper payments made by owner prior to appellee filing his notice to owner they cite Tarlow v. Helmholtz, 198 So.2d 109 (Fla. 2d DCA 1967). This reliance on Tarlow is unfounded. The facts show that the governing statutory subsection in Tarlow, 84.061(2)(a), Florida Statutes (1963), was interpreted by the courts as requiring strict and timely compliance with this notice to owner provision. The law was subsequently amended in 1965 to allow those who untimely filed a notice to owner to recover on a non-priority basis provided they were listed in the contractor’s affidavit. § 84.061(3)(c)4, Florida Statutes (1965).

The trial judge found that appellee was entitled to recover on his lien even though the notice was untimely filed because at the time the notice was filed over $1,600,000 remained to be paid by the owner to the general contractor. That ruling may or may not be correct depending on how much of that unpaid balance is consumed by other priority lienors and by lienors who may be in the same priority position as appellee. We hold that a lien claimant not in privity, who filed an untimely notice to owner, is entitled to participate with lienors of equal priority in any improper payments made by owner and also out of any funds remaining in the hands of the owner at the time of the filing of said notice which are not consumed by other claimants having greater priority.

Finally, we note appellee’s contention that he was not required to file notice to owner because his work which involved hauling, etc., brought him under Section 713.04, Florida Statutes (1977). We believe appellee’s position to be erroneous. Section 713.04, by its very term, applies to subdivision improvements. The cases relied upon by appellee, Baumgartner Construction Co., Inc. v. Harrell, 364 So.2d 802 (Fla. 1st DCA 1978) and American Fire & Casualty Co. v. Davis Water Waste Industries, Inc., 377 So.2d 164 (Fla.1979), are both cases involving subdivision improvements. The instant case does not involve a subdivision but rather a shopping center.

In view of the foregoing, the judgment appealed from is supported by the record because the funds remaining in the owner’s hands when notice to owner was filed and any improper payments were sufficient to pay appellee’s claim. Accordingly, the final judgment appealed from is affirmed.

HURLEY and SHARP, JJ., and G. KENDALL, Jr., Associate Judge, concur.

      . As amended, Chapter 77-353, Section 5, Laws of Florida, provides in pertinent part: The notice must be served regardless of the method of payments by the owner, whether proper or improper and shall not give to the lienor serving the notice any priority over other lienors in the same category and the failure to serve the notice shall be a complete defense to payment by any person except a person with whom the lienor failing to serve the notice has a contract.

      . It must be remembered that Section 713.-06(2)(a), Florida Statutes (1977), was effective until July 1, 1978, when Chapter 77-353, Section 5, Laws of Florida, became effective.


author: THOMPSON, Judge.

text:
    CLYATT MEMORIAL, INC. and R. P. Hewitt & Assoc’s of Florida, Inc., Appellants, v. Havina SCOTT, Appellee.
    No. TT-457.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Rehearing Denied March 9, 1981.

      Robert W. Elton, of Smalbein, Eubanks, Johnson, Rosier & Bussey, Daytona Beach, for appellants.
    Stephen M. Slepin, of Slepin & Slepin, Tallahassee and Richard A. Schwartz, Day-tona Beach, for appellee.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, arguing that the Deputy Commissioner (“the Deputy”) erred by awarding the claimant temporary total disability (“TTD”) benefits. We agree and reverse.

In 1975, the claimant suffered a compen-sable back injury. The Deputy subsequently entered an Order, finding that maximum medical improvement (“MMI”) was reached on November 22, 1976, and ordering that the appellants provide the claimant with permanent partial disability (“PPD”) benefits. This Order was reversed by the Industrial Relations Commission, but the determination of MMI was neither appealed nor disturbed.

On remand, the Deputy entered a new Order, and the claimant filed a petition for modification, requesting TTD and PPD benefits. This petition was later withdrawn, but the claim for TTD benefits was maintained. After a hearing, the Deputy entered an Order, directing the appellants to provide the claimant with TTD benefits for the period from August 7, 1979 to September 10, 1979.

The appellants contend in part that since the Deputy had previously determined that the claimant had reached MMI on November 22,1976, she could not properly award the claimant additional TTD benefits. Ordinarily, MMI “marks the end of temporary disability and the beginning of permanent disability.” Corral v. McCrory Corp., 228 So.2d 900, 903 (Fla.1969). We recognize that a finding of MMI (and an award of PPD benefits) does not always preclude a later award of TTD benefits. See, e. g., Smitty’s Coffee Shop v. Florida Industrial Com’n, 86 So.2d 268 (Fla.1956); Chapel v. Broward, 3 FCR 421 (1959), cert. den., 112 So.2d 923 (Fla. 3d DCA 1959). (Both decisions upheld awards of TTD benefits after findings of MMI and awards of PPD benefits had been made.) But unlike either Smitty’s Coffee Shop or Chapel, this case does not involve an award of TTD benefits for a period of recuperation following a curative surgical procedure that was necessitated by a compensable injury. Nor was there a period of TTD during or following curative medical treatment that was necessitated by a compensable injury. Thus, there was no basis for properly awarding TTD benefits after the date of MMI was determined, and accordingly, the Deputy’s Order is reversed.

ROBERT P. SMITH, Jr., J., and WOOD-IE A. LILES (Ret.) Associate Judge, concur.


author: WENTWORTH, Judge.

text:
    David PINGREE, Secretary of the Florida Department of Health and Rehabilitative Services, Appellant, v. Portia Elaine QUAINTANCE, Demetrius Denese Quaintance, Sean Connery Quaintance, and Latricia Ann Spencer, by and through her next friend, Ruby Pearl Quaintance, individually and on behalf of all others similarly situated, Appellees.
    No. SS-125.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.

      Robert M. Eisenberg and Chester G. Senf, Jacksonville, for appellant.
    Marie Y. Janiewski and Paul C. Doyle, Jacksonville, for appellees.
   WENTWORTH, Judge.

Appellant seeks review of the trial court’s order denying a motion for new trial, rehearing and relief from judgment. We affirm.

On August 9, 1977, appellees filed a class action seeking declaratory and injunctive relief to compel the Department to institute judicial review of all cases in which a child had been committed to foster care for a continuous six-month period as provided in Section 409.168(3)(a), Florida Statutes (1977). In its answer and in its response to a request for admissions, the Department admitted that it had not instituted proceedings in each case as required by the statute. Pursuant to motion, the trial court entered a summary judgment against the Department mandatorily enjoining it from failing to initiate the required judicial review. The Department moved for a new trial, rehearing and relief from judgment asserting that there had been no showing of irreparable harm and that the Department was in substantial compliance. The Department argued below and on appeal that it was excused from complete compliance due to its budgetary limitations.

We agree with the trial court and now hold that Section 409.168, Florida Statutes (1977), creates a right to judicial review in all cases in which children have been adjudicated dependent and have remained in continuous foster care for six months. We note especially the statement of legislative intent found in Section 409.-168(1), Florida Statutes (1977), which provides:

The Legislature finds that 7 out of 10 children placed in foster care do not return to their biological families after the first year and that permanent homes could be found for many of these children if their status were reviewed periodically and they were found eligible for adoption. It is the intent of the Legislature, therefore, to help ensure a permanent home for children in foster care by requiring periodic review and report on their status.

We further hold that the denial of this mandatory review creates irreparable harm for which injunctive relief is particularly appropriate. Since the Department admitted that it was not in compliance with the statutory requirements imposed upon it by Section 409.168, Florida Statutes (1977), the trial court correctly determined that there existed no material issue of fact and appropriately entered a summary judgment.

The trial court also correctly denied the Department’s posttrial motions. The purpose of a motion for rehearing is to give the trial court an opportunity to consider matters which it failed to consider or overlooked. Diamond Cab Co. of Miami v. King, 146 So.2d 889 (Fla.1962). The motions below merely set forth matters which had previously been considered by the trial court. The affidavit attached to the motions reflecting the Department’s budgetary request for the years 1978 through 1981 presented the trial court with no new material information upon which it could alter its decision. The trial court appropriately denied the motion for new trial because the matter was heard without a jury. Fla.R. Civ.P. 1.530. Motion for relief from judgment is insufficient. The only criterion which could arguably apply to this cause is that the motion presented newly discovered evidence. Since the budgetary request was obviously within the Department’s control, the evidence cannot be newly discovered. Fla.R.Civ.P. 1.540.

Accordingly, the judgment of the trial court is AFFIRMED.

McCORD, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.

      . The fact that the statutory duty to institute judicial review now falls on the clerk of the circuit court has no bearing on our resolution of this issue. § 409.168(3)(f)2, Fla.Stat. (Supp. 1980).


text:
    David NIEBOER, etc., State of Florida, Department of Health & Rehabilitative Service, Appellants, v. T. L., V. H., L. C. and J. P., et al., Appellees.
    Nos. UU-331, UU-338 and UU-379.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Rehearing Denied March 12, 1981.
    James A. Sawyer, Jr., Cocoa, J. E. Hodges, Jacksonville and Eric Haugdahl, Tallahassee, Eugene T. Whitworth, Gainesville, Jerry M. Blair, Live Oak, David Pingree, Richard Grimm, and Chester G. Senf, Jacksonville, for appellants.
    Alan B. Parlapiano, Public Defender, and Jack J. Fine, Asst. Public Defender, for appellees.
   PER CURIAM.

Appellants seek review of a writ of habe-as corpus entered in the circuit court. The writ directed that the petitioning juvenile detainees at the North Florida Regional Detention Center be released or transferred, and the Center closed, if certain conditions at the Center were not alleviated. We find that the Department of Health and Rehabilitative Services was not properly made a party in the action and the court erred in denying the Department’s motion to dismiss.

Section 48.111, Florida Statutes, establishes the method for service of process on public agencies, and requires service on the chief executive officer. This provision was not complied with in the present case, and service on the Department was thus ineffective. Without proper service, the court lacked jurisdiction to order the Department’s involuntary joinder as a party defendant. See Bussey v. Legislative Auditing Committee, 298 So.2d 219 (Fla. 1st DCA 1974), appeal dismissed 312 So.2d 737 (Fla. 1975); see also Klinger v. Milton Holding Co., 136 Fla. 50, 186 So. 526 (1938).

Accordingly, the order appealed is reversed insofar as it is directed to the Department as a party defendant. However, the order is otherwise affirmed insofar as it is directed to the remaining appellant, the superintendent of the Detention Center, because the record adequately supports the factual findings and permits a determination that the superintendent had physical custody and control of the appellee juveniles at the time in question.

ERVIN, SHAW and WENTWORTH, JJ., concur.


author: PER CURIAM. HURLEY, Judge,

text:
    STATE of Florida, Appellant, v. Shawn Marie THAILAS, Appellee.
    No. 79-177.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Rehearing Denied March 4, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

Defendant was charged with three counts of possession with intent to sell cocaine and with three counts of possession of cocaine. The trial court granted defendant’s motion to dismiss the simple possession counts, either on the theory that they subjected the defendant to double jeopardy, or, that they were superfluous.

I suggest that the concern for double jeopardy is premature. Clearly the three possession counts were lesser included offenses of the counts charging possession with intent to sell. Thus, only one conviction and sentence would be appropriate in each instance. Mahaun v. State, 377 So.2d 1158 (Fla.1979). However, merely charging a greater and lesser offense in the same information is not violative of the Double Jeopardy Clause. Mahaun v. State, supra. Furthermore, I am aware of no authority which precludes the State from setting forth in an information all of the charges, including lesser included offenses, to which a defendant must respond. Specification of charges is an exclusive function of the executive branch of government. Absent an allegation that the defendant has been misled or embarrassed in the preparation of his defense — which has not been alleged in the case at bar — and absent the usual grounds cognizable on a motion to dismiss, it is my opinion that the judiciary is without authority to intervene. Accordingly, I respectfully dissent.

      . See Rule 3.140(o), Fla.R.Crim.P.

      . See Rule 3.190(b); Fla.R.Crim.P.


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

text:
    James H. BOWLING, Appellant, v. DEPARTMENT OF INSURANCE, Appellee.
    No. PP-379.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.

      Tyrie A. Boyer, of Boyer, Tanzler, Blackburn & Boyer, and John London Arnold, Jacksonville, for appellant.
    Patrick F. Maroney, Tallahassee, for ap-pellee.
   ROBERT P. SMITH, Jr., Judge.

Bowling’s appeal concerns the substan-tiality of evidence supporting an order of the Department of Insurance revoking Bowling’s licenses and his eligibility to be licensed as an insurance agent. A hearing officer of DOAH recommended findings, and the Department’s final order found, that Bowling committed several similar violations of the insurance code, notably Section 626.611(10), Florida Statutes (1979), which requires license suspension or revocation if the agent is found guilty of

Misappropriation, conversion, or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received in conduct of business under the license.

The central allegation in each count of the administrative complaint, and the corresponding finding in the revocation order, is that Bowling through his insurance agency collected automobile liability insurance premiums from insureds, for policies to be issued by United States Fidelity and Guaranty Company, yet forwarded only a premium deposit to USF&G with the application, thereby misappropriating, converting, and unlawfully withholding the premium balance then payable. We find that the record as a whole lacks substantial competent evidence that the agent was required in the regular course of business to forward to USF&G the entire premium received, rather than a deposit only, at the time of forwarding the application for insurance. We therefore vacate the Department’s revocation order, dismiss certain charges, and remand the case to the Department for further action on the charges not dismissed.

The charges against Bowling are based on Section 626.611, which in contrast to Section 626.621 (authorizing “discretionary” action against licensees) specifies “grounds for compulsory refusal, suspension, revocation of license or permit.” The revocation grounds stated in the Department’s order include Bowling’s “demonstrated lack of fitness or trustworthiness to engage in the business of insurance,” his willful failure to comply with or circumvention of Chapter 626 requirements for insurance agents, his “fraudulent or dishonest practices,” and, as stated above, his “misappropriation, conversion, or unlawful withholding” of money belonging to USF&G or others. All these charges gain at least some specificity from Section 626.561, which imposes responsibility on insurance agents for “reporting and accounting for funds”:

(1) All premiums, return premiums or other funds belonging to insurers or others received by an agent ... in transactions under his license shall be trust funds so received by the licensee in a fiduciary capacity, and the licensee in the applicable regular course of business shall account for and pay the same to the insurer, insured or other person entitled thereto.
(2) Any agent ... who, not being lawfully entitled thereto, diverts or appropriates such funds ... to his own use, shall upon conviction be guilty of larceny by embezzlement and shall be punished as provided by law.

Under these statutes the Department made eight charges based on seven transactions in which Bowling’s agency, Atlas Insurance Agency, Inc., sold a USF&G auto insurance policy under the Florida Joint Underwriting Association program to insure a high risk driver. USF&G was assigned by JUA as servicing carrier for insureds produced by Atlas through its several Jacksonville offices. The evidence and findings in support of each count may be summarized as follows:

Count 1, Lashley. On April 4,1977, Lash-ley paid Atlas, Bowling’s agency, the entire annual premium of $307, of which Atlas sent USF&G only $100 with the application, and retained the balance. USF&G banked the deposit and mailed the policy to the agency on May 12, 1977. Bowling testified from Atlas records that on May 31 Atlas paid the premium balance to USF&G by check 19837, but the check never cleared the bank and USF&G on December 21 gave notice of cancellation for nonpayment of the full premium. Lashley furnished proof that he had paid Atlas the full premium and USF&G reinstated his policy. The hearing officer found the Department failed to disprove that Atlas forwarded the premium balance on May 31, as Bowling said, but

[T]his does not excuse Atlas nor its managing agent, Bowling, from the necessity to forward all moneys received from Lashley on April 4, 1977, when it was received, and in one lump sum.

Found: Bowling received the Lashley premium in trust for USF&G, and should have forwarded “the full premium payments of $307 in April, 1977, as opposed to $100 in April and $207 in May, 1977,” or should have returned the balance to Lashley. Bowling thereby willfully failed to comply with or circumvented code requirements, engaged in fraudulent or dishonest practices, and misappropriated, converted or unlawfully withheld money belonging to others.

Count 2, McGowan. Devco, a premium finance company, financed McGowan’s $546 premium and paid it to Atlas, Bowling’s agency, in response to Bowling’s draft on January 16, 1976. Atlas sent $150 to USF&G with the application and kept the balance. Due to computer difficulties and a backlog of business, USF&G did not bank the $150 deposit nor issue the policy until June 2. Meanwhile, McGowan had not repaid Devco, which requested policy cancellation in March. Because USF&G’s computer was incapable of cancelling a policy before it was issued, USF&G did not cancel until mid-July 1976, and then returned to Devco the unearned portion of the $150 deposit previously received. Bowling testified from Atlas records that Atlas check 18779 paid the $366 return premium balance to Devco from Atlas’s retainage in April 1977 (nine months after the policy was cancelled), but the check did not clear the bank and Devco claimed it never received the return premium. Found: Bowling received the McGowan premium in trust for USF&G and should have forwarded “the full premium payment of $546, as opposed to a payment of $150,” or else should have returned the balance to McGowan. (The hearing officer appears to have assumed but did not expressly find that Bowling did mail Devco a check in April 1977.) Bowling thereby willfully failed to comply with or circumvented code requirements, engaged in fraudulent or dishonest practices, and misappropriated, converted or unlawfully withheld money belonging to others.

Count 3, Morgan. Morgan paid Atlas, Bowling’s agency, $95 down; Devco financed and in response to Bowling’s bank draft paid Atlas the balance of Morgan’s $270 premium, of which Atlas sent $100 with the application to USF&G on December 23, 1975, and kept the balance. Due to computer difficulties and a business backlog, USF&G didn’t bank the down payment and issue the policy until May 20, 1976; meanwhile, Morgan repaid Devco sporadically, and Devco requested policy cancellation January 20, 1976, reinstatement on April 2, and cancellation again on April 26. USF&G cancelled on June 30,1976, but sent Devco no refund because the earned premium exceeded the $100 deposit received in December 1975. Atlas did not reimburse Devco the balance of the unearned premium from the amounts retained; but in March 1979 (two years and nine months after cancellation), Bowling paid Devco the balance of $170 by check of another Bowling insurance agency, Atlas having been dissolved in December 1978. Found: Bowling received the Morgan/Devco payments in trust for USF&G and should have forwarded the full $270 when received, not merely $100, or should have returned the money to Morgan. Bowling thereby willfully failed to comply with or circumvented code requirements, engaged in fraudulent or dishonest practices, and misappropriated, converted or unlawfully withheld money belonging to others.

Count 4, Owens. The Department charged that Owens paid Atlas, Bowling’s agency, $116 on account of a total premium of $330, and Devco financed and paid the balance, of which Atlas remitted $100 to USF&G and kept the balance in violation of the same insurance code requirements. USF&G and the Department belatedly found that Atlas was not delinquent on USF&G’s books, which contained an erroneous double charge, so the Department voluntarily dismissed this charge before the hearing.

Count 5, Rader. Rader paid Atlas, Bowling’s agency, $137 down on a total premium of $370; Devco financed and on Bowling’s draft paid the balance to Atlas, which forwarded $100 with the application to USF&G on January 14, 1976, and retained the balance. Due to the same logistical difficulties, USF&G did not bank the $100 deposit until June 21. At Devco’s request USF&G cancelled in July 1976 due to Rad-er’s nonpayment to Devco, but USF&G sent Devco no return premium because the earned premium exceeded the $100 deposit received. In April 1978 (one year and eight months later) Atlas reimbursed Devco the adjusted unearned premium of $270. Found: Bowling received a $370 premium payment in trust for USF&G and should have forwarded the entire payment when received, not just $100, or should have returned the balance to Rader. Bowling thereby willfully failed to comply with or circumvented requirements of Chapter 626, engaged in fraudulent or dishonest practices, and misappropriated, converted or unlawfully withheld money belonging to others.

Count 6, Weidman. Weidman paid Atlas $64 on account of a total premium of $184; Devco on December 9, 1975, financed and on Bowling’s draft paid the balance to Atlas, which forwarded $50 with the application to USF&G and retained the balance. Due to the same difficulties, USF&G did not bank the deposit and issue the policy until March 30, 1976; meanwhile Devco requested policy cancellation in February, and USF&G later refunded Devco $9 as the unearned portion of the $50 deposit received. On April 25, 1978 (two years after the approximate date of cancellation), Atlas reimbursed Devco $134. Found: Bowling received a $184 premium payment in trust for USF&G and should have forwarded it all when received, not just $50, or should have returned the balance to Weidman. Bowling thereby willfully failed to comply with or circumvented code requirements, engaged in fraudulent or dishonest practices, and misappropriated, converted or unlawfully withheld money belonging to others.

Count 7, Detmer. In May 1977 Detmer paid Atlas $210 down on a total premium of $638 and financed the balance with Premium Budget Service, ante fn. 5. It was assumed but not shown that Premium, an affiliate of Atlas, paid the financed premium to Atlas. On May 13 Atlas forwarded $200 with the application to USF&G, “compared to the full amount of premium required, which would have been the $210 Detmer paid together with that portion of the $428.08 balance related to the premium,” according to the hearing officer’s findings. USF&G banked the deposit and issued the policy on June 30. Though Det-mer in time repaid Premium Budget Service in full, USF&G cancelled the policy in December 1977 for nonpayment of premium beyond the $200 deposit. Bowling testified from Atlas records that Atlas paid the premium balance to USF&G on July 13, 1977, but the check did not clear the bank and USF&G records do not show payment. Found: the Department did not prove Bowling failed to remit the premium balance to USF&G in July 1977, but Bowling, acting for Atlas as well as for Premium Budget Service, “acted inappropriately” in not “forwarding the full amount of premium as one lump sum payment” and in not “following up the cancellation of the policy.” Bowling thereby willfully failed to comply with or circumvented code requirements, engaged in fraudulent or dishonest practices, and misappropriated, converted or unlawfully withheld money belonging to others.

Count 8, Cumulative. The Department charged and found: in cumulative effect the specific transactions relied on demonstrate that Bowling lacks the necessary “fitness or trustworthiness” to engage in business as an insurance agent. Section 626.611(7).

The eight charges against Bowling may thus be summarized as:

one count relying on the cumulative effect of seven particular transactions to show that Bowling is unfit and untrustworthy as a licensed agent (Count 8);

one count which the Department dismissed when USF&G conceded that the discrepancy was due to USF&G’s error rather than to Bowling’s defalcation (Count 4, Owens);

two counts concerning which the hearing officer found that Atlas forwarded part of the received premium to USF&G with the insured’s application and the balance within two weeks after the policy was issued by USF&G, but that Bowling fraudulently and dishonestly misappropriated, converted and unlawfully withheld trust funds from USF&G by retaining part of the received premium until the policy was issued (Counts 1 and 7, Lashley and Detmer); and
four counts on which the hearing officer also found that Atlas was required to pay USF&G the full premium received, when received, and that Bowling fraudulently and dishonestly misappropriated, converted and unlawfully withheld from USF&G premiums received in trust. In respect to these transactions, however, it was also found that after USF&G cancelled the policies at Devco’s request, Bowling withheld from Devco those same funds, payable as return premiums, for nine months (Count 2, McGowan), two years and nine months (Count 3, Morgan), one year and eight months (Count 5, Rader), and two years (Count 6, Weidman) after the policies were cancelled.

The standards by which these findings are to be assessed are found in the interplay of two statutes quoted above: Section 626.-561, characterizing as “trust funds ... received ... in a fiduciary capacity” all premiums, return premiums, and other funds belonging to another and received by an agent, and requiring that the agent account for and pay those funds over “in the applicable regular course of business”; and Section 626.611(10), which requires suspension or revocation of an agent’s license for “misappropriation, conversion, or unlawful withholding of moneys” belonging to another. These statutes have been construed by the Department to mean, and they evidently mean, that an agent’s license must be suspended or revoked if an agent willfully withholds payment of premium moneys belonging to the insurer or another when in the “applicable regular course of business” the money should have been paid.

Willfullness is a necessary element of a Section 626.611(10) violation because the violation draws essential elements from Section 626.561, a criminal statute which punishes the proscribed conduct as “larceny by embezzlement”; because willfullness is explicitly an element of companion subsections including Section 626.611(13), making “willful violation of any provision of this code” a ground for compulsory revocation or suspension; and because, absent the element of willfullness, “unlawful withholding” as employed in Section 626.611(10) would evoke a compulsory and more drastic penalty than companion Section 626.621 imposes for an agent’s apparently more flagrant conduct of withholding premiums after demand for payment by the insurer. Section 626.621(4).

The two indispensable elements of the charges against Bowling, then, are that Atlas was obliged “in the applicable regular course of business” to forward to USF&G the entire premium received or to return the retained portion to the insured, and that Bowling willfully caused Atlas to withhold payment and he thereby willfully converted those moneys, temporarily or permanently, to his own use. These elements must be shown by a record foundation of substantial competent evidence. Section 120.68(10).

In a proceeding under a penal statute for suspension or revocation of a valuable business or professional license, the term “substantial competent evidence” takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120. Although all questions of fact as distinguished from policy are determinable under the Administrative Procedure Act by substantial competent evidence, Section 120.68(10), we differentiate between evidence which “substantially” supports conventional forms regulatory action and evidence which is required to support “substantially” a retrospective characterization of conduct requiring suspension or revocation of the actor’s license. Evidence which is “substantial” for one purpose may be less so on another, graver occasion. One takes a stranger’s name at his word upon a chance meeting, but wants better proof to cash his check. of

Although the APA does not in terms descend to such particulars, we have recognized the Act’s implication that evidence “appropriate in form” may differ from one proceeding to another depending on the “nature of the issues involved.” Balino v. Dept. of Health & Rehab. Serv., 362 So.2d 21, 24 (Fla. 1st DCA 1978), cert. den., 370 So.2d 458 (Fla.1979). Now we recognize also that in both form and persuasiveness evidence may “substantially” support some types of agency action, yet be wanting as a record foundation for critical findings in license revocation. Cf. Anheuser-Busch, Inc. v. Dept. of Business Reg., etc., 393 So.2d 1177 (Fla. 1st DCA 1981) (monetary fine). So holding, we need not attempt to resurrect the pre-APA “clear and convincing proof” standard for license revocation proceedings, see Reid v. Florida Real Estate Comm’n,, 188 So.2d 846, 851 (Fla. 2d DCA 1966). Rather, we glean a requirement for more substantial evidence from the very nature of licensee discipline proceedings: when the standards of conduct to be enforced are not explicitly fixed by statute or by rule, but depend on such debatable expressions as “in the applicable regular course of business”; when the conduct to be assessed is past, beyond the actor’s power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as “substantial” as the consequences. As we said in McDonald, quoting Mr. Justice Frankfurter in Universal Camera,

The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.

In anyone’s judgment, a judge’s no less than any other, certain factors present “in the record” of penal proceedings fairly detract from the substantiality of evidence which is weighty enough for less consequential purposes. One such factor is a grave penalty. In determining “the substantiality of evidence,” which is to say in ascertaining what we call the facts, a judge takes the penalty into account for the same reason that compels him, in ascertaining the law, to impose a “strict” construction on the penal statute. Bach v. Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1979):

Where statutes provide grounds for revocations of licenses, those provisions must be strictly construed and strictly followed because the statute is penal in nature. State v. Pattishall, 99 Fla. 296, 126 So. 147, 148 (1930).

Thus in Bach the court reversed a dentist’s suspension for the statutory offense of “permitting” improper conduct by a hygienist when it was not shown that the dentist had “full knowledge” of that conduct. So holding, the court drew on pre-APA decisions requiring proof that the licensee’s employees “repeatedly and flagrantly” violated the law, and vacating revocations based on proof “that on one occasion the licensee’s employees violated the laws, but ... the licensee otherwise took measures to comply with them.” Bach, 378 So.2d at 36. See also Poirier v. Division of Health, Dept. of Health & Rehab. Serv., 351 So.2d 50 (Fla. 1st DCA 1977), requiring proof that the licensee had “guilty knowledge” that he had sold a rebuilt hearing aid as new. Bach and Poirier illustrate that the violation of a penal statute is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as “substantially” on a scale suitable for evidence as the penalty does on the scale of penalties. In other words, in a world ensnarled by false assumptions and hasty judgments, let the prosecutor’s proof be as serious-minded as the intended penalty is serious.

No statute or Department rule prescribes “the applicable regular course of business” for an insurance agent in the matter of handling premiums. That being so, the Department relied on evidence to show that under “the applicable regular course of business,” Section 626.561(1), Bowling should have forwarded a check for the entire premium received, when received, to USF&G. The Department’s evidence to that effect was not substantial. The Department did not prove that some authority having power to prescribe for agents “the applicable regular course of business” in handling premium payments— the Department, or the Joint Underwriting Association, or USG&G?—had done so; nor did the evidence show, if some authority had prescribed a standard, that knowledge of it was brought home appropriately to agents generally and Bowling particularly. The JUA Operating Agreement is in evidence, but it is silent on the subject. No writing in the record speaks to the issue. To carry this point the Department relied on witnesses who could but state their “understandings,” from various and dubious vantage points, of what was required of agent Bowling.

Thus the assistant superintendent of USF&G’s Jacksonville accounting department, a keeper of financial records, was drawn beyond his field of competence to testify that, according to guidelines established by some unidentified source, “it is my understanding [the agent] submits whatever he collects, with a minimum of whatever the minimum deposit would be .... ” To a question by the Department’s lawyer, summarizing the Department’s view of the agent’s responsibility, the witness replied, “I believe that’s correct.” Another witness, a USF&G underwriter who displayed no more authority to speak on the subject than the accountant did, testified that he had once read some JUA operating rules saying “if you got it send it in,” but he said the purported rule was not generally adhered to by the USF&G agents, and he didn’t really know whether this ever was a “rule.” He also identified USF&G correspondence to agents, dated long after the events here in question, which sought to clarify apparent misunderstandings concerning USF&G policy on the subject. Finally, Mr. Varnes, the former president of Devco, testified that as a JUA agent for Allstate, he sent the insurer all money he received the same day it was received, and “That’s how everybody does it.”

This kind of testimony affords no substantial basis for erecting a standard on which to judge whether an agent not adhering to it is guilty of fraud equivalent to embezzlement of trust funds. To his credit, the hearing officer expressed similar doubts to the Department’s lawyer in the course of argument on an objection:

DEPARTMENT’S COUNSEL: [T]here are certain rules, and the testimony has been, you have to send the money. The company has said that; Mr. Yarnes has said that.
HEARING OFFICER: That is their perception of it. If their perception comports with the requirement of law, it is not because of their perception that I would be finding in your favor on that point; it would be because of the requirements of law.

The Department sought unsuccessfully to exclude Bowling’s testimony of his own “understandings” and general practices:

BOWLING: During the time we were doing business with USF&G as Atlas Insurance Agency, we were doing business under another agency with a different carrier and doing it the same identical way that we were doing it with USF&G.

Bowling testified that his agency’s practice, and a proper practice, was to send a deposit with the application and the balance when the policy was issued.

The absence of substantial competent evidence undermines the hearing officer’s finding (apparently receding from his remarks to the Department’s counsel during the hearing) that JUA or USF&G or some other authority placed Bowling under a duty to forward to USF&G the entire premium received, when received. Specifically, substantial competent evidence did not negate the hypothesis, consistent with what Bowling claimed was the regular and proper course of business, and in important respects consistent too with USF&G’s dealings with its agents, that the agent need send only a deposit with the insured’s application, and should send the premium balance when the policy is issued. In point of fact, because of USF&G’s self-confessed “atrocious” service due to computer inca-pacities, USF&G did not even bank Atlas premium deposit checks for up to six months after they were received with applications, and the money represented by those checks remained for those periods undisturbed in the Atlas bank account with the premium balance which, it is claimed, Bowling had misappropriated by not forwarding.

We specifically reject the Department’s contention that the “applicable regular course of business” for an agent’s handling of JUA premiums was established, for purposes of this proceeding, by the Department’s order in In the Matter of Kathryn Genevieve Saviak, Case No. 78-L-101P, DOAH Case No. 79-332,1980 Fla.Admin.Law Rep. 891-A. The recommended and final orders in that licensee discipline proceeding unquestionably held that JUA agents of USF&G “were required to forward to the servicing carrier money they received in payment of premiums on the date received or, at the latest, on the following day,” but the Department’s finding in Saviak has no probative or preceden-tial value whatever in this case. If the matter in issue were one of Department policy, a Department rule would be well-nigh conclusive, and a policymaking order based on an adequate record foundation in this case would command great deference. But plainly the matter in issue is not Department policy, and the Department has not treated it as such; rather the issue is over a plain, garden-variety fact: Was the agent required by some agreement, or some manual, or some common understanding to remit all premium money daily when received? That is an adjudicative rather than a legislative fact, as Davis differentiates them; that is the kind of fact we have described as devoid of “policy considerations for which the agency has special responsibility,” and therefore as determinable by the trier of conventional facts. McDonald, supra fn. 9, 346 So.2d at 579. The Department cannot rely on its proof in Saviak to cure an evidence deficiency in this case.

Nor is the evidence deficiency remedied by the hearing officer’s finding that Bowling was “not believable” in testifying that, to assure prompt return to Dev-co of unearned premiums when a USF&G policy was cancelled before it was computer-issued, he and Devco’s principal, Varnes, agreed that Atlas would withhold a portion of the financed premium until it was clear that the policy would be issued and not immediately cancelled. We of course defer to the hearing officer on a question of the believability of witnesses. Were there substantial evidence showing the asserted fact which Bowling’s testimony contradicted, the rejection of Bowling’s testimony as “not believable” would leave the substantial evidence uncontradicted. But, as we have held, that substantial evidence is missing. A witness who is found to be untruthful gives the trier of facts an additional reason to believe substantial evidence to the contrary, but in our heritage the accused’s unbelievable denial of an essential element in the accusation does not prove the accusation.

The absence of substantial competent evidence proving Bowling’s asserted duty to remit to USF&G all premium money received, when received, requires that the Department’s charges on Counts 1 and 7 be dismissed, for in the Lashley and Detmer transactions Atlas remitted the retained premium balance within two weeks after the policy was issued and no permissible view of this record permits condemnation of that action. The guilty finding on Count 8, charging that the seven transactions cumulatively show Bowling’s unfitness and untrustworthiness, must be set aside and remanded, that count having now been deprived of cumulative support from two more transactions, in addition to the voluntarily dismissed Count 4, on which it depends. Finally, the guilty findings on the four remaining substantive counts (Counts 2, 3, 5 and 6, McGowan, Morgan, Rader, and Weidman) must be set aside because Bowling’s guilt in those transactions is expressly predicated, though perhaps not necessarily so, on the unproven premise that Atlas was required to remit to USF&G all premium moneys received, when received.

The relevant statutes and the original administrative charging document are broad enough to have permitted the Department to proceed against Bowling upon a different theory than that reflected in the recommended and final orders. The Department might have accepted Bowling’s concept of what the applicable regular course of business was in handling JUA premiums financed by Devco — to send an acceptable deposit with the application, and the balance when the policy is issued — and might have charged Bowling with having willfully misappropriated, converted, or withheld from Devco the balance which was payable as a return premium when the policy was cancelled before being issued. There is at least a possibility that the evidence adduced in support of Counts 2, 3, 5 and 6, so construed, could lawfully be regarded as substantial. We intimate no view of that at this time, for such findings are the initial responsibility of the trier of facts and the agency.

The Department may of course feel constrained by its exclusive adherence to the more demanding standard of agency conduct which we have found unproven; but if not, the Department is at liberty to conduct further proceedings upon Counts 2, 3, 5, 6 and 8. However, the Department may proceed in respect to these transactions only on the theory to which we have alluded, and will proceed no further on the theory we have pronounced unfounded in the evidence. The existing record may be used. Because the pending substantive counts are now fewer, and the question of Bowling’s alleged willfulness is all the more important, the Department may and on Bowling’s application it shall provide a further eviden-tiary hearing. Section 120.68.

The order revoking Bowling’s license and his eligibility for licensing is VACATED and the cause is REMANDED.

THOMPSON, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.

      . Section 626.611, Florida Statutes (1979):
      The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent ... and it shall suspend or revoke the eligibility to hold a license or permit of any such persons if it finds any one or more of the following applicable grounds exist:
      (7) For demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

      . Section 626.611(13):
      (13) Willful failure to comply with, or willful violation of, any proper order, rule, or regulation of the department or willful violation of any provision of this code.

      . Section 626.611(4):
      (4) If the license or permit is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code.

      . Section 626.611(9):
      (9) Fraudulent or dishonest practices in the conduct of business under the license or permit.

      . This account has been simplified for clarity. In this and the other transactions involving Devco Premium Finance Company, the insured’s original premium finance agreement was with Premium Budget Service, Inc., an affiliate of Atlas managed by Bowling and owned by his wife. Premium Budget Service routinely sold the finance contracts to Devco. Bowling’s draft on Devco for the premium was payable to Premium Budget Service, which then remitted to Atlas, the producing agency.

      . The hearing officer in this case recommended revocation but expressed the opinion that Section 626.681 (“Administrative fine in lieu of suspension, revocation, or refusal of license”) permits the Department to fine Bowling instead of revoking or suspending his license. The Department disagrees, saying in its final order that suspension or revocation is required for conduct proscribed by Section 626.611. The Department is competent so to interpret those statutes. Rice v. Dept. of Health & Rehab. Serv., 386 So.2d 844, 847 (Fla. 1st DCA 1980); ABC Liquors, Inc. v. Dept. of Business Reg., etc., 397 So.2d 696 (Fla. 1st DCA 1981).

      . Section 812.012(2)(d)l, Florida Statutes (1979), the omnibus theft statute, specifically includes “Conduct previously known as ... embezzlement,” and proof of a specific criminal intent is constitutionally necessary for a conviction by due process, though the element is not particularly mentioned in the statute. State v. Allen, 362 So.2d 10 (Fla.1978).

      .Section 626.621(4) specifies as a ground “for discretionary refusal, suspension, or revocation of license or permit”:
      (4) Failure or refusal, upon demand, to pay over to any insurer he represents or has represented any money coming into his hands belonging to the insurer.
      The redundancy of Sections 626.611(10) and 626.621(4) is unresolved by any Department rule or order interpreting and explaining the statutes. The apparent duplication is traceable to 1947, when the second of two statutory systems was enacted to regulate life insurance agents. Ch. 20327, Sec. 5, Fla.Laws (1941), Section 634.21, Florida Statutes (1953), corresponding to present section 626.621(4); and Ch. 24086, Sec. 13, Fla.Laws (1947), Section 627.31, Florida Statutes (1951), Section 634.21, Florida Statutes (1953), corresponding to present Section 626.611(10). See also Ch. 25406, Sec. 14, Fla.Laws (1949) (accident and health insurance agents) and Ch. 28075, Sec. 26, Fla.Laws (1953) (“Insurance Agents and Solicitors License Law”).

      . The requirement for an agency’s evidentiary verification of nonrule policy choices within statutory limits rests on different principles than the requirement for proof of conventional facts. As to those principles, see ABC Liquors, Inc. v. Dept. of Business Regulation, etc.,So.2d -, No. SS-372 (Fla. 1st DCA op. filed 2/11/81); Rice v. Dept. of Health & Rehab. Serv., 386 So.2d 844, 850 (Fla. 1st DCA 1980), elaborating the “record foundation” required by Florida Cities Water Co. v. Florida Publ. Serv. Comm’n, 384 So.2d 1280 (Fla. 1980) and McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

      . Professor Davis puts the same thought this way, 4 Administrative Law Treatise, Sec. 29.02, p. 126:
      Whatever impression a literal-minded reader may get from the words in the statute book, the plain reality is that the substantial-evidence rule as the courts apply it is a variable.

      . Reid was disapproved on other grounds in Van Eaton v. State, 205 So.2d 298 (Fla. 1967).

      . McDonald, supra fn. 9, 346 So.2d at 579, quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456, 467 (1951). In Justice Frankfurter’s aphorism Professor Davis finds verification that the substantial-evidence rule “is made of rubber, not of wood.” Administrative Law of the Seventies, Sec. 29.00 at pp. 651-53. See also fn. 10 supra.

      . USF&G’s assistant manager in Jacksonville wrote to another agent in June 1976:
      This will acknowledge your inquiry in regard to our service of our JUA business which in all respects has certainly been atrocious and is not up to USF&G standards. In order to understand what our problem has been I think it best to give you the history....

      . Bowling testified that Atlas used this checking account to pay its “light bill” and other expenses, but there was no proof, as contrasted with conjecture, that any part of the retainage was spent.

      . Saviak, 1980 Fla.Admin.Law Rep. at 894-A, continuing:
      An agent need not require payment of the entire premium in order to write an insurance policy, so long as the agent collected a specified minimum deposit. Any money actually collected above the amount of the minimum deposit, however, was to be forwarded to the servicing carrier daily.... Agents were first advised of this [USF&G] requirement in writing on or about September 17, 1973.

      . See authorities cited fn. 9 supra. This is not to say that Saviak, by proper nonrule policy-making on an adequate record in that case, could conclusively establish agency policy for purposes of this disciplinary proceeding. The necessity of reproving contested nonrule policy in Section 120.57 proceedings is the price the agency pays to avoid rulemaking. Hill v. School Board of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977), cert. den., 359 So.2d 1215 (Fla. 1978); State Dept. of Health and Rehab. Serv. v. Barr, 359 So.2d 503, 505 (Fla. 1st DCA 1978) (“But the rule is stare decisis, not res judicata .... Section 120.57 proceedings will afford him the opportunity to attack the agency’s position by appropriate means ...."); contrast Jax Liquors, Inc. v. Division of Alcoholic Bev. and Tobacco, etc., 388 So.2d 1306 (Fla. 1st DCA 1980).

      .1 Davis, Administrative Law Treatise, Sec. 7.02 at p. 413:
      Adjudicative facts are the facts about the parties and their activities, businesses and properties .... Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion.
      Davis poses this dichotomy principally to distinguish between facts which he considers a policymaking agency must conventionally prove (“adjudicative” facts) and those which it need not so verify and may simply announce (“legislative” facts). This court has recently determined to avoid this abstract and unprofitable debate over definitions, preferring to require proof even of “legislative” facts when they are reasonably susceptible to some kind of proof, and when requiring proof contributes vitality and verification to agency decisionmak-ing. E. g., Rice v. Dept. of Health & Rehab. Serv., supra fn. 9; ABC Liquors, supra fn. 9; Anheuser-Busch, Inc. v. Dept. of Business Reg., 393 So.2d 1177 (Fla. 1st DCA 1980). This approach is supported by Clagett, Informal Action — Adjudication—Rule Making: Some Recent Developments in Federal Administrative Law, 1971 Duke L.J. 51, 78 et seq.

      . The hearing officer gave two other reasons, besides not believing Bowling for rejecting his testimony concerning an agreement:
      Varnes testified and did not acknowledge that agreement; additionally, any such agreement would be contrary to the requirement that the full amount of the premium be submitted by Atlas ....
      Varnes, though he testified, was not asked about the asserted agreement; and the contrariness of the asserted agreement to “the requirement” is inconsequential until “the requirement” is shown by substantial competent evidence.

      . Each count typically alleged:
      That you, JAMES H. BOWLING, . .. collected and received monies belonging to insureds, insurers or others in transactions under your license which funds you failed to account for or pay to the insurer, insured or other persons.


text:
    Bob GRAHAM, individually and in his official capacity as Governor of the State of Florida; Louie L. Wainwright, individually and in his official capacity as Secretary of the State of Florida Department of Corrections; and Clayton G. Strickland, individually and in his official capacity as Superintendent of the Florida State Prison, Appellants, v. James VANN, Larry Anderson, Harry Mungin, Charles Green, Willie Middleton, James Sparks, William Hill, Phillip Elliott, and Floyd Price, Appellees.
    No. WW-132.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.
    Jim Smith, Atty. Gen., Kent A. Zaiser, Asst. Atty. Gen., Tallahassee, for appellants.
    Jack J. Fine, Asst. Public Defender, Gainesville, for appellees.
   PER CURIAM.

This is an interlocutory appeal from a non-final order denying the appellants’ Motion to Dismiss the appellees’ Petition for Writ of Habeas Corpus for lack of jurisdiction.

Appellees are convicted felons and inmates of Florida State Prison who assert that because of violent conditions in the prison, inadequate staff training, overcrowded conditions and physical plant deficiencies they are being denied basic constitutional rights.

It is the appellants’ position on appeal that the state court lacks jurisdiction because the appellees are all members of a class certified on February 20, 1973, by the United States District Court for the Middle District of Florida in Costello v. Wainwright, 397 F.Supp. 20 (M.D.Fla.1975). Appellants cite numerous cases for the proposition that where two courts have concurrent jurisdiction in any proceeding the power to entertain the action attaches exclusively to that court which first exercises jurisdiction, and that court will ordinarily retain such jurisdiction to decide every issue properly arising in the case. Appellants reason that since the federal court exercised jurisdiction over members of a class which includes the appellees, the state court is now precluded from exercising jurisdiction. The vulnerability of the appellants’ position is however apparent upon review of the constitutional deprivation alleged and the relief sought in Costello as opposed to the redress sought in the instant cause. In Costello, the plaintiffs alleged that the Florida Division of Corrections and the Florida Division of Mental Health do not provide adequate hospital beds, ambulances, doctors, psychiatrists, nurses, psychologists, medical technicians nor the balance of the personnel and equipment necessary to care for the physically and mentally ill prisoners; that the plaintiffs have been denied access to constitutionally acceptable medical facilities and medical personnel; that the defendants, acting under the color of law, have denied or have been unable to provide constitutionally adequate medical treatment; that the physical facilities are so grossly overcrowded as to cause deprivation of basic elements of hygiene. Plaintiffs sought mandatory reduction of the prison population to levels which do not exacerbate the unhealthy conditions already in existence; a mandatory requirement that the plaintiffs be afforded such medical care as will protect their lives and health and an injunction requiring the defendants to cease providing inadequate medical care. Among other things, the court found that the evidence established, at least for purposes of preliminary injunctive relief, that the defendants had been and still were operating the state prison system in a manner which violated the constitutional rights of inmates by denying them adequate medical care. The defendants were required to reduce, by stages, the inmate population of the Florida prisons.

Appellees in the instant cause have not sought to bring a class action. Their complaint is not for adequate medical care but for relief from prison conditions that daily imperil their lives and safety. Disposition of the federal action will not necessarily dispose of the issues in this cause. Cf. ITT Community Development Corp. v. Halifax Paving, Inc., 350 So.2d 116 (Fla. 1st DCA 1977). Therefore, the state court correctly took jurisdiction.

In a companion case filed by the appellees in Docket No. XX — 474, we disposed of appellants’ argument that mandamus is an improper remedy. We adopt the reasoning set forth therein and in so doing affirm this issue in the instant cause.

The appellants also challenge the ap-pellees’ representation by the Public Defender’s Office. They correctly point out that the office did not exist at common law and is a creature of Article V, § 18, Florida Constitution, with no authority outside of that provided by statute. Section 27.51(1), Florida Statutes, provides that the Public Defender shall represent, without additional compensation as provided in § 925.035, any person who is determined to be insolvent, as provided in the Act, and who is under arrest for, or is charged with a felony, or is charged with a misdemeanor or violation of a municipal or county ordinance in the county court. It is the thrust of the appellants’ argument that the statute does not encompass or contemplate civil representation by the Public Defender’s Office when convicted felons challenge the constitutionality of their confinement.

Rule 3.111(b)(2), Fla.R.Crim.P., states, in pertinent part, that counsel may be provided to indigent persons in all proceedings arising from the initiation of a criminal action against a defendant, including post-conviction proceedings and appeals therefrom, extradition proceedings, mental competency proceedings, and other proceedings which are adversary in nature, regardless of the designation of the court in which they occur or the classification of the proceedings as civil or criminal. It thus appears that the supreme court in its wisdom envisioned post-conviction representation of indigent prisoners. Such representation is not without precedent. Graham v. State, 372 So.2d 1363 (Fla.1979); State v. Weeks, 166 So.2d 892 (Fla.1964); Garrett v. State, 229 So.2d 1 (Fla. 1st DCA 1969).

The trial judge in this instance has obviously decided that the claims presented are substantial and that the assistance of counsel is essential to accomplish a fair and thorough presentation of the prisoners’ claims. Under such circumstances, the court possesses the authority to appoint counsel to represent the indigent appellees. Graham and Garrett, supra. There are currently five criminal actions pending against the petitioners, and the Office of the Public Defender has represented each of the individuals within the past year. We cannot believe that it was legislative intent that under such circumstances the trial judge is free to appoint counsel, but in so doing he may not consider the Office of the Public Defender. We do not interpret the statute as mandating such a result.

The order of the trial judge is accordingly affirmed.

SHIVERS, SHAW and THOMPSON, JJ., concur.


text:
    Bob GRAHAM, individually and in his official capacity as Governor of the State of Florida; and Louie L. Wainwright, individually and in his official capacity as Secretary of Florida Department of Corrections, Appellants, v. James VANN, Larry Anderson, Harry Mungin, Charles Green, Willie Middleton, James Sparks, William Hill, Phillip Elliott and Floyd Price, Appellees.
    Nos. XX-293, XX-334 and XX-490.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.

      Jim Smith, Atty. Gen., Kent A. Zaiser, Asst. Atty. Gen., Tallahassee, for appellants.
    Alan R. Parlapiano, Public Defender, Jack J. Fine, Asst. Public Defender, Gaines-ville, for appellees.
   PER CURIAM.

This case is before us to review an interlocutory order of the Circuit Court of the Eighth Judicial Circuit in and for Bradford County, Florida denying a motion of the appellants/respondents to dismiss for improper venue or in the alternative to transfer venue to the Circuit Court of the Second Judicial Circuit.

The petitioners/appellees are all convicted felons and inmates of Florida State Prison who, on May 29,1980, filed a Petition for Writ of Habeas Corpus in Case No. 80-230 (docket number XX-293). On June 30, 1980, the petitioners, with the exception of Charles Green, filed a Complaint for Declaratory Relief in Case No. 80-271 (docket number XX-490). On the same date petitioners, with the exception of Charles Green, filed a Petition for Injunctive Relief pursuant to 42 U.S.C. § 1983 in Case No. 80-272 (docket number XX-334). Petitioners complain that they are lawfully incarcerated for various felonies, and that as a result of violent conditions at the prison, inadequate security measures, inadequate staff training, insufficient number of staff, overcrowded conditions and physical plant deficiencies, they are being deprived of basic constitutional rights.

The petitions were filed in Bradford County, Florida, site of the prison. The respondents maintain their principal headquarters in Leon County, Florida, which is located within the Second Judicial Circuit. All parties agree that it is the general rule of law in this state that absent waiver or exception in civil actions brought against the state, its agencies or subdivisions, venue properly lies in the county where the agency maintains its principal headquarters. Florida Public Service Commission v. Triple “A” Enterprises, Inc., 387 So.2d 940 (Fla.1980); Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1978); Department of Revenue v. First Federal Savings & Loan Association of Fort Myers, 256 So.2d 524 (Fla. 2d DCA 1971). A recognized exception exists where the petitioner’s action is in the nature of a shield against the state’s thrust. The rationale of this so-called “sword-wielder” doctrine announced in First Federal, supra, is stated in 34 Fla.Jur. Venue, § 27:

It is the policy of this state to require that its officials and boards be sued in the county of their official residence, unless this privilege is waived.... Under exceptional circumstances, a complainant may be entitled to sue a public official or board in a county other than that of his or its official residence. One recognized exception to the rule exists where an unlawful invasion of a lawful right secured to the plaintiff by the constitution or laws of the jurisdiction is directly threatened in the county where the suit is instituted. Parties seeking relief from alleged threats to their personal and property rights by the operation of unconstitutional acts of an agency of the state may bring suit in the county where the alleged wrongs are threatened or alleged to have been committed. But in the absence of waiver on the part of a state agency of its right, and in the absence of action bringing it within the exceptions to the rule, an action brought against a state agency in a county other than that of its official residence is subject to dismissal.

The issue to be resolved is whether the respondents are the initial sword-wielders. We believe this question must be answered in the affirmative. The appellees are attempting to obtain direct judicial protection from an alleged unlawful invasion of their constitutional rights. It appears therefore that the suits were properly instituted in the county where these rights are allegedly being violated. Parties seeking relief from the deprivation of constitutional rights may bring suit in the county where the alleged wrongs are imminently threatened or alleged to have been committed. Carlile, supra.

The decision of the trial court below is, accordingly, affirmed.

SHIVERS, SHAW and THOMPSON, JJ., concur.