text:
    Alonzo BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 53230.
    Supreme Court of Florida.
    March 25, 1982.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender of the Eleventh Judicial Circuit, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Paul Mendelson and Calvin L. Fox, Asst. Attys. Gen., Miami, for appellee.
   ALDERMAN, Justice.

Alonzo Bryant appeals his conviction for first-degree murder and his sentence of death. He also appeals his conviction for the underlying felony of robbery. We find that the court committed reversible error in not giving Bryant’s requested instruction on independent act, and we reverse his conviction for murder in the first degree and remand for a new trial. In view of this disposition, we find it unnecessary to address most of the issues presented by Bryant on appeal. We do hold, however, that the trial court did not err in denying Bryant’s motion to dismiss based on his challenge to the grand jury and did not err in denying Bryant’s motion to suppress his inculpatory statement and in allowing this statement to be introduced at trial. We further find no reversible error affecting his conviction for robbery and therefore affirm this conviction.

From the evidence, the jury could have found that Alonzo Bryant was asked by Alvin Jackson to assist him in burglarizing an apartment, which Jackson said was vacant. They went to the apartment of the victim, Luis Abreau, and, upon entering, Bryant was surprised to see the victim naked, with his hands and feet tied with the cord of an electric clock, and in a crouched position on the floor. Bryant advised Jackson that the victim was improperly tied and was likely to escape. Bryant then proceeded to retie the victim’s hands behind his back with the clock cord. He tied the cord to one wrist, then through the victim’s mouth, pushing his tongue upwards, and then tied the cord to the victim’s other wrist. Bryant then picked up the victim and put him on the bed. While he was at the apartment, he did not observe any sexual assault upon the victim although Alvin Jackson had engaged in homosexual activity on previous occasions. When he left the apartment which was within fifteen minutes from the time he had arrived, the victim was gagging but was alive, and Jackson was still in the apartment. He met Jackson two days later to get a share of the money from the cashed travelers checks stolen from the victim’s apartment.

The victim’s nude body was found in a kneeling position against the bed, his buttocks and anal regions were coated with a greasy gel lubricant, and he had been subjected to a violent anal penetration which resulted in a blood flow. In addition to the cord of the electric clock wrapped around his wrists and through his mouth, a necktie was tightly bound around his neck. The victim had sustained severe neck injuries including fracture of the hyoid bone and thyroid and larynx cartilage and hemorrhage of the right vocal cord inside the larynx. The severe trauma to the victim’s neck was caused by the placement of the necktie and not the electric cord. The victim died of asphyxia by strangulation. Bryant’s fingerprint was found on the clock, the cord of which had been used to secure the victim. Travelers checks, a television set, cash, and other items valued in excess of $100 were taken from the victim’s apartment.

The grand jury indicted Bryant for first-degree murder, charging that he killed Abreau by strangulation from either a premeditated design or while engaged in the perpetration of, or in an attempt to perpetrate, a robbery. He was also charged with robbery. He was convicted on both counts and was sentenced to death for the murder and was sentenced to fifteen years for the robbery.

He appeals his convictions and sentences on several grounds. His first point is meritorious and requires reversal of his conviction of murder and a new trial. Because there was evidence that an act totally independent of the robbery and the tying of the victim with the clock cord which was a part of the robbery may have caused the victim’s death, Bryant requested that the trial court give an instruction to the jury on independent acts. Bryant argues that the trial court’s failure to give this instruction was prejudicial to him and deprived him of his rights to a fair trial by jury and due process of law. Bryant contends that had this instruction been given, the jury could have decided that the death occurred not pursuant to the robbery but rather pursuant to a subsequent sexual assault which the jurors could have determined was an independent act by Jackson or some other person, in which Bryant had not participated and which was outside of, and foreign to, the common design of Jackson and Bryant to rob the victim. Bryant urges, and we agree, that this was a crucial factual issue bearing directly upon his liability for the homicide. The record reflects that the victim was subjected to a burglary, a robbery, and a sexual battery, and there was evidence from which the jury could have concluded that Bryant withdrew from the criminal enterprise prior to the sexual battery and death of the victim. The jury expressed its confusion as to what act on the part of Bryant would implicate him in the murder by its questions to the judge regarding certain jury instructions given by the court. Although during argument to the jury, defense counsel made clear his position as to the theory of independent act, the jury was not apprised of any legal basis upon which it could consider this position since the court refused to give an instruction on independent act. In fact, the court, in response to the jury’s inquiries as to what act of Bryant’s was necessary to be proved in order to find him guilty of murder in the first degree, told the jury if it found that Bryant was a participant in the robbery or attempted robbery and death ensued then Bryant would be guilty of first-degree murder. The record demonstrates that Bryant was prejudiced by the court’s failure to instruct on independent act.

The State suggests that Bryant’s liability for first-degree felony murder is predicated on his participation in the robbery and that the trial court properly refused to instruct on independent act because Bryant’s theory of defense is not supported by any reasonable view of the evidence. We disagree. In this case, there was evidence to support Bryant’s theory of defense, and the requested instruction should have been given. Where there is any evidence introduced at trial which supports the theory of the defense, a defendant is entitled to have the jury instructed on the law applicable to his theory of defense when he so requests. Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945).

The record demonstrates beyond a reasonable doubt that Bryant was present during and participated in the robbery. If the jury finds that the tying of the victim by Bryant during the course of the robbery or any other acts committed by Bryant or his accomplice during the perpetration of the robbery either caused or materially contributed to the victim’s death, then it may properly find Bryant guilty of first-degree murder. Swan v. State, 322 So.2d 485 (Fla.1975). This is so because the felony murder rule and the law of principles combine to make a felon liable for the acts of his co-felons. Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977). But this liability is circumscribed by the limitation that the lethal act must be in furtherance or prosecution of the common design or unlawful act the parties set out to accomplish. Adams v. State; Pope v. State, 84 Fla. 428, 94 So. 865 (1922). Since it is the commission of a homicide in conjunction with intent to commit the felony which supplants the requirement of premeditation for first-degree murder, Fleming v. State, 374 So.2d 954 (Fla.1979), there must be some causal connection between the homicide and the felony. In the present case, if the jury finds that the death was not caused or materially contributed to by any acts committed during the perpetration of the robbery but rather was caused solely by acts committed during the perpetration of the sexual battery, if the jury finds that Bryant was not actually or constructively present during and did not participate in the perpetration of the sexual battery, and if the jury finds that the sexual battery was an independent act of another and not a part of Jackson and Bryant’s common scheme or design, then it may not find Bryant guilty of first-degree felony murder. This is a factual issue to be determined by the jury pursuant to proper court instructions consistent with this opinion.

Accordingly, we affirm the robbery conviction, but we reverse the conviction of murder in the first degree and remand for a new trial.

It is so ordered.

SUNDBERG, C. J., and OVERTON and McDONALD, JJ., concur.

ADKINS and BOYD, JJ., dissent.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    FLORIDA HOME BUILDERS ASSOCIATION, et al., Petitioners, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Respondent.
    No. 60211.
    Supreme Court of Florida.
    March 25, 1982.
    Stephen W. Metz, General Counsel for Florida Home Builders Association; and Robert M. Rhodes of Messer, Rhodes, Vick-ers & Hart, Tallahassee, for petitioners.
    Kenneth H. Hart, Jr., Gen. Counsel for Florida Dept, of Labor and Employment Sec., Tallahassee, for respondent.
    Jerry G. Traynham of Patterson & Traynham, Tallahassee, for Florida Building Trades Counsel and Jacksonville Mechanical Contractors Association, intervening respondents.
    Darryl M. Bloodworth and Lynn J. Hin-son of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, Orlando, for The Florida Association of Realtors, amicus curiae.
    Mary Ann Stiles of Deschler, Reed & Critchfield, Boca Raton, for Associated Industries of Florida, amicus curiae.
   OVERTON, Justice.

This is a petition to review the decision of the First District Court of Appeal, reported as Department of Labor and Employment Security v. Florida Home Builders Association, 392 So.2d 21 (Fla. 1st DCA 1980), which held that a trade association does not have standing under section 120.56(1), Florida Statutes (1979), to challenge the validity of an agency rule unless the association itself is substantially affected by the rule. The court below certified to us, as having great public importance, the following question:

Whether, under section 120.56, Florida Statutes, a trade association, which is not itself affected by an agency rule but some or all of whose members are substantially affected by the rule, may seek an administrative determination of the invalidity of the rule as a[n] [in]valid exercise of delegated legislative authority-

We answer the question in the affirmative, holding that a trade association does have standing under section 120.56(1) to challenge the validity of an agency rule on behalf of its members when that association fairly represents members who have been substantially affected by the rule.

In the instant ease, Florida Home Builders Association, using the procedures specified in section 120.56, instituted a challenge to the validity of a rule promulgated by the Bureau of Apprenticeship, Department of Labor and Employment Security. The hearing officer found that the association had standing under section 120.56(1) to bring the rule challenge and found, on the merits, that the rule was partially invalid. The department appealed to the First District Court of Appeal, challenging the association’s standing. The district court reversed, determining that the “builders who are affected by the rule ... are not parties” and that the “builder associations are not substantially affected parties and therefore have no standing to challenge the rule.” 392 So.2d at 22.

In reaching this result, the district court relied on its prior decision in Florida Department of Education v. Florida Education Association/United, AFT—AFL-CIO, 378 So.2d 893 (Fla. 1st DCA 1979), in which the Florida Education Association sought to represent 30,000 of the 90,000 teachers in Florida in a rule challenge proceeding. The district court held that, since no teacher was a party to the action, the teachers’ association lacked standing under the rule of law established by its decision in Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), which expressly requires a person to show injury or immediate threat of injury from operation of the challenged rule in order to have standing under section 120.56(1). In the instant case, the court again applied the Jerry standard to deny standing because the builders’ association had not suffered a direct injury to its own interests. For the reasons expressed herein, we disagree and reverse.

Petitioners contend that the term “substantially affected” in section 120.56(1) should include trade or professional associations which meet the test for associational standing contained in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). In response, the department asserts that we should reject the federal case law on standing because the cases are conflicting and irreconcilable. The department further argues that we should adopt the special injury standing rule expressed in United States Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla.1974), which has been applied in public nuisance, zoning, and taxpayer cases, when construing the standing requirements of section 120.56(1).

We find the district court’s restriction on the standing of associations is an excessively narrow construction of section 120.56(1) and results in restricted public access to the administrative processes established in the Florida Administrative Procedure Act, chapter 120, Florida Statutes (1979). Expansion of public access to the activities of governmental agencies was one of the major legislative purposes of the new Administrative Procedure Act. In our view, the refusal to allow this builders’ association, or any similarly situated association, the opportunity to represent the interests of its injured members in a rule challenge proceeding defeats this purpose by significantly limiting the public’s ability to contest the validity of agency rules. While it is true that the “substantially affected” members of the builders’ association could individually seek determinations of rule invalidity, the cost of instituting and maintaining a rule challenge proceeding may be prohibitive for small builders. Such a restriction would also needlessly tax the ability of the Division of Administrative Hearings to dispose of multiple challenges based upon identical or similar allegations of unlawful agency action.

The federal courts have consistently allowed standing for this type of association to represent the interests of its members in appropriate circumstances. In Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), a builders’ association sought to invoke the jurisdiction of the court on behalf of its members. Though ultimately denying standing to the association, the United States Supreme Court stated: “Even in the absence of injury to itself, an association may have standing solely as the representative of its members.” 422 U.S. at 511, 95 S.Ct. at 2211. In Hunt v. Washington State Apple Advertising Commission, the United States Supreme Court expressly set forth the requirements of associational standing:

Thus we have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

432 U.S. at 343, 97 S.Ct. at 2441. Although the Court in both Warth and Hunt was concerned with the federal constitutional “case or controversy” requirement, the same rule has been applied to actions brought under the Federal Administrative Procedure Act, section 1, 5 U.S.C. § 702 (1976).

After reviewing the legislative history and purpose of chapter 120, we have concluded that a trade or professional association should be able to institute a rule challenge under section 120.56 even though it is acting solely as the representative of its members. To meet the requirements of section 120.56(1), an association must demonstrate that a substantial number of its members, although not necessarily a majority, are “substantially affected” by the challenged rule. Further, the subject matter of the rule must be within the association’s general scope of interest and activity, and the relief requested must be of the type appropriate for a trade association to receive on behalf of its members. We note that the only issue to be resolved in a section 120.56(1) proceeding is whether an agency rule is valid, and this type of proceeding does not involve association or individual claims for money damages.

In the instant case, the Division of Administrative Hearings’ hearing officer found that the Florida Home Builders Association represented nonunion Florida building- contractors who were individually substantially affected by the operation of the challenged rule. The district court did not question the correctness of this finding, nor has it been contested in this proceeding. The rule in issue concerns standards regarding apprenticeship programs in the building trades. Clearly, the content of the rule is such that the builders’ association has a legitimate associational interest, on behalf of a substantial number of its members, in the rule’s operation.

We conclude that the Florida Home Builders Association has standing to institute a challenge to Rule 8C-16.05(2)(e)2. and 5. The decisions of the First District Court of Appeal in Florida Department of Offender Rehabilitation v. Jerry and Florida Department of Education v. Florida Education Assóciation/United, AFT-AFL-GIO are disapproved to the extent that they conflict with the views expressed in this opinion. The instant decision of the district court is disapproved, and the cause is remanded with directions to review the agency rule on its merits.

It is so ordered.

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

      . Section 120.56(1), Florida Statutes, reads:
      Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

        . “The principal purpose for the adoption of a wholly-revised administrative procedure act for Florida is to remedy massive definitional, procedural and substantive deficiencies in existing law ... (v) by broadening public access to the precedents and activities of agencies .. .. ” Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, March 9, 1974, at p. 3, reprinted in 3 A. England & L. Levinson, Florida Administrative Practice Manual at 79 (1979).

      . E.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Meek v. Pittinger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); National Motor Freight Traffic Ass’n. v. United States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963).

      . U.S.Const. art. III, § 2; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

      . United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Sierra Club; Association of Data Proc. Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Section 1 of the Federal Administrative Procedure Act, 5 U.S.C. § 702, provides that “a person ... adversely affected or aggrieved by agency action ... is entitled to judicial review thereof.” We believe that the standing requirement of this statute is so similar to the “substantially affected” requirement of section 120.56(1) that we are justified in looking to federal case law for guidance in formulating our rule regarding associational standing under section 120.56.


author: ALDERMAN, Justice.

text:
    Thomas Wayne COX, Petitioner, v. STATE of Florida, Respondent.
    No. 60860.
    Supreme Court of Florida.
    March 25, 1982.
    Jerry Hill, Public Defender and William C. McLain, Asst. Public Defender of the Tenth Judicial Circuit, Bartow, for petitioner.

      Jim Smith, Atty. Gen. and Peggy A. Quince, Asst. Atty. Gen., Tampa, for respondent.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, Second District, in State v. Cox, 399 So.2d 1067 (Fla. 2d DCA 1981), which expressly and directly conflicts with State v. Laury, 397 So.2d 960 (Fla. 5th DCA 1981). We agree with the Second District’s reversal of the trial court’s judgment and sentence, and we hold that, in light of Florida Rule of Criminal Procedure 3.170(g), the trial court had no authority, over the objection of the state attorney, to accept a plea from Cox to the lesser offense of petit theft. We also hold that, since the trial court acted improperly and exceeded its jurisdiction and authority, jeopardy did not attach.

Cox was charged with robbery. He initially entered a plea of not guilty but then changed his plea to guilty of strong-armed robbery with the condition that he receive a sentence of not more than three years’ imprisonment. The court accepted this plea, but withheld adjudication pending a presen-tence investigation report. Twelve days later, Cox again appeared before the court. He then was permitted to withdraw his guilty plea, and, over the State’s objection, he was allowed to plead guilty to petit theft. The trial court reasoned that, in good conscience, it could not sentence Cox on the robbery charge since his codefendant had been convicted by a jury of petit theft.

The State appealed, and the Second District reversed on the basis of Florida Rule of Criminal Procedure 3.170(g). Relying on our decision in Vinson v. State, 345 So.2d 711 (Fla.1977), it concluded that jeopardy had not attached, and it expressly disagreed with the Fifth District’s holding in Laury that the adjudication of guilt on a lesser charge, even though erroneous, disposed of all higher degrees of the offense.

In Laury, the trial court accepted a negotiated nolo contendere plea to second-degree murder as a lesser included offense of the first-degree murder charged, but it did not adjudicate the defendant guilty at the time it accepted the plea. Later, at sentencing, after considering additional facts adduced at the defendant’s trial on a separate manslaughter charge and presented by a presentence investigation report, the trial court, over the State’s objection and contrary to the negotiated plea, adjudicated the defendant guilty of manslaughter. Relying upon Vinson v. State, the State asked the Fifth District to quash the manslaughter conviction. The district court disapproved the reduction by the trial court of the negotiated plea, but it held that the trial court’s adjudication and sentence of Laury for the lesser included offense of manslaughter disposed of all higher degrees of the homicide.

Laury is inconsistent with our decision in Vinson v. State, wherein we addressed the question of whether the trial court’s action barred further prosecution on the basis of Vinson’s claim of double jeopardy. The defendant in Vinson entered a plea of nolo contendere to the charge of unlawful delivery of a controlled substance. The trial court then ordered an evidentiary hearing on the plea, but the State objected, contending that upon tender of a plea of nolo contendere, the sole responsibility and authority of the court was to accept or reject the plea and, if accepted, to impose sentence. The trial court, however, proceeded with the hearing, after which it entered an order of not guilty and discharged Vinson. The State appealed, and the Second District reversed, agreeing with the State that the action of the trial judge in discharging Vinson was without authority of law and effectually a nullity, and therefore further prosecution was not precluded. State v. Vinson, 320 So.2d 50 (Fla. 2d DCA 1975). On review, we agreed with the district court that the trial court had no authority to enter a judgment of not guilty, and we explained in detail the nature of a plea of nolo conten-dere. Such a plea, we said, is merely a formal declaration that the accused will not contest the charges and is in the nature of a compromise between the State and the accused. As to Vinson’s claim of double jeopardy, we concluded:

[T]he decision of the trial court discharging the defendant was without authority or jurisdiction and is a nullity. The choices of the trial court under Rule 3.170 and the facts of this case were: (1) to accept the plea and enter judgment and sentence thereon or (2) to reject the plea, enter a plea of not guilty for the defendant after which the defendant would have a choice of entering a plea of guilty or not guilty and then proceeding with the trial.

345 So.2d at 717.

In the present case, the Second District correctly relied on Vinson in holding that double jeopardy did not bar further prosecution of Cox. Florida Rule of Criminal Procedure 3.170(g) provides: “The defendant, with the consent of the court and of the prosecuting attorney, may plead guilty to any lesser offense than that charged which is included in the offense charged in the indictment or information or to any lesser degree of the offense charged.” (Emphasis supplied.) Here, the state attorney expressly objected to the acceptance of the plea, and therefore the trial court was without jurisdiction or authority under Rule 3.170(g) to accept the plea just as the trial court in Vinson was without authority to discharge the defendant. Therefore, since the trial court was without jurisdiction to accept the plea, jeopardy did not attach.

This case is not analogous to Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), on which Cox relies to support his contention that jeopardy attached. In Fong Foo, after seven days of trial and after three government witnesses testified and during the testimony of a fourth, the federal trial court directed the jury to return verdicts of acquittal as to all the defendants. It then entered a formal judgment of acquittal. The government sought mandamus in the Court of Appeals for the First Circuit, requesting that the acquittal be vacated and the case be reassigned for trial. Agreeing with the government’s contentions, the federal appeals court granted its petition. In re United States, 286 F.2d 556 (1st Cir. 1961). The Supreme Court, concluding that the trial court’s action was based on either supposed improper conduct of the prosecutor or supposed lack of credibility of the prosecution’s witnesses, or on both of these grounds, reversed the First Circuit. Pointing out that the defendants were tried under a valid indictment in a federal court which had jurisdiction over them and over the subject matter and that the trial did not terminate prior to the entry of judgment but terminated with the entry of a final judgment of acquittal, the Supreme Court held that the verdicts of acquittal were final and could not be reviewed without putting the defendants twice in jeopardy.

In the present case, however, in light of Rule 3.170(g), the trial court did not have the jurisdiction or authority without the consent of the prosecuting attorney to accept a plea of guilty to a lesser offense than charged. Vinson v. State. See also Duncan v. Tennessee, 405 U.S. 127, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972), wherein the Supreme Court, after briefing and oral argument, dismissed a petition for writ of certiorari to review double jeopardy claims because the questions presented were so interrelated with rules of criminal pleading peculiar to Tennessee as not to warrant the exercise of its jurisdiction.

Accordingly, we approve the decision of the district court before us and disapprove the decision of the Fifth District in State v. Laury insofar as it is inconsistent with this decision and Vinson v. State.

It is so ordered.

ADKINS, Acting C. J., and BOYD and McDONALD, JJ., concur.

OVERTON, J., dissents.


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re Jack F. WHITE, Jr.
    No. 61436.
    Supreme Court of Florida.
    March 25, 1982.
    Patricia J. Brown and Roberta J. Fox, Bar Counsels, Tampa, for complainant.
    Jack F. White, Jr., in pro. per.
   PER CURIAM.

Respondent Jack F. White, Jr., has petitioned for leave to resign from the Florida Bar, pending disciplinary proceedings, pursuant to Florida Bar Integration Rule, article XI, Rule 11.08. Respondent’s petition sets forth numerous grievance and disciplinary proceedings pending against him at various stages of the grievance and disciplinary process, including two cases now pending before this Court which are being dismissed concurrently with this opinion.

We grant the petition and accept respondent’s resignation. We assess against respondent the Florida Bar’s costs in this proceeding and in case nos. 60,507 and 60,577 in the amount of $722.75. Respondent’s resignation shall be effective this date.

It is so ordered.

ADKINS, BOYD, OVERTON and MCDONALD, JJ., concur.

SUNDBERG, C. J., and ALDERMAN and EHRLICH, JJ., dissent.


text:
    John SIMMONS, Manny Tortora, W. C. Knuck, Steve Lombardi, and Wayne Opperman, Appellants. v. The DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellees.
    No. 61643.
    Supreme Court of Florida.
    March 25, 1982.
    Elizabeth J. du Fresne of du Fresne & du Fresne, Miami, for appellants.
    Janice G. Scott, Staff Atty., Dept, of Business Regulation, Division of Pari-Mutu-el Wagering, Tallahassee, for appellees.
   PER CURIAM.

This cause is before the Court on appeal of a decision of the district court of appeal that held a portion of a state statute unconstitutional. Simmons v. Division of Pari-Mutuel Wagering, 407 So.2d 269 (Fla. 3d DCA 1981). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

The appellants contend that the district court erred not in finding one clause of section 550.241(1), Florida Statutes (Supp. 1980), unconstitutional, but in upholding the remainder of the statute against appellants’ challenges on various grounds.

The district court found the broad prohibition against racing an animal while there is in the animal’s body “any substance which is foreign to the natural horse or dog,” unconstitutional for not being rationally related to the objectives of the statute. § 550.241(1), Fla.Stat. (Supp.1980). The court upheld the remainder of the statute, prohibiting the administering to racing animals of “any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, or drug-masking agent.” Id. We affirm the district court’s decision and adopt the reasoning expressed in the district court’s opinion.

Accordingly, we hold that the clause, “any substance which is foreign to the natural horse or dog,” as it appears twice in section 550.241, lacks a rational basis and is unconstitutional and void. The remainder of the provisions of the challenged statute are constitutional and are hereby upheld for the reasons stated by the district court of appeal.

The decision appealed is affirmed.

It is so ordered.

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

      . Chapter 80-270, Laws of Florida, amended section 550.24 and enacted section 550.241, Florida Statutes (Supp.1980):
      550.24 Conniving to prearrange result of race; using medication or drugs on horse or dog; penalty.—
      (1) Any person who shall influence or have any understanding or connivance with any owner, jockey, groom, or other person associated with or interested in any stable, kennel, horse or dog or race in which any horse or dog participates, to prearrange or predetermine the results of any such race, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.
      (2) Any person who attempts to affect the outcome of a horserace or dograce through administration of medication or drugs to a race animal as prohibited by law; who administers any medication or drugs prohibited by law to a race animal for the purpose of affecting the outcome of a horserace or dog-race; or who conspires to administer or to attempt to administer such medication or drugs is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.
      550.241 Racing of animals under certain conditions prohibited; penalties.—
      (1) The racing of an animal with any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, or drug-masking agent or any substance which is foreign to the natural horse or dog is prohibited. It is a violation of this section for a person to administer or cause to be administered any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, or drug-masking agent or any substance which is foreign to the natural horse or dog to an animal which will result in a positive test for such substance based on samples taken from the animal immediately prior to or immediately after the racing of that animal. Rules may be promulgated which identify;
      (a) Unacceptable levels of substances existing naturally in the untreated dog or horse but at abnormal physiological concentrations; or
      (b) Acceptable levels of trace elements or innocuous substances in test samples.
      (2) Administrative action may be taken by the division against occupational licensees responsible pursuant to rule of the division for the condition of animals which have been impermissibly medicated or drugged in violation of this section.
      (3)(a) Upon the finding of a violation of this section, the Division of Pari-mutuel Wagering may revoke or suspend the license or permit of the violator or deny a license or permit to the violator; impose a fine against the violator in an amount not to exceed $5,000; require the full or partial return of the purse, sweepstakes, and trophy of the race at issue; or impose against the violator any combination of such penalties. The finding of a violation of this section shall in no way prohibit a prosecution for criminal acts committed.
      (b) The division, notwithstanding the provisions of chapter 120, may summarily suspend the licenses of occupational licensees responsible under this section or division rule for the condition of race animals if the division laboratory reports the presence of an impermissible substance in the animal or its blood, urine, saliva, or any other bodily fluid, either before a race in which the animal is entered or after a race the animal has run.
      (c) If an occupational licensee is summarily suspended under this section, the division shall offer the licensee a prompt postsuspension hearing within 72 hours, at which the division shall produce the laboratory report and documentation which, on its face, establishes the responsibility of the occupational licensee. Upon production of the documentation, the occupational licensee shall have the burden of proving his lack of responsibility-
      (d) Any proceeding for administrative action against a licensee or permittee, other than a proceeding under paragraph (c), shall be conducted in compliance with chapter 120.
      (4) Prosecution pursuant to this section for a violation of this section shall be commenced within 2 years after the violation was committed. Service of an administrative complaint marks the commencement of administrative action.
      (5) All moneys recovered for violations of this section shall be kept in a separate fund to be known as the “Research Trust Fund” and shall be used for research relating to the medication of racing animals. The fund shall be supervised and used by the Division of Pari-mutuel Wagering to contract with a reputable college or school of veterinary medicine or its designee in accordance with this subsection.
      (6) The Division of Pari-mutuel Wagering shall adopt and enforce rules to implement this section.


author:
PER CURIAM.
      BOYD, Justice,

text:
    The FLORIDA SENATE, Petitioner, v. The Honorable D. Robert GRAHAM, Governor of the State of Florida, Respondent.
    No. 61877.
    Supreme Court of Florida.
    March 27, 1982.
   ORDER

PER CURIAM.

We find this Court has jurisdiction to construe what authority the Governor has to limit a special apportionment session mandated under article III, section 16(a), Florida Constitution, which directs:

Should that session adjourn without adopting such joint resolution, the governor by proclamation shall reconvene the legislature within thirty days in special apportionment session which shall not exceed thirty consecutive days, during which no other business shall be transacted, and it shall be the mandatory duty of the legislature to adopt a joint resolution of apportionment.

We find the intent and purpose of the constitutional provision requires the Governor to reconvene the legislature in a special legislative apportionment session for a period of thirty days. We find that the Governor has no authority to limit the apportionment session to less than thirty consecutive days and his only discretion is to determine when the period will commence within thirty days after the regular session adjourns.

We conclude the call of the Governor made on March 25, 1982 for three days is contrary to this interpretation and is therefore invalid.

We assume that the Governor as the chief executive officer will perform his constitutional duty and proceed to call the legislature within thirty days from the adjournment of the regular legislative session as extended into a special apportionment session for thirty consecutive days in accordance with article III, section 16(a). We withhold the issuance of any formal process in full confidence that the Governor will perform his duty as required by the Constitution in accordance with this order. A full opinion will follow, 412 So.2d 360.

It is so ordered.

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

BOYD, J., dissents.

BOYD, Justice,

dissenting:

I respectfully disagree with the majority’s construction of the constitutional provision. Article III, Section 16(a) of the 1968 Constitution sets a maximum of thirty consecutive days for the special legislative apportionment session but does not fix a minimum number of days for such special session. I, therefore, feel the Governor had constitutional authority to call the session for a number of days less than the thirty consecutive days maximum. See: In re Advisory Opinion to the Governor, 206 So.2d 212 (Fla., 1968), and Advisory Opinion to the Governor, 206 So.2d 641 (Fla., 1968).


author: PER CURIAM. EHRLICH, Justice, BOYD, Justice,

text:
    The FLORIDA SENATE, Petitioner, v. The Honorable D. Robert GRAHAM, Governor of the State of Florida, Respondent.
    No. 61,877.
    Supreme Court of Florida.
    April 6, 1982.
    Thomas W. McAliley and James R. Hubbard of Beckham & McAliley, Miami, and Neal P. Rutledge, Washington, D.C., for petitioner.
    Betty J. Steffens, Gen. Counsel for Governor Graham, Tallahassee, for respondent.
    Barry Richard of Roberts, Baggett, La-Face, Richard & Wiser, Tallahassee, for Fla. House of Representatives, interested party.
   PER CURIAM.

The Senate of the State of Florida has filed a petition for declaratory judgment, writ of mandamus or other extraordinary relief questioning the constitutional authority of Governor D. Robert Graham to limit to less than thirty days a special apportionment session called pursuant to article III, section 16(a), Florida Constitution. The proclamation for the special apportionment session in issue in this proceeding limited the session to three days and two hours, the specific period being from 10:00 a. m., Friday, March 26,1982, through noon, Monday, March 29, 1982. The House of Representatives of the State of Florida has been allowed to appear as an interested party in support of the validity of the Governor’s proclamation. The question presented is a matter of law, there being no factual disputes to be resolved. It is a matter that requires prompt resolution to avoid mootness and prevent an adverse effect on the functions of government. See Brown v. Firestone, 382 So.2d 654 (Fla.1980).

Jurisdiction of this Court is sought under article V, section 3(b)(5) (mandamus) and section 3(b)(7) (all writs), Florida Constitution (1980). We conclude that we need not consider the appropriateness of directing an alternative writ of mandamus to the chief executive of this state because there is an independent basis for jurisdiction in this case.

We find jurisdiction to entertain this matter is vested under article V, section 3(b)(7), which provides in pertinent part that the Supreme Court “[m]ay issue .. . all writs necessary to the complete exercise of its jurisdiction.” By the extraordinary provisions of article III, section 16(b), (c) and (f), Florida Constitution (1968), this Court is vested with jurisdiction in the second year following each decennial census to either review a legislative plan of apportionment or actually devise a plan of apportionment depending upon the occurrence or non-occurrence of certain conditions precedent. The mode in which the Court will entertain apportionment is dictated by action or inaction of the legislature in adopting a joint resolution of apportionment, but, irrespective of its action, we will entertain the issue each ten years. Because jurisdiction of the issue of apportionment will vest in this Court with certainty in this year we have the jurisdiction conferred by article V, section 3(b)(7), to issue all writs necessary to the complete exercise and in aid of the ultimate jurisdiction imposed by article III, section 16(b), (c) and (f). Couse v. Canal Authority, 209 So.2d 865 (Fla.1968). Petitioner alleges the invalidity of the Governor’s action in calling the special apportionment session for a term of less than thirty days. If that call be constitutionally defective then the manner in which we entertain apportionment is directly affected. Furthermore, the validity of the special apportionment session could presumably be raised by the parties in the eventual proceedings before this Court pursuant to article III, section 16. For the foregoing reasons we exercise our discretion to invoke jurisdiction of this cause under article V, section 3(b)(7), Florida Constitution (1980).

After receiving expedited briefs and oral argument, we held in our order of March 27, 1982, that “the Governor has no authority to limit the apportionment session to less than thirty consecutive days and his only discretion is to determine when the period will commence within thirty days after the regular session adjourns.” Florida Senate v. Graham, 412 So.2d 359 at 359 (Fla.1982). This opinion expresses the reasons for our holding.

The constitutional provision in issue is article III, section 16(a), which provides:

Section 16. Legislative apportionment.—
(a) SENATORIAL AND REPRESENTATIVE DISTRICTS. The legislature at its regular session in the second year following each decennial census, by joint resolution, shall apportion the state in accordance with the constitution of the state and of the United States into not less than thirty nor more than forty consecutively numbered senatorial districts of either contiguous, overlapping or identical territory, and into not less than eighty nor more than one hundred twenty consecutively numbered representative districts of either contiguous, overlapping or identical territory. Should that session adjourn without adopting such joint resolution, the governor by proclamation shall reconvene the legislature within thirty days in special apportionment session which shall not exceed thirty consecutive days, during which no other business shall be transacted, and it shall be the mandatory duty of the legislature to adopt a joint resolution of apportionment. (Emphasis added.)

The Governor contends that he has the authority to limit a special apportionment session, called pursuant to article III, section 16(a), to any length of time within the constitutionally-defined maximum period, just as he has the authority, delineated in In Re Advisory Opinion to the Governor, 206 So.2d 212 (Fla.1968), to limit special sessions called pursuant to article III, section 3(c) and (d), Florida Constitution. He also contends that the history of article III, section 16, justifies his position. The Senate, on the other hand, contends that the Governor has no authority to limit a “special apportionment session” to less than thirty days because this type of session is called under the unique provisions of article III, section 16(a), and is quite different from a section 3 “special session.”

We must reject the position of the Governor because in our view the two constitutional provisions dealing with special legislative sessions are different both in purpose and in content and the legislative history does not support the Governor’s interpretation. The Governor contends that our construction and interpretation of article III, section 3(c) and (d), pertaining to other special sessions, as set forth in In re Advisory Opinion to the Governor, 206 So.2d 212 (Fla.1968), by analogy gives the governor authority to limit a special apportionment session under section 16(a). We agree that he can limit a special session under section 3, but find that section is different from section 16. The governor is authorized, under article III, section 3(c) and (d), to call special legislative sessions, whenever he desires, to deal with any matters, other than apportionment, that he deems necessary. That section provides as follows:

(c) SPECIAL SESSIONS.
(1) The governor, by proclamation stating the purpose, may convene the legislature in special session during which only such legislative business may be transacted as is within the purview of the proclamation, or of a communication from the governor, or is introduced by consent of two-thirds of the membership of each house.
(2) A special session of the legislature may be convened as provided by law.
(d) LENGTH OF SESSIONS. A regular session of the legislature shall not exceed sixty consecutive days, and a special session shall not exceed twenty consecutive days, unless extended beyond such limit by a three-fifths vote of each house. During such an extension no new business may be taken up in either house without the consent of two-thirds of its membership. (Emphasis added.)

This section grants to the governor the absolute discretionary power to call a special session and also gives him the power to identify and limit the special session to a particular subject. Section 3(d) does place a maximum time limit on a special session by stating that this type of “special session shall not exceed twenty consecutive days.” We construed this language in our advisory opinion to Governor Kirk, in which we concluded that, in view of the governor’s total discretionary authority both to determine whether or not to call the legislature into session and to determine the subject matter of the call, he also had the discretion, exercised in the public interest, to specify that the session would last for a period of less than twenty days. 206 So.2d at 213-14. It should also be noted that the governor has traditional veto control over the product of a section 3(c) special session whereas he exercises no veto control over the product of a special apportionment session.

Article III, section 16(a), is limited to apportionment proceedings. This provision is distinctive because the governor has a mandatory duty to call a special apportionment session; he has no discretion as to the subject matter of the session; and, he has no authority to require the legislature to consider matters other than apportionment during the session. The purpose of the special apportionment session provision was clearly to grant the legislature one last opportunity to reach a legislative accord upon apportionment before transferring that function to the judicial branch. We emphasized, in In Re Apportionment Law, Senate Joint Resolution No. 1305, 263 So.2d 797 (Fla.1972), that apportionment under our present constitutional scheme is principally a matter for legislative consideration. Once the session is called, the governor is no longer involved in the apportionment process since the legislature’s joint apportionment resolution is not subject to gubernatorial veto. Further, this Court acts only in a legal supervisory role unless the legislature fails to reach an agreement. If this occurs, the constitution provides that this Court then becomes the body that must establish an apportionment plan.

The constitutional provision creating the special apportionment session expressly states that the session “shall not exceed thirty consecutive days.” Art. Ill, § 16(a). This time limitation was designed to avoid the problems which occurred in 1955-1956, under the apportionment provisions of the 1885 constitution, when the legislature was technically in extraordinary apportionment session from June 6, 1955, until November 6, 1956, a period of 520 days. Journal of the Senate, Extraordinary Session 1956, at 1, 91; Journal of the House, Extraordinary Session 1956, at 1, 151. It is our view that this thirty-day maximum time period can be shortened only by the legislature, in its process, and not by any exercise of an asserted executive discretionary authority. The governor does have some discretion under article III, section 16(a), but that discretion is limited to a determination of when the session will commence within the thirty days after the regular session adjourns.

Because, under section 16(a), the governor has a mandatory duty to call a special apportionment session for the sole purpose of apportionment and he has no power or authority over its product, we find that our reasoning in construing section 3 is not applicable to the construction of section 16(a). The construction urged by Governor Graham could allow some future governor to manipulate the constitutional apportionment scheme provided in section 16 by limiting the special apportionment session to one day or less, so that it would be impossible for the legislature to carry out its “mandatory duty” as expressly imposed by this constitutional provision. The entire scheme of article III, section 16, belies the grant of such authority in the executive in the decennial apportionment process. Furthermore, should the governor have the authority to limit the special apportionment session, there either would be no review of the reasonableness of his action by the courts in which event a future governor could manipulate the process by severely limiting the special session or his actions would be subject to judicial review for reasonableness. We conclude that neither was contemplated by the framers and adopters of the 1968 constitution and the latter would offend the separation of powers provision in article II, section 3, Florida Constitution (1968), by permitting the judicial branch to monitor the reasonableness of the actions of the chief executive.

Governor Graham argues that the constitutional history of article III, section 16, justifies his interpretation of this section. Part of this argument is based upon the records of the Florida Constitution Revision Commission of 1965-67. The wording of this section, as it was produced in original draft by the Legislative Committee of the Constitution Revision Commission in May of 1966, was as follows: “Said special session, so called, shall expire when reapportionment is effected or thirty (30) days has expired, and shall consider no business other than reapportionment.” Florida Constitution Revision Commission, 1965-67. Legislative Committee Draft, May 6, 1966, at 13: Florida State Archives, RG 005, Series 720, Box 1, file 22. A subsequent draft issued on June 14, 1966, eliminated this language and substituted the identical language which is contained in the constitution as adopted in 1968. Florida Constitution Revision Commission, 1965-67. Preliminary Draft of a Proposed Revised Constitution of Florida, June 14, 1966, at 9-10: Florida State Archives, RG 005, Series 720, Box 2, file 1. The Governor argues that if the legislature had intended that the special apportionment session last thirty days regardless of the circumstances, it would have so provided in accordance with that original draft. We disagree. First, the changes made in the wording were apparently not for the purpose of making a substantive change because the changes were made by the Style and Drafting Committee of the Constitution Revision Commission. Id. Second, it appears that the drafters of the constitution clearly intended the governor to be required to call a special thirty-day session under this provision, as adopted. In our view, that intent is clear because the official analysis submitted to the legislature in 1967, when the proposed constitutional provision was offered to it for adoption, and the analysis given to the people in November 1968, read as follows: “If the legislature fails to apportion during regular session the Governor is required to call a special 30 day session which has the duty to reapportion.” Florida Constitution Revision Commission, 1965-67. Analysis of Proposed Constitution to be Introduced in the House of Representatives, July, 1967, at III — 3: Florida State Archives, RG 005, Series 725, Box 1, file 12; (Senate document unavailable); Florida Legislature. Draft of Proposed 1968 Constitution, July 20, 1968, at 9: Florida State Archives RG 005, Series 725, Box 1, file 19. (Emphasis added.)

We fully understand the reasoning leading to the interpretation put on article III, section 16(a), by Governor Graham because of this Court’s advisory opinion construing the general special session provision of article III, section 3(c) and (d). We conclude, however, that the clear intent and purpose of article III, section 16(a),. is to require the Governor to reconvene the legislature in a special apportionment session for a period of thirty days, his only discretion being to determine when the period will commence within thirty days after the regular session adjourns. As stated in our original order of March 27, 1982, the call of the governor made on March 25, 1982, is contrary to this holding and is, therefore, invalid. Because the Governor has accepted our interpretation and order in this cause, no further proceedings are necessary.

It is so ordered.

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

EHRLICH, J., concurs with an opinion, with which ADKINS and ALDERMAN, JJ., concur.

BOYD, J., dissents with an opinion.

EHRLICH, Justice,

concurring.

I concur with the well reasoned majority opinion. I would add, however, a further thought in support of the opinion of the Court.

Article III, section 3(d) provides that a special session of the legislature convened by the governor “shall not exceed twenty consecutive days,” and article III, section 16(a) provides that a special apportionment session reconvened by the governor “shall not exceed thirty consecutive days.” The language is identical except the number of days of the respective sessions. Yet as to one we say that the governor has discretion and may shorten the time, but as to the other, he may not. The answer to this apparent anomaly stems from the constitutional separation of powers between the executive and legislative branches of government.

Article II, section 3 provides “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

In the case of the special session, the governor’s authority to shorten the session to one less than twenty days does not extend executive control over the legislative function. If the legislature does not finish the business which is in the purview of the governor’s proclamation within the designated period of time, the authority of the legislature to enact or not to enact legislation has not been impaired or affected. Furthermore, the legislature has the power to expand a special session, if needed or to extend the call. In short, the authority to lessen the time of a special session does not really empower the governor to influence or otherwise control the enactment of legislation.

However, in the case of a special apportionment session, if the legislature fails to adopt a joint resolution of apportionment, it loses control over the matter of apportionment. It then passes to this Court, which is constitutionally mandated to perform what is otherwise a strictly legislative function. Consequently, the length of a special apportionment session is critical. It can be fatally so, insofar as the legislature is concerned, if the governor has the authority to tinker with the length of the session, because the legislature itself cannot extend the length of a special apportionment session. Thus, the authority of the governor to shorten the time of a special apportionment session would thereby effectively extend executive control over the legislative function of apportionment. This is constitutionally impermissible.

ADKINS and ALDERMAN, JJ., concur.

BOYD, Justice,

dissenting.

The Senate seeks a writ of mandamus to compel the Governor to call a special apportionment session without attempting to limit its duration. Although I believe that the Governor was within his authority in issuing the call limiting the special session to three days and two hours and therefore would deny relief, I also believe that mandamus is the proper remedy. This Court has constitutional authority to issue writs of mandamus to state officials, including the Governor. Art. V, § 3(b)(8), Fla. Const.; Republican State Executive Committee v. Graham, 388 So.2d 556 (Fla.1980). The majority’s attempt to avoid the issue of the “appropriateness” of the remedy of mandamus by relying on the “all writs” provision of article V, section 3 is unnecessary.

In 1968, Governor Claude Kirk sought an advisory opinion from this Court on the question of whether he could determine the duration of a special legislative session within the constitutional maximum length of twenty days. This Court’s response, In Re Advisory Opinion to the Governor, 206 So.2d 212 (Fla.1968), construed the constitutional authority of the Governor regarding the convening of special sessions under a provision of the 1885 Constitution corresponding to present article III, section 3(c) and (d). The constitution said that special sessions called by the Governor were not to exceed twenty days. The Court held that the Governor, in calling a special session, had discretion to limit the duration thereof to a number of days not to exceed twenty. The decision was grounded on the constitutional authority of the Governor to determine that the public interest would best be served by a session lasting for a period of time less than the constitutional maximum. Consistency and logic require that we apply the same principle now under article III, section 16.

The Governor is accountable directly to the people for his stewardship in office. It is within his discretion as chief executive to determine the optimal length of a special session within the constitutionally imposed maximum length. It has been estimated that when the Legislature is in session, the cost to the taxpayers is $30,000 per day. The Governor is the chief guardian of the taxpayers’ money. Furthermore, the Governor is in position to know the complexity of matters the Legislature must deal with, including apportionment, and the length of time necessary for the two legislative houses to reach agreement.

The majority opinion correctly points out that an alternative draft of article III, section 16(a) was considered during the process that produced the constitutional revision of 1968. A proposal that would have required the special apportionment session to last thirty days or until the legislature chose to adjourn was rejected in favor of the language now appearing in article III, section 16(a). Unlike the majority, I find this piece of legislative history to be very compelling on the question of which construction to adopt.

The majority also points out that when the 1968 revision was submitted to the electorate for approval, it was accompanied by a short explanation that supports the majority’s construction. I believe, however, that we must look directly at the constitutional language adopted by the people, and not at a short statement or summary, not part of the constitution, that was made available to the voters at the time of adoption.

For these reasons I must respectfully dissent.

      . The pertinent language of article VII, section 3, Florida Constitution (1885), provided:
      In the event the Legislature shall fail to reapportion the representation in the Legislature as required by this amendment, the Governor shall (within thirty days after the adjournment of the regular session), call the Legislature together in extraordinary session to consider the question of reapportionment and such extraordinary session of the Legislature is hereby mandatorily required to reapportion the representation as required by this amendment before its adjournment (and such extraordinary session so called for reapportionment shall not be limited to expire at the end of twenty days or at all, until reapportionment is affected, and shall consider no business other than such reapportionment).

      . Article II, section 3, provides:
      The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

       “The supreme court:
      (8) May issue writs of mandamus and quo warranto to state officers and state agencies.”


author: BASKIN, Judge.

text:
    Robert PERI, Appellant, v. The STATE of Florida, Appellee.
    Nos. 81-878, 81-1124.
    District Court of Appeal of Florida, Third District.
    April 13, 1981.
    Bennett H. Brummer, Public Defender, and Carl L. Mastzal, Sp. Asst. Public Defender, for appellee.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

We find no abuse of discretion in the trial court’s refusal to excuse for cause a prospective juror who admitted that his acquaintanceship with police officers would have “a little effect” and that he would give a police officer’s testimony a little more respect, but who indicated that he would keep an open mind and follow the court’s instructions. § 913.03, Fla.Stat. (1979). Appellant excused the prospective juror by exercising a peremptory challenge but did not indicate dissatisfaction with the jurors selected.

Appellant’s remaining points lack merit.

Affirmed.


author: GLICKSTEIN, Judge. GLICKSTEIN, Judge.

text:
    Ruth SPAULDING, as the mother and natural guardian of Joseph Spaulding, a minor, Appellant. v. AMERICAN FIRE & INDEMNITY COMPANY, Fidelity & Casualty Company of New York, Kenilworth Insurance Company and Robert J. Troyan, Appellees.
    No. 80-1328.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied April 28, 1982.
    Rehearing Denied June 9, 1982.

      Marjorie D. Gadarian of Jones & Foster, P.A., West Palm Beach, for appellant.
    Keith H. Park of Albury, Park, Glenn & Heuer, West Palm Beach, for appellees-American Fire & Indem. Co.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment on a counterclaim for declaratory relief holding that uninsured motorist coverage available to appellant is limited to $15,000. We disagree and reverse. Appellant also argues that the trial court erred in striking her motion for attorney’s fees. As for that order, we affirm.

Appellant’s minor son, Joseph Spaulding, was injured on December 1, 1978, while a passenger in a vehicle operated by Bradford Suder, owned by Bradford’s father, Burton Suder, and insured by appellee, American Fire & Indemnity Company (AFIC) when a vehicle operated by appellee, Robert J. Troyan, and insured by appellee, Kenil-worth Insurance Company, collided with the Suder vehicle. Appellant was insured by Fidelity & Casualty Company of New York (F & C).

The AFIC policy issued to Burton Suder provided bodily injury liability coverage of $250,000 per person and $500,000 per occurrence and uninsured motorist coverage of $15,000 per person and $30,000 per occurrence. Appellant’s F & C policy provided uninsured motorist coverage of $10,000 per person and $20,000 per occurrence. Kenil-worth’s coverage of Troyan was only $10,-000 per person and it offered its policy limits to appellant to settle her claim on behalf of her son. Although F & C approved the settlement AFIC did not. Therefore, appellant instituted an action for damages against Troyan and Kenil-worth, for uninsured motorist benefits against AFIC and F & C and for attorneys’ fees from AFIC.

AFIC counterclaimed for declaratory relief to determine whether appellant had standing to assert the uninsured motorist coverage available to her was greater than $15,000; if she had standing, what amount of coverage was available to her; and whether stacking was applicable. Appellant filed a general denial and sought attorneys’ fees. The trial court granted AFIC’s motion to strike appellant’s claims for attorneys’ fees in her complaint and in her answer to counterclaim. It also granted AFIC’s motion to sever the counterclaim. The parties proceeded to non-jury trial upon the sole question raised by the counterclaim of whether AFIC’s uninsured motorist coverage was $15,000 or $250,000. The trial court concluded the lower amount was correct.

Section 627.727(1), Florida Statutes (1977) required uninsured motorist coverage in any automobile liability insurance policy except “when, or to the extent that, any insured named in the policy shall reject the coverage.” The statute further provided that if the named insured had rejected the coverage in a policy previously issued to him by the same insurer, coverage in a renewal policy need not be provided absent written request for same by the named insured. Section 627.727(2), Florida Statutes (1977) specified that the limits of the uninsured motorist coverage shall not be less than the limits of bodily injury liability insurance purchased by the named insured or such lower limit as the named insured may select.

The evidence here establishes that S & H Insurance, Inc. was Mr. Suder’s insurance agent. Its president was Mr. Hawkins and its personal lines representative handling Mr. Suder’s account was Ms. Hall.

Ms. Hall testified at her deposition, which was received into evidence, that on November 3, 1977, Mr. Suder spoke with her by telephone and authorized her to increase his bodily injury liability insurance per person from $100,000 to $250,000, but instructed her to maintain his uninsured motorist coverage per person at $15,000, although she informed him that coverage of $250,000 was available to him. Subsequent to the foregoing policy change, according to Ms. Hall, there were at least two changes in the policy prior to the accident — one to add one of his children to the policy and another to add a Datsun — and on neither occasion did she offer increased UMI coverage to Mr. Suder.

The transcript of the non-jury trial reflects that the following took place:

THE COURT: Now, at this time, I think Mr. Park’s [appellee’s counsel] stipulation comes into effect because he says from November ’77 there were no UMI limits offered following that through the date of the accident, through December of ’78.
THE COURT: However, what I’m saying is he admits from this time following this date that there was no offer made. That’s his stipulation.
MR. PARK: That’s correct, Your Honor.

While Mr. Hawkins was being cross-examined at trial by appellant’s attorney, Mr. Damsel, as to what occurred when the Dat-sun 260-Z was added to the policy in September, 1978, the following took place:

THE COURT: .... Isn’t the only relevant thing, so far as your position is concerned, is that no additional UMI was offered at that time?
MR. DAMSEL: Yes, sir.
Q. (By Mr. Damsel) Was there any additional UMI offered him at that time, Mr. Hawkins?
A. No, sir.

Burton Suder testified that all he wanted was $15,000 per person uninsured motorist coverage; and that such coverage was what he intended because he did not want to spend any more money on his automobile insurance. He stated on cross-examination that he did not recall any specific conversations concerning uninsured motorist coverage.

When considering Section 627.727(1), the court in Lancaster Oil Co. v. Hartford Accident & Indem. Co., 486 F.Supp. 399, 401 (N.D.Fla.1980), said:

Unless the named insured selects lesser coverage, the uninsured motorist coverage is by operation of law equal to the general liability coverage. Aetna Casualty and Surety Co. v. Fulton, 362 So.2d 364 (Fla. 4th DCA 1978); Lumbermen’s Mutual Casualty Co. v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978); Allstate Insurance Co. v. Baer, 334 So.2d 135 (Fla. 3d DCA 1976). Rejection of coverage equal to the liability limits must be affirmative and knowing. Wilson v. National Indemnity Co., 302 So.2d 141 (Fla. 1st DCA 1974).

The question is whether the insurer was required to inform the insured, Burton Suder, of his statutory right to higher uninsured motorist coverage when his premium was increased for the coverage of another vehicle and for the coverage of another driver, even though the insured had previously affirmatively rejected higher coverage.

Our decision in United States Fire Ins. Co. v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977), provides the answer. In construing Section 627.727(1), Florida Statutes (1973) we said that an endorsement to an automobile liability insurance policy, adding an automobile and the premium therefore, constituted issuance of a severa-ble and separate contract of insurance. Implicit in that decision is the conclusion that when an automobile is added to the policy the insurer must offer uninsured motorist coverage equal to the liability coverage so that the insured may accept, totally reject or opt for lesser coverage. More recently in adopting the test established by the third district in Hartford Accident and Indemnity Co. v. Sheffield, 375 So.2d 598 (Fla. 3d DCA 1979), we said that if the original policy has been changed “in any material respect,” then “the policy is ‘new’ rather than a ‘renewal’ and the insurance company is required to provide the insured with an opportunity to reject uninsured motorist coverage or to elect a decreased amount.” United States Fidelity & Guaranty Co. v. Wain, 395 So.2d 1211, 1214 (Fla. 4th DCA 1981). Although we held in Wain that a mere substitution of automobiles, where the number of automobiles and the coverage remained the same, was not a material change in the policy, we also recognized to the contrary that the addition of another automobile constitutes a material change:

We have previously held that the addition of an automobile by endorsement to an insurance policy required the insurance company to afford the insured a new opportunity to reject uninsured motorist coverage. United States Fire Insurance Co. v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977).

Id. See also Sheffield, supra at 600.

Sub judice we have not one, but two automobiles added to the policy between November 4, 1977 and December 1, 1978 and an uncontradicted record that no offer of increased uninsured motorist coverage was made in that period. There can be no informed rejection in the absence of an informing offer.

Lastly, we reject appellant’s argument that the trial court erroneously struck her claims for attorneys’ fees. The last sentence of Section 627.727(6), Florida Statutes (1977) expressly provides that “[t]he provisions of s. 627.428 shall not apply to any action brought pursuant to this section against the uninsured motorist insurer.” (emphasis added). We think this clear unequivocal language means what it says, i. e., that an attorneys’ fee award, as provided for in Section 627.428, is impermissible in an action brought pursuant to Section 627.-727. Our conclusion is also supported by several cases which hold that a fee award pursuant to Section 627.428(1) is a penalty provision and must be strictly construed. Lumbermens Mutual Ins. Co. v. American Arbitration Assoc., 398 So.2d 469 (Fla. 4th DCA 1981); Travelers Indemnity Co. v. Chisholm, 384 So.2d 1360 (Fla.2d DCA), pet. for review denied, 392 So.2d 1372 (Fla.1980); American Home Assur. Co. v. Keller Industries, 347 So.2d 767 (Fla.3d DCA 1977), cert. denied, 360 So.2d 1249 (Fla.1978), cert. dismissed, 367 So.2d 1124 (Fla.1979); American Bankers Ins. Co. of Florida v. Benson, 254 So.2d 851 (Fla.3d DCA 1971).

Accordingly, we affirm the order striking attorneys’ fees and reverse the final judgment and remand with directions that judgment be entered declaring AFIC’s uninsured motorist coverage to be $250,000 per person.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

ANSTEAD and HERSEY, JJ., concur.

OPINION ON REHEARING

GLICKSTEIN, Judge.

While appellee American Fire and Indemnity Company’s motion for rehearing was under consideration, two decisions, Prygrocki v. Industrial Fire & Casualty Insurance Co., Case No. 80-1849 (Fla. 4th DCA December 16, 1981), and Florida Farm Bureau Mutual Insurance Co. v. Quinones, Case No. 80-101 (Fla. 3d DCA January 19, 1982), were rendered. These decisions require- our reconsideration sua sponte of whether appellant was entitled to attorneys’ fees incurred in the defense of the counterclaim filed by appellee.

In Prygrocki we held “an insured,” other than the named insured or a relative of the named insured, was within the classification of those entitled to recover attorneys’ fees under section 627.428(1), Florida Statutes. The claimant, “a pedestrian,” sustained bodily injury caused by an accident arising out of the use of a motor vehicle insured under the personal injury protection coverage of a policy issued by the insurance company. 7 Fla.L.W. at 67. Because the policy obligated the insurer to pay certain damages to a pedestrian injured under these circumstances, we said the claimant “clearly was an omnibus insured [and, a]s ‘an insured, [he] fell squarely within the unambiguous language of section 627.-428(1), Florida Statutes.” Id.

The situation here is analogous. The injured person was a passenger in the motor vehicle appellee insured. Even ap-pellee, in its written rebuttal argument to the trial court, recognized the injured person was a “covered person” under the unde-rinsured motorists coverage endorsement to appellee’s policy. However, appellee continues to maintain its trial court position that the injured party is not “an insured” as the term is used in section 627.428(1), because he is not the named insured, nor in privity with him, nor a member of his family. We reject this argument and hold that a “covered person" under the underinsured motorists coverage endorsement is “an insured” as the term is used in section 627.-428(1), Florida Statutes and therefore entitled to attorneys’ fees.

Appellee also argues that appellant is not entitled to attorneys’ fees because the last sentence in section 627.727(6) is all-inclusive: “The provisions of s. 627.428 shall not apply to any action brought pursuant to this section against the uninsured motorist insurer.” Appellee alleges its counterclaim falls within the parameters of this sentence because the issue of coverage necessarily would have been involved in the disposition of appellant’s complaint which she brought pursuant to section 627.727(6), making her ineligible for attorneys’ fees. Appellee claims it should not be penalized for raising the specific issue of coverage by counterclaim; and that by not seeking declaratory relief, appellant waived any rights she may have had to attorneys’ fees. Inherently this argument puts at issue legislative intent and Quinones has disposed of same.

In Quinones the injured person brought suit, and obtained judgment, against his uninsured motorist carrier for insurance benefits. The Third District Court of Appeal held, inter alia, that: the plaintiff was entitled to attorneys’ fees because he had satisfied section 627.428(1) by obtaining a judgment on the merits against his insurer on a policy executed by the insurer; and section 627.727(6) eliminates attorneys’ fees' in that limited type of action which the uninsured motorist initiates after his uninsured motorist carrier declines to approve a settlement between the insured and the tortfeasor’s liability carrier. We believe the foregoing conclusions are correct.

The two issues raised in the counterclaim which are relevant to this appeal are whether appellant has standing to challenge the amount of uninsured motorists coverage provided by the policy appellee issued to the owner of the vehicle in which the injured person, a non-relative, was riding and, if appellant does have standing, what amount of insurance coverage exists. Attorneys’ fees would have been recoverable pursuant to section 627.428(1) prior to the enactment of section 627.727(6) had the insured prevailed in an action against or in defense of one by the insurer upon these issues. By amending section 627.727, the legislature did not intend to eliminate the right to fees which existed before the amendment.

Therefore, we reverse the trial court’s order striking appellant’s claim for attorneys’ fees incurred in the defense of the counterclaim and remand for further proceedings. Our final consideration is of ap-pellee’s motion for rehearing, which we deny, adhering to our original opinion except as to attorneys’ fees.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ., concur.

      . Section 627.727(6), Florida Statutes (1977) provided:
      If an injured person or, in the case of death, the personal representative agrees to settle a claim with a liability insurer and its insured for the limits of liability, and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an uninsured motorist claim against the uninsured motorist insurer, then such settlement agreement shall be submitted in writing to the uninsured motorist insurer, which shall have a period of 30 days from receipt thereof in which to agree to arbitrate the uninsured motorist claim and approve the settlement, waive its subrogation rights against the liability insurer and its insured, and authorize the execution of a full release. If the uninsured motorist insurer does not agree within 30 days to arbitrate the uninsured motorist claim and approve the proposed settlement agreement, waive its subrogation rights against the liability insurer and its insured, and authorize the execution of a full release, the injured person or, in the case of death, the personal representative may file suit joining the liability insurer’s insured and the uninsured motorist insurer to resolve their respective liability for any damages to be awarded; however, in such action, the liability insurer’s coverage shall first be exhausted before any award may be entered against the uninsured motorist insurer, and any such award against the uninsured motorist insurer shall be excess and subject to the provisions of s. 627.727(1). Any award in such action against the liability insurer’s insured shall be binding and conclusive as to the injured person and uninsured motorist insurer’s liability for damages up to its coverage limits. The provisions of s. 627.428 shall not apply to any action brought pursuant to this section against the uninsured motorist insurer.

      . The last sentence of Section 627.727(6) expressly excluded an action brought pursuant to said section from the provisions of Section 627.428. Subsection (1) of the last mentioned statute provides:
      Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

      . Mr. Suder’s son was added as a driver in early 1978 requiring an additional premium of $281.10.

      . The Datsun was added as an additional automobile several months later in 1978 requiring an additional premium of $93.66.

      . The evidence adduced at trial also showed that a Ford Pinto was added to the policy in April, 1978, requiring an additional premium of $43.52.

      . See Travelers Ins. Co. v. Spencer, 397 So.2d 358, 361 (Fla. 1st DCA 1981), where the court held that Section 627.727(1):
      [l]mposes a duty on the insurer to inform the insured of his statutory options so as to enable him to make an informed decision regarding the amount of UM protection, if any, he desires.

      . See note 2, supra.

      . Section 627.428(1) provides:
      Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had. (emphasis added)

      . In Prygrocki we also alluded to a footnote appearing in American & Foreign Ins. Co. v. Avis Rent-A-Car System, Inc., 401 So.2d 855, 858 n.7 (Fla. 1st DCA 1981) wherein there was a reference to the supreme court’s opinion in Roberts v. Carter, 350 So.2d 78 (Fla.1977): “While the [Roberts] court did not define ‘contracting insured’, the clear, unambiguous language of the statute speaks of ‘an insured.’ It seems obvious that the court intended that a ‘contracting insured’ is ‘an insured’ as defined in the particular contract of insurance.” In Roberts the claimant was seeking recovery of attorneys’ fees against the tortfeasor’s insurer, and the court, denying relief, said that section 627.428(1) was to benefit “the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.” 350 So.2d at 79 (footnote omitted).

      . The underinsured motorists coverage endorsement provides:
      “Covered person” as used in this endorsement means:
      1. You or any family member.
      2. Any other person while occupying your covered auto.
      3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.

      . We note that recently the Third District Court of Appeal, in Earnest v. Southeastern Fidelity Ins. Co., 7 Fla.L.W. 65 (Fla. 3d DCA, December 15, 1981), held that the daughter of the named insured who was injured while a passenger in her father’s vehicle was entitled to attorneys’ fees from her father’s insurer, saying:
      The statute [section 672.428(1)] has been interpreted as creating liability against an insurer for attorneys’ fees incurred by an individual who, while not the named insured, is in a first-party relationship to the insurer against whom he has been forced to litigate the coverage issue. E.g. United States Fidelity & Guaranty Co. v. State Farm Mut. Auto Ins. Co., 369 So.2d 410 (Fla. 3d DCA 1979) (insurer responsible for attorney’s fees of resident spouse of named insured); Smith v. Conlon, 355 So.2d 859 (Fla. 3d DCA 1978) (insurer liable for attorneys’ fees of individual unrelated to named insured, on jury finding that he used car of named insured with permission) ....

        But see that court’s decision in Fernandez v. Alonso, 375 So.2d 8 (Fla. 3d DCA 1979), denying attorneys’ fees to plaintiffs who recovered PIP benefits from the insurer of the colliding vehicle upon the ground that plaintiffs’ only connection with the named insured was that his automobile struck their commercial vehicle.

      . We also agree with Judge Pearson’s concurring opinion that the placement of the last sentence of Section 627.727(6) in the sub-section creates an ambiguity.


text:
    GREAT AMERICAN BANKS, INC.; Great American Bank of Dade County; and Marvin L. Warner, Petitioners, v. DIVISION OF ADMINISTRATIVE HEARINGS, DEPARTMENT OF ADMINISTRATION; Century Banks, Inc.; and Department of Banking and Finance, Respondents.
    No. AG-388.
    District Court of Appeal of Florida, First District.
    Nov. 25, 1981.
    Rehearing Denied On Motion for Clarification March 18, 1982.

      Eugene E. Stearns of Arky, Freed, Stearns, Watson & Greer, Miami, for petitioners.
    C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for respondent Century Banks, Inc.
   PER CURIAM.

Petitioners seek review of a non-final administrative order requiring the testimony of certain witnesses, requiring the production of documents and imposing sanctions for the failure to comply with the order. Petitioners contend that the testimony and documents were protected and not subject to disclosure on the grounds of attorney-client privilege and the work product doctrine. They further contend that the hearing officer had no authority to impose sanctions.

We agree that the hearing officer had no authority to impose sanctions. Section 120.58(3), Fla.Stat. provides the exclusive method for the enforcement of a discovery order, even when, as in the instant case, the order is entered after the hearing has begun. The method specified is filing a petition for the enforcement in circuit court, pursuant to § 120.69, Fla.Stat. The circuit court can make a determination of whether the testimony and documents are privileged, and if not, the sanctions to be imposed for the petitioner’s failure to comply with the order.

Reversed and remanded for further proceedings consistent with this opinion.

SHAW, JOANOS and THOMPSON, JJ., concur.

ON MOTION FOR CLARIFICATION

PER CURIAM.

The Department of Banking and Finance (Department) filed a motion for clarification of several points relating to our prior opinion in this cause. Although the original opinion to which we adhere appears to adequately answer those questions, the Department expresses a doubt that should be eliminated.

The Department’s first question involves the application of our earlier opinion to the various sanctions imposed by the hearing officer. The court’s opinion applies to the hearing officer’s imposition of sanctions for the failure to make discovery and to the hearing officer’s imposition of sanctions for the failure of appellant Warner’s witnesses to give responsive testimony during the hearing. The enforcement of a subpoena or order by a hearing officer pursuant to § 120.58(3), Fla.Stat. is very similar to the procedure for the enforcement of process orders by a deputy commissioner in a workers’ compensation matter pursuant to § 440.33, Fla.Stat. Unfortunately, § 120.58(3) is not nearly as explicit as § 440.33(2), which provides:

If any person in proceedings before the deputy commissioner disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take oath or affirmation as a witness, or after having taken the oath refuses to be examined according to law, the deputy commissioner shall certify the facts to the court having jurisdiction in the place in which it is sitting, which shall thereupon in a summary manner hear the evidence as to the acts complained of and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.

The workers’ compensation provision clearly sets forth the procedure for enforcement of the acts, orders, and process covered by the law. It is apparent the legislature intended to prescribe a similar method of procedure for the enforcement of process and orders by hearing officers.

Although § 120.58(l)(b) does provide for the swearing of witnesses and the taking of their testimony under oath, the issuance of subpoenas, and the effecting of discovery in the manner provided under the Florida Rules of Civil Procedure, only § 120.58(3) relates to the enforcement of orders of process.

The Department’s second question involves the validity of Rules 28-5.208 and 28-5.211, Fla.Admin.Code relating to the issuance of orders and the enforcement of discovery. Rules 28-5.208 and 28-5.211 conflict in certain respects with § 120.58(3). To the extent these rules conflict they are invalid. The rulemaking process cannot be used to make legal that which there was no authority to do in the first place. Some of the parties apparently find fault with the procedure set out in § 120.58(3). But even if we should agree, it is not the prerogative of this court by opinion, or of an agency by rulemaking, to change the law. The proper recourse of those parties is to the legislature which has the sole authority to make or amend a law.

The Department’s third and last question is whether this court interprets § 120.58(3) as requiring that the Department wait until the hearing officer’s report is received, reviewed, and ruled upon by the Department before seeking enforcement of a ruling on an evidentiary matter. If a party fails or refuses to comply with an order of the hearing officer or a lawfully issued process, the Department can immediately make application to the circuit court for enforcement pursuant to § 120.69(4), Fla.Stat. However, the law does not prohibit the completion of as much of the hearing as possible prior to such application in the circuit court, if this would be more convenient or expeditious. At that time, the Department may promptly apply to the circuit court for enforcement pursuant to § 120.69(4).

SHAW, JOANOS and THOMPSON, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Richard M. HANNABASS and Norma R. Hannabass, individually and as parents and natural guardians of Rhonda M. Hannabass, a minor, Appellants, v. FLORIDA HOME INSURANCE COMPANY, Diane Thifault and Timothy Thifault, Appellees.
    No. 81-752.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 4, 1982.

      John R. Dorough of Price & Price, Bra-denton, for appellants.
    Douglas P. Lawless of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellees.
   GRIMES, Acting Chief Judge.

This is an appeal and cross-appeal from a judgment entered upon a jury verdict in a personal injury action.

Rhonda Hannabass, who was eleven years old at the time, ran through the sliding glass door which separated the living room from the family room in Mr. and Mrs. Thi-fault’s home. She was hospitalized and suffered permanent scarring on her hip. As a result, her parents, individually and on her behalf, sued the Thifaults and their insurer. The jury returned a verdict of $4,000 for Rhonda but none for her parents and concluded that Rhonda and the Thifaults were each 50% negligent.

Mr. and Mrs. Hannabass first contend that they were entitled to a new trial on damages with respect to their claim for medical expenses. They are clearly correct. Albritton v. State Farm Mutual Automobile Insurance Co., 382 So.2d 1267 (Fla. 2d DCA 1980); Shaw v. Peterson, 376 So.2d 433 (Fla. 1st DCA 1979); Webber v. Jordan, 366 So.2d 51 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 102 (Fla.1979). The medical expenses of $1,246.16 incurred for Rhonda’s treatment were undisputed, and there is a likelihood that further scar revision will be needed. Moreover, nothing in the record indicates that the jury ignored the court’s instructions by including the medical expenses in Rhonda’s verdict.

On the other hand, we cannot say that the jury’s award of $4,000 for Rhonda’s damages was legally inadequate. Rhonda suffered no functional disability from the accident, and the permanent scar is not visible except when she wears a bikini. Likewise, we reject the contention made on cross-appeal that the Thifaults and their insurer were entitled to a directed verdict. The passageway through which Rhonda was running when she was hurt was normally kept open, but the Thifaults had closed it the day of the accident because they had turned on the air conditioning. Although it was clear that they had been cautioned to put a warning decal on the door, there was conflicting testimony over whether they had done so prior to the accident. Therefore, the jury was entitled to find some negligence on their part.

We reverse the judgment of zero damages for Mr. and Mrs. Hannabass and remand the case for a new trial on the damages they incurred as Rhonda’s parents. The court should reduce any damages awarded to them at the new trial by 50% in accordance with the jury’s prior verdict because Rhonda’s negligence must be imputed to them. See Hamm v. City of Milton, 358 So.2d 121 (Fla. 1st DCA 1978). We affirm the judgment of $2,000 for Rhonda.

RYDER and SCHOONOVER, JJ., concur.