text:
    STATE of Florida, Appellant, v. Deborah L. CUMMINGS, Appellee.
    No. 53452.
    Supreme Court of Florida.
    April 3, 1980.

      Jim Smith, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    William C. Gregg, III, Clearwater, and Carleton L. Weidemeyer of Wightman, Weidemeyer, Jones, Turnbull & Cobb, Clearwater, for appellee.
   SUNDBERG, Justice.

This is a direct appeal from a trial court’s ruling that chapter 63-1790, Laws of Florida, and Pinellas County Ordinance 4-3 are unconstitutional under article III, section 6, Florida Constitution. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Appellee Deborah L. Cummings was charged with violating the closing hour provisions of chapter 63-1790, § 3, and ordinance 4-3 which prohibit certain business establishments from dealing in alcoholic beverages between the hours of 2:00 a. m. and 8:00 a. m. At the time of her arrest, appellee was working as a waitress at D. J.’s Pioneer Club, a so-called bottle club and “business establishment” within the meaning of the special act. She held no ownership interest in the establishment. The trial court dismissed the charge on the ground that the titles to the special act and the ordinance fail to advise individual employees of such business establishments that they may be guilty of committing a crime as set forth in those enactments.

Chapter 63-1790, Laws of Florida, is entitled:

AN ACT relating to the establishment of uniform closing hours for all businesses within Pinellas county, Florida, dealing with alcoholic beverages; providing regulations therefor; providing for municipalities within Pinellas county to establish shorter opening hours; providing exceptions; providing penalty for violation; repealing Chapter 29419, Laws of Florida, 1953, Chapter 29418, Laws of Florida, 1953, Chapter 26463, Laws of Florida, 1949, and Chapter 26150, Laws of Florida, 1949; providing for an effective date.

Section 6 of the Act provides:

(1) Any person, firm or corporation violating any of the provisions of this act shall be deemed upon conviction thereof, guilty of a misdemeanor and shall be punished therefor as provided by law. [Emphasis supplied.]

Since the title to the special act refers to “businesses,” appellee contends she had no notice that she, as an employee rather than a proprietor, could be criminally liable for activities condemned in the body of the act. We disagree.

Article III, section 6 of the Florida Constitution, states in pertinent part: “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” To survive constitutional attack, the subject of each law must be “briefly expressed in the title.” The primary purpose of the requirement is to inform the legislature and the public of the scope of impending legislation so as to avoid “log-rolling” legislation. State v. McDonald, 357 So.2d 405 (Fla.1978); Rouleau v. Avrach, 233 So.2d 1 (Fla.1970) (construing corresponding provision in article III, section 16, Florida Constitution (1885)). The test for determining whether an act’s title comports with article III, section 6 of our constitution is whether it “fairly gives such notice as will reasonably lead to inquiry into the body of the act.” Pruitt v. State, 363 So.2d 552, 554 (Fla.1978).

The title of chapter 63-1790 expressly states that the act relates to closing hours for all businesses in Pinellas County dealing with alcoholic beverages and states that a penalty is provided for its violation. In our view these expressions are sufficient to put a reasonable person involved in the operation of a business which sells or dispenses alcoholic beverages or mixers on notice that he may be subject to a criminal penalty for his participation in such operation in violation of the prescribed closing hours. The title of an act is not intended as a substitute for the language contained in the body of the act. Nor is the title of an act intended to be a detailed index of the substance of the act. Rather, the notice requirement of article III, section 6, is met if the title is sufficiently informative to obviate fraud or surprise from hidden provisions not indicated in the title. Knight & Wall Co. v. Bryant, 178 So.2d 5 (Fla.1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966) (construing corresponding provision in article III, section 16, Florida Constitution (1885)).

Under the facts of this case, the title of chapter 63-1790, Laws of Florida, meets the requirements of article III, section 6, Florida Constitution. The order of the county court is reversed and the case is remanded for proceedings not inconsistent with this decision.

It is so ordered.

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

ADKINS, J., dissents with an opinion, with which BOYD, J., concurs.

ADKINS, Justice,

dissenting.

Chapter 63-1790, Laws of Florida, (all references to this chapter include the corresponding County Ordinance 4-3) is entitled:

AN ACT relating to the establishment of uniform closing hours for all businesses within Pinellas county, Florida, dealing with alcoholic beverages; providing regulations therefor; providing for municipalities within Pinellas county to establish shorter opening hours; providing exceptions; providing penalty for violation; repealing Chapter 29419, Laws of Florida, 1953, Chapter 26463, Laws of Florida, 1949, and Chapter 26150, Laws of Florida, 1949; providing for an effective date.

Section 6 of the Act provides:

(1) Any person, firm or corporation violating any of the provisions of this act shall be deemed upon conviction thereof, guilty of a misdemeanor and shall be punished thereof as provided by law.

Appellee was an employee of a bottle club in which she had no ownership interest. She was charged with violating the provisions of the Act when the club stayed open beyond the hours designated in the Act. Since the title to the Act refers to “businesses,” appellee contends she had no notice that she, as an employee, could be liable when her employer violated the Act.

The test for determining whether an act’s title comports with article III, section 6, of our constitution is whether “it fairly gives such notice as will reasonably lead to inquiry into the body of the act.” Pruitt v. State, 363 So.2d 552 (Fla. 1978). The state argues that the primary purpose of article III, section 6, is to inform the public and legislature of the scope of impending legislation. United Gas Pipeline Co. v. Bevis, 336 So.2d 560 (Fla. 1976). I agree that the title to an act need not be ah index to the contents. Rouleau v. Avrach, 233 So.2d 1 (Fla. 1970). However, in applying the appropriate test, it is difficult to understand why an employee of a business would read past the title of this Act, whether to provide input on the bill prior to passage or to see if the employee’s conduct was affected.

Under the facts of this case the title of chapter 63-1790, Laws of Florida, does not meet the requirements of article III, section 6, Florida Constitution. The order of the county court should be affirmed.

BOYD, J., concurs.

      . The county ordinance merely restates the provisions of the special act. Section 125.67, Florida Statutes (1977), which applies to county ordinances instead of to laws enacted by the state legislature, is identical to article III, section 6. Thus, references in this opinion to chapter 63-1790 and article III, section 6, apply by analogy to ordinance 4-3 and section 125.-67.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    MEDIA GENERAL CORPORATION and The Hartford Insurance Group, Petitioners, v. William B. CURRY, Sr., Printing Pressmen and Assistants Union, Travelers Insurance Company, and Industrial Relations Commission, Respondents.
    No. 54751.
    Supreme Court of Florida.
    April 3, 1980.
    Kurt Preston Hampp of Jacobs, Robbins & Gaynor, St. Petersburg, for petitioners.
    Ivan Matusek, St. Petersburg, and Charles A. Zinn of Shackleford, Farrior, Stallings & Evans, Tampa, for respondents.
   OVERTON, Justice.

This cause is before us to review an order of the Industrial Relations Commission. The case concerns the employer’s knowledge of a preexisting condition or disease and its relevance to a determination whether apportionment should apply. We disagree with statements contained in the Commission’s order concerning the applicability of a decision of this Court, but since there was employer knowledge in the instant case, the error does not affect the result, and we therefore affirm the Commission’s order.

In upholding the compensation order of the Judge of Industrial Claims, the Industrial Relations Commission stated:

When the issue of employer knowledge is raised with respect to the effect of successive accidents, the last of which occurs after the October 1,1974 effective date of amendments to § 440.49(4), (b), Fla.Stat., knowledge is in our opinion no longer necessarily an adequate distinguishing factor for determining whether or not apportionment will apply. .

The Commission considered Cypress Gardens Citrus Products, Inc. v. Murchison, 240 So.2d 803 (Fla.1970), but found that case inapplicable because of the revisions of the workmen’s compensation law. In our view, the statutory changes have not affected the applicability of the Cypress Gardens decision, and we reaffirm that holding. The following statement in that case governs the issue in this cause:

The key to whether benefits attributable to a disease or condition existing prior to the industrial accident should be deducted or apportioned out of the award to claimant in this case, is whether the employer had knowledge of the preexisting condition or disease prior to the accident. Obviously the employer had such knowledge here, for the claimant’s preexisting condition was brought to its attention at the time of claimant’s first accident while in its employ.

240 So.2d at 805.

In the instant case, the Judge of Industrial Claims found that because of the claimant’s limp, the “employer was obviously aware of the fact that [the claimant] had a permanent physical impairment, even though the precise nature of the impairment may not have been obvious.” In our view this was a finding of employer knowledge in accordance with Cypress Gardens and consequently the result of the Industrial Relations Commission decision was correct. Their statement that Cypress Gardens was no longer applicable was error. For the reasons expressed, the petition for writ of certiorari is denied.

It is so ordered.

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

      . We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.


author: SUNDBERG, Justice.

text:
    STATE of Florida, Appellant, v. Arlene ELDER, Appellee.
    No. 55182.
    Supreme Court of Florida.
    April 3, 1980.

      Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellant.

      Wm. J. Sheppard and Stephen J. Wein-baum of the Law Offices of Wm. J. Sheppard, Jacksonville, for appellee.
   SUNDBERG, Justice.

This is an appeal from an order of the County Court for Duval County, Florida, which initially and directly passed upon the validity of section 365.16(l)(b), Florida Statutes (1977). The issue presented is whether section 365.16(l)(b), which forbids the making of an anonymous telephone call with the intent to annoy, abuse, threaten, or harass the recipient of the call, is unconstitutionally overbroad on its face. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Appellee, Arlene Elder, was charged by amended information with making a telephone call, without disclosing her identity, to one Victoria Elaine Elder solely to annoy, abuse, threaten or harass her contrary to section 365.16(l)(b), Florida Statutes (1977). Appellee moved to dismiss the information on the grounds that the statutory provision was facially overbroad in violation of article I, sections 4 and 9 of the Florida Constitution, and the first and fourteenth amendments to the United States Constitution. The county court found that subsection (l)(b) proscribed “pure speech” contrary to the case law which the court said admits of only two classes of unprotected speech — language posing a clear and present danger of breach of the peace (“fighting words”) and obscenity. The court stated that because neither the statutory language nor any judicial gloss had limited the statute’s application to fighting words or obscenity, the statute was over-broad without regard to the particular facts of the case. To support its conclusion that the statute was overbroad, the court cited several examples of constitutionally protected speech which would purportedly come within the statute’s proscription: a phone call made with specific intent to “annoy” a person by telling him that he had bad manners; a phoned “threat” to a friend telling him that if he does not pay off a small debt he will never be spoken to again; one businessman calling another intending to “abuse” and “annoy” the latter by calling him dishonest. Finally, the court rejected any limiting construction of section 365.-16(l)(b) on the basis that to so limit the statute and at the same time apply it to the defendant would deny him due process of law because of the lack of prior notice of the conduct proscribed. For the following reasons, we believe that the county court erred in finding section 365.16(l)(b) facially unconstitutional.

We begin with the proposition that because of the transcendent value of constitutionally protected expression, statutes regulating expression must be narrowly tailored to further the legitimate state interest involved, Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); McCall v. State, 354 So.2d 869 (Fla.1978); so that the first amendment freedoms are given the breathing room needed to survive. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Brown v. State, 358 So.2d 16 (Fla.1978). Where a statute punishes only spoken words it is facially constitutional under the overbreadth doctrine only if, as construed by the state courts, it is not susceptible of application to constitutionally protected speech. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Spears v. State, 337 So.2d 977 (Fla.1976). We note in passing that the trial court, in ruling that section 365.16(l)(b) was unconstitutionally overbroad because it was not limited to the proscription of fighting words or obscenity, overlooks the fact that the constitutional right of free speech does not absolutely protect libelous or slanderous speech, nor does free speech absolutely insulate a person from tort liability for invasion of privacy or intentional infliction of emotional distress, nor from criminal liability for certain forms of “pure speech.” Such expression belongs to “that category of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974), quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

We need not, however, pass on whether section 365.16(l)(b) validly proscribes pure speech. Rather, we disagree with the trial court’s characterization of the section as a proscription of pure speech. This statutory provision is not directed at the communication of opinions or ideas, but at conduct^ that is, the act of making a telephone call or a series of telephone calls, without disclosing identity and whether or not conversation ensues, with the intent to annoy, abuse, threaten or harass the recipient of the call. Accord, Baker v. State, 16 Ariz.App. 463, 494 P.2d 68 (1972). Cf. S. H. B. v. State, 355 So.2d 1176 (Fla.1978). That this conduct may be effected in part by verbal means does not necessarily invalidate the statute on freedom of speech grounds. At most, the use of words as the method with which to harass the recipient of the call involves conduct mixed with speech, to which the controlling constitutional considerations differ somewhat from those applied to pure speech. Specifically, with regard to overbreadth, the applicable test is stated in Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973): “[W]here conduct and not merely speech is involved, we believe that the over-breadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” As construed below, section 365.16(l)(b) is clearly applicable to a whole range of activity which is easily identifiable and which constitutionally may be proscribed. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). We hold, therefore, that the asserted overbreadth of section 365.16(l)(b) is not real and substantial judged in relation to the statute’s plainly legitimate sweep.

In construing section 365.16(l)(b), we are mindful of our responsibility to resolve all doubts as to the validity of a statute in favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with the legislative intent. State v. Keaton, 371 So.2d 86 (Fla.1979); White v. State, 330 So.2d 3 (Fla.1976). The Court will not, however, abandon judicial restraint and invade the province of the legislature by rewriting its terms. State v. Keaton; Brown v. State, 358 So.2d 16 (Fla.1978). In dealing with statutory regulation of first amendment activity, this Court has in the past strictly construed a challenged statute to uphold it against vagueness or overbreadth attacks. See, e. g., State v. Saunders, 339 So.2d 641 (Fla.1976); White v. State, supra. After careful consideration we, likewise, here conclude that the language of section 365.16(l)(b) is fairly susceptible to a constitutional construction that is consistent with the legislative intent.

The closely related provisions of subsections (l)(b) through (l)(d) of section 365.-16 evince a legislative intent to proscribe an act or a course of conduct that serves little, if any, informative or legitimate communicative function. The statute is carefully worded as to the specific conduct proscribed and is carefully limited with preconditions so as not to infringe on legitimate free speech rights. First of all, the statutory proscription of subsection 365.16(l)(b) through (l)(d) is applicable only against the person performing the act of telephoning someone. This in itself shows a legislative concern not with the content of what was said but with the act of intruding upon another’s privacy. Specifically, under subsection (l)(b), this legislative concern is further highlighted by the lack of any requirement that conversation ensue. Next, for conviction under subsection (l)(b), the caller must make the call without disclosing his identity. We wholly agree with the analysis of the United States District Court in United States v. Dorsey, 342 F.Supp. 311 (E.D.Pa.1972), that the “anonymity of the caller is in itself a circumstance raising discomfort and fear in the receiver of the call.” Id. at 313 (construing federal statutory counterpart to Florida subsection 365.-16(l)(b)). This anonymity is also a factor militating against any legitimate free speech communicative function. In addition, it must be shown that when the telephone call was made it was the caller’s intent to annoy, abuse, threaten or harass. This improper intent must be the motivating factor in the caller’s telephoning another person and the call must not serve a legitimate communicative or informative function. Thus, the caller may not circumvent the salutary proscription of the statute merely by using words as the means with which to annoy, abuse, threaten or harass. “[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1963).

Finally, the statutory language of subsection (l)(b), “to annoy, abuse, threaten or harass” presupposes that the telephone call is uninvited. It is this nonconsensual element of the telephone call which distinguishes the situation here from that in State v. Keaton, 371 So.2d 86 (Fla.1979), where we held that subsection (l)(a) of section 365.16 (barring obscene or indecent comments or suggestions over the telephone) was unconstitutionally overbroad. In that decision we stated:

We do not hold that the state may not proscribe obscene telephone communications regardless of the circumstances. Were section 365.16(l)(a) limited to obscene calls to a listener at a location where he enjoys a reasonable expectation of privacy (such as the home) which calls are intended to harass the listener, the enactment would pass constitutional muster. Because such a statute would assume the existence of a listener who is unwillingly subjected to vulgar or obscene epithets, it would constitute a valid legislative attempt to protect the substantial privacy interests of the listener.

Id. at 92. What was broadly proscribed under subsection (l)(a), then, was not simply the act of making an uninvited obscene telephone call, but also the content of pure speech consensually communicated through a telephone. We declined in Keaton to uphold section 365.16(l)(a) by narrowly construing it to proscribe only “obscenity” as defined under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), a form of expression unprotected in the public forum, because the statute could nevertheless contravene the first amendment in failing to contain the essential qualifying element of an unwilling listener.

In contrast to the statutory provision involved in Keaton, section 365.16(l)(b) does assume the existence of an unwilling listener. While it is true that a person may often be a “captive” outside the sanctuary of the home and subject to objectionable forms of expression, the United States Supreme Court, as well as this Court, have recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue. Compare Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780,29 L.Ed.2d 284 (1971); Brown v. State, 358 So.2d 16 (Fla.1978); and Spears v. State, 337 So.2d 977 (Fla.1976), with FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); and State v. Keaton, supra. In Rowan v. United States Post Office Dept, supra, the United States Supreme Court upheld the validity of a federal statute permitting an addressee to require the Post Office to order the removal of his name from the mailing lists for “pandering advertisements” against the argument that the statute impeded the communication of ideas. The Court stated that “the right of every person ‘to be let alone’ must be placed in the scales with the right of others to communicate.” Id. at 736, 90 S.Ct. at 1490. In response to the contention that the federal statute impeded the free flow of communication, the Court stated, “Nothing in the constitution compels us to listen to or view any unwanted communication, whatever its merit . . . .’’Id. at 737, 90 S.Ct. at 1490.

The United States Supreme Court has thus clearly established that the privacy interest of a person may be accorded greater protection within the sanctum of the home or other private place than it may be accorded in the public forum. Rowan v. United States Post Office Dept., supra; Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). As a result, the federal and state constitutions will tolerate greater limits upon the dialogue of a speaker in order to prevent a nonconsensual intrusion upon those privacy interests. State v. Keaton, 371 So.2d at 92-93. See also Kovacs v. Cooper, 336 U.S. at 87-89, 69 S.Ct. at 453 — 454. We conclude that whatever minimal free speech value may be associated with an unwanted, anonymous, abusive telephone call simply because it is effected through verbal means under section 365.16(l)(b), such value is clearly outweighed by the substantial privacy interests of the listener. These privacy interests constitutionally entitle the state to protect him from unwilling subjection to verbal or nonverbal abuse.

Accordingly, we hold that section 365.16(l)(b), as construed in this opinion, is constitutional. We, therefore, reverse the County Court for Duval County and remand this cause to that court for proceedings not inconsistent with this decision.

It is so ordered.

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

      . Although we are here concerned only with subsection (l)(b), the provision under which appellee is charged, we state the substance of subsection (1) in full because of close interrelation of their provisions:
      (1) Whoever by means of telephone communication:
      (a) Makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent; or
      (b) Makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number; or
      (c) Makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
      (d)Makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number shall be guilty of a misdemeanor of the second degree .

      . We do agree, however, with the county court’s threshold finding that a defendant may challenge a statute’s validity on overbreadth grounds without first demonstrating that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); State v. Keaton, 371 So.2d 86 (Fla.1979).

      . E. g., Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (threatening the President with bodily harm); State v. Saunders, 339 So.2d 641 (Fla.1976) (falsely reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others, such as yelling “fire” in a crowded theater); State v. Beasley, 317 So.2d 750 (Fla.1975) (speech inciting a riot).

        .Accord, United States v. Lampley, 573 F.2d 783 (3d Cir. 1978). In Lampley, the court upheld the constitutionality of the federal statutory provisions corresponding to subsections (l)(b) and (l)(d) of section 365.16 of the Florida Statutes. The court declared that Congress had a “compelling interest in the protection of innocent individuals from fear, abuse or annoyance at the hands of persons who employ the telephone, not to communicate, but for other unjustifiable motives.” Id. at 787.

      . Indeed, subsection 365.16(l)(c), causing the telephone of another to ring repeatedly with intent to harass, does not even purport to regulate free speech activity.

      . At least one legitimate communicative or informative function is stated in section 365.16 itself. Subsection (5) of section 365.16 provides: “Nothing contained in this section shall apply to telephone calls made in good faith in the ordinary course of business or commerce.”

      . The statute would purport to criminalize the “telling [of] an ‘off color joke’ to a willing listener or ... a sexually oriented conversation between lovers.” State v. Keaton, 371 So.2d at 90.

      . This is not to say that reasonable “time, place and manner” limitations, which are neutral as to content and which further significant governmental interests, may not be placed upon the exercise of first amendment expression in the public forum, particularly where conduct is mixed with speech. See, e. g., Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 476, 13 L.Ed.2d 487 (1963); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); McCall v. State, 354 So.2d 869 (Fla.1978); White v. State, 330 So.2d 3 (Fla.1976). See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), and Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974).

      . “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.” Cantwell v. Connecticut, 310 U.S. 296, 309-10, 60 S.Ct. 900, 906, 84 L.Ed. 1213 (1940).


author: SUNDBERG, Justice,

text:
    Perry JOHNSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 55243.
    Supreme Court of Florida.
    April 3, 1980.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for respondent.
   The Court having accepted jurisdiction and heard argument, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, certiorari is denied.

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

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

SUNDBERG, J., dissents with an opinion, with which ENGLAND, C. J., concurs.

SUNDBERG, Justice,

dissenting.

I respectfully dissent. I believe the decision under review is in conflict with Williams v. Dickenson, 28 Fla. 90, 9 So. 847 (1891), disapproved on other grounds, Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906), and is controlled by the principle there established.

In the instant case, the state was permitted to introduce in evidence the nature of a prior conviction of a defense witness as affecting the credibility of that witness in the absence of his denial of such conviction. Under section 90.08, Florida Statutes (1977), evidence of the exact nature of a witness’s prior conviction may be introduced if the prior conviction was for the crime of perjury. But evidence of the exact nature of any other offense may be introduced only if the witness denies the conviction, and then only by a certified copy of the judgment of conviction. Mead v. State, 86 So.2d 773 (Fla.1956); Ward v. State, 343 So.2d 77 (Fla. 2d DCA 1977); Herman v. State, 341 So.2d 1010 (Fla. 4th DCA 1977); Smith v. State, 340 So.2d 117 (Fla. 3d DCA 1976). The testimony elicited here related to the crime of knowingly giving false information to a law enforcement officer. On appeal the District Court of Appeal, Third District, affirmed the trial judge’s ruling denying a motion for mistrial based on the state’s questioning concerning the specifics of the conviction. The rationale of the district court was as follows:

The crime of knowingly giving false information to any law enforcement officer, Section 837.05, Florida Statutes (1975), is found in the perjury chapter. See Chapter 837, Florida Statutes (1975). Although the false information is not rendered under oath, it still is a form of perjury. In addition, like all of other forms of perjury such a conviction has greater weight against the credibility of a witness than any other crime.

Johnson v. State, 361 So.2d 767, 768 (Fla. 3d DCA 1978).

I cannot accept this reasoning. The placement of the crime described in section 837.05 in the chapter of the Florida Statutes dealing with perjury does not make that offense perjury. Painting the word “Bull” on the side of a cow does not change that animal’s gender. The offense described in section 837.05 does not require that the statement be made under oath, which is an essential element of the crime of perjury. Brown v. State, 334 So.2d 597 (Fla. 1976); Hirsch v. State, 279 So.2d 866 (Fla. 1973).

The same issue was effectively decided in Williams v. Dickenson, supra, where the deposition of a witness convicted of burning a “gin house” (cotton) was admitted in evidence. The predecessor of section 90.08 then in force rendered incompetent the testimony of an individual who had been convicted of “murder, perjury, piracy, forgery, larceny, robbery, arson . . . . ” The admission of such testimony was assigned as error on the premise that the statutory offense of burning a gin house was synonymous with arson. In rejecting this assertion the Court reasoned:

His offense was a statutory crime, made a felony be the act of 1868, last cited, and would not have constituted the crime of arson as known to the common law; the building burned being neither a dwelling, nor an outhouse or barn within the curti-lage. It is a well-recognized canon of construction that where legal terms are used in a statute they are to receive their technical meaning, unless the contrary plainly appears to have been the intention of the legislature. . . . There is nothing in the act of 1845 that indicates any other intention on the part of the legislature than that the disqualifying crimes therein denominated as murder, perjury, piracy, forgery, larceny, robbery, arson, etc., should be considered or construed in any other than their technical sense as known and recognized by the common law.

9 So. at 849 (citations omitted). To the same extent section 90.08, under which the state sought to introduce the conviction in the instant case, was enacted in its present form in 1971. Ch. 71-72, Laws of Florida. The statute under which the witness was convicted was first enacted in 1974. Ch. 74-383, Laws of Florida. Just as the offense of burning a gin house did not qualify under the technical, common law definition of arson, so too does the offense of making false statements (not under oath) to a law enforcement officer not qualify under the technical, common law definition of perjury.

The above analysis is particularly cogent in view of the remedial nature of section 90.08. At common law, conviction of a crime rendered one incompetent to testify. The purpose of section 90.08 was to ameliorate the absolute proscription of the common law. To ascribe to section 90.08 the construction urged by the state is not consonant with such a remedial statute.

Respondent reminds us that the recently adopted Florida Evidence Code provides for impeachment by prior conviction of “a crime ... if the crime involved dishonesty or a false statement.” § 90.610(1), Fla.Stat. (1979). Obviously, this event is immaterial to the proper application of section 90.08 to the ruling in this case which occurred before the effective date of the evidence code. Moreover, were it proper to utilize the enactment of section 90.610(1) as a tool of statutory construction in this case, it would auger for the conclusion I reach. If crimes involving false statements not made under oath were already within the contemplation of section 90.08, there would have been no need for the legislature to include such a provision in section 90.610(1), Florida Statutes (1979).

Accordingly, I would grant the petition for writ of certiorari, quash the decision of the district court and remand to that court with instructions to remand to the trial court for a new trial.

ENGLAND, C. J., concurs.

      . There is a dispute as to whether the witness in fact denied the conviction, but because of a stipulation by defense counsel in open court, I do not deem that issue to be critical to this case.

      . § 90.08, Fla.Stat. (1977):
      No person shall be disqualified to testify as a witness in any court of this state by reason of conviction of any crime, but his testimony shall be received in evidence under the rules, as any other testimony. Evidence of such conviction, including the fact that the prior conviction was for the crime of perjury, may be given to affect the credibility of the said witness, and such conviction may be proved by questioning the proposed witness or, if he deny it, by producing a record of his conviction. Testimony of the general reputation of said witness may likewise be given in evidence to affect his credibility.

      . § 837.05, Fla.Stat. (1977):
      Whoever knowingly gives false information to any law enforcement officer concerning the alleged commission of any crime is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Ch. 202, § 7, Laws of Florida (McClellan’s Digest 1845).

      . Browne v. Crashaw, 2 Bulstr. 154 (1613); Commonwealth v. Gorham, 99 Mass. 420 (1868); II Wigmore, Evidence § 519 (3d ed. 1940).


text:
    Harold Herbert DREBLOW, Appellant, v. STATE of Florida, Appellee.
    No. 56698.
    Supreme Court of Florida.
    April 3, 1980.

      Peter Enwall, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   OVERTON, Justice.

Appellant was charged with driving while under the influence of alcohol. The charging information was titled: “Driving while under the influence of alcohol, 316.193, F.S.,” and contained the following allegation: “Harold H. Dreblow on December 22, 1978 in said County and State did drive or be in the actual physical control of a vehicle while under the influence of an alcoholic beverage to the extent that his normal faculties were impaired, contrary to Section 322.262, Florida Statutes.”

The appellant moved to dismiss the charge on the grounds that the scope and application of section 322.262(1), Florida Statutes, were broader than the title of the enabling act, chapter 67-308, contrary to the requirements of article III, section 6, of the Florida Constitution. The trial court denied the motion. Appellant thereupon pleaded nolo contendere, reserving the right to appeal the denial of the motion to dismiss. We have jurisdiction.

The information in this case clearly referred to section 316.193 in its title. Section 316.193 is the prime and appropriate charging statute for driving under the influence of alcoholic beverages. The reference to section 322.262 in the body of the information does not alter the nature of the information; rather, this reference was of a supplementary nature. Section 322.262 restates the unlawfulness of driving while under the influence of alcoholic beverages as set forth in section 316.193 and establishes the presumptions for intoxication as a result of chemical tests. The defendant was on notice of the provisions of both sections.

The allegations in the information made clear all relevant facts necessary to support the offense. Appellant’s assertion that he was charged solely under section 322.262 is unfounded. He was charged under section 316.193, or arguably under both sections. The appellant advances no argument that a charge for the instant offense under section 316.193 is erroneous. We find the information sufficiently and properly charges an offense under the laws of this state and further find there is no constitutional title defect in section 322.262. See State v. Lee, 156 Fla. 291, 22 So.2d 804 (1945).

The appellant’s conviction is affirmed.

It is so ordered.

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

      . Art. Ill, § 6, Fla.Const.:
      Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.

      . Art. V, § 3(b)(1), Fla.Const.


text:
    STATE of Florida, Petitioner, v. Robert Alan BENDER, Respondent. STATE of Florida, Petitioner, v. Leonard G. FERRO, Respondent. STATE of Florida, Petitioner, v. Pete M. JAMES, Respondent. STATE of Florida, Petitioner, v. Michael R. POTTS, Respondent.
    Nos. 57069, 57071, 57072 and 57073.
    Supreme Court of Florida.
    April 3, 1980.

      Jim Smith, Atty. Gen. and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for petitioner.
    Joel P. Yanchuck, of Yanchuck & Thompson, St. Petersburg, for Robert Alan Bender and Michael R. Potts.
    Paul Castagliola, St. Petersburg, for Leonard G. Ferro.
    Robert E. Jagger, Public Defender and Stephanie L. Willis, Asst. Public Defender, St. Petersburg, for Pete M. James.
   OVERTON, Justice.

These consolidated cases are before the Court upon petitions for writs of certiorari to review pretrial orders declaring unconstitutional sections 322.261 and 322.262, Florida Statutes (1977).

The contested statutory provisions direct the Department of Highway Safety and Motor Vehicles and the Department of Health and Rehabilitative Services to establish and approve appropriate testing methods for determining alcoholic content in the blood. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

In the instant case, each of the respondents was issued traffic citations for driving under the influence of alcoholic beverages and for unlawful blood alcohol in violation of section 316.193, Florida Statutes (1977). The validity of this section is not in issue in these proceedings.

Upon motions of the respondents, the trial court held the requirements in sections 322.261 and 322.262 that executive agencies approve blood alcohol testing methods required suppression of the test results “on the grounds that the delegation of authority by the Florida Legislature to HRS and DHSMV is unconstitutional in that said delegation lacks proper guidelines and standards.” The order further stated: “The State can still prosecute a person accused of driving a motor vehicle while under the influence of an alcoholic beverage by presenting evidence of the person’s physical characteristics and driving habits which led to the issuance of a citation for said offense.” This holding appears to find that because the statute is unconstitutional, there can be no use of any breathalyzer or blood test to determine alcoholic content.

Further, although the trial court declared moot respondents’ motions to suppress breathalyzer for failure to properly incorporate manufacturers’ operating manuals by reference in the rules, it still proceeded to note “that the defendants’ constitutional rights of due process and equal protection were violated by the failure of HRS and DHSMV to properly incorporate the procedures and methods of the manufacturers for the maintenance and operation of the breathalyzers.”

We find each of these holdings by the trial court to be erroneous. We further find sections 322.261 and 322.262, Florida Statutes, to be constitutional and quash the orders of the trial court.

There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). Further, there is a compelling state interest in highway safety that justifies the state legislature to allow suspension of a driver’s license for failure to take a breathalyzer or blood alcohol test. See Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979).

Prior to the adoption of sections 322.261 and 322.262, scientific tests of intoxication were admissible in evidence without any statutory authority if a proper predicate established that (1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test.

Chapter 322, Florida Statutes (1977), contains the statutory implied consent of every motor vehicle driver to take an approved chemical test to determine alcoholic content in the blood, with refusal resulting in license suspension. This chapter generally concerns the licensing of persons who drive on the public highways and the suspension of this license privilege for those who demonstrate their disregard for the safety of others. The overall purpose of this chapter is to address the problem of drunk drivers on our public roadways and to assist in implementing section 316.193 which provides that driving while intoxicated is unlawful.

The purpose of those portions of sections 322.261 and 322.262 which direct law enforcement to use only approved techniques and methods is to ensure reliable scientific evidence for use in future court proceedings and to protect the health of those persons being tested, who by this statute have given their implied consent to these tests.

In recognition of the multiple types of testing equipment and procedures now available for these purposes, the legislature, by these sections, directed the Department of Highway Safety and Motor Vehicles and the Department of Health and Rehabilitative Services to approve the specific techniques and methods which law enforcement may use in conducting a chemical analysis of a person’s breath or blood. Numerous state jurisdictions have enacted similar statutes mandating the use of certain approved tests. See, e. g., Ala.Code, 32-5-193(b) (1977); Ariz.Rev.Stat. § 28-692(D) (1979); Conn.Gen.Stat. 14-227a(d) (1979); Me.Rev. Stat. tit. 29, § 1312.6 (1979); Mo.Ann.Stat. § 577.020(2) (1978). See also Uniform Vehicle Code § 11-902.1 (1979).

Other jurisdictions which have enacted similar statutory provisions for approved testing methods have held that noncompliance makes any test result inadmissible. See Lankford v. Redwing Carriers, Inc., 344 So.2d 515 (Ala.Civ.App.1977); State v. Bruins, 315 So.2d 293 (La.1975); State v. Miracle, 33 Ohio App.2d 289, 294 N.E.2d 903 (1973); State v. Wallin, 195 N.W.2d 95 (Iowa 1972); State v. Sinclair, 474 S.W.2d 865 (Mo.App.1971); State v. Gallant, 108 N.H. 72, 227 A.2d 597 (1967).

It must be recognized that the implied consent provision of chapter 322 and the approved testing methods and presumptions contained therein are all interrelated.

When the prosecution presents testimony in evidence concerning motor vehicle driver intoxication which includes an approved alcohol test method by a properly licensed operator, the fact finder may presume that the test procedure is reliable, the operator is qualified, and the presumptive meaning of the test as set forth in section 322.262(2) is applicable. The test results are admissible into evidence only upon compliance with the statutory provisions and the administrative rules enacted by its authority. Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979); State v. Wills, 359 So.2d 566 (Fla. 2d DCA, 1978). The presumptions are rebuttable, and a defendant may in any proceeding attack the reliability of the testing procedures, the qualifications of the operator, and the standards establishing the zones of intoxicant levels. In addition, other competent evidence may be presented to rebut the presumptions concerning whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

We note that where motor vehicle driver intoxication is not involved, the implied consent provision is inapplicable, and, consequently, the results of blood alcohol tests are admissible into evidence without compliance with the administrative rules if the traditional predicate is laid which establishes the reliability of the test, the qualifications of the operator, and the meaning of the test results by expert testimony. None of the statutory presumptions can apply in the absence of compliance with the administrative rules.

We expressly reject the holding of the trial court that these statutory sections constitute an unlawful delegation of legislative power to the named executive agencies. Although any delegation of legislative authority is open to judicial review, the practicalities of the subject matter sought to be controlled must be considered. There are numerous scientific tests for determining alcoholic intoxication. Blood alcohol analysis has multiple methods that fall within three basic categories: (1) diffusion, (2) aeration, and (3) distillation. Under the category of distillation alone, there are multiple methods, including: (a) Kozelka and Hine method; (b) LaMotte-Heise method; (c) Dubowski method; (d) Harger method; and (e) Friedeman and Brook method. An enzymatic procedure has been developed which eliminates the need for distillation, and there is also a gas liquid chromatography analysis for blood. In addition, tests for blood alcohol can be made from urine and saliva chemical analysis. For breath analysis, multiple means are available including the original intoximeter, the drunk-ometer, the alcometer, the breathalyzer, the mobat sober meter, the gas chromatography breath-testing equipment, and the intoxilyzer.

We believe the statutory authority empowering these agencies to approve testing methods for the implementation of breath- and blood-testing apparatus is proper and allowable. The legislature did not delegate to an executive agency a “law-making power,” which we found improper in Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1978). The authority to test for blood alcohol existed without this statute. The legislature merely assigned to the agencies the responsibility to establish proper uniform testing procedures for the protection of the public who must submit to the test or lose their driving privilege. There is a clear distinction between delegating to an executive agency law-making functions and assigning an executive agency supervisory responsibility over a police power function that already exists. To require legislative supervision of the administration of these scientific testing methods would require constant legislative hearings to develop the necessary expertise, which is neither practically possible nor required by our constitution. See State, Department of Citrus v. Griffin, 239 So.2d 577 (Fla.1970). We find the legislature properly exercised its authority in assigning to these agencies the responsibility of establishing uniform and reliable testing methods in this scientific area, particularly under the circumstances where the tests are part of a statutory scheme which prescribes the implied consent of all drivers to take these tests and where the tests and procedures are always subject to judicial scrutiny.

We further reject the trial court’s holding that the respondents’ constitutional rights of due process and equal protection were violated by the failure of the Department of Health and Rehabilitative Services and the Department of Highway Safety and Motor Vehicles to incorporate the manufacturers’ procedures for maintenance and operation as part of the promulgated rules. We note that the rules under attack require the preventive maintenance operation and preventive maintenance check to be in accordance with the procedures set forth by the manufacturer. What is attacked is the failure to attach and file those procedures with the Secretary of State. This does not constitute a due process or equal protection violation. There is no showing that these manufacturers’ operating manuals are unavailable, and the respondents clearly have the right in their individual proceedings to attack the reliability of the testing procedures or the operator’s qualifications.

For the reasons expressed in this opinion, we uphold the constitutionality of sections 322.261 and 322.262, Florida Statutes (1977), quash the orders of the trial court, and remand these causes for trial.

It is so ordered.

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


author: McDONALD, Justice.

text:
    Anton Kevin PETERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 57479.
    Supreme Court of Florida.
    April 3, 1980.
    Jack 0. Johnson, Public Defender, and Charles L. Stutts, Asst. Public Defender, Bartow, for petitioner.
    Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for respondent.
   McDONALD, Justice.

In a well reasoned opinion the Second District Court of Appeal affirmed a judgment of conviction of Anton Kevin Peterson. Determinative of the validity of the conviction was the correctness of the admission into evidence of statements made by the appellant. The Second District Court of Appeal agreed that the statements were properly admitted but, recognizing that there is some conflict in the state, certified the following question:

WHERE THE VOLUNTARINESS OF A DEFENDANT’S STATEMENT HAS BEEN CHALLENGED AND COERCION HAS BEEN ALLEGED, MUST THE TRIAL JUDGE SPECIFICALLY STATE ON THE RECORD THAT HE FINDS THE STATEMENT TO BE VOLUNTARY BEFORE PERMITTING THE CONFESSION TO BE SUBMITTED TO THE JURY?

Judge Boardman correctly answered the proposed question in the negative in his opinion, which this Court hereby adopts.

When the admission of a confession is an issue because of a factual controversy as to its voluntariness, it is the responsibility of the trial judge to first find that it was voluntary before submitting it to the jury. This simply follows the rule that it is the duty of the trial judge to determine the admissibility of all evidence. When the trial judge admits into evidence a statement or confession to which there has been an objection, on review the record must reflect with unmistakable clarity that he found that the statement or confession was, by the preponderance of the evidence, voluntary and made in accordance with Miranda. If an independent review of the record fails to disclose with unmistakable clarity that the trial judge found that the statement was voluntary and in accordance with other constitutional requirements, or if it appears that he imposed upon the state a lesser burden of proof than preponderance of the evidence in weighing the question of voluntariness, it is reversible error.

The trial judge can make this task easier by reciting his conclusionary findings, but the failure to do so is not fatal when the record, with unmistakable clarity, demonstrates that he understood his responsibilities and properly fulfilled them.

The judgment of conviction is affirmed.

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

      . Peterson v. State, 372 So.2d 1017 (Fla.2d DCA 1979).

      . In certifying its question, the second district noted the probable existence of conflict between its decision and Kimble v. State, 372 So.2d 1014 (Fla.2d DCA 1979); McCloud v. Wainwright, 359 So.2d 10 (Fla.4th DCA 1978), and Melero v. State, 306 So.2d 603 (Fla.3d DCA 1975). We have jurisdiction. Art. V., § 3(b)(3), Fla.Const. The district court has cited only three cases which conflict with its holding. If it had chosen to do so, that court could have listed several more. A survey of cases concerning the voluntariness of confessions demonstrates the confusion generated by McDole v. State, 283 So.2d 553 (Fla.1973), and Wilson v. State, 304 So.2d 119 (Fla. 1974). See Green v. State, 363 So.2d 188 (Fla.lst DCA 1978); Pitts v. State, 335 So.2d 367 (Fla.lst DCA 1976); Leigh v. State, 312 So.2d 464 (Fla.lst DCA 1975); Husk v. State, 305 So.2d 19 (Fla.lst DCA 1974); Bunch v. State, 303 So.2d 705 (Fla. 1st DCA 1974); Trolinger v. State, 300 So.2d 310 (Fla.2d DCA 1974); Hester v. State, 357 So.2d 481 (Fla.3d DCA 1978); Phelps v. State, 353 So.2d 1221 (Fla.3d DCA 1977); Von Horn v. State, 334 So.2d 43 (Fla.3d DCA 1976); Walker v. State, 319 So.2d 642 (Fla.3d DCA 1975); Walker v. State, 311 So.2d 768 (Fla.3d DCA 1975); Graham v. State, 292 So.2d 373 (Fla.3d DCA 1974); Smith v. State, 288 So.2d 522 (Fla.3d DCA 1974); Knight v. State, 373 So.2d 52 (Fla.4th DCA 1979); Bul-lard v. State, 358 So.2d 48 (Fla.4th DCA 1978); Greene v. State, 351 So.2d 1031 (Fla.4th DCA 1976).

      . Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).


author: McDonald, justice.

text:
    UNDERWRITERS AT LLOYDS and Frank A. Stuart, M.D., Petitioners, v. CITY OF LAUDERDALE LAKES, a Municipal Corporation, and Jay Clide Miller, Respondents.
    No. 57815.
    Supreme Court of Florida.
    April 3, 1980.

      Ricardo J. Cata, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioners.
    Edna L. Caruso, West Palm Beach, for respondents.
   McDonald, justice.

The Fourth District Court of Appeal has certified the following question as being of great public interest:

DOES THE DECISION IN STUART V. HERTZ BAR A SEPARATE LAWSUIT BY THE INITIAL TORTFEASOR AGAINST A SUCCESSOR TORT-FEASOR WHO AGGRAVATES THE ORIGINAL INJURIES?

373 So.2d at 946. Pursuant to article V, section 3(b)(3), Florida Constitution, we have accepted jurisdiction.

Paula Bissonette sustained back injuries in an automobile accident caused by an employee of the City of Lauderdale Lakes. Allegedly, her injuries were exacerbated by her doctor, who, it is claimed, negligently performed an unsuccessful laminectomy and fusion of Ms. Bissonette’s spine.

After settling with the victim for all injuries flowing from the accident and her treatment thereof, the City of Lauderdale Lakes instituted an action for indemnification against the doctor. Because of our decision in Stuart v. Hertz, 351 So.2d 703 (Fla.1977), the city attempted to amend its complaint to sue the doctor under a theory of subrogation. The trial court denied the city’s motion to amend and granted summary judgment for the defendant insurance company. An appeal to the Fourth District Court of Appeal ensued. The district court reversed, distinguishing the instant controversy from Hertz.

In Hertz, this Court held that third-party indemnity actions against subsequent tort-feasors are inappropriate. That decision was premised on the traditional doctrine that an initial tortfeasor may not benefit from his own wrong by bringing a third-party claim against a doctor whose alleged malpractice aggravated the victim’s injuries. Our concern was that such third-party claims would hamper the litigation process for the aggrieved victim by attaching “a complex malpractice [case] in order to proceed with a simple personal injury suit.” 351 So.2d at 706. Allowing such expansion would foreclose the victim’s ability to control the nature and course of the suit.

The initial tortfeasor is subject to the total financial burden of the victim’s injuries, including those directly attributable to a doctor’s malpractice. But is it fair and equitable for such a tortfeasor to have to pay a sum greater than should have flowed from an accident without thereafter giving him some recourse against the agency exacerbating his liability? The instant situation compels some form of restitution to preclude a negligent doctor from escaping the responsibilities for his actions, especially as here where the original injuries were minor as compared with Ms. Bisso-nette’s current disabilities. We agree with the district court that equity and good conscience should afford the initial tortfeasor a remedy.

Having noted in Hertz that the doctrines of indemnity and contribution among subsequent tortfeasors are not cognizable under Florida law, we turn to subrogation. Subrogation is an equitable doctrine whereby the initial tortfeasor/defendant is placed “in the shoes” of the plaintiff. 30 Fla.Jur. Subrogation § 11. It is a legal device “founded on the proposition of doing justice without regard to form, and was designed to afford relief where one is required to pay a legal obligation which ought to have been met, either wholly or partially, by another. Trueman Fertilizer v. Allison, Fla., 81 So.2d 734.” Ulery v. Asphalt Paving, Inc., 119 So.2d 432 (Fla. 1st DCA 1960); American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979); Allstate Life Insurance Co. v. Weldon, 213 So.2d 15 (Fla. 3d DCA 1968).

An action brought in subrogation would eliminate the concerns noted in Hertz. A subrogation suit is a separate, independent action against a subsequent tortfeasor by the initial tortfeasor. The injured party, having received full compensation for all injuries, is not a party to the litigation and is spared the trauma of an extensive malpractice trial. The initial tortfeasor is simply trying to recoup his losses that in fairness should be shared with a negligent doctor. Under this doctrine the financial burden is equitably apportioned among the responsible parties, and negligent doctors can no longer escape liability for their actions.

In answering the certified question in the negative, we have aligned Florida with jurisdictions relying upon subrogation as a remedy of affording an initial tort-feasor equitable apportionment of liability when a victim’s injuries have been negligently aggravated by an attending doctor. See Greene v. Waters, 260 Wis. 40, 49 N.W.2d 919 (1951); Fietzer v. Ford Motor Company, 383 F.Supp. 33 (E.D.Wis.1974); Fisher v. Milwaukee Electric Ry. and Light Company, 173 Wis. 57,180 N.W. 269 (1920); Clark v. Halstead, 276 App.Div. 17, 93 N.Y. S.2d 49 (App.Div.1949). We therefore hold that the Fourth District Court of Appeal correctly found that the City of Lauderdale Lakes’ subrogation claim states a cause of action against the negligent doctor.

The cause is remanded for further proceedings consistent with this opinion.

It is so ordered.

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

Alan H. Schreiber, Public Defender, and Robert R. Wills, Asst. Public Defender, Fort Lauderdale, and Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for appellant.


author: PER CURIAM.

text:
    Thomas Wilbur MASON, Appellant, v. STATE of Florida, Appellee.
    No. 56776.
    Supreme Court of Florida.
    April 10, 1980.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The appellant pled no contest to the charge of possession of marijuana, specifically reserving his right to appeal the trial court’s denial of his motion to dismiss. The trial court’s finding that section 893.-03(l)(c)3, Florida Statutes (1978 Supp.), is constitutional is consistent with this Court’s ruling in State v. Cheatham, 376 So.2d 1167 (Fla.1979). We therefore affirm the judgment of the trial court.

It is so ordered.

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


author: CAWTHON, VICTOR M., Associate Judge.

text:
    Billy JOHNSON and wife, Martha E. Johnson, Appellants, v. Frank MARSHALL and wife, Dorothy N. Marshall and the Campers and Hunters, Inc., a Florida Corporation, and Gerhard P. Hoer and wife, Martina F. Hoer, Appellees.
    No. II-127.
    District Court of Appeal of Florida, First District.
    March 6, 1979.
    Nancy T. Gilliam, Pensacola, for appellants.
    W. Christopher Hart, of Clark, Parting-ton, Hart & Hart, Pensacola, and J. Lofton Westmoreland, of Johnson, Green & West-moreland, Milton, for appellees.
   CAWTHON, VICTOR M., Associate Judge.

This is an appeal from a final judgment which establishes the boundary between two parcels of property and orders that corrective deeds be given by the seller, Hoer, to the two litigating owners, Marshall and Johnson. Campers and Hunters, Inc., subsequently bought from Marshall. Hoer had attempted to divide his property into two parcels with equal water frontage and equal road frontage.

Hoer first dealt with Marshall and a binder dated April 11, 1973, was signed in which the property was described as “property of 187 ft. on the water and 2,100 feet deep . . . .”

Later, on May 5,1973, Hoer and Marshall signed a more formal contract to buy and sell in which the following description appeared:

That part of the West 271.93 feet of the East 1,087.72 feet of Lot 2, Section 12, Township 2 South, Range 27 West, Santa Rosa County, Florida, lying East of the centerline of a road extending North from South line of Section 12, Township 2 South, Range 27 West through the tract to the shores of East Bay and having a frontage of approximately 187 feet on the water according to a plat prepared by Stanley Poole on January 15, 1973 less that part within State Road S-399 and subject to any easement in favor of Gulf Power Company. 135.96 feet to the west of the east line 2,154.79 feet from State Road S-399 North to East Bay. The western line from State Road S-399 North to East Bay 2,284 feet.

The foregoing description was a synthesis of that prepared by Hoer’s lawyer, who prepared the contract, and lines — beginning with the numbers 135.96 — added by Marshall before the contract was signed by the parties.

Later, Hoer gave Marshall a deed which described the property as it had originally been described in the contract to buy and sell; i. e., without the lines added by Marshall.

Subsequent to the execution of the contract to buy and sell, Marshall had several documents prepared which contained the same description shown in the signed contract to buy and sell. One of these, a consent to assignment, was executed by Hoer on August 27, 1973.

Hoer next dealt with Johnson, principally through a realtor, and gave him a deed containing the following description:

The West 135.96 feet of the East 1,087.72 feet of Lot 2, Section 12, Township 2 South, Range 27 West, Santa Rosa County, Florida, lying West of the centerline of a road extending North from the South line of the property to the shores of East Bay and having a frontage of approximately 187 feet on the water according to a plat prepared by Stanley Poole on January 15, 1973.

Subsequent documents prepared by Johnson contained that description.

The only dispute among the parties is whether the Johnsons and the Marshalls should each have 187 feet of shoreline or a common border which would be a straight line from State Road S-399 and would give the Marshalls approximately 80 feet more shoreline than the Johnsons.

The documentary evidence is consistent with Marshall’s position that the amended description was the one agreed upon by the parties, but it is also consistent with Hoer’s position that he never receded from his intention that the beach front should be divided evenly.

There is no peisuasive evidence as to how the ambiguities in the amended description should be resolved.

The testimony of Hoer and Marshall concerning their negotiations prior to the amendment are diametrically opposed and this is the only testimony concerning the communicated intentions of the parties which would have probative force.

The testimony of the parties and others concerning landmarks and their conduct on the ground is not helpful because at the times testified to, the parties did not have the benefit of relevant monuments placed by a surveyor and neither claims land by acquiescence or adverse possession but only up to the true line.

Although unrecorded, the plat prepared by Stanley Poole was a part of every description used among the parties up until the beginning of this controversy, except that contained in the April 11 binder, some twelve in number, and the designation of a waterfrontage of 187 feet was used in every one without exception.

Furthermore, the plat referred was examined by Marshall prior to his amending the description in the agreement to buy and sell and at that time it showed clearly two adjacent parcels of land with waterfrontage of approximately 187 feet each and a common boundary which went Northward from the State Road S-399 and turned to the right approximately 2,184 feet by scale from the right-a-way of the road.

When Marshall amended the description, he did not delete the reference to the plat nor the waterfront call. The distance in his call for the western boundary of his property would not reach the waterfront from the road and we do not think it coincidental that it is just 100 feet longer than the distance shown on the plat from the road to the point at which the boundary turns East.

Given a plat drawn to scale, and referred to in all detailed descriptions, and from which the legal description could be fairly determined, we think that it and the provisions for beach frontage in the descriptions, which are consistent with those in the plat, should prevail over an ambiguous amendment.

We therefore, hold that there being no parole evidence from which the intention of the parties can be determined other than that they intended the inclusion of the amendment to the description, the rules of construction require that the common boundary between these properties begin at a point on the northern right-a-way of State Road S-399 halfway between the intersections of the right-a-way with the Johnson’s West boundary and the Marshall’s East boundary and go thence North 2,184 feet to a point and thence Northeast-ernly to a point on the mean high waterline of East Bay equidistant on the meander line of that mean high waterline and its intersections with the Johnson’s western boundary and the Marshall’s eastern boundary.

The case is remanded for the entry of a judgment consistent with this opinion.

MILLS and ERVIN, JJ., concur.


author: MILLS, Acting Chief Judge.

text:
    Lewis C. MEDLIN, Appellant, v. FLORIDA STATE BOARD OF ARCHITECTURE, Appellee.
    No. KK-187.
    District Court of Appeal of Florida, First District.
    March 9, 1979.
    Frederick B. Tygart, Jacksonville, for appellant.
    Selig I. Goldin and Robert P. Cates of Goldin & Cates, Gainesville, for appellee.
   MILLS, Acting Chief Judge.

This is an appeal from final ordérs of the Florida State Board of Architecture (Board) suspending Medlin’s Certificate of Registration as an architect for 12 months for violating Section 467.14(l)(c), Florida Statutes (1977), which provides that a Certificate of Registration may be suspended for:

“Affixing or permitting to be affixed his seal or his name to any plan, specification, drawing, or other related document which was not prepared by him or under his responsible supervising control.”

The Board filed two complaints against Medlin which were consolidated for hearing. Recommended orders were issued, and in each the hearing officer recommended that the complaints be dismissed. In its final orders, the Board accepted the hearing officer’s findings of fact, but rejected his conclusions of law and recommendations.

The Taco Bell Plans.

While practicing as an architect in Florida, Medlin was employed by Taco Bell to assist it in gaining the approval of the Division of Hotels and Restaurants of plans for a Taco Bell restaurant to be built at Orange Park, Florida. Taco Bell also had to acquire the approval of the local building officials at Orange Park.

The Board’s Exhibit 1 is a set of plans which was drawn by Cheryl Crandall, a project designer for Taco Bell. These plans had been examined and upgraded by Carl W. Carlson, an architect licensed in Florida, who was employed by Taco Bell for this purpose. These plans were subsequently modified by Crandall. Carlson gave Taco Bell permission to use his work product and any modifications which might come out of the basic set of plans. He also expected Taco Bell to hire local architects who would use the plans to the extent necessary to achieve the ends of Taco Bell.

In early March of 1977, Medlin took the basic plans, blue line prints, which were submitted to him by Crandall, and made certain red line changes on the face of the prints, the Board’s Exhibit 2. After making the red line changes and completely reviewing the plans for needed modifications, Medlin affixed his name and seal as architect. These plans were submitted to the Division for its approval and plans were approved.

There was no attempt by Medlin to conceal the fact that Crandall originally drafted the plans or that Carlson upgraded the plans as both their names appear on the plans. Red line plans are often submitted to the Division and they are acceptable to the Division if they meet the tests of adequacy as determined by the Division’s architect.

The Board charged Medlin with affixing his name and seal as an architect to plans for the Taco Bell restaurant, Exhibit 2, when those plans were not prepared by him or under his responsible supervising control.

The Jacksonville Beach Apartment Plans.

William Stanley Smith, the President of Universal Environmental Control, Inc., hired Donald Peck, a licensed Florida architect, to draw certain plans for a group of apartment buildings that were being constructed by Universal. The Board’s Exhibit 1 is a blueprint of the original plans. These plans were used 5 or 6 times in constructing apartments in the Jacksonville Beach area. The plans had been approved by the Division of Hotels and Restaurants and the Jacksonville Beach municipal officials.

Peck moved his base of operation from Jacksonville Beach, notified Smith of his move, and released the original tracings, which were the basis of Exhibit 1, to Smith. Smith was allowed to use these plans in whatever fashion he deemed appropriate.

In accordance with the release, Smith hired Medlin to draw site plans for an apartment complex to be constructed at 8th Avenue South in Jacksonville Beach. Med-lin was also to review the original plans, Exhibit 1, as a prelude to getting the necessary approval of the various state and local agencies. Medlin drew a site plan, page one of Medlin’s Exhibit 2. He also reviewed pages 2 through 6 of Exhibit 2. Those pages are for the most part the same as Exhibit 1, but mistakenly leave the description of the property as being located at 10th Avenue and not 8th Avenue. The only change noted in Exhibit 2, compared to Exhibit 1, was that involving the title block of the architect on certain pages of the drawing.

The work that Medlin did on the project was in accordance with the desires of his client, and with the permission of the former architect, Peck. The plans were approved by the Division.

The Board charged Medlin with affixing his name and seal as an architect to plans, drawings and/or specifications for a two-bedroom apartment building, when the plans were not prepared by Medlin or under his responsible supervising control.

At issue here is the construction of the word “prepared” as used in Sections 467.-14(l)(c) and 467.15(2), Florida Statutes (1977).

The term “responsible supervising control” has been addressed in the case of Markel v. Florida State Board of Architecture, 268 So.2d 374 (Fla.1972). That case involved the disciplining of an architect for allowing his name and seal to be affixed to certain documents which had been prepared by nonarchitects operating outside his control and supervision. After considering the matter, which the Court stated was a close question, the Court held that the after-the-fact ratification of a nonprofessional’s drafting would constitute approval of the prior unsupervised work product of a nonprofessional and was alien to the standards of the architectural profession. The Court did not specifically deal with the language “prepare”.

The word “prepare” as defined by Black’s Law Dictionary (4th Ed., 1951), means “to provide with necessary means; to make ready; to provide with what is appropriate or necessary.” It is defined by Webster’s New Collegiate Dictionary (2d Ed., 1960), as “1. To fit, adopt, or qualify beforehand for a particular purpose, and, or condition; to make ready . . . ”

Using the common and ordinary meaning of the word “prepared”, Medlin prepared the plans for the Taco Bell Restaurant and the Jacksonville Beach Apartment.

The record reflects that a complete review was made of the Taco Bell plans and changes and revisions were noted in red ink throughout the plans to make them ready for submission to the Division of Hotels and Restaurants. The evidence is clear that Medlin made substantial changes in the Taco Bell plans.

The record also shows that Medlin made a line by line drawing of a new site plan for the Jacksonville Beach Apartment and had completely reviewed the apartment tracings of architect Peck in preparation for submission of these plans to the Division.

Thus, Medlin did in fact “prepare” the documents to which his name and seal were affixed as an architect. To construe the word “prepared” as used in the cited statutes to require complete redrawing of all plans in every circumstance would be arbitrary and unreasonable and would create unreasonable expense and hardship for the client, without promoting any form of reasonable protection of the public against improper acts and motives of the profession.

It is unnecessary that we consider the other issues raised by Medlin.

The Board improperly applied the law applicable to the facts of this case. We reverse the orders appealed.

SMITH and BOOTH, JJ., concur.


author:
ERVIN, Judge.
      MASON, ERNEST E., Associate Judge,

text:
    Edward CORNELIUS, Appellant, v. Carolyn M. CORNELIUS, Appellee.
    No. LL-13.
    District Court of Appeal of Florida, First District.
    Sept. 18, 1979.
    Rehearing Denied Nov. 6, 1979.

      Jackson G. Beatty, Tallahassee, for appellant.
    Keith J. Kinderman, Tallahassee, for ap-pellee.
   ERVIN, Judge.

We return to the problem of when it is proper to award lump sum alimony — a problem which has continuously vexed the courts of this state.

The parties’ marriage terminated after 16 years of a generally unhappy existence. At the time of dissolution the husband’s gross salary from his solely-owned business was $18,000 per year, whereas the business’s income was $8,974, leaving him a total taxable income of $26,850.75. The husband’s financial statement reflected total assets in the amount of $138,830.00 and total liabilities of $21,450.00, leaving a net worth of $117,380.00. Included within the $138,-830.00 figure was $89,080.00, which represented the book value of stock in his solely owned business. Itemized separately from the other liabilities enumerated were “contingent liabilities” of $187,000.00 which included his liability as an individual endorser on a note for a $100,000.00 inventory loan and on a real estate mortgage encumbering his business. The wife’s financial affidavit showed her total assets were $17,350.00, with $5,000.00 in estimated liabilities. She had no income.

Before the parties’ marriage, the wife was employed as a hairdresser. She discontinued her work shortly after their child was born and has worked only briefly since 1962. After the parties separated, the wife entered Florida State University, and since her enrollment for the past several years has received excellent grades. The wife, 36 years of age at the time of dissolution, is unemployed, and her psychiatrist, whom she had consulted for several years, testified that she suffered from mental depression and, because of her condition, she had no present ability to earn' a living; moreover, if she could obtain employment, it was his opinion she was then unable to function sufficiently to hold a job. He recommended, in view of her present mental condition, that she undergo group therapy for two or three years.

The trial judge awarded custody of the parties’ only child to the husband, granted the wife rehabilitative alimony in the amount of $25,200.00 over a period of five years, payable in installments of $500.00 per month for the first three years, and thereafter . $300.00 per month. He also awarded her as lump sum alimony the husband’s one-half interest in the marital home and $7,000.00 cash. The parties’ real property, jointly owned during marriage, remained the property of both as tenants in common. All personal property and appliances, with the exception of the household furniture, were awarded the wife. Finally, the husband was ordered to pay the wife’s attorney fees in the amount of $3,000.00. We reverse the awards of lump sum alimony, household furnishings and appliances since the wife has not demonstrated her needs for them, but sustain the remainder of the judgment as being within an appropriate exercise of the trial court’s discretion.

Since, as so often occurs in cases of this sort where lump sum alimony awards are entered, the recipients defend the awards by relying upon Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dism. 307 So.2d 186 (Fla.), we consider it time to re-visit Brown in an effort to determine whether its rule has continuing efficacy. We begin with the well worn premise that any award of alimony, whether it be named permanent, rehabilitative or lump sum, must be supported by a showing that the spouse requesting it has a need for it, in a manner commensurate with the style which the parties enjoyed during marriage, as well as a showing that the other spouse has the ability to provide for those needs. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976).

We think it necessary, because of the apparent confusion over what criteria are to be considered when awarding alimony, to review ' briefly the origin and history of alimony prior to the 1971 Marital Dissolution Act. First, it should be noted that alimony is a creature of statute. While there was no right at common law to a divorce from the bonds of marriage, the ecclesiastical courts could annul a marriage if it was found initially defective. 1 W. Bláckstone, Commentaries Ch. 15, 439 (Sharswood ed. 1859). If, during the marriage, a husband committed adultery or deserted his wife, the wife could seek a judicial order equivalent to a separation decree, and the court had discretion to order that the husband provide for the wife’s support as a continuation of his marital obligation to supply her needs. Id. at 439-41. Historically, and in its literal sense, alimony meant nourishment or sustenance. Floyd v. Floyd, 91 Fla. 910, 108 So. 896, 898 (1926). It was the allowance which a husband could be compelled to pay the wife for her maintenance when living apart from him, and had for its sole object the provisions of food, clothing, habitation and other necessaries for the support of the wife during her lifetime. Id.

The right to alimony connected with divorce was permitted by statute in what was then the Florida territory by Section 7, Act of October 31, 1828 (McClellan’s Digest, Laws of Florida (1881)), and provided: “[T]he court shall and may, . . . take such order, . . . touching the maintenance and alimony of the wife, or any allowance to be made to her, . . . , as from the circumstances of the parties and nature of the case may be fit, equitable and just.” In interpreting the above statute, the Florida Supreme Court observed: “Permanent alimony is not a sum of money or specific proportion of the husband's estate given absolutely to the wife. It is a continuous allotment of funds payable at regular intervals for her support from year-to-year.” Phelan v. Phelan, 12 Fla. 449, 456 (1868) (e.s.). The concept that permanent alimony was to be paid only periodically persisted until 1947, when Chapter 23894, Laws of Florida (1947), amended Section 61.08 by authorizing permanent alimony to be paid either periodically or in a lump sum. Finally, in 1963, the statute was amended by adding the words: “[Periodic payments or payment in lump sum or both.”

There are important differences in the consequences which attach to lump sum and permanent alimony awards. An award of permanent alimony, unlike lump sum, terminates upon the death or remarriage of its recipient, Cann v. Cann, supra, while lump sum alimony creates a vested right which survives death and is not modifiable or terminable upon the divorced wife’s remarriage. Id.

Undoubtedly the leading case on lump sum alimony is Yandell v. Yandell, 39 So.2d 554 (Fla.1949). Yandell observed that lump sum alimony was not among the favored ways to provide one spouse with the support of the other. Rather, it is justified where it is clearly established that the husband has assets sufficient to pay the gross award. However, it should not be awarded if it results in the impairment of the obli-gor’s financial status. The husband must be able to pay “over and above the requirements ... of his business or employment, or the preservation of his professional activities.” Id. at 556. The Yandell rule was generally followed in later cases. E. g., Goode v. Goode, 76 So.2d 794 (Fla.1954); Olsen v. Olsen, 158 So.2d 775 (Fla.3d DCA 1963); Aufseher v. Aufseher, 217 So.2d 868 (Fla. 3d DCA 1969).

Prior to the 1971 Marital Dissolution Act, the law on alimony remained free from uncertainty as to what factors should be taken into consideration when determining whether or not to permit an award. The equation was unchanged: alimony = need + the ability to provide for that need.

As originally passed, the 1971 Act adopted section 308 of the Uniform Marriage and Divorce Act which permitted the trial court to enter a maintenance order, unrelated to the fault of either party, once a finding was made that the spouse seeking maintenance lacked sufficient property to provide for his needs, or was unable to support himself or herself through appropriate employment, or was the custodian of a child whose circumstances made it appropriate that the custodian not be required to seek employment outside the home. See H.B. 736, Section 8 (Reg. Session 1971). The governor, however, vetoed this measure. The final compromise provision of the Act, Section 61.-08(1), modified the 1969 statute (1) by permitting any spouse to apply for alimony, whereas only the wife could do so before, (2) by allowing an award of rehabilitative alimony, and (3) by permitting the court to consider the adultery of the spouse when deciding whether alimony should be awarded, as well as the amount of alimony to be awarded. Subsection (2) was added authorizing the court to “consider any factor necessary to do equity and justice between the parties.”

The net result of the Act was, unfortunately, an anomaly. While the fault of neither spouse was to be considered when determining whether the bonds of marriage should be dissolved, fault, specifically adultery by statute, was retained when deciding whether alimony should be awarded. And it was judicially extended to other areas of fault not designated by statute. See, e. g., Oliver v. Oliver, 285 So.2d 638 (Fla. 4th DCA 1973); Baker v. Baker, 299 So.2d 138 (Fla. 3d DCA 1974), cert. den. 307 So.2d 186 (Fla.). The admission of evidence relating to fault was, however, narrowly circumscribed by the Supreme Court’s recent opinion in Williamson v. Williamson, 367 So.2d 1016 (Fla.1979), where the court held that a trial judge could permit evidence of misconduct by the spouse who caused economic hardship to the other, as an equitable circumstance under Section 61.08(2), only after it is demonstrated that both parties will suffer economic hardship following division of their resources.

Even following the adoption of the Act, the courts until 1974 continued to follow the traditional equation by which alimony awards were measured. This equation was disregarded in 1974 when Brown v. Brown, supra, was decided. In Brown, the court compared the net worth statements of both parties and, finding in them a gross disparity, observed thát the wife had contributed as a homemaker to both the husband’s career and financial status. It decided that she had been shortchanged since the trial court had failed to take into consideration the wife’s contribution to the marital home. It concluded by directing the trial judge to make a lump sum alimony award, without any determination of the wife’s need or whether the husband’s business might be jeopardized. The sole justification for the award was to compensate the wife for her contribution to the marriage as a homemaker while the husband “pursued the accumulation of material goods.” Id. at 726. Brown found support for its decision in Section 61.08(2), permitting the trial court to “consider any other factor necessary to do equity and justice between the parties.”

Whatever the Brown court labeled the award, it simply was not alimony, since the award was based on factors other than one spouse’s need and the other’s ability to supply those needs. Nor could it be labeled a special equity in the husband’s property. A special equity, which is not to be confused with alimony and is not alimony, Cann v. Cann, supra, is allowable where one spouse contributes materially either in funds or personal services to the other’s business or acquisition of property. Welsh v. Welsh, 160 Fla. 380, 35 So.2d 6 (Fla.1948); Heath v. Heath, 103 Fla. 1071, 138 So. 796 (1932); Eakin v. Eakin, 99 So.2d 854 (Fla.1958). It is only warranted upon a special showing that the spouse seeking such equity contributed money or services to the other’s property accumulations above and beyond the performance of the marital duties. Id.

The confusion resulting from the Brown rule is evident in a number of recent decisions. For example, McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), while considering the traditional criteria upon which an award of alimony should be predicated, stated that a trial court should consider also the extent to which the wife has been required to do actual housework and perform the chores of raising children, as well as the extent of her contribution to her husband’s successful career. Other cases which specifically followed Brown include Goldman v. Goldman, 333 So.2d 120 (Fla. 1st DCA 1976); Johnston v. Johnston, 349 So.2d 682 (Fla. 2d DCA 1977); Ruse v. Ruse, 351 So.2d 81 (Fla. 1st DCA 1977).

Any lingering doubts as to what factors should or should not be considered by a court when lump sum alimony is requested were laid to rest by the Florida Supreme Court’s recent opinions in Cummings v. Cummings, 330 So.2d 134 (Fla.1976) and Meridith v. Meridith, 366 So.2d 425 (Fla. 1978), where lump sum alimony awards were reversed because there had been no demonstration of any positive showing of necessity on the wife’s part, even though the husband may have possessed the pecuniary ability to pay. In Meridith, the court specifically adopted the dissenting opinion of Judge Downey as the decision of the court. In his dissent, it was stated, “[T]he original Florida case discussing lump sum alimony, Yandell v. Yandell, 39 So.2d 554 (Fla.1949), has not been changed.” 352 So.2d 72, 73 (Fla. 4th DCA 1977). Recent decisions, both from this district, e. g., Robinson v. Robinson, 366 So.2d 1210 (Fla. 1st DCA 1979), and others, Fraser v. Fraser, 368 So.2d 97 (Fla. 3d DCA 1979); Judge v. Judge, 370 So.2d 833 (Fla. 2d DCA 1979); Saldana v. Saldana, 372 So.2d 528 (Fla. 4th DCA 1979), have followed the equation and disregarded Brown’s marital contribution rule.

Since the Yandell standards remain intact it is necessary that we recede from language in Brown which suggests a lump sum award may be made without a showing either of the need of the spouse or the ability of the other spouse to supply that need. We also recede from Brown to the extent it implies that lump sum alimony may be employed as a tool for equalizing the estates of the respective spouses following dissolution. To permit an award of alimony, as did Brown, as compensation for a spouse’s marital contributions could produce the paradoxical result of a dutiful, attentive spouse receiving alimony even in the absence of any demonstration of need, while a less assiduous spouse, whose needs are manifest, is penalized for her lack of industry. Such a result does not comport with the conventional concept of alimony and any rule causing such a result should not be maintained.

Brown represents an eloquent recognition of the homemaker’s contributions to the marital home. It must be rejected, however, as an unacceptable deviation from that which we understand to be the traditional equation by which all alimony is measured. Until the legislature sets aside that equation, we have no choice other than to follow it.

In this decision, we do not foreclose the court from determining, upon proper pleading and proof, whether the wife may establish a special equity in the proceeds derived from the sale of the spouses’ former home located in Miami to the extent those proceeds were later applied to the husband’s business in Tallahassee. Nor do we foreclose the court’s right to consider whether other equitable claims exist to justify the entry of any award to her other than lump sum alimony, such as the exclusive use and possession of the home.

While we reverse the lump sum alimony awards entered, we certify the following question to the Florida Supreme Court as one of great public interest:

May a trial court, pursuant to Section 61.08(2), Florida Statutes (1977), base an award of lump sum alimony on factors (such as those discussed in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974)) not relating to one spouse’s needs and the ability of the other spouse to provide for those needs?

AFFIRMED in part, REVERSED in part and remanded for further proceedings consistent with this opinion.

MILLS, C. J., concurs.

MASON, ERNEST E., Associate Judge, specially concurs and dissents.

MASON, ERNEST E., Associate Judge,

specially concurring and dissenting.

I concur in the result reached by the majority opinion but dissent from that portion which recedes from the language of Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974). Such result is fully supported by the record herein without the necessity of revisiting the language of Brown and receding therefrom as the majority opinion has done.

      . It does not terminate upon the death of its obligor and may, upon an appropriate showing, be made a charge against his estate. See First National Bank in St. Petersburg v. Ford, 283 So.2d 342 (Fla.1973); Davis v. Davis, 358 So.2d 126 (Fla. 1st DCA 1978).

      . See Jackson, The No-Fault Concept: Grounds and Defenses, Florida Family Law Section 21.1 (2d Ed. 1972).

      . For an excellent examination of our ambiguously named “No-Fault Divorce Act”, see note, Alimony in Florida. No-Fault Stops at the Courthouse Door. 28 U. of Fla.L.Rev. 521 (1976).

      . The above subsection did little more than re-phrase the language in the statute which remained in existence from 1828 until 1971, which had formerly provided that a trial court may allow alimony “as from the circumstances of the parties and nature of the case may be fit, equitable and just.”

      .Perhaps it could be considered a distribution of the assets following the dissolution of an implied partnership, an approach favored by some scholars as a means of recognizing the homemaker’s personal contributions to the marriage. See, for example, The Implied Partnership: Equitable Alternative to Contemporary Methods of Post-marital Property Distribution, 26 U. of Fla.L.Rev. 221 (1973).