author: BASKIN, Judge.

text:
    Frank Rudolph SOLIMENA; Frank San Pedro; Francis Clifford Joyce, Appellants, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    Nos. 79-1897, 79-2030, 79-2047, 79-2247, 79-2290, 79-2291, 80-447 and 80-633.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Rehearing Denied Sept. 22, 1981.

      Levine & Green and Bruce David Green, Fort Lauderdale, Greene & Cooper and Marc Cooper, Sams, Gerstein & Ward, Miami, for appellants.
    David M. Maloney, Frates, Jacobs & Far-rar, Tallahassee, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Three race horse trainers seek to overturn orders of the Florida Division of Business Regulation, Division of Pari-Mutuel Wagering which revoked or suspended their licenses. In consolidated appeals, they challenge the absolute insurer rule under which they were held strictly liable for racing horses in which narcotics were found, without regard to whether they knew that the horses had been given Sublimaze, a prohibited drug.

We affirm.

San Pedro

In the eighth race of Tropical Park Race Track held at Calder on November 20,1978, Lexacon, a horse trained by appellant San Pedro, ran and won a race. After the race, the stimulant Sublimaze was found in the horse’s system. The stewards referred the matter to the Division which issued a notice to show cause why San Pedro’s license for 1978-1979 should not be suspended or subjected to other appropriate action. The Division referred the matter to the Division of Administrative Hearings (DOAH) for a hearing requested by San Pedro under section 120.57, Florida Statutes (1977). In the meantime, the Division disapproved renewal of his license for the 1979-1980 season; the 1978-1979 license was then due to expire. San Pedro obtained an injunction. The circuit court ordered the license renewed and enjoined suspension until San Pedro had been afforded a hearing and had exhausted his remedies. Over San Pedro’s objection, the court ordered the hearing to be held before Division Director Rutledge instead of before DOAH. San Pedro attempted to disqualify Director Rutledge, arguing that Rutledge had prejudged the case, according to newspapers in which he had been quoted as stating that San Pedro’s case lacked merit. San Pedro argued that the pending DOAH proceeding precluded the Division from conducting further proceedings. Because the stewards failed to make a finding that he or anyone else had knowingly drugged a horse, San Pedro sought, but failed, to have the matter remanded to the Board of Stewards. After a full hearing, the Director ruled that racing the horse under the influence of narcotics violated Florida Administrative Code Rules 7E-1.06(ll)(a), the medication rule, and 7E-1.18(3), the absolute insurer rule. He disapproved the license application for the 1979-1980 season and revoked San Pedro’s “current” license.

Solimena

Appellant Solimena hired Dr. Carl Meyer, a veterinarian, to treat horses he trained to race at Calder during the 1978 to 1979 season. The races were held at Calder for both Calder and Tropical Park Race Tracks. In October and November of 1978, Dr. Meyer administered Sublimaze to six horses and billed Solimena for myopathy treatments. When post-race tests disclosed the presence of the narcotic, the Division director notified the Tropical Park Board of Stewards. The stewards referred the matter to the Division. The Division issued administrative complaints, and in response to requests for hearings, referred the matter to the Division of Administrative Hearings, which conducted a hearing. The hearing officer found that on seven occasions horses trained by Solimena had raced with Subli-maze in their systems and that Solimena could be guilty of a violation of Rule 7E-1.-06(ll)(a), in view of the language of Rule 7E-1.18(3), but recommended charges be dismissed because Dr. Meyer had administered the drug without Solimena’s knowledge. Dr. Meyer testified that he used Sublimaze as a pre-anesthetic agent to treat colic conditions. The Division issued three final orders adopting the hearing officer’s finding that the medication rule had been violated on seven occasions, but rejected the hearing officer’s findings that appellant did not know of the treatment. The Division suspended Solimena’s license for four years and fined him $5,000. An order was subsequently issued suspending Solimena for an additional six months.

Joyce

Appellant Joyce also hired Dr. Meyer to treat horses he trained. On several occasions, Dr. Meyer administered Sublimaze, which was discovered in the horses after the races. The Tropical Park Board of Stewards notified appellant of the positive test results and referred the matter to the Division of Pari-Mutuel Wagering. Hearings were held on each of two complaints before the DOAH. The DOAH hearing officer ruled appellant could be found guilty of violating the absolute insurer rule but recommended dismissal because Dr. Meyer had administered the drug without appellant’s knowledge. The Division adopted the hearing officer’s findings that the medication rule had been violated on two occasions but rejected the conclusion that appellant could not be held liable. It suspended his license for a total of 180 days and fined him $200.

The trainers advance a number of arguments in a multi-pronged attack upon the Division’s orders.

The issues presented for our consideration emanate from a central concern: whether trainers may be held responsible for racing drugged horses regardless of whether they knew of or participated in administering the drugs. Appellants maintain the legislature did not empower the Division of Pari-Mutuel Wagering to hold them responsible as absolute insurers that the horses race without prohibited stimulants or depressants. They contend, however, that if we determine that the absolute insurer rule, Florida Administrative Code Rule 7E-1.18(3), may be read in conjunction with the medication rule, Florida Administrative Code Rule 7E-1.06(ll)(a), to impose responsibility, then we must reject the insurer rule, either because its authorizing statute is vague or because the absolute insurer rule exceeds the Division’s authority. In addition, appellants raise jurisdictional questions, and appellant San Pedro challenges the impartiality of the Division Director. We now address these arguments.

1. The absolute insurer rule.

Section 550.02, Florida Statutes (1977) and section 550.02(3), Florida Statutes (1977) provide legislative authorization for the enactment of rules by the Division of Pari-Mutuel Wagering:

550.02 The powers and duties of the Division of Pari-mutuel Wagering of the Department of Business Regulation.— The Division of Pari-mutuel Wagering of the Department of Business Regulation shall carry out the provisions of this chapter and supervise and check the making of pari-mutuel pools and the distribution therefrom, and:
(3) Make rules and regulations for the control, supervision and direction of all applicants, permittees and licensees, and for the holding, conducting and operating of all racetracks, race meets, races held in this state; provided, such rules and regulations shall be uniform in their application and effect, and the duty of exercising this control and power is made mandatory upon the division. The division may take testimony concerning any matter within its jurisdiction and issue summons and subpoenas for any witness and subpoenas duces tecum in connection with any matter within the jurisdiction of the division under its seal and signed by the director.

The medication rule, 7E-1.06(ll)(a), lists as its specific authority section 550.02(4), now renumbered 550.02(3), and as the laws implemented, section 550.02 and section 550.-24.

Section 550.24 states:

550.24 Conniving to prearrange result of race; stimulating or depressing horse or dog: penalty. — Any person who shall influence or have any understanding or connivance with any owner, jockey, groom or other person associated with or interested in any stable, kennel, horse or dog or race in which any horse or dog participates, to prearrange or predetermine the results of any such race or any person who shall stimulate or depress a dog or horse for the purpose of affecting the results of a race, shall be guilty of a felony of the third degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The absolute insurer rule, 7E-1.18(3) declares:

The trainer shall be responsible for, and be the insuror [sic] of the condition of the horses he enters. Trainers are presumed to know the rules of the Division.

The medication rule, 7E-1.06(ll)(a) provides:

(a) The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of any such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system.

If we read the medication rule in conjunction with the absolute insurer rule, one of the conditions a trainer insures is the absence of certain medication in horses he races. Appellants’ claims for relief are predicated upon their lack of knowledge that the horses had been given prohibited drugs. They assert that under 550.24 the Division could act only against trainers who knew that prohibited drugs were administered. We disagree.

Whereas personal involvement and fault must support the commission of a felony under 550.24, they are not necessary components of a violation of Division rules. Section 550.02(3) compels the Division to regulate the conduct of races and imposes a “mandatory” duty on the Division to exercise control and power. Clear language in statutes is binding on courts. Phil’s Yellow Taxi Co. v. Carter, 134 So.2d 230 (Fla.1961). The clear language of sections 550.02(3) and 550.24 provides legislative authorization for combining the absolute insurer rule with the medication rule. See Florida Growers Coop Transport v. Department of Revenue, 273 So.2d 142 (Fla. 1st DCA), cert. denied, 279 So.2d 33 (Fla.1973); Lewis v. Florida State Board of Health, 143 So.2d 867 (Fla. 1st DCA 1962), cert. denied, 149 So.2d 41 (Fla.1963).

2. The authorizing statute.

Next, appellants contend that section 550.02(3), the authorizing statute for the absolute insurer rule, invalidly delegates legislative authority and is unconstitutionally vague because it lacks guidelines.

“[T]he doctrine of nondelegation of legislative power ... is ... firmly embedded in our law....”, Askew v. Cross Key Waterways, 372 So.2d 913, 924 (Fla.1978); see D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977); Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1977); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968); State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 So. 969 (1908), but it does not eliminate all agency discretion.

We recognize that the legislature may not delegate to an administrative official the power to say what the law is. However, the legislature may enact a law complete in itself, which leaves some discretion in the operation and enforcement of the law with an administrative official. Department of Citrus v. Griffin, 239 So.2d 577 (Fla.1970). The distinction is said to be one between ‘delegation of the power to make the law, which necessarily involves a discretion as to what the law shall be, and the conferring of authority or discretion in executing the law pursuant to and within the confines of the law itself.’ Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1966).

Brewer v. Insurance Commissioner & Treasurer, 392 So.2d 593, 595 (Fla. 1st DCA 1981).

In determining whether the legislature has improperly delegated discretion to the agency, we must consider whether the statute establishes standards and guidelines which direct the agency in implementing the law. Coca-Cola Company v. State Department of Citrus, 398 So.2d 427 (Fla.1981). When the legislature confers authority on an agency charged with administering an aspect of police power, agency discretion must be governed by legislative standards and must be subject to judicial review. Reynolds v. State, 383 So.2d 228 (Fla.1980); Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla.1979). When “neither the agency nor the courts can determine whether the agency is carrying out the intent of the legislature”, Askew v. Cross Key Waterways, supra at 919, unlawful delegation of legislative power may result.

The mere grant of authority to issue rules and regulations, however, does not constitute an unlawful delegation of legislative power. Florida State Board of Architecture v. Wasserman, supra; Florida Canners Association v. State Department of Citrus, 371 So.2d 503 (Fla.2d DCA 1979), affirmed, Coca-Cola Company v. State Department of Citrus, 398 So.2d 427 (Fla.1981).

A recognized exception to the requirement that the legislature expressly enunciate guidelines and standards occurs in licensing and in the determination of the fitness of license applicants. Permenter v. Younan, 159 Fla. 226, 31 So.2d 387 (Fla.1947); Brewer v. Insurance Commissioner & Treasurer, supra, but cf. State ex rel. Palm Beach Jockey Club, Inc. v. Florida State Racing Commission, 158 Fla. 335, 28 So.2d 330 (1946) (expressing doubts as to the extent to which rules going to the qualifications of licenses may be promulgated). When dealing with police power, the legislature may find it impractical to express a comprehensive standard. In that circumstance, a specific standard need not be expressed and the standard of reasonableness is applied. North Broward Hospital District v. Mizell, 148 So.2d 1 (Fla.1962); Brewer v. Insurance Commissioner & Treasurer, supra. Also excepted from the guideline requirement are occupations which are practiced by privilege rather than by right and which are potentially injurious to the public welfare.

These statutes involve the field of licensing and the determination of personal fitness of applicants for or holders of a license. As such, the statutes fall within one of the long recognized exceptions to the strict requirement that express guidelines and standards be enunciated by the Legislature. Permenter v. Younan, 31 So.2d 387 (Fla.1947). The Supreme Court set forth this exception in North Broward Hospital District v. Mizell, 148 So.2d 1 (Footnote 11) (Fla.1962), as follows: ‘The general rule, which requires an express standard to guide the exercise of discretion is also subject to the exception that where it is impracticable to lay down a definite comprehensive rule, such as where regulation turns upon the question of personal fitness, or where the act relates to the administration of a police regulation and is necessary to protect the general welfare, morals, and safety of the public, it is not essential that a specific prescribed standard be expressly stated in the legislation. In such situations the courts will infer that the standard of reasonableness is to be applied.

Brewer v. Insurance Commissioner & Treasurer, supra at 595-96.

We turn now to the specific legislation under review, chapter 550, and specifically section 550.02(3). Appellants argue that section 550.02(3) invalidly delegates authority to promulgate the absolute insurer rule. Although assertions of invalid delegation of legislative power have not previously been presented, due process attacks on this statute have failed. Division of Pari-Mutuel Wagering v. Caple, 362 So.2d 1350 (Fla.1978).

Florida courts have consistently emphasized the special nature of legalized racing, describing it as a privilege rather than as a vested right. State ex rel. Mason v. Rose, 122 Fla. 413, 165 So. 347 (1936).

In 1936 we held that, because racing for money could be prohibited altogether in Florida, the legislature may condition a license to engage in legalized racing upon compliance with any rule that is ‘reasonably appropriate to the accomplishment of the purposes of the act.’

Division of Pari-Mutuel Wagering v. Caple, supra at 1355, quoting State ex rel. Mason v. Rose, supra at 349; see also Permenter v. Younan, supra. In Hialeah Racing Course, Inc. v. Gulf stream Park Racing Association, Inc., 37 So.2d 692 (Fla.1948), appeal dismissed, 336 U.S. 948, 69 S.Ct. 885, 93 L.Ed. 1104 (1949), the court observed that in racing matters the state may exercise greater control and exercise its police power in an arbitrary manner because the public interest and the public welfare are affected by legalized gambling.

Section 550.02(3) invests the Division with the power to promulgate rules and regulations appropriate to the purpose of the act. State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21 (1936). The purpose of chapter 550 is to regulate and control racing in Florida in accordance with appropriate standards of conduct, a function of police power. Horsemen’s Benevolent & Protective Association v. Division of Pari-Mutuel Wagering, 397 So.2d 692 (Fla.1981). Courts evaluate administrative agency rules to determine whether they comport with legislative purpose. See Division of PariMutuel Wagering v. Caple, supra (the anti-drugging rule is valid because the state has an interest in protecting both the health of thoroughbred horses and the integrity of the sport); Department of Business Regulation v. Vandervoort, 273 So.2d 66 (Fla.1972) (the setting of jockey fees is not authorized by the general statutes); State ex rel. Hollywood Jockey Club, Inc. v. Stein, 133 Fla. 530, 182 So. 863 (Fla.1938) (limiting racing to daylight hours was authorized). When the courts observe that an agency is following legislative purpose, they find no invalid delegation. See Askew v. Cross Key Waterways, supra.

In Division of Pari-Mutuel Wagering v. Caple, supra, the court observed that the absolute insurer rule “achieves the prophylactic statutory goal.” Overruling State ex rel. Paoli v. Baldwin, 159 Fla. 165, 31 So.2d 627 (1947), the court stated:

In the interest of protecting both the health of thoroughbred horses and the integrity of the sport from which the state derives revenues, the state has a valid objective in seeking to prevent drugging of race horses. An absolute insurer rule for horse trainers represents a reasonable and valid exercise of the state’s police power to achieve that objective.

Division of Pari-Mutuel Wagering v. Caple, supra at 1355.

In our view, the absolute insurer rule reflects an appropriate legislative purpose: prevention of the influencing of race results by the use of drugs. Legalized gambling operates only by permission of the state. An agency may therefore exercise police powers in furtherance of the statutory purpose despite the absence of specific guidelines. We hold that section 550.02(3) constitutes a valid delegation of authority to the agency.

Next, we address appellants’ assertion that the stewards were required to act before the Division could assert jurisdiction. See Swebilius v. Florida Construction Industry Licensing Board, 365 So.2d 1069 (Fla. 1st DCA 1979). Rule 7E-1.06(ll)(a) contains no requirement that the stewards act first. We fail to find any statement in section 120.57, or elsewhere, which would require that action by the stewards precede Division action. Calfin v. Department of Business Regulation, Division of Pari-Mutuel Wagering, 391 So.2d 739 (Fla. 4th DCA 1980). This court has indicated in the past that the Division may conduct a de novo hearing following a steward’s ruling. Vasquez v. Department of Business Regulations, 378 So.2d 1319 (Fla. 3d DCA 1980). We also find no merit in appellant San Pedro’s argument that the Division divested him of his right to a hearing before DOAH pursuant to section 120.57. The Division acted pursuant to court order.

Because appellants failed to file prompt motions to dismiss, the Division’s lack of compliance with section 120.60(5) may not be the subject of a claim of prejudice. Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA), petition for review denied, 392 So.2d 1379 (Fla.1980); see Florida Real Estate Commission v. Frost, 373 So.2d 939 (Fla. 4th DCA 1979).

Solimena moved to dismiss for noncompliance with section 120.60(5) during hearings which were held several months after the notices to show cause were issued. The notice requirement of section 120.60(5) serves to inform a licensee of pending charges and allows him to prepare a prompt repudiation. Sheppard v. Board of Dentistry, supra. If the licensee delays in filing a motion which raises agency noncompliance with the notice requirements, requests a hearing, and participates in discovery, he may not claim that he was uninformed. Appellant Solimena requested hearings and engaged in discovery. He therefore suffered no prejudice from lack of notice. Appellant Joyce failed to file a motion to dismiss. Appellant San Pedro moved for dismissal of the notice to show cause, demanded a formal hearing, and filed responses and defenses, but failed to assert lack of notice prior to the revocation proceedings.

San Pedro also contends that the Division failed to afford him the opportunity for a hearing prior to issuing its order denying his application for renewal of his license in violation of chapter 120. We note, however, that the Division’s order informed the applicant of his right to a hearing under section 120.60(2). We find no violation of section 120.60(5).

Additionally, appellant San Pedro argues that Division Director Rutledge’s refusal to disqualify himself deprived him of an impartial hearing. In our opinion, Division Director Rutledge’s refusal to disqualify himself is, at most, harmless error. Although the newspaper articles may have reported his views on the absolute insurer rule, they did not quote a belief that the trainers had violated any rule.

Appellants’ remaining points lack merit.

The absolute insurer rule is a valid enactment by the Division in furtherance of an appropriate legislative purpose. We find no impropriety in the action taken by the agency, and we therefore affirm its decision.

      . The Division rejected a hearing officer’s finding that appellant Solimena had no knowledge of the treatment administered to his horses. The basis for the rejection was the fact that Solimena did not testify; nevertheless, his license suspension was predicated on the absolute insurer rule rather than knowledge of the drugging. At issue in these consolidated appeals is the absolute insurer rule.

      . Sublimaze is a brand name for the narcotic fetanyl, which metabolizes in the horse, becoming the stimulant dispropionyl dentanyl.

      . See note 1 supra.

      . Ch. 73-333, § 138 Laws of Fla.

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

      . Appellee challenges our jurisdiction to consider the constitutional question in an appeal from final agency action against a licensee because the issue was not raised in the agency proceeding. We disagree.
      An appellate court may decide the constitutionality of a statute despite the absence of an agency decision on the constitutional question. Rice v. Department of Health & Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). But see Dependable Air Conditioning & Appliance, Inc. v. Office of Treasurer & Insurance Commissioner, 400 So.2d 117 (Fla. 4th DCA 1981); Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979). An agency is powerless to decide the constitutionality of its rules or of Florida statutes. Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978); see 1 Fla.Jur. Administrative Law § 161 (1977). We do not here review the judgment of a court of law; we may consider any “freshly raised” questions of law, constitutional or otherwise. Rice v. Department of Health & Rehabilitative Services, supra at 849-50.

      . Caple was decided on due process considerations rather than on the validity of legislative delegation of power. It serves, nevertheless, as authority that the absolute insurer rule is reasonable. Accord, Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979).

      . Because some violations were not discovered until after the close of the meet, they were brought to the attention of stewards other than those who presided at the time of the actual violations.

      .§ 120.60(5), Fla.Stat. (1977):
      No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license.

      . § 120.71, Fla.Stat. (1977):
      (1) Any individual serving alone or with others as an agency head shall be disqualified from serving in an agency proceeding for bias, prejudice, interest, or other causes for which a judge may be recused.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Ronald Edward IVEY, Petitioner, v. Eugene L. EASTMOORE, Circuit Judge, Respondent.
    No. 81-705.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 1981.
    Rehearing Denied Sept. 4, 1981.
    Michael S. Becker, Asst. Public Defender, Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for respondent.
   COBB, Judge.

Ronald Edward Ivey, defendant below, was charged with one court of burglary in Case No. 81-218-CF and with both burglary and grand theft in Case No. 81-023-CF-J. Pursuant to plea bargain negotiations, Ivey pled guilty to both counts of the 81 case, with a sentence cap of ten years, and the 80 case was nolle pressed after acceptance of the plea by the trial court following a determination that it was freely, voluntarily and intelligently made. No judgment was entered at that time. A pre-sentence investigation report was ordered.

Some three months later, Ivey came before the trial judge for sentencing. In response to the court’s inquiry concerning additions or corrections to the pre-sentence investigation report, defense counsel objected to the inclusion therein of information pertaining to the dismissed case. The objection was that, despite the dismissal of the case and the presumption of innocence, “there’s almost a page of information concerning that particular crime.”

The trial judge stated that such information could be considered, and that if defense counsel disagreed, then he would vacate the plea, have the dismissed charge reinstated, and proceed to trial on all three charges.

Defense counsel stated that the fact that the charge was nolle pressed could be included in the pre-sentence investigation report, but that extensive information about it was improper. When the objection was not withdrawn, the trial court vacated the plea, directed the state attorney to refile the dismissed charge, and ordered both cases to be set for trial.

The defendant objected to this action, and filed a motion for a sentencing hearing, which was denied. He contends that trial of Case No. 80-218-CF would constitute double jeopardy.

In his petition for writ of prohibition, the defendant argues that once his guilty plea and the plea negotiation were accepted by the trial judge, they could not be set aside under the instant circumstances without the consent of the defendant. Primarily, defendant relies on Florida Rule of Criminal Procedure 3.172 and two Florida Supreme Court cases: Troupe v. Rowe, 283 So.2d 857 (Fla.1973); and Reyes v. Kelly, 224 So.2d 303 (Fla.1969), cert. denied, 397 U.S. 958, 90 S.Ct. 961, 25 L.Ed.2d 142 (1970).

The rule provides that up until acceptance by the trial court, the plea bargain may be withdrawn by either party without necessary justification. After such acceptance, such justification — e. g., mistake, surprise, fear, improper inducement, manifest injustice, etc. — is necessary. See Robinson v. State, 373 So.2d 898 (Fla.1979); Williams v. State, 316 So.2d 267 (Fla.1975); Pope v. State, 56 Fla. 81, 47 So. 487 (1908). Although the trial court’s acceptance of the plea binds the parties to the agreement, i. e., the state and the defendant, it is tentative and is not binding on the trial judge until adjudication and sentence, so long as the defendant is not held to the terms of his agreement. Cf. Moore v. State, 339 So.2d 228 (Fla. 2d DCA 1976).

Troupe is readily distinguishable. In that case, the defendant objected to the trial court setting aside a prior judgment and sentence after conclusion of the sentencing hearing and in the absence of a formal motion by the state setting forth any justification therefor.

In Reyes, the trial court refused to accept a plea of guilty to second-degree murder under circumstances whereby the defendant was unable to speak and understand English and the facts, as translated, led the trial court to believe that the defendant may have acted in self defense. Therefore, the trial court would not accept the seemingly voluntary plea. Subsequently, the prosecution entered a written nolle prosequi to the second-degree murder information, presented the matter to the grand jury, and obtained an indictment for first-degree murder. The Florida Supreme Court held that questioning by the trial court at the time the plea was tendered was sufficient for jeopardy to have attached. Consequently, it was improper for the state to attempt to prosecute the defendant for first-degree murder. The defendant was not discharged from prosecution for murder in the second degree. Under this logic, jeopardy is unaffected in the instant cause because the defendant is not threatened with prosecution for a higher offense in either Criminal Case No. 81-023 or Case No. 80-218.

We find the dispositive case to be Davis v. State, 308 So.2d 27 (Fla.1975). In that case the court said:

As we stated in Brown [v. State, 245 So.2d 41 (Fla.)], supra, a judge is never bound in sentencing by the negotiations which occur between the prosecuting attorney and the defense counsel. Furthermore, it is true that plea discussions in which the trial judge is involved have been categorized as “delicate” and that the American Bar Association in its Standards for Criminal Justice Relating to Guilty Pleas has concluded that the trial judge should not participate in such plea discussions until after a tentative plea agreement has been entered into between counsel for the parties. Nevertheless, we refrain from condemning the practice per se since we are confident that the trial judges of this state will take all necessary .precautions to assure that defendants’ rights are protected by appropriate safeguards. Should a trial judge later decide that a sentence should not be as lenient as he had contemplated earlier, he must be liberal in permitting a withdrawal of the guilty plea. In the case sub judice, this opportunity was afforded the defendant. We come now to the problem sub judice: when a judge who has participated in or tentatively approved a plea bargain decides not to include the concessions contemplated therein in his final disposition of the case and affirmatively offers the defendant the opportunity to withdraw his guilty plea, may the defendant refuse to withdraw his plea on the ground that the plea bargain is a specifically enforceable contract? We think not. It is our view that, even if the trial judge’s indication of leniency is the only inducement a defendant has in pleading guilty, the court is not bound by it. If for any reason the plea bargain is not carried out, the defendant has two alternatives: (1) he may withdraw his plea and proceed to a disposition of the matter without any of his admissions, statements, or other evidence given in the plea negotiations being used against him; or (2) he may agree to proceed with the guilty plea without being bound by any conditions or agreements. The result is that, if the trial judge decides not to fulfill the tentative plea agreement, the case is returned to the position it was in prior to the plea negotiations, thereby imposing no unfair disadvantage on a defendant.
While we recognize that Santobello [v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427], supra, requires specific performance by a prosecutor of a promise on which a defendant relied, we do not find that plea discussions can be specifically enforced against a court. [Emphasis added] [footnotes omitted].

Id. at 29.

Accordingly, the petition for writ of prohibition is

DENIED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.


author: GRIMES, Judge.

text:
    MANATEE COUNTY, a political subdivision of the State of Florida, Appellant, v. ESTECH GENERAL CHEMICALS CORPORATION, formerly Swift Agricultural Chemicals Corporation, and Governor and Cabinet of the State of Florida, Sitting as the Florida Land and Water Adjudicatory Commission, Appellees. SARASOTA COUNTY, a political subdivision of the State of Florida, Appellant, v. ESTECH GENERAL CHEMICALS CORPORATION, formerly Swift Agricultural Chemicals Corporation, and Governor and Cabinet of the State of Florida, Sitting as the Florida Land and Water Adjudicatory Commission, Appellees.
    Nos. 80-2003, 80-2015.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1981.
    Rehearing Denied Sept. 8, 1981.
    E. N. Fay, Jr. of Mann & Fay, Chartered, Bradenton, and William L. Earl of Peeples, Earl, Smith, Moore & Blank, Miami, for appellant Manatee County.

      Richard E. Nelson and Richard L. Smith of Nelson, Hesse, Cyril, Weber, Smith & Widman, Sarasota, for appellant Sarasota County.
    Wade L. Hopping, Gary P. Sams and Richard D. Melson of Hopping, Boyd, Green & Sams, Tallahassee, for appellee Estech General Chemicals Corp.
    Jim Smith, Atty. Gen., Nancy G. Linnan, Asst. Deputy Atty. Gen. and Charles A. Stampelos, Asst. Atty. Gen., Tallahassee, for appellees the Governor and Cabinet of the State of Florida, sitting as the Florida Land and Water Adjudicatory Commission.
    Judith S. Kavanaugh, Bradenton, for amicus curiae Hardee County.
   GRIMES, Judge.

This case involves the important issue of the proper method for review of a decision of a county zoning authority which concerns a development of regional impact.

Estech General Chemicals Corporation owns a 10,000 acre tract of land in eastern Manatee County within the watershed of the Manatee River. This watershed drains into Lake Manatee which is the primary source of drinking water for all of the urbanized area of Manatee County and for a substantial portion of the northern part of Sarasota County. In May 1978, Estech filed applications pursuant to the Manatee County zoning ordinance for a special use exception for a phosphate mining project on the tract of land and for approval of a master mining and reclamation plan. It also filed an application for approval of a development of regional impact (DRI) pursuant to chapter 380, Florida Statutes (1979). The Manatee Board of County Commissioners and the Manatee County Planning Commission held a joint hearing to consider the applications. Estech appeared as petitioner, and Sarasota County and others appeared as respondents.

Subsequently, the Planning Commission recommended that Manatee County approve the three applications with certain specified conditions. However, the Board of County Commissioners chose not to follow the Planning Commission’s recommendations and adopted a resolution denying the applications. In so doing, it found that the proposed use of the property was not reasonably compatible with surrounding uses, that nuisances or hazardous features were involved, and that the nuisances or hazardous features were not suitably separated from adjacent uses. In particular, it objected to a large waste clay settling area known as a slime pond which, it feared, might leak into the Manatee River and Lake Manatee.

Estech appealed Manatee County’s decision to the Florida Land and Water Adjudicatory Commission. The Commission then assigned the matter to the Division of Administrative Hearings where Estech requested a hearing based on the record made at the county level. Sarasota County, on the other hand, moved for a de novo hearing including the introduction of new evidence, and Manatee County adopted this motion. Over Estech’s objection, the hearing officer ordered a de novo hearing, but the parties stipulated to the admission of all evidence from the earlier proceedings.

After a two week hearing and the submission of proposed findings of fact, the hearing officer entered a recommended order suggesting the approval of Estech’s applications for development, subject to certain specified conditions. The governor and cabinet, sitting as the Land and Water Adjudicatory Commission, considered the recommended order and the parties’ exceptions, and, after arguments of counsel and other presentations, entered a final order adopting the recommended order with certain amendments and modifications, including the requirement that Estech maintain a sand-clay mix in its slime pond at an additional expense of seven million dollars in order to reduce the harm which would result from a dam break. Following the entry of the Commission’s order, Manatee County and Sarasota County filed petitions for review in this court. We have jurisdiction pursuant to section 120.68, Florida Statutes (1979).

Manatee and Sarasota readily concede that pursuant to chapter 380, the Land and Water Adjudicatory Commission had the power to review that part of Manatee’s decision concerning the application for a DRI. However, they contend that the Commission did not have jurisdiction to overrule their denial of the applications for a special exception and for approval of a master mining plan under the Manatee County zoning ordinance because these were local zoning matters which local authorities and not state authorities should handle. Thus, they suggest that the issue of this case is whether the authority to make local zoning decisions will continue to rest with counties and municipalities or will be vested in the state government. We cannot agree that the issue here is quite such an apocalyptic one. As Manatee and Sarasota concede, local zoning decisions have always been subject to review by cer-tiorari in the circuit court. Accordingly, we view the issue merely as being whether the legislature in enacting chapter 380 shifted the review of local zoning decisions which concern developments of regional impact from the circuit court to the Land and Water Adjudicatory Commission. After a careful consideration of the relevant authorities, we have decided that indeed the legislature has changed the review process for local zoning decisions in cases involving developments of regional impact.

We think that a fair reading of chapter 380 leads undeniably to the conclusion we have reached. The relevant portions of that chapter are as follows:

380.031 Definitions.—As used in this chapter:
(2) “Development order” means any order granting, denying, or granting with conditions an application for a development permit.
(3) A “development permit” includes any building permit, zoning permit, plat approval, or rezoning, certification, variance, or other action having the effect of permitting development as defined in this chapter.
380.06 Developments of regional impact.—
(1) “Development of regional impact,” as used in this section, means any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county.
(6) If the development of regional impact is to be located within the jurisdiction of a local government that has adopted a zoning ordinance, the developer shall file an application for development approval with the appropriate local government having jurisdiction. The application shall contain, in addition to such other matters as may be required, a statement that the developer proposes to undertake a development of regional impact as defined under this section.
(7) The appropriate local government shall give notice and hold a hearing on the application in the same manner as for a rezoning as provided under the appropriate special or local law or ordinance and shall comply with the following additional requirements:
(e) The appropriate local government shall render a decision on the application within 30 days after the hearing, unless an extension is requested by the developer. The development order shall include findings of fact and conclusions of law consistent with subsection (11).
380.07 Florida Land and Water Adjudicatory Commission.—
(1) There is hereby created the Florida Land and Water Adjudicatory Commission, which shall consist of the Administration Commission.
(2) Whenever any local government issues any development order in any area of critical state concern, or in regard to any development of regional impact, copies of such orders as prescribed by rule by the state land planning agency shall be transmitted to the state land planning agency, the regional planning agency, and the owner or developer of the property affected by such order. Within 45 days after the order is rendered, the owner, the developer, an appropriate regional planning agency by vote at a regularly scheduled meeting, or the state land planning agency may appeal the order to the Florida Land and Water Adjudicatory Commission by filing a notice of appeal with the commission. The appellant shall furnish a copy of the notice of appeal to the opposing party, as the case may be, and to the local government which issued the order. The filing of the notice of appeal shall stay the effectiveness of the order and shall stay any judicial proceedings in relation to the development order, until after the completion of the appeal process.
(3) Prior to issuing an order, the Florida Land and Water Adjudicatory Commission shall hold a hearing pursuant to the provisions of chapter 120. The commission shall encourage the submission of appeals on the record made below in cases in which the development order was issued after a full and complete hearing before the local government or an agency thereof.
(4) The Florida Land and Water Adjudicatory Commission shall issue a decision granting or denying permission to develop pursuant to the standards of this chapter and may attach conditions and restrictions to its decisions.

By following these sections, it becomes clear that the correct procedures for a developer to use when he is involved with a development of regional impact are exactly those which Estech used in the present case. The developer first files an application for a development permit with the local zoning authorities. § 380.06(6). This application must not only request approval for DRI status but must also ask for approval under all applicable local zoning laws because the definition of a development permit includes all requests for zoning approval. § 380.-031(3). The local government then considers the applications using the required process and issues a development order which, since it is based on an application for a development permit, must deal not only with the DRI request but also with all local zoning matters. Finally, section 380.07 gives an aggrieved party the right to appeal the development order to the Florida Land and Water Adjudicatory Commission. Again, since local zoning decisions are part of the development order, it is only reasonable to assert that the Land and Water Adjudicatory Commission is to review the local zoning decisions as well as the decision relating to the DRI. This avoids the prospect of the review of interrelated aspects of the same order proceeding concurrently in two forums.

The only prior decision which directly deals with the situation before us supports this interpretation. In General Electric Credit Corp. v. Metropolitan Dade County, 346 So.2d 1049 (Fla. 3d DCA 1977), the Third District Court of Appeal reviewed a case in which a developer proposed to construct a housing development that qualified as a DRI. The developer filed an application with Metropolitan Dade County for changes in the county’s zoning as well as for DRI approval. When Dade County denied the applications, the developer sought a writ of certiorari in the circuit court. The circuit court dismissed the petition for failure to exhaust administrative remedies. The developer then appealed to the district court which affirmed the circuit court’s ruling and found that the developer had indeed failed to exhaust its administrative remedies, in part because it had failed to appeal Dade County’s decision to the Land and Water Adjudicatory Commission. The court said:

Appellant’s final contention is that cer-tiorari to the Circuit Court of Dade County is the sole method for reviewing zoning decisions of the Metropolitan Dade County Board of County Commissioners. While appellate (sic) cites numerous cases which have in fact so held, none of these cases involved developments of regional impact. Ordinarily, certiorari is the only means of reviewing a zoning decision by Dade County. However, where a development of regional impact is involved, the provisions of Chapter 380 are applicable, and review must be had in accordance with the dictates of that law. Thus, when a development order as defined in Section 380.031(2) is rendered by the Dade County Commissioners, any appeals must be taken to the Florida Land and Water Adjudicatory Commission.
Chapter 380 is a general law which is equally at force throughout the state. As such, it prevails over the zoning review procedures of Section 33-316 of the Code of Metropolitan Dade County to the extent that the two conflict. Article VIII, Section 1(g), and Article XI, Section 5, Florida Constitution. See Board of County Commissioners of Dade County v. Boswell, 167 So.2d 866 (Fla.1964). Therefore, to the extent that Section 380.07, Florida Statutes, provides what we have determined to the (sic) uniform statewide procedure for reviewing development orders, it prevails over the zoning review procedures contained within the Dade County Code.
This holding comports with the clearly evinced legislative policy of Chapter 380 which, as noted earlier, was intended to ensure the participation of regional and statewide land planning agencies in decisions which will affect substantial portions of the state.

346 So.2d at 1054-55 (footnote omitted).

Professor Thomas Pelham reaches the same conclusion in his book, State Land-Use Planning and Regulation; Florida, the Model Code and Beyond (1979), where he states:

[Chapter 380] expressly provides that “any development order ... in regard to any development of regional impact” may be appealed to the Adjudicatory Commission. Fla.Stat. § 380.07(2) (1977) (emphasis added). For purposes of the act, development order is defined as “any order granting, denying or granting with conditions an application for a development permit." Id. § 380.031(2) (emphasis added). Development permit, in turn is defined to include “any building permit, zoning permit, plat approval, or rezoning, certification, variance or other action having the effect of permitting development as defined in this chapter.” Id. § 380.031(3) (emphasis added). Hence, statutory conferral of jurisdiction over zoning and other orders relating to DRI is clear.

Id. at 53.

Amicus curiae, Hardee County, makes another argument which we should also address. It points out that the legislature based chapter 380 in great part on the Model Land Development Code prepared by’ the American Law Institute. However, amicus suggests that the legislature made some changes in the model code which show that it was not the intent of the legislature to create the result we have reached here. Amicus contends that a careful examination of the provisions of the model code and of chapter 380 demonstrates that the DRI process enacted by the legislature does not allow state or regional interests to override local controls as does the model code but rather only creates a process whereby local governments consider extra-local issues when making local decisions regarding certain types of development. From this, ami-cus reasons that the legislature did not intend for the state to take over local zoning decisions under the name of the DRI process.

In response to this argument, we repeat what we said earlier. Chapter 380, in providing for review of local zoning decisions in the DRI process, does not remove local land use decisions from the control of local governing bodies. It simply shifts the review of those decisions from the circuit court to the Land and Water Adjudicatory Commission. Because a development of regional impact substantially affects more than one county, the Adjudicatory Commission will review decisions with regional interests in mind. As Professor Pelham states:

According to its sponsors and supporters, an avowed purpose of the program is to prevent local governments from prohibiting development of benefit to the region or state solely on the basis of local considerations. This purpose can never be achieved if local zoning decisions are not reviewable by the Adjudicatory Commission. By simply denying a necessary rezoning, local government could prevent regionally beneficial development regardless of the outcome of appeal of its DRI development order to the Adjudicatory Commission. Consequently, state jurisdiction of local zoning orders relating to DRI is essential to the effectuation of the regional goals of [Chapter 380].

Id. at 54 (footnote omitted). Of course, this does not mean that the Adjudicatory Commission can arbitrarily ignore local zoning laws or decisions, and its orders are always subject to review by the district courts of appeal. Thus, while we appreciate the fact that there are indeed differences between the Model Land Development Code and chapter 380, we cannot see that it leads to the conclusion that the legislature could not have meant to shift the review of the local decisions.

There is one final point to discuss. Manatee and Sarasota argue that even if the Land and Water Adjudicatory Commission had jurisdiction to review Manatee County’s decision, its order is still subject to reversal because it failed to use the proper standard in reviewing that ruling. They contend that the Commission should have affirmed Manatee County’s decision as being “fairly debatable.” Although we have serious doubts about this argument, we need not consider it because Manatee and Sarasota requested and received a de novo hearing before the hearing officer under section 380.07(3) and, thus, waived the right to depend upon any presumption of validity which might otherwise have attached to the Manatee County order. There was ample evidence received by the hearing officer to support the Commission’s decision, so it must be

AFFIRMED.

HOBSON, A. C. J., and BOARDMAN, J., concur.


author: PER CURIAM.

text:
    GUARANTY FEDERAL SAVINGS AND LOAN ASSOCIATION, a Corporation, Appellant, v. Ruby CREWS, as guardian of the property of Jimmy Ray McClellan, an incompetent, Appellee.
    No. ZZ-272.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1981.
    Rehearing Denied Sept. 18, 1981.
    W. C. O’Neal of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for appellant.
    James L. Tomlinson, John E. Roscow and Mitzi Cockrell Austin of Scruggs & Carmichael, Gainesville, for appellee.
   PER CURIAM.

AFFIRMED. Emile v. Bright, 203 So.2d 328 (Fla. 4th DCA 1967) affirmed sub nom. Home Federal Savings and Loan Association v. Emile, 216 So.2d 443 (Fla.1968).

McCORD, SHIVERS and THOMPSON, JJ., concur.


text:
    JACKSONVILLE TRANSPORTATION AUTHORITY, a body politic and corporate, Appellant, v. Jeffrey M. HORSTKETTER and Iowa National Mutual Insurance Company, an Iowa corporation, Appellees.
    No. WW-310.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1981.

      David L. Fleming of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellant.
    John I. Todd, Jr., Jacksonville, for appel-lees.
   PER CURIAM.

Appellant appeals from a directed verdict entered in favor of appellees on the ground that appellant failed to show that appellee Horstketter was guilty of negligence. We find that the record contains insufficient evidence upon which a jury verdict against appellees could have been sustained. Therefore, the trial judge was correct in directing a verdict in favor of appellees.

AFFIRMED.

McCORD, LARRY G. SMITH, and SHIVERS, JJ., concur.


author: ERVIN, Judge.

text:
    Cecil G. COSTIN, Jr. and Thomas S. Gibson, Appellants, v. Sally MALONE, Doris L. Schott, and Unknown Defendants acting in Consort with the above appellants, Appellees.
    No. YY-50.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1981.
    Rehearing Denied Sept. 18, 1981.
    Cecil G. Costin, Jr., Port St. Joe, for appellants.
    Sally Malone and Doris L. Schott, in pro. per.
   ERVIN, Judge.

Costin and Gibson appeal an order granting partial summary judgment as to the allegations contained in Count II of their complaint, seeking general damages for slander of title.

Plaintiffs/appellants, owners of oceanfront property in Gulf County, filed a complaint seeking to enjoin the defendants/ap-pellees from harassing and interfering with certain construction work being performed on the property. Later, the appellants amended their complaint to include a second count for slander of title. The second count, however, did not contain a plea for special damages. On June 16,1978, the appellees filed both a motion to dismiss the complaint and an answer. On August 28,1978, the appellees answered the amended complaint and filed a counterclaim alleging malicious prosecution. The appellants moved for summary judgment on the counterclaim. The trial court granted summary judgment for the appellants on the counterclaim; the order was appealed and sustained by us in a per curiam affirmance opinion, styled Malone v. Costin, 383 So.2d 1207 (Fla. 1st DCA 1980). Following the affirmance, the appellees filed before the lower court a motion to dismiss appellants’ amended complaint with prejudice. The record does not indicate whether the motion was ever set for hearing and ruled upon, although the appellees assert in their brief that the motion was denied. Finally, on June 9,1980, the appellees filed a motion to strike appellants’ complaint, which included a request for summary judgment in the alternative, but which was not accompanied by supporting affidavits. The trial court treated the motion as one for summary judgment and, as above stated, granted partial summary judgment in favor of the appellees as to Count II of the complaint because the appellants did not plead special damages and because the record did not otherwise indicate their existence. The appellants contend in their brief, although the record again does not so indicate, that they moved the court to amend their complaint to allege special damages, but that the court denied this request. The record reveals only that appellants raised this issue via a motion for rehearing which was denied by the lower court.

The appellants contend, and we agree, that the lower court erred in granting summary judgment in favor of the ap-pellees. We are cognizant of the rule that special damages are an essential element in a slander of title action. Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965). However, summary judgment is not a proper vehicle for the disposition of faulty or inefficient pleadings. See Plyser v. Hados, 388 So.2d 1284 (Fla. 3d DCA 1980); DeCarlo v. Sammons, 375 So.2d 351 (Fla. 3d DCA 1979); Booth v. Mary Carter Paint Co., 182 So.2d 292 (Fla. 2d DCA 1966).

Moreover, the appellees did not meet their burden essential to obtain a summary judgment. The moving party for summary judgment must prove the non-existence of a material fact in issue. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Here the appellees did not demonstrate that the appellants sustained any special damages. The appellees cannot shift this burden to the appellants by pointing to the record and arguing that the appellants had neither alleged nor proven special damages.

We reject also the appellees’ alternate contention that the trial court was justified in entering a summary judgment as a sanction against the appellants’ lack of diligence in prosecuting their claim. A summary judgment cannot be granted merely because the opposing party may have been dilatory. DeCarlo v. Sammons, supra. Moreover, the record establishes that the appellants’ complaint could not have been dismissed for failure to prosecute under Florida Rule of Civil Procedure 1.420(e). Even had the appellees presented grounds for such a dismissal, a dismissal on such a basis would not have constituted an adjudication of the merits or a bar to a subsequent suit. See Zukor v. Hill, 84 So.2d 554 (Fla.1956).

The order granting summary judgment in favor of the appellees is reversed, and the cause is remanded to the lower court for further proceedings consistent with this opinion, including a motion to permit appellants to amend their complaint by alleging special damages, if they can, in support of the relief sought under Count II of their amended complaint.

LILES, WOODIE A. (Retired) and PEARSON, TILLMAN (Retired), Associate Judges, concur.

      . Although the issue was not raised below, we observe that we have appellate jurisdiction because the order granting partial summary judgment as to Count II was a final appealable order since slander of title is a separate and distinct cause of action than the relief requested under Count I. See Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla.1974).

      . For this reason we do not reach the appellants’ second point on appeal: Whether the form of the appellees’ motion complied with the applicable Florida Rules of Civil Procedure.


author: THOMPSON, Judge.

text:
    Riley W. MACKOUL, as Administrator of the Estate of Steven A. Mackoul, Deceased, Appellant, v. The FIDELITY & CASUALTY COMPANY OF NEW YORK, a corporation, Appellee.
    No. YY-114.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1981.
    Rehearing Denied Sept. 18, 1981.
    S. Perry Penland of Penland, McCranie & Shad, P. A., Jacksonville, for appellant.
    Richard L. Randle of Slater & Randle, P. A., Jacksonville, for appellee.
   THOMPSON, Judge.

The appellant contends that the trial court erred by determining that the unde-rihsured motorist coverage afforded to the appellant by the appellee (“Fidelity”) is limited to $100,000. We affirm.

The appellant is the father and personal representative of a child who died as the result of injuries received in an automobile accident. The appellant had previously recovered $30,000, the total limits of the liability coverage of the responsible party. The appellant then brought a declaratory judgment action against Fidelity to determine the limit of underinsured motorist coverage, as provided in Fidelity’s policy. That policy afforded uninsured and unde-rinsured motorist coverage with the limits of liability being $100,000 for bodily injuries sustained by any one person, and $300,000 for all damages arising out of any one accident.

The appellant contended that under the wrongful death statute, a separate cause of action existed for the father, the mother, and the estate. Therefore, the appellant reasoned that the limit of liability under Fidelity’s policy was $100,000 as to each of these three parties, with the total limit of liability being $300,000. The trial court dismissed the appellant’s amended complaint with prejudice, finding that the policy clearly limited Fidelity’s liability to $100,000 for all damages recoverable by the decedent’s estate and his parents, since these damages arose from fatal bodily injuries sustained by one person.

The declaration sheet of the policy provides underinsured motorist limits of liability of $100,000 for each person and $300,000 for each accident.

The provisions of the policy relating to the limits of liability of the uninsured motorist coverage provide:

LIMIT OF LIABILITY
The limit of liability shown in the Declarations for “each person” for Uninsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto, accident. Subject to this limit for “each person” the limit of liability shown in the Declarations or in this endorsement for “each accident” for Uninsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident.
This is the most we will pay regardless of the number of covered persons, claims made, vehicles or premiums shown in the declarations, or vehicles involved in the auto accident.

The policy provisions clearly limit the total liability for all damages that can be recovered by all parties for the bodily injury to one person to $100,000. The appellant’s contention that each party having a claim arising out of the wrongful death is a separate cause of action and therefore each has a $100,000 limitation is without merit.

In the case of New Amsterdam Casualty Co. v. Hart, 153 Fla. 840, 16 So.2d 118 (1943), the Supreme Court decided a similar question relating to the limits of liability coverage under a policy. In that case, the company had paid its $5,000 liability limits to the injured wife and the husband claimed the policy still afforded coverage for his separate claim for expenses and loss of consortium. The court held that where bodily injury had been sustained by only one person, the limit of liability under the policy was $5,000 for all damages, whether direct or consequential, arising as a result of the bodily injury without regard to whether the damages recoverable were comprehended within one, or several judgments. In the case of Biondino v. Southern Farm Bureau Casualty Insurance Co., 319 So.2d 152 (Fla.2d DCA 1975), the court reached the same conclusion, based on similar facts, as to the limits of uninsured motorist coverage afforded by the policy. See also Gaines v. Industrial Fire & Casualty Insurance Co., 378 So.2d 100 (Fla.3d DCA 1979).

The limits of liability under the policy are not affected by the number of causes of action that might accrue from the bodily injury of a single person. The trial judge correctly found that the policy was unambiguous and that it limited the appellant’s total recovery under the policy to $100,000 less credit for the $30,000 previously recovered from the other party.

The summary judgment in favor of the appellee is affirmed.

ROBERT P. SMITH, Jr., C. J., and JOA- • NOS, J., concur.


text:
    Joseph CALDWELL, Roy St. Pierre and Martin Parker, Appellants, v. The STATE of Florida, Appellee.
    No. 80-23.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Sept. 21, 1981.

      Angus M. Stephens, Jr., Coral Gables, for appellants.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen. and Michael Vandetty, Miami, Legal Intern, for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

The appellants were charged by information with violations of the general statutes in regard to lottery violations. See: Section 849.09(l)(a), (c), (d), (e), Florida Statutes (1979). At trial, the State attempted to prove the charges by introducing evidence that the defendants were engaged in a bingo operation which was conducted contrary to the provisions of Section 849.093, Florida Statutes (1979) and, therefore, the defendants, were in violation of the general statute prohibiting the conducting of a lottery. We reverse.

The evidence failed to show that the defendants were conducting the bingo operation contrary to Section 849.093, Florida Statutes (1979). Perlman v. State, 269 So.2d 385 (Fla. 4th DCA 1972); Madar v. State, 376 So.2d 446 (Fla. 4th DCA 1979). From the evidence, the defendants were in fact complying with the bingo statute. Therefore, the trial court erred in denying their motions for judgment of acquittal and the adjudications of guilt and sentences thereon be and they are hereby reversed and set aside, and the matter returned to the trial court with directions to discharge the defendants.

Reversed and remanded with directions.

      . In light of the disposition of this matter on the insufficiency of the evidence, it was not necessary to consider the other points urged for reversal. However, we seriously doubt if either of the other points were properly preserved for review on this record.


text:
    TRAVELERS INDEMNITY COMPANY, Appellant, v. Robert JACOBS and Vickie Jacobs, his wife, Appellees.
    No. 80-195.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Sept. 9, 1981.

      Joseph A. McGowan, Miami, for appellant.
    Leesfield & Blackburn and Mark A. Dres-nick, Miami, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Travelers Indemnity Company appeals an equitable distribution order under which it was awarded only a 15% recovery and not the statutory maximum recovery of 50% for payment it advanced as workmen’s compensation benefits. Travelers contends that Robert Jacobs failed to demonstrate that he did not recover the full value of “damages sustained because of the limits of insurance coverage and collectibility”, and it asserts its eligibility for the maximum recovery provided by section 440.39(3)(a), Florida Statutes (1975). Travelers also claims that certain findings entered by the trial court are not supported by the record. We reverse.

Robert Jacobs, a buyer for Richards Department Store, was injured in an automobile accident in 1977. The driver of the car that struck Jacobs was a fireman employed by the City of Miami. According to testimony, the accident resulted in Jacobs experiencing epileptic-type seizures and loss of vision caused by permanent brain injury. He requires constant medical supervision and is forced to use drugs which are injurious to other parts of his system.

. Travelers Indemnity Company, the insurance carrier for Richards Department Store, provided workmen’s compensation benefits. When appellee Jacobs and his wife sued the tort-feasor, Arthur Corlazzoli, and the City of Miami, Travelers filed a workmen’s compensation lien in accordance with section 440.39(3)(a), Florida Statutes (1975). Upon settlement of the Jacobs’ action for $150,000 to be paid by the City, Travelers presented testimony at an equitable distribution hearing to establish the amounts it had paid to Jacobs. Travelers sought a 50% statutory recovery. § 440.-39(3)(a), Fla.Stat. (1975) The trial court found, however, that Jacobs had not recovered the full value of damages sustained and accordingly awarded Travelers a 15% recovery. Travelers appealed.

Section 440.39(3)(a), Florida Statutes (1975); the law in effect at the time of the accident, provides:

Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such proration shall be made by the judge of the trial court upon application therefor and notice to the adverse party.

Under section 440.39(3)(a), a party who seeks to limit the return of benefits under equitable distribution is required to prove that “he did not recover the full value of damages sustained because of comparative negligence or because of limits in insurance coverage and collectibility.” See Safeco Insurance Co. v. Sarkisian, 389 So.2d 1088 (Fla. 4th DCA 1980); Maryland Casualty Co. v. Whitley, 375 So.2d 18 (Fla. 1st DCA 1979), cert. denied, 383 So.2d 1205 (Fla.1980). Although comparative negligence is no longer an issue because the court entered a summary judgment in favor of the Jacobs on the issue of liability, the question of collectibility remains to be decided.

During the course of settlement negotiations, attorneys for the Jacobs obtained a resolution from the Commission of the City of Miami authorizing additional payment above the $50,000 limitation contained in the sovereign immunity waiver statute. At that time, attorneys for the Jacobs demonstrated to the Commission that the value of Robert Jacobs’ claim was approximately $938,000. The amount of Jacobs’ recovery was limited by agreement of the parties to the amount provided in the resolution. Travelers presented testimony at the equitable distribution hearing disclosing that it had paid $35,361.56 in workmen’s compensation benefits on behalf of Richards Department Store. Travelers argued that it was entitled to the statutory maximum recovery because Jacobs had failed to show that additional monies could not be collected from Arthur Corlazzoli. It contended that Jacobs had failed to meet the “collectibility” requirement of section 440.39.

We agree with Travelers Indemnity Company that Jacobs failed to satisfy the requirements of section 440.39(3)(a); he failed to demonstrate his inability to collect from the tort-feasor Corlazzoli and thereby recover the full value of his damages. Under the statute, the burden of proof falls upon the employee.

Prior to the enactment of the sovereign immunity waiver statute, public employees acting within the scope of their employment or function were liable for their tortious acts. Amendments to section 768.28(9), enacted by the legislature, contained what appeared to be conflicting statements concerning the liability of public employees. In District School Board of Lake County v. Talmadge, 381 So.2d 698 (Fla. 1980), the supreme court concluded that a government employee could be made a party and was not immune from suit, but would be indemnified by the government, subject to monetary limitations contained in section 768.28(5), Florida Statutes (1975). Under section 768.28(5), judgments in excess of the monetary limitations could be paid by the state. Among the plaintiff’s options is a joint suit against both the governmental authority and the employee which would obligate the state to pay the judgment to the extent of the statutory monetary limits. The employee, however, remains personally liable for the amount that exceeds the government’s monetary limits.

In the case at bar, the Jacobs proceeded against both the City and Arthur Corlazzoli, the tort-feasor the City was required by law to indemnify. Under District School Board of Lake County v. Talmadge, supra, Corlazzoli remained liable for amounts which surpassed the limit of the City’s liability. That liability reached a total of $150,000 under the City’s resolution. The trial court determined that the amount obtained by Jacobs through settlement was less than the full value of his damages; however, the court made no finding with regard to the question of collectibility. Because we are unable to determine whether or not Jacobs could collect the remainder of his damage claim from Corlazzoli, we are compelled to reverse the award to Travelers and to remand the cause for an evidentiary hearing on the question of collectibility under the statute.

Next, we consider Travelers’ contention that the record fails to support the trial court’s findings concerning Jacobs’ recovery of less than the full value of his damages. Jacobs offered no new testimony to demonstrate that he had failed to recover the full value of his damages and requested the trial court to rely upon its recollection of the testimony presented at the original hearing. The trial court entered an order which recited that it had relied on “medical testimony and facts” in the court file. We reject Travelers’ contentions; the trial court considered sworn testimony contained in the court file. We find no error.

Reversed and remanded for further proceedings to determine the issue of collecti-bility.

      . The settlement was authorized by a resolution adopted by the City of Miami Commission. Section 768.28(5), Florida Statutes (1975) would have limited the city’s liability under the waiver of sovereign immunity to $50,000 per claim.

      . Section 440.39(3)(a) was amended in 1977 to provide 100% recovery. Ch. 77-290, § 11, Laws of Fla. (1977). The amendment does not affect these proceedings.

      . The settlement was agreed to by the City of Miami, the Jacobs, and Arthur Corlazzoli. Travelers Indemnity Company had filed a lien during the pendency of the proceedings against the City of Miami and Arthur Corlazzoli but was not a party to the lawsuit or to the agreement. Travelers waited until the settlement agreement had been reached before it attempted to recover benefits it had paid.

      . Section 768.28(9) was amended in 1979 to preclude liability on the part of an employee unless he acted in bad faith, and in chapter 80-271, section 1, Laws of Florida, to provide an exclusive remedy against the governmental entity unless the employee acted in bad faith. Although chapter 80-271, section 4 purported to render the amendment applicable to pending cases, the supreme court ruled in Department of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981) that retroactive application of section 4 would unconstitutionally impair vested rights.


author: DANIEL S. PEARSON, Judge.

text:
    Larry E. MURPHY and Benjamin Gould, Appellants, v. The STATE of Florida, Appellee.
    Nos. 80-1454, 80-1469.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Sept. 22, 1981.
    James J. Hogan and Joseph Mincberg, Miami, for appellants.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Murphy and Gould were convicted on pleas of nolo contendere of bookmaking and wagering, respectively, and having preserved for review the denials of their dis-positive motions to suppress evidence derived from an electronic surveillance conducted on a telephone in Murphy’s residence, they appealed.

We reverse the judgments of conviction upon a holding that the affidavit filed in support of the application for an order authorizing the interception of communications on Murphy’s phone failed to establish reasonable grounds that Murphy, whose communications were to be intercepted, was committing or was about to commit an offense. The affidavit, read closely, establishes that (a) the number of toll phone calls from Murphy’s telephone in September and October 1979 (the football season) substantially exceeded the number made in earlier months of the year; (b) there was an “unusual” amount of telephone activity for a private residence on certain hours of a weekend (December 28-30,1979), preceding the starting times of scheduled football games; (c) in March and April 1979, the toll records for Murphy’s telephone showed three phone calls to a New York City phone number, which when called gave horse racing results by recorded message; (d) during 1978, Murphy’s name and phone number were found in “certain documents" during the execution of a search warrant for bookmaking records on another persons’s premises; (e) six phone calls were made from Murphy’s phone during the weekend of December 28-30, 1979, the time that the pen register was in operation, to a number listed to an individual who some four years before had been overheard an unstated number of times talking about bookmaking with unknown persons whose phone was tapped pursuant to a court order; (f) physical surveillance on Murphy’s residence on December 29 and December 30,1979, for an unstated amount of time revealed that no people were observed, but that two cars seen parked at the residence were registered to a Helene Murphy, who was nakedly alleged to be Larry E. Murphy’s wife; (g) in 1963, some sixteen years before the wiretap application, Larry E. Murphy was arrested by Miami Beach Police for possession of gambling paraphernalia relating to football; (h) in November 1979, an anonymous caller stated that Murphy was operating a “big money sports betting operation.” There is not the slightest reason to conclude that Murphy, against whom the intercept order was directed, was the user of the tapped phone unless we are willing, which we are not, to elevate his sixteen-year-old gambling conviction, the two cars registered to a Helene Murphy, the fact that the phone was registered in his name, and the unreliable anonymous tip into probable cause. While the other tenuous or stale information supports the suspicion that the phone itself was being used for a gambling operation, it does no more than that. The probable cause required by Section 934.09, Florida Statutes (1979), has not been shown. See Rodriguez v. State, 297 So.2d 15 (Fla.1974).

Reversed with directions to vacate the convictions of the defendants.

      . Gould’s conversations were intercepted during the wiretap.

      . The State emphasizes that the affidavit consists of fourteen legal-size pages. Most of the affidavit is devoted to the background of the affiant and his familiarity with gambling and allegations concerning why investigative techniques other than wiretap would not succeed.

      . This information was gained from a previous court order authorizing the use of a pen register.

      . This allegation lends no support at all to the football bookmaking theory of the affidavit and, because of the limited number of calls, no support to the anonymous caller’s tip that Murphy operated a year-round sports betting operation.

      . The “documents” are not described. We assume that were Murphy’s name and phone number found in bookmaking records, rather than on a slip of paper or in someone’s address book, that fact would have been prominently noted.

      . There is not the slightest indication that this individual either in 1975 or in 1979 was a known bookmaker or gambler.

      . This anonymous tip, so obviously deficient under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), is mentioned only because it is stated.

      . Our disposition makes it unnecessary to address the defendants’ other attacks upon the validity of the affidavit and order.


text:
    SECURITY MUTUAL CASUALTY COMPANY, Appellant, v. Janice PACURA, Appellee.
    No. 80-1515.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Sept. 22, 1981.

      Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Blackwell Stieglitz, Miami, for appellant.
    Joe N. Unger, Miami, for appellee.
    Before BARKDULL and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The appellant, Security Mutual Casualty Company, seeks review of a final summary judgment for the plaintiff, awarding her damages under the medical expense coverage of an automobile insurance policy issued by the appellant to one Charles Calvin Whiddon.

On January 3, 1975, Janice Pacura was a passenger in her own automobile, which was being driven by Charles Whiddon. The automobile, which was not covered by any kind of insurance, was involved in an accident in which plaintiff Pacura (owner of the automobile) was injured, resulting in medical bills in excess of $6,000.00. Whid-don (the driver) was the son of the named insured of an automobile policy issued by the defendant (appellant herein), Security Mutual Casualty Company. At the time of the accident, Whiddon was a resident of the same household as the named insured of the Security policy. As a result of the accident, Pacura sued Security for uninsured motorist benefits and medical expense benefits. The trial court dismissed the uninsured motorist benefits claim with prejudice and granted Security a summary judgment on the medical expense benefits claim but, on rehearing, reversed itself and denied Security’s motion for summary judgment. Pacu-ra’s subsequent motion for a summary judgment on her medical expense benefits claim was granted, with a summary judgment for such benefits entered in her behalf. This appeal by Security followed.

In the instant case we are considering a claim by an alleged third party beneficiary of an insurance contract. The right of a third party beneficiary to sue under a contract is recognized in Florida, but that right is limited to those situations where the provisions of the contract clearly show an intention primarily and directly to benefit the individual bringing suit or to a class of persons to which he claims to belong as a third party beneficiary. Wright v. Terry, 23 Fla. 160, 2 So. 6 (1887); McCann Plumbing Co. v. Plumbing Industry Program, 105 So.2d 26 (Fla. 3d DCA 1958); Bryant v. Cole, 282 So.2d 652 (Fla. 2d DCA 1973); Mulligan v. Wallace, 349 So.2d 745 (Fla. 3d DCA 1977).

Florida has also recognized the right of a third party beneficiary to bring an action directly against an insurer to recover under contractual provisions of medical payment coverages. Maxwell v. Southern American Fire Insurance Company, 235 So.2d 768 (Fla. 3d DCA 1970). However, in so holding, the court did not address itself to the question of whether or not the individual was in fact a third party beneficiary under the contract as that fact appeared without question. In the case sub judiee, that is exactly the question at hand. The insurer claims the plaintiff was not covered by the policy, whereas the plaintiff is claiming that the policy is ambiguous and therefore she should be considered a third party beneficiary and thus insured under the medical payment coverage.

As previously stated, in order to be considered a third party beneficiary to a contract, the parties to the contract must clearly intend its benefits extend to the third party. This does not appear from those portions of the policy quoted in footnote [1]; in fact, the policy clearly eliminates any coverage to the plaintiff as she owned the uninsured automobile involved in the accident. Nowhere has this principle been receded from. To permit her to claim as a third party beneficiary status based on an allegation that the contract is not clear would be contrary to the established law and should not be permitted. See: Johnson v. United States Fire Insurance Company, 586 F.2d 1291 (8th Cir. 1978). Therefore, the final summary judgment appealed herein is hereby reversed and the cause is remanded to the trial court with directions to enter a judgment for the appellant insurance company.

Reversed and remanded, with directions.

      . “MEDICAL EXPENSE COVERAGE
      “The company will pay all reasonable medical expense incurred within one year from the date of accident for bodily injury caused by accident and sustained by

      (2) any other person while occupying

      (b) a non-owned automobile, if the bodily injury results from
      (i) its operation or occupancy by the named insured, or
      (ii) its operation or occupancy by a relative, provided it is a private passenger automobile or utility trailer, but only if such operator or occupant has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission;

      “PERSONS INSURED
      “Under the Medical Expense Coverage, the following are insureds:

      (b) with respect to a non-owned automobile,

      (3) any other person or organization not owning or hiring the automobile, but only with respect to his or its liability because of acts or omissions of an insured under (b) (1) or (2) above.” (emphases added)

      . We note that the Second District Court of Appeal, in Nicks v. Hartford Insurance Group, 291 So.2d 673 (Fla. 2d DCA 1974) did, in fact, determine a coverage question brought by a stranger to an insurance contract, who was claiming coverage based upon a claimed ambiguity. It did not, however, address the question of the right of the plaintiff to bring the action initially.


author: BARKDULL, Judge.

text:
    John J. BAGDONAS, Appellant, v. BOARD OF ARCHITECTURE, DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. 80-1727.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Sept. 22, 1981.

      Scott T. Eber, Miami, for appellant.
    John J. Rimes, III, Tallahassee, for appel-lee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   BARKDULL, Judge.

The appellant seeks review of an order of the Department of Professional Regulation, Board of Architecture, denying his application for licensure as an architect in the State of Florida on the grounds that the appellant did not have a professional degree or ten years’ experience as a practicing architect.

In 1976, the appellant was registered as an architect in the State of Massachusetts. His registration was obtained pursuant to Section 60C of Ch. 112, General Laws of Massachusetts, which provided for registration based upon evidence of graduation from an accredited school of architecture or such practical experience and/or academic experience, or both, as the Board prescribed. The Board promulgated a rule permitting registration upon satisfactory evidence of eight years of practical experience for each year short of the requirements for an academic degree. The applicant would also have to pass the equivalency examination provided by the National Council of Architectural Registration Boards. The appellant met all this criteria and was licensed in Massachusetts.

In September, of 1979, the appellant applied for a licensure in the State of Florida under the provisions of Ch. 481.213(3Xb), Florida Statutes (1979), which provides that the Board shall certify for licensure a person who holds a degree and passes an equivalent licensing examination, or one who has a license in another State whose requirements are substantially equivalent to those in Florida at the time, or who has practiced architecture in another State for ten years. The Board denied the appellant’s application. This appeal followed.

Massachusetts accepted years of verified experience from architectural employers on its face as being equivalent to years spent in educational facilities. On the other hand, Florida at that time provided that applications be reviewed by the appellee’s Educational Advisory Committee to determine, among other things, a comparison of standards for equivalency for applicants who did not hold an academic degree.

The appellant was invited to appear before this Committee for evaluation of his credentials, but he declined to do so through his counsel.

The appellant’s refusal to appear before the Committee for purposes of evaluating his credentials, in conformity with applicable statutes and administrative rules, mandate affirmance of the order appealed. The appellant should comply with all of the procedural steps necessary for licensure before this court should be required to pass on the sufficiency of the evidence to support the appellee’s ruling. See: Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla.1979).

Therefore, we affirm the Board’s ruling.

      .“General Laws — Chapter 112.

        Section 60C Every person applying to the board for registration shall submit with his application to the board evidence of graduation from a recognized high school or its equivalent. The applicant shall also submit satisfactory evidence of graduation from an accredited school of architect and of such practical experience in architectural work as the board may by regulation prescribe. In lieu of evidence of graduation from an accredited school of architecture, the applicant may submit satisfactory evidence of such other academic experience, practical experience, or both, as the board may by regulation prescribe. The board shall thereupon examine the applicant in writing, on such technical and professional subjects as are prescribed by it. A written examination may be supplemented by such oral examination as the board may determine. The board may exempt from said written examination a holder of a certificate of qualification issued by the National Council of Architectural Registration Boards.
      The board may adopt as its own rules and regulations governing academic and practical experience those guidelines published from time to time by the National Council of Architectural Registration Boards. The board may also adopt the examination and recommended grading procedures of the National Council of Architectural Registration Boards.” (emphasis added)

      .Section 467.08, Fla.Stat. (1975)
      “Rules governing examination.—
      (l)(b) Any applicant for examination shall establish by satisfactory evidence to the board with his application that:
      1. He is 18 years of age;
      2. He is a citizen of the United States or has pending a declaration of intention so to become;
      3. He is of good moral character;

        4. He is a graduate of an accredited high school or has education equivalent thereto; and
      5. He is a graduate of a school or college of architecture appearing upon the list of approved schools and colleges of architecture as adopted and published by the board in its rules, with graduation from an acceptable 5 year program with a professional degree of Bachelor of Architecture or professional degree of Master of Architecture, evidence by a diploma setting forth the applicant’s degree; or has had education and training which shall be found by the board to be fully equivalent to such degree. Unless such applicant has had the professional degree of Master of Architecture, such applicant must also demonstrate to the board that he has a minimum of 1 year of diversified experience in offices of registered practicing architects.” (emphasis added)
      and the Rule adopted thereunder, 2IB Florida Administrative Code.
      Rule 21B-1.06(f):
      “The term ‘Education and training which shall be found by the Board to be fully equivalent to such degree’ set forth in Section 478.-08(b)(5) Florida Statutes and in these rules shall mean:
      (1) formal education training in architectural curriculum which shall be found by the Board, after receiving the recommendations of the Board’s educational advisory committee, to qualify the applicant for a degree of Bachelor of Architecture from an acceptable five year program or a degree of Master of Architecture from an institution appearing upon the list of approved schools or colleges of architecture adopted and published by the Board in its Rules, where such degree has not actually been conferred on such applicant, or
      (2) not less than ten years experience as a registered architect in another state engaged in the active practice of architecture as a principal.”