author: JORGENSON, Judge. NESBITT, Judge

text:
    DADE COUNTY POLICE BENEVOLENT ASSOCIATION, Appellant, v. CITY OF HOMESTEAD and the Public Employees Relations Commission, Appellees.
    No. 81-2023.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 1984.

      Donald D. Slesnick, II, Coral Gables, for appellant.
    Thomas W. Young, III, Tallahassee, for appellees.

      Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   JORGENSON, Judge.

The Dade County Police Benevolent Association [the PBA] appeals that portion of a Florida Public Employees Relations Commission [PERC] order which assessed damages and attorney’s fees against the PBA following a wildcat strike by City of Homestead police officers. In entering its order PERC rejected in part a PERC hearing officer’s recommended order which dismissed the at-issue unfair labor practice charge against the PBA. For the reasons which follow we reverse the appealed portion of the PERC order and remand with directions to adopt the hearing officer’s recommended order of dismissal.

I

The essential facts as found by the hearing officer are: Sergeant Nick Tauriello was elected by the Homestead police officers as their representative to the PBA during 1980 Homestead police contract negotiations. Tauriello performed the liaison role of communicating with the Homestead officers during the negotiations, calling meetings of the Homestead officers as he deemed it necessary. Tauriello did not attend meetings of the PBA Board of Directors. Sharon Dranow, a PBA employee, represented the PBA in the contract negotiations. These negotiations resulted in an impasse in July and a special master was appointed.

Early in the week of Monday, October 20, Tauriello was quoted in the press as having said, “The mood of the officers right now is that they’re going to get sick, blue flu or whatever you want to call it.” Nearly the entire Homestead police force was present at a shop meeting held the evening of Wednesday, October 22, as were Dranow, PBA President Hugh Peebles and PBA counsel Don Slesnick. Dranow, Pee-bles and Slesnick tried to talk the Homestead officers out of a walkout. Peebles explained that a walkout would be totally illegal and that under no circumstances would the PBA support such a walkout. The Homestead officers were visibly in disagreement and upset with Dranow, Peebles and Slesnick’s position. Peebles did not believe that they had dissuaded the Homestead officers from a walkout and related this to news reporters after he, Dranow and Slesnick left the meeting. Meanwhile, Tauriello quieted the officers down and took a vote. The vote was unanimous: the officers would walk out on Friday, October 24.

On Thursday, October 23, Slesnick telephoned Tauriello and urged him to beg the officers not to go on strike. The officers met that afternoon and voted unanimously to put off the walkout until Monday, October 27, following the Homestead City Council impasse resolution meeting, and to decide then what to do. On the evening of Thursday, October 23, Tauriello attended, unexpectedly, his first PBA Board of Directors meeting. Tauriello attended because, like most of the Homestead officers, he believed that the PBA would support a walkout. Peebles read a memorandum addressed from him to Tauriello expressing the same position Peebles had stated the previous night. The PBA Board of Directors voted unanimously, in Tauriello’s presence, not to support a walkout, and Tauriello relayed this information to the Homestead officers. Later that evening Slesnick telephoned Tauriello and during the course of an hour repeatedly explained that a walkout would be wrong.

On Monday, October 27, the Homestead City Council voted to accept the special master’s recommended contract. Tauriello and those Homestead officers who were present walked out of the City Council meeting en masse and began picketing in front of the Homestead City Hall. Pee-bles, while watching the picketers, saw what he believed to be an on-duty officer join them. Peebles told Tauriello to direct any on-duty officers to return to work. Tauriello refused and was immediately removed from his position as PBA representative. After being enjoined by a court order from striking, the officers returned to work. They subsequently entered into a stipulated order regarding their discipline which is not here appealed.

II

In determining whether the PBA had supported the Homestead police officers’ strike and had thereby violated sections 447.501(2)(e) and 447.505, Florida Statutes (1979), the hearing officer applied common-law principles of agency. This agency analysis was used in the seminal case of Carbon Fuel Co. v. United Mine Workers of America, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979), see, e.g., Case Note, 8 Fla.St.U.L.Rev. 565 (1980), interpreting section 301 of the Labor Management Relations (Taft-Hartley) Act, 29 U.S.C. § 185 (1976), to determine union responsibility for wildcat strikes in the private sector, and was approved and adopted by PERC in Dade County School Board v. Dade County School Maintenance Employees Committee, 6 Fla.Pub.Empl.Rep. (Lab.Rel.Press) ¶ 11109 (Fla. PERC Apr. 30, 1980). As the hearing officer explained in his recommended order, Carbon Fuel Co. places upon the charging party the burden of proving union support for a wildcat strike. No obligation is placed upon the union to use all reasonable means to end an unauthorized strike and, therefore, though showing that its best efforts were used to end a strike might constitute a persuasive defense, a union does not bear the burden of disproving its support for the unauthorized strike. See City of Homestead v. Dade County Police Benevolent Association, 7 Fla.Pub.Empl.Rep. (Lab.Rel. Press) If 12347, at 733 (Fla. PERC Aug. 21, 1981).

A reading of Carbon Fuel Co. reveals that the common-law agency test used in that case was adopted so “that to find [a] union liable ‘it must be clearly shown ... that what was done was done by their agents in accordance with their fundamental agreement of association’,” Carbon Fuel Co., 444 U.S. at 217, 100 S.Ct. at 414, 62 L.Ed.2d at 399 (quoting Coronado Coal Co. v. United Mine Workers of America, 268 U.S. 295, 304, 45 S.Ct. 551, 554, 69 L.Ed. 963, 968 (1925)). The common-law agency test of section 301 replaced the “very loose” responsibility test of the National Labor Relations Act of 1935, under which the term “employer” included “any person acting in the interest of an employer,” Carbon Fuel Co., 444 U.S. at 217, 100 S.Ct. at 414, 62 L.Ed.2d at 399. Quoting in part from the lower court’s opinion, the Court in Carbon Fuel Co. concluded that “ ‘[tjhere was no evidence presented in the district court that [the union] instigated, supported, ratified, or encouraged any of the work stoppages .... ’ [Citation omitted.] ... the local unions lacked authority to strike without authorization from [the union]. [Citation omitted.] Moreover, [the union] had repeatedly expressed its opposition to wildcat strikes. Petitioner thus failed to prove agency ...,” id. at 218, 100 S.Ct. at 414, 62 L.Ed.2d at 400.

Applying these common-law principles of agency, the hearing officer below wrote:

The City seeks to show that the Dade County PBA supported the strike by Homestead PBA bargaining unit members by demonstrating that the actions of Sergeant Nick Tauriello, who admittedly participated in and supported the strike, bind the Dade County PBA because of Tauriello’s official status as the elected representative for the Homestead PBA bargaining unit members in Homestead contract negotiations (see City’s Proposed Order at 19-20). The City further argues that even if Tauriello’s official status did not bind the Dade County PBA, the efforts of PBA President Hugh Peebles, PBA counsel Donald D. Sles-nick, II, and PBA employee and negotiator Sharon Dranow to repudiate Tauriel-lo’s actions and end the strike were so minimal as to lead to the inference that the Dade County PBA supported the strike.
To the contrary, I conclude that while prior to the week beginning Monday, October 20, it might have been reasonable for members of the Homestead PBA bargaining unit to believe that Tauriello’s actions represented the views of the Dade County PBA because of his official status, they were well aware during the week before they walked out on October 27 that Tauriello represented their views, and not the opposing view of the Dade County PBA. I further conclude that the actions of Peebles, Slesnick, and Dra-now made it unreasonable for Homestead PBA bargaining unit members to believe that their walkout represented the views of the Dade County PBA. The following paragraphs will enumerate the factual grounds for my conclusions in this regard.

City of Homestead at 734.

The hearing officer then reviewed the evidence upon which he based his finding of fact that Tauriello was not acting as an agent of the PBA when he instigated the wildcat strike. See id. at 734-35.

III

In its final order, PERC stated that the hearing officer’s findings of fact were supported by competent substantial evidence, that the proceedings upon which the findings were based comported with the essential requirements of law and then expressly adopted the hearing officer’s findings of fact as its own. PERC added, however, that it was “in substantial disagreement with the Hearing Officer’s ultimate finding regarding agency,” City of Homestead at 722. PERC felt that the hearing officer had applied the wrong standard of proof of agency and that the correct standard could be found in Sunset Line & Twine Co., 79 N.L.R.B. 1487 (1948).

The “ordinary law of agency” mandated by Sunset Line & Twine Co. was expressed in that National Labor Relations Board order and quoted in the PERC order below as follows:

1.The burden of proof is on the party asserting an agency relationship, both as to the existence of the relationship and as to the nature and extent of the agent’s authority. (Citation omitted.) In this case, for example, it was incumbent upon the General Counsel to prove, not only that the acts of restraint and coercion alleged in the complaint were committed, but also that those acts were committed by agents of the Respondent Unions, acting in their representative capacity. The Respondents’ failure to introduce evidence negating the imputations in the complaint did not relieve the General Counsel of that burden.
2. Agency is a contractual relationship deriving from the mutual consent of principal and agent that the agent shall act for the principal. But the principal’s consent, technically called authorization or ratification, may be manifested by conduct, sometimes even passive acquiescence as well as by words. Authority to act as agent in a given manner will be implied whenever the conduct of the principal is such as to show that he actually intended to confer that authority. (Citation omitted,)
3. A principal may be responsible for the act of his agent within the scope of the agent’s general authority, or the ‘scope of his employment’ if the agent is a servant, even though the principal has not specifically authorized or indeed may have specifically forbidden the act in question. It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted. (Citation omitted.)

City of Homestead at 723 (quoting Sunset Line & Twine Co.).

PERC cited Shimman v. Frank, 625 F.2d 80 (6th Cir.1980), and Barton Brands, Ltd. v. NLRB, 529 F.2d 793 (7th Cir.1976), as further examples of federal court approval of the Sunset Line & Twine Co. test. Barton Brands, Ltd., of course, predates Carbon Fuel Co.; but a reading of Shimman reveals that the agency test there approved is in actuality that of Carbon Fuel Co. It may be inferred from this that PERC was suggesting that the agency tests of Sunset Line & Twine Co. and Carbon Fuel Co. are the same. Such a suggestion by PERC would not be ill-founded, for the “two” tests are but one: the common-law test of agency. In applying the test, PERC evidently chose to emphasize in its order certain facets of the test more heavily than others.

Noting that agency is a question of fact to be determined by the trier of fact, see City of Homestead at 724 n. 3 (citing Cleveland Compañía Marítima, S.A. Panama v. Logothetis, 378 So.2d 1336 (Fla.2d DCA 1980)), PERC retraced in its final order the hearing officer’s findings of fact, reweighing them, and concluded that in calling for the strike by the Homestead police officers, Tauriello was acting as the agent of the PBA, see id. at 724.

This conclusion does not turn on an analysis of whether Tauriello’s strike activity was specifically or generally authorized by the PBA. There is no record evidence that Tauriello was directed to prepare for the conduct of a strike by any PBA officials. To the contrary, the PBA Board of Directors specifically rejected Tauriello’s request for support of the walk out on October 24. Rather, the conclusion turns on the basic proposition of agency law that the principal is liable for the acts of the agent within the scope of the agent’s general authority “even though the principal has not specifically authorized or indeed may have specifically forbidden the act in question.” The most effective way to terminate such liability is to terminate the agency relationship as soon as it becomes evident that the agent intends to persist in a course of conduct which is contrary to the best interest of the principal. It may be fruitless to speculate, but it is at least arguable that immediate PBA action to remove Tauriello as PBA membership representative may have squelched the incipient job action by depriving the chief Homestead strike advocate of his official leadership position; the record is clear that the strike lasted only twenty-six hours after Tauriello’s removal. We perceive that the removal of Tauriello effectively dissociated the PBA from the strike from that point forward.

Id.

IV

While approving the “ordinary law of agency” criteria embraced by Sunset Line & Twine Co., PERC noted that agency is a question of fact to be determined by the trier of fact. PERC, nonetheless, reweighed the facts and determined that Tau-riello was acting as an agent of the PBA, but offered no justifiable rationale for its conclusion. The record in this case is replete with overwhelming evidence that Tau-riello exceeded his authority and that the PBA had put Tauriello and the other Homestead officers on notice that the PBA would neither endorse nor sanction a strike, a conclusion reached by the hearing officer.

The existence and scope of an agency relationship is a question of fact to be determined by the trier of fact. Smith v. Texas Co., 111 Fla. 762, 149 So. 585 (1933); Standard Oil Co. v. Nickerson, 103 Fla. 701, 138 So. 55 (1931); Watkins v. Sims, 81 Fla. 730, 88 So. 764 (1921); Scott v. Sun Bank of Volusia County, 408 So.2d 591 (Fla. 5th DCA 1981); Cleveland Compania Maritima, S.A. Panama; Latin American Shipping Co. v. Pan American Trading Corp., 363 So.2d 578 (Fla. 3d DCA 1978); Bernstein v. Dwork, 320 So.2d 472 (Fla. 3d DCA 1975), cert. denied mem., 336 So.2d 599 (Fla.1976); Amerven, Inc. v. Abbadie, 238 So.2d 321 (Fla. 3d DCA 1970); Financial Fire & Casualty Co. v. Southmost Vegetable Cooperative Association, 212 So.2d 69 (Fla. 3d DCA), cert. denied mem., 219 So.2d 701 (Fla.1968); City of Homestead; see Silver Sand Co. of Lees burg v. Department of Revenue, 365 So.2d 1090 (Fla. 1st DCA 1979).

If the existence and scope of an agency relationship is susceptible of ordinary methods of proof, the hearing officer’s findings of fact are binding upon the agency absent agency determination, with particularity, that the findings of fact are not based upon competent substantial evidence or are the product of proceedings not comporting with the essential requirements of law, see Venetian Shores Home & Property Owners v. Ruzakawski, 336 So.2d 399 (Fla. 3d DCA 1976); Bolinger v. Division of Retirement, State Department of Administration, 335 So.2d 568 (Fla. 1st DCA 1976); § 120.57(l)(b)9, Fla. Stat. (1979). In its order below, PERC stated that the hearing officer’s findings of fact were supported by competent substantial evidence and that the evidentiary proceedings comported with the essential requirements of law. PERC, therefore, was without authority to disturb the hearing officer’s findings of fact unless it can be determined that PERC concluded and then explained in its order that the existence and scope of agency is a matter of fact blurring into opinion infused with policy considerations involving special insight by PERC and is not susceptible of ordinary methods of proof before the trier of fact, the hearing officer. See McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977). “The Department may not characterize findings of fact as legal conclusions so that it may avoid the requirements of [section 120.57(l)(b)9, Florida Statutes (1979)].” Silver Sand Co. of Leesburg at 1093.

V

Nothing in the PERC order below indicates special commission insight into the determination of the existence and scope of an agency relationship. The hearing officer found that when Tauriello instigated the Homestead police officers’ strike he was not acting, under the facts involved, as an agent of the PBA. Indeed, the record below suggests that Tauriello’s role on behalf of the PBA was extremely limited. He was not selected by the PBA to participate in the negotiating sessions. He was selected by the officers who ultimately struck. His duties insofar as the PBA was concerned were limited to providing accurate information regarding representations made by the City of Homestead at the bargaining table and keeping the Homestead officers informed with respect to the status of negotiations. He was not an officer or director of the PBA, nor was he on the PBA payroll insofar as this record reflects. Had the PBA selected Tauriello our views with respect to PERC’s determination of agency would perhaps be different.

PERC may not modify or reject the hearing officer’s findings of fact unless it first determines from a review of the complete record and states with particularity in the order that the findings of fact were not based upon competent substantial evidence. Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977). PERC states that its determination of PBA liability “does not turn on an analysis of whether Tauriello’s strike activity was specifically or generally authorized by the PBA [but] [r]ather, the conclusion turns on the basic proposition of agency law that the principal is liable for the acts of the agent within the scope of the agent’s general authority ...,” City of Homestead, at 724 (emphasis added). This seemingly contradictory statement appears to be an application of the third portion of the Sunset Line & Twine Co. test. It ignores the remainder of that test, the common-law test of agency. Assuming we are dealing with general authority conferred upon a shop bargaining representative to instigate an illegal strike, see art. I, § 6, Fla. Const. (1968), it must at least be shown that the PBA intended by word or deed to confer such general authority, even if not in the specific instance involved, see Sunset Line & Twine Co.; City of Homestead at 723. There is nothing in the record to indicate that shop bargaining representatives, or Tauriello, had within the scope of their general authority the power to call strikes, or that the PBA in any way intended to confer such illegal power. All evidence, as weighed by the hearing officer, is to the contrary.

PERC suggests that public policy demands that the PBA be found strictly liable for Tauriello’s actions: labor organizations should “exercise stringent control over their agents” to prevent their participation in unlawful strikes. See id. at 724. Nothing in the evidence, as weighed by the hearing officer, suggests that the PBA did otherwise. Indeed, the record demonstrates that the actions of Dranow, Peebles and Slesnick, as found by the hearing officer, support only the view that the PBA through its authorized agents acted consistently with the conduct one would expect of responsible union officials. Tauriello was reprimanded for threatening a strike, he was enlightened by the PBA as to the consequences and, thereafter, refrained from calling the strike. When he later did call a strike, his first illegal act, he was immediately relieved of his representative status with the PBA. As PERC states, “The most effective way to terminate such liability is to terminate the agency relationship as soon as it becomes evident that the agent intends to persist in a course of conduct which is contrary to the best interest of the principal,” id. This the PBA did. Tauriello was terminated the moment it became evident on-duty police officers were participating in the picket line. As PERC aptly points out, it is “fruitless” to speculate whether firing Tauriello before he persisted in calling the strike would have prevented the strike. Firing Tauriello did not end the strike, a court order did.

Fixing blame in a labor dispute, never an easy task, is uniquely a PERC responsibility. That responsibility, however, must be exercised in a manner consistent with established legal principles.

Reversed and remanded with directions to adopt the hearing officer’s recommended order of dismissal.

NESBITT, Judge

(dissenting):

I respectfully dissent.

This case presents a public interest question concerning the extent to which a public employee may circumvent the constitutional prohibition of the right to strike before the union for which he acts will be held responsible. Adopting the very facts utilized by the hearing officer, the PERC concluded that the union was liable for the acts of its representative. Because I find that the commission was entitled to displace the hearing officer’s erroneous interpretation of the law of agency, I would affirm.

The facts as found by the hearing officer and adopted by the PERC included the following:

1. Sergeant Tauriello was elected as the representative of the Homestead PBA bargaining unit and participated on the Dade County PBA bargaining team during all 1980 contract negotiations.

2. Tauriello functioned as a shop steward.

3. He performed the liaison role of communicating with the bargaining unit members during negotiations.

4. Tauriello had authority to call bargaining meetings and did in fact call such meetings.

5. City officials contacted Tauriello directly concerning the salary proposal.

6. The PBA attorney utilized Tauriello as a conduit through which he sent messages to the union members.

7. Ultimately, Tauriello was the one who took the strike vote.

The Hearing Officer’s Findings

Based on the facts and supposedly applying the common law principle of agency, the hearing officer formulated the relevant inquiry to be whether it was reasonable for other employees to believe that the actions of Tauriello represented the views of the PBA. Citing a number of efforts on the part of the PBA president, attorney and board of directors to dissuade Tauriello and the others from striking, the hearing officer readily concluded that members could not infer that the PBA supported the strike. I have no difficulty with this particular conclusion. The problem in my view is that the wrong question was being asked. The question should have been:

Was Tauriello acting within the scope of his general authority?

This inquiry is formulated out of the common law principles of agency as enunciated in a long line of cases. More specifically, in the landmark decision of International Longshoremen’s and Warehouse-men’s Union, CIO, Local 6 (Sunset Line and Twine Co.), 79 NLRB 1487, 23 LRRM 1001, 1005 (1948), it was stated:

A principal may be responsible for the act of his agent within the scope of the agent’s general authority, or the ‘scope of his employment’ if the agent is a servant, even though the principal has not specifically authorized or indeed may have specifically forbidden the act in question. It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted.

See also Carbon Fuel Co. v. United Mine Workers of America, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979); Shimman v. Frank, 625 F.2d 80 (6th Cir.1980); Barton Brands Ltd. v. National Labor Relations Board, 529 F.2d 793, 799 (7th Cir.1976). In Airco Speer Carbon-Graphite v. Local 502, International Union of Electrical, Radio & Machine Workers of America, AFL-CIO, 494 F.Supp. 872, 877 (W.D.Pa.1980), aff'd, 649 F.2d 858 (3d Cir.1981), the court stated:

Certainly a union is not responsible for every act of a steward, simply by virtue of his position, but where, as here, the conduct falls within the apparent or actual authority of the steward, defendant is liable to the company under the common law of agency.

Applying these principles, the court, in Shimman v. Frank, held that the local union was responsible for the action of its vice president in encouraging other union members to assault a dissent member, and for its business manager’s acquiescence in the vice president’s activities. This was within the scope of the vice president’s and business manager’s general authority even though the specified illegal act was not authorized.

The Commission’s Review

In line with these decisions, the PERC found that the hearing officer applied the wrong standard of proof to the facts. It determined the proper inquiry to be whether Tauriello was acting within the scope of his general authority. Reciting the facts as found by the hearing officer and applying them to the correct principles of agency, the PERC concluded that Tauriello was the PBA membership representative acting under the general authority of the PBA during the critical period prior to the strike. Even the circumstances of Tauriello’s removal indicate that the PBA considered Tauriello to be an agent of the PBA. The PBA president ordered Tauriello to direct the men back to work. This only serves to reinforce the fact that he was clothed with the general authority to act on behalf of the PBA.

Furthermore, the efforts of the PBA officials to dissuade the officers from striking do not avoid the PBA’s liability. As the court observed in Consolidation Coal Co. v. Local 1707 United Mine Workers of America, 709 F.2d 882 (4th Cir.1983), an attempt may not be enough.

A local union’s inaction in the face of an illegal work stoppage by all of its members may constitute ratification of the work stoppage “where the union’s efforts to return strikers are so minimal that the union’s approval or encouragement may be inferred.” United States Steel Corp. v. UMWA, 598 [F.2d 363 (5th Cir.1979) ] at 365; Airco Speer Carbon-Graphite v. Local 502, International Union of Electrical Radio and Machine Workers of America, 494 F.Supp. 872 (W.D.Pa.1980).

709 F.2d at 886. See also Shimman v. Frank at 97. The effort put forth by the officials here may also be described as minimal. Despite Tauriello’s advance announcement of his intent to lead the policeman out on strike, which intention was never recanted, the PBA officials permitted Tauriello to pursue his avowed course.

Since it is clear from the foregoing that the commission's disagreement was not with the facts, but rather was with the hearing officer’s interpretation of the principles of common law agency, there can be no doubt that it was entitled to displace the officer’s conclusion. In City of Clear-water v. Lewis, 404 So.2d 1156 (Fla. 2d DCA 1981), the commission concurred in the hearing officer’s findings of fact but disagreed with his finding that under those facts a waiver had occurred. The court held that “[t]o the extent that the determination of whether a waiver occurred could be considered to be a question of fact, it is the kind of factual issue on which an agency has more discretion to overrule a hearing examiner in the implementation of agency policy.” 404 So.2d at 1162. Similarly, in the present case, the question of agency is one which the PERC has greater discretion in overruling, since it intimately involves a question of policy. Therefore, the commission was entitled to substitute its conclusion for that of the hearing officer.

For the same reason, this court, on review of the commission's ruling, must give deference to the PERC in recognition of their competence in dealing with labor problems. As the first district stated, in Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1978):

Expert tribunals are entitled to the greatest deference in recognition of their special competence in dealing with labor problems. In many areas their evaluation of the competing interests of employer-employee should unquestionably be given conclusive effect in determining the application of the pertinent sections of the Act.

And, in McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), the court distinguished a hearing officer’s finding with respect to the credibility of a witness from findings made in a case such as the one before us:

At the other end of the scale, where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the sub-stantiality of evidence supporting the agency’s substituted findings.

346 So.2d at 579. It cannot be emphasized enough that the commission followed the hearing officer’s findings of fact but disagreed with him because of his erroneous interpretation of the law of agency. It is not this court’s province to displace an agency’s choice between two conflicting views, Pasco at 116, and accordingly, I would decline to do so.

The result reached by the PERC is consistent with the constitutional prohibition against the right to strike. Admittedly, the organic law gives public bodies an advantage in collective bargaining. Nonetheless, this high statement of the public purpose has been placed there with the specific intent of assuring the performance for necessary public services. As difficult as it may sometimes be to public employees, their bargaining agents as well as officials representing public bodies are bound to observe it in good faith. The PERC in their order recognized this when it stated:

We must also ensure that the constitutional prohibition against strikes by public employees is not circumvented by those who, through the sanction of our certification, have been placed in a position of leadership. We therefore consider it appropriate for certified employee organizations to either restrain their agents from strike activity or answer for the resulting damages. It is obvious to any student of labor relations that the strike prohibition could easily be circumvented if unions were permitted to avoid liability for strike activity by union agents on the grounds that the activity was “unauthorized.”

Based on the foregoing, I would affirm the order under review as well as the compensatory damage award.

      . Section 447.501(2)(e), Florida Statutes (1979), provides:
      A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from:
      Participating in a strike against the public employer by instigating or supporting, in any positive manner, a strike. Any violation of this paragraph shall subject the violator to the penalties provided in this part.
      Section 447.505, Florida Statutes (1979), provides: "No public employee or employee organization may participate in a strike against a public employer by instigating or supporting, in any manner, a strike. Any violation of this section shall subject the violator to the penalties provided in this part.”

      . The hearing officer’s findings regarding agency:
      First, Tauriello’s role in negotiations reveals that his authority came primarily from his detailed knowledge of how contract proposals would affect bargaining unit members, and from his long experience and the respect he earned doing his job as a police officer on the scene in Homestead. Sharon Dranow’s authority, on the other hand, emanated from her position as an outsider sent in with information and support. Tauriello’s base of authority was local, and Dranow’s was from downtown, in both a geographical and an organizational sense. Although Tauriello may have had some claim to attend Dade County PBA Board of Directors meetings from Homestead, he did not care to attend and never attended until the night of October 23, when he sought to persuade the Board to overrule the anti-walkout position taken by President Peebles the night before in Homestead. The record does not support a conclusion that Tauriello had unilateral authority to agree to contract proposals without approval from Dranow or other Dade County PBA officials; there are more indications that Dranow and other Dade County PBA officials had a greater voice than Tauriello. Tauriello was not directly involved with the center of power in the larger organization of the Dade County PBA.
      Second, when intense conflict was generated between Dade County PBA officials and the Homestead PBA bargaining unit members at the meeting on Wednesday, October 22, Tauriello’s actions identified him with the members of the local bargaining unit. The strike vote taken at that meeting was a decision to reject the leadership offered by Pee-bles, Dranow, and Slesnick, and Tauriello was not identified with them. In the context of this emotional rejection of his leadership, Pee-bles’ statement to the press immediately following the meeting would not have been interpreted by Homestead PBA bargaining unit members as support for Tauriello or for the planned walkout.
      Third, Slesnick’s numerous telephone calls to Tauriello, Mayor Nick Sincore, and City Manager Alex Muxo following the Wednesday night meeting played a major role in averting the walkout then planned for Friday, October 24. These telephone calls continued to place Slesnick in opposition to Tauriello’s position, as did Slesnick’s later discussion with Tauriel-lo concerning a Public Employees Relations Commission order in which the Commission proposed that City of Hollywood police officers be dismissed for engaging in a strike.
      Fourth, Tauriello’s attendance at the Dade County PBA Board of Directors meeting on Thursday night, October 23, indicated that he was not in touch with the feeling of that group, and resulted in a defeat for his attempt to persuade the Board to overrule Peebles and back a walkout in Homestead. Slesnick’s phone call to Tauriello following the meeting further underscored the division between Tauriello and the Dade County PBA on the walkout question. Tauriello continued to believe that Peebles and the Dade County PBA were wrong in their judgment that a walkout would cause the loss of citizen support for the position of the Homestead PBA bargaining unit; Tauriello’s belief in this regard emphasizes that his continued participation in plans for the walkout was based not on his estimation of support from the Dade County PBA, but on his relationship with the local community, a relationship which gave him confidence that Homestead PBA bargaining unit members could walk out without the support of the Dade County PBA.
      Fifth, memos from Peebles during the week following the strike vote on Wednesday, October 22, while often only memorializing a position already stated to Tauriello or City representatives, cannot be interpreted as support for a walkout, particularly against the background of the position he expressed at the Wednesday night meeting in Homestead and the Thursday Dade County PBA Board of Directors meeting.
      Sixth, the immediate circumstances of the walkout and Peebles’ removal of Tauriello from his official status as the elected representative for the Homestead PBA bargaining unit would not have led Homestead PBA bargaining unit members to infer that Peebles supported the walkout. An interpretation far more consistent with events of the prior week is that Peebles perceived himself to be in a position too weak to bring about an immediate end to the walkout once it happened. The fact that he did not personally direct PBA members to return to work, and that he did not seek out Steve Garrison to ask him to do so, indicates only that he did not do everything he might have done. The effectiveness of these hypothetical actions appears doubtful in light of the fact that following Peebles’ removal of Tauriello, the officers who had walked out promptly re-elected Tauriello as their spokesman, and in light of the further fact that Peebles’ efforts to appoint a replacement for Tauriello prompted Officer Trussell’s resignation from the PBA.
      In summary, it would not have been reasonable for members of the Homestead PBA bargaining unit who walked off the job on October 27 and 28 to believe that their walkout, or Tauriello’s participation in it, was supported by the Dade County PBA.

        City of Homestead at 734-35.

      . A survey of the case law indicates that those issues of fact that have been found to be susceptible of a hearing officer's finding of fact run the gamut of complexity, opinion and apparent infusement with policy consideration. See, e.g., Mitchell v. Department of Health & Rehabilitative Servs., 439 So.2d 943 (Fla. 1st DCA 1983) (whether services rendered at an adult congregate living facility were nursing services or of a personal nature); Salz v. Department of Administration, Div. of Retirement, 432 So.2d 1376 (Fla. 3d DCA 1983) (whether agency’s mistaken belief that school was a public school could provide basis to estop agency from denying teacher retirement credit); Woodward v. Department of Professional Regulation, Bd. of Funeral Directors & Embalmers, 432 So.2d 146 (Fla. 1st DCA 1983) (whether licensees knowingly employed unlicensed persons in the practice of funeral directing); Aquino v. Department of Professional Regulation, 430 So.2d 598 (Fla. 4th DCA 1983) (whether sufficient time had passed to overcome past illicit behavior of applicant for real estate salesman’s license); Brevard County Sheriff’s Dep’t v. Florida Comm’n on Human Relations, 429 So.2d 1235 (Fla. 5th DCA 1983) (whether termination of handicapped police officer was unlawful employment practice); Wash & Dry Vending Co. v. State, Dep’t of Business Regulation, Div. of Alcoholic Beverages & Tobacco, 429 So.2d 790 (Fla. 3d DCA 1983) (whether applicants for cigarette vending machine license of "good moral character”); Glover v. Sanford Child Care, Inc., 429 So.2d 91 (Fla. 5th DCA 1983) (whether misconduct disqualified employee from entitlement to unemployment compensation benefits); Leapley v. Board of Regents, Fla. State Univ. Sys., 423 So.2d 431 (Fla. 1st DCA 1982) (whether university employee member of one bargaining unit or another); Vogel v. Palm Beach Newspapers, Inc., 423 So.2d 413 (Fla. 4th DCA 1982) (whether misconduct disqualified employee from entitlement to unemployment compensation benefits); City of Umatilla v. Public Employees Relations Comm’n, 422 So.2d 905 (Fla. 5th DCA 1982) (whether police officer was suspended for engaging in protected union activity), review denied mem., 430 So.2d 452 (Fla. 1983); Bekiempis v. Department of Professional Regulation, 421 So.2d 693 (Fla. 2d DCA 1982) (whether administrative complaints against real estate broker should be dismissed); Westchester Gen. Hosp. v. Department of Health & Rehabilitative Servs., 419 So.2d 705 (Fla. 1st DCA 1982) (cause of delays in hospital construction project and whether hospital reasonably diligent in its construction efforts so as to be grandfathered in and avoid need to comply with new certificate of need statute); Rolling Oaks Utils., Inc. v. Public Serv. Comm’n, 418 So.2d 356 (Fla. 1st DCA 1982) (whether switch from quarterly to monthly billing system though it would result in increased billing costs of $22,600 would on balance be beneficial because it would enable utility to more quickly detect and repair malfunctioning meters and leaks in water lines, minimizing lost revenues and assuring customers of more accurate billing while reducing utility’s working capital requirements); Co-Tran, Fla. Transit Management, Inc. v. Goodman, 415 So.2d 155 (Fla. 4th DCA 1982) (whether bus driver's discharge from employment was for misconduct connected with the employment); Alterman Transp. Lines, Inc. v. Unemployment Appeals Comm'n, 410 So.2d 568 (Fla. 1st DCA 1982) (whether employee used company facilities and employees for personal business and whether such misconduct was connected with his employment); Forkey & Kirsch, P.A. v. Unemployment Appeals Comm’n, 407 So.2d 319 (Fla. 4th DCA 1981) (whether employee left employment without good cause); Department of Professional Regulation v. Wagner, 405 So.2d 471 (Fla. 1st DCA 1981) (whether various words and actions during chiropractic treatment constituted sexual misconduct); Lord Chumleys of Stuart, Inc. v. Department of Revenue, 401 So.2d 817 (Fla. 4th DCA 1981) (whether activities constituted being in the business of renting, leasing or letting of real estate and whether mortgage payments, property taxes and insurance payments constituted rent payments); School Bd. of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981) (whether actions constituted unlawful discrimination because of race or color); Cenac v. Florida State Bd. of Accountancy, 399 So.2d 1013 (Fla. 1st DCA 1981) (whether accountant was holding self out as being a C.P.A.); Jenkins v. State Bd. of Educ., 399 So.2d 103 (Fla. 1st DCA 1981) (whether school teacher's conduct was improper); David Clark & Assocs., Inc. v. Kennedy, 390 So.2d 149 (Fla. 1st DCA 1980) (whether harassment of employee was sufficient that a prudent person would have quit job); Sapp v. Florida State Bd. of Nursing, 384 So.2d 254 (Fla. 2d DCA 1980) (whether nurse left medication room or a medication cart unattended and whether prohibitive instructions existed relevant thereto); Tampa Wholesale Liquors, Inc. v. Division of Alcoholic Beverages & Tobacco, Dep’t of Business Regulation, 376 So.2d 1195 (Fla. 2d DCA 1979) (whether alcoholic beverages were sold to other than a licensee and whether conspiracy involved), cert. denied mem., 388 So.2d 1112 (Fla.1980); Koltay v. Division of Gen’l Regulation, Dep't of Business Regulation, 374 So.2d 1386 (Fla. 2d DCA 1979) (whether evidence of misconduct supported revocation of electronic dealer’s license); Oliff v. Florida State Bd. of Nursing, 374 So.2d 1054, 1055 (Fla. 1st DCA 1979) (whether application fee had to be received or simply mailed before deadline); Borovina v. Florida Constr. Indus. Licensing Bd., 369 So.2d 1038 (Fla. 4th DCA 1979) (whether licensed contractor aided and abetted another uncertified person in unauthorized construction activities); Catholic Social Servs. v. State Dep't of Commerce Bd. of Review, 365 So.2d 427 (Fla. 1st DCA 1978) (whether employee discharged because of misconduct); Samson v. Bureau of Community Medical Facilities Planning of Dep't of Health & Rehabilitative Servs., 363 So.2d 412 (Fla. 1st DCA 1978) (whether bureau failed to reject application for hospital within time limit set for such rejection); Boyette v. State Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977) (whether school teacher’s effectiveness was seriously reduced as a result of publicity over alleged sexual misconduct). But see, e.g., Utilities, Inc. of Fla. v. Florida Pub. Serv. Comm'n, 420 So.2d 331 (Fla. 1st DCA 1982) (fair and proper rate of return on equity capital for regulated utility); City of Clearwater v. Lewis, 404 So.2d 1156 (Fla. 2d DCA 1981) (whether employee waived right to union representation at termination of his employment — PERC established a higher standard for proof of waiver); Holden v. Department of Corrections, 400 So.2d 142, 143 (Fla. 1st DCA 1981) (whether prison inmate should be permitted to marry); Fraser v. Lewis, 360 So.2d 1116 (Fla. 1st DCA 1978) (whether proposed bank showed reasonable promise of success).

      . In response to the dissent, we note only that the strike here can best be characterized as a wildcat strike. To hold the PBA liable for such activity would require a finding that the PBA in some manner sanctioned the activity. This record simply does not support such a finding, and the hearing officer, the finder of fact, made no such finding.

      . By separate order, a majority of the panel has certified this case to the supreme court as one which passes upon a question of great public importance.

      . It may, however, be a mitigating factor.


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    In re ESTATE OF Nathaniel BUTLER, Jr., Deceased.
    No. 83-849.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1984.
    Rehearing Denied Feb. 1, 1984.
    Kevin Rule of the Law Offices of Russell D. Thomas, Sarasota, for appellant Georgia Mae Butler.

      Thomas W. Bell of Bell & Bell, Sarasota, for appellee Rosa Belle Butler.
   LEHAN, Judge.

Georgia Mae Butler appeals from a judgment denying her petition for administration of the estate of Nathaniel Butler, Jr. The issue is whether the trial court correctly applied the doctrine of estoppel to prevent Georgia Mae Butler from asserting her rights as a widow of the deceased. We affirm.

The decedent and Georgia Mae were married in 1946. They lived together for a short time and then separated in 1947. Although the marriage was never legally dissolved, Nathaniel told Georgia Mae that he had “bought” a divorce. Georgia Mae believed him.

In 1950, Georgia Mae married James Whitfield in a ceremonial marriage performed by a judge in Sarasota County. Georgia Mae had two children by Whitfield and later had three children by three different men. Georgia Mae continued to be known as Georgia Mae Whitfield until some time after Nathaniel Butler’s death. Georgia Mae never attempted to obtain a divorce from Nathaniel Butler.

Nathaniel Butler married Rosa Belle Butler in 1963 after telling Rosa Belle that he was divorced from Georgia Mae. Rosa Belle believed him. Rosa Belle and Nathaniel lived together continuously as husband and wife until Nathaniel’s death in 1975. During this time Rosa Belle and Nathaniel had one child and adopted one child, both children taking the name of Butler and living with Rosa Belle and Nathaniel. The two children were minors at the time of Nathaniel’s death. The marital domicile was titled in the joint names of Rosa Belle and Nathaniel, and the couple lived in that house continuously from 1965 until Nathaniel’s death.

At some point Georgia Mae found out that she and Nathaniel had never actually been divorced. The record does not show when Georgia Mae learned this and does not show whether she learned it before or after Nathaniel’s death. Georgia Mae did know that Nathaniel had married Rosa Belle. Georgia Mae saw and talked with Nathaniel about once a year up until his death.

Nathaniel died in 1975. On December 29, 1981, Georgia Mae filed a petition for administration of his estate, seeking as surviving spouse appointment as personal representative. Rosa Belle filed objections to the petition. After a hearing, the trial court found that Georgia Mae was es-topped from asserting her rights as widow. The court found Rosa Belle to be more deserving and entitled to Nathaniel’s estate.

On appeal, Georgia Mae argues that the cases relied upon by the trial court for the doctrine of estoppel are different in nature from the facts of this case because in those cases the person estopped acted in blatant and wanton disregard of the institution of marriage or was of such reprehensible character as to shock the conscience of the court. For example, in Doherty v. Troxler, 66 So.2d 274 (Fla.1953), the surviving spouse, who was adjudged estopped, had married the decedent for the admitted purpose of acquiring an interest in her property, the marriage was never consummated by cohabitation, and the husband abandoned the wife after twenty-four hours of marriage. The husband later purposely and intentionally entered into a bigamous marriage with another woman with whom he lived for twenty years and with whom he still lived at the time of the first wife’s death. The court found him to be reprehensible in character and without conscience or decency. In Nedd v. Starry, 143 So.2d 522 (Fla. 1st DCA 1962), the husband separated from the wife after about one and a half years of marriage and approximately one year later entered into a bigamous ceremonial marriage. Two months after that marriage he left without getting a divorce and bigamously married a third time. The chancellor in the case noted also that the husband commonly had sexual relations with other women during his travels. The chancellor stated that misconduct of such a flagrant and inexcusable character showing a repudiation of marital obligations will estop the person from enjoying the rights of marriage. In Moye v. Moye, 160 So.2d 525 (Fla. 2d DCA 1964), the surviving spouse remarried with full knowledge and blatant disregard for the fact that she had not been divorced from her first husband. She also lived with different men, taking their names and considering them as her husbands at a time when Florida still recognized common law marriage.

Georgia Mae argues that those three cases cited by the trial court differ from this case in that those spouses were guilty of reprehensible behavior with total disregard for the validity of the first marriage. Georgia Mae argues that she was a victim of her husband’s deceit in stating that he had bought them a divorce.

Rosa Belle cites Minor v. Higdon, 215 Miss. 513, 61 So.2d 350 (1952), cited with approval by the Florida Supreme Court in Doherty v. Troxler, supra. In Minor the court prevented a surviving wife from claiming under her deceased husband’s estate where the wife had remarried without obtaining a divorce from the husband. The wife, Zelma, testified that she did not know at the time of her second marriage that her first husband had not obtained a divorce from her. “But this is no excuse for her contracting a bigamous marriage relationship with a second husband. Zelma did know that [her first husband] was still alive, and that he was living in the same or an adjoining county, and that she had not obtained a divorce from him, and that she had not been served with a summons in any divorce proceeding that he may have instituted against her. Zelma’s marriage to Clarence Robinson under these circuim stances constituted a complete repudiation of her marital status as the wife of Will Minor.” 61 So.2d at 353.

In affirming the judgment of the trial court, we recognize that the Florida cases cited involve bigamy committed knowingly, by the claiming spouse while the record in this ease indicates that Georgia Mae believed herself to be divorced from Nathaniel when she married James Whitfield. However, as in Minor v. Higdon, at the time Georgia Mae entered into her second marriage, she knew that her first husband was still alive and that she had not obtained a divorce from him and that she had not been served with any papers in any divorce proceeding that he may have instituted. Georgia Mae’s marriage to James Whitfield and her subsequent actions constituted a repudiation of her marital status as the wife of Nathaniel Butler. The evidence does not show when Georgia Mae learned there had been no divorce, but Georgia Mae lived as if she had been divorced from Nathaniel and made no attempt to represent herself as his wife until six years after Nathaniel died. Georgia Mae, after having taken advantage of the “divorce” that Nathaniel told her he had bought, cannot now claim the benefits of a marriage which she herself has repudiated by her subsequent conduct. Analogous to Nedd v. Starry, supra, Georgia Mae’s abandonment of the marriage relationship with Nathaniel operates to estop her from asserting rights under that marriage.

AFFIRMED.

GRIMES, A.C.J., and SCHEB, J., concur.


author: ORFINGER, Chief Judge.

text:
    Leslie ANDREWS, Appellant, v. CONTINENTAL INSURANCE COMPANY, Appellee.
    No. 82-1682.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1984.
    Rehearing Denied Jan. 30, 1984.

      William E. Loucks of Fink, Loucks, Sweet and Voges, Daytona Beach, for appellant.
    Robert W. Elton of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

This is a conflict of laws ease. The principal issue on appeal is whether we apply Florida law or Maine law to the facts before us. The trial court applied Florida law and we reverse on this issue because it is clear that Maine has the most significant relationship with this occurrence under the facts.

Andrews filed the action below to confirm an arbitration award of $279,-591.48 under the uninsured motorist coverage of his policy. Continental had issued a liability policy to Andrews in Maine, where Andrews resided and where his automobile was located. Andrews was injured in Florida while vacationing here, and when he and Continental could not agree on the total amount of his damages, the issues were submitted to arbitration after Andrews, with Continental’s consent and joinder, settled with and released the Florida under-insured motorist who had caused his injuries. The main point of contention is whether Continental has a right to rely on Florida’s “collateral source” statute, section 627.-7372, Florida Statutes (1981), thus enabling it to deduct some $64,000 in medical expenses paid by Medicare and Andrews’ group health insurance policy, or whether it is precluded from making that deduction under Maine law, which has no similar statute. On this issue, the trial court concluded that Florida law applied and that Continental was entitled to rely on the collateral source statute.

Although tort principles are involved in determining issues of liability and damages, a suit for uninsured motorist benefits is a contract claim for, without the contractual uninsured motorist provision, no recovery could be had against the, carrier. See Hartford Accident and Indemnity Company v. Mason, 210 So.2d 474 (Fla. 3d DCA 1968). With regard to the tort principles involved, in Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980), the Florida supreme court receded from the mechanical and inflexible lex loci delicti rule in favor of a more flexible “significant relationship test” as espoused in the Restatement 2d of Conflict of Laws, section 145-146. Under this test,

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

Restatement 2d of Conflict of Laws, § 146.

Recognizing that this principle has been adopted in Florida in tort cases, Continental argues that the trial court ruled correctly based on State Farm Mutual Automobile Insurance Company v. Olsen, 406 So.2d 1109 (Fla.1981). In Olsen, the supreme court applied Illinois law to an action brought in Florida by a Florida resident for uninsured motorist benefits under a Florida policy, although the accident occurred in Illinois with an Illinois uninsured motorist. In holding that Illinois law applied, the supreme court said:

Certainly, Illinois has the most significant relationship with the occurrence since the accident happened there. Furthermore, regarding the various policies enumerated in § 6, Illinois has an interest in the rights of its citizens who are subject to subrogation by the insurer on any uninsured motorist coverage it pays, which interest, in this case, is paramount to the relevant policies of Florida as the forum state. Finally, to reiterate our position in Bishop, for reasons of uniformity and ease in determination and application of the law, (barring other factors, not existent here, which may outweigh the place of the injury as the controlling consideration), we deem Illinois law to be controlling.

406 So.2d at llll.

There is a “significant” factual difference between Olsen and the case here. The Illinois motorist had not been released in Olsen, and the supreme court held that Illinois’ interest in protecting the rights of its citizens who were subject to subrogation claims was “paramount to the relevant policies of Florida as the forum state.” Here, the Florida motorist has been released by both Andrews and Continental. No public policy of Florida requires vindication and no citizen of Florida requires protection. In fact, the interest of Maine in enforcing contract rights of Maine residents in Maine contracts appears to be the controlling consideration here. The purpose behind Florida’s collateral source rule is to “prevent double recovery by injured parties from both their [own] insurers and third-party tortfeasors and their insurers,” Amica Mutual Insurance Company v. Gifford, 434 So.2d 1015 (Fla. 5th DCA 1983). Maine, on the other hand, has no such policy and sees nothing wrong with refusing to give the tortfeasor the benefit of medical insurance paid for by the injured victim. No public policy of Florida is thus thwarted by enforcing a Maine insurance policy between Maine residents, when no Florida citizen is otherwise involved. Thus, Maine has the most significant relationship to the occurrence, and Maine law should have been applied.

The same result is reached if we treat this as a contract dispute. The legal issue involved is the interpretation of the clause in the insurance policy which reads:

The company will pay all sums which the insured or his legal representatives shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

The point of contention between the parties is the interpretation of the phrase “legally entitled to recover as damages” contained in the foregoing policy provision.

Generally, the validity and interpretation of the rights and obligations of parties to a contract are determined by the law of the place where the contract is made. See Eagle Star Insurance Company v. Parker, 365 So.2d 780 (Fla. 4th DCA 1978); Aetna Casualty & Surety Company v. Enright, 258 So.2d 472 (Fla. 3d DCA 1972); Statewide Insurance Company v. Flaks, 233 So.2d 400 (Fla. 3d DCA 1970). Restatement 2d, Conflict of Laws, states the applicable rule of law as being:

The validity of a contract of fire, surety or casualty insurance and the rights created thereby are determined by the local law of the state which the parties understood was to be the principal location of the insured risk during the term of the policy, unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

Id. § 193.

Whether we apply the lex loci con-tractus rule or the Restatement’s significant relationship test to contract disputes, we must apply the law of Maine. First, the public policy of Florida as expressed in the statutes relating to automobile insurance policies applies to policies issued in Florida. No public policy of this state is in any way altered or affected by enforcing a Maine contract between two Maine residents according to the law where the contract was entered into. Maine obviously has the most significant interest in the interpretation and enforcement of its insurance policies. Also to be considered is the justified expectation of Andrews that his Maine insurance policy gave him the protection afforded by Maine law and for which he has paid a premium. See section 6, Restatement 2d, supra. Clearly, then, Maine law applies if we consider this a contract dispute, and Florida’s collateral source statute is not applicable.

We find no error in the trial court’s approval of the offset of the $4,000 in benefits paid under the medical payment provision of the policy. The policy provides for such reduction against other benefits paid, and it has not been demonstrated that the provision is contrary to Maine law.

The policy provision relating to interest is also to be interpreted under Maine law. The trial court erroneously applied Florida law in calculating the amount of interest owed. Similarly, on remand, the trial court shall consider the allowance of attorney’s fees under Maine law for services rendered the insured both at the trial and appellate levels.

The judgment below is reversed except as to that portion thereof which permits Continental a credit for the payment of $4,000 in medical payment benefits, which holding is affirmed. The cause is remanded for further proceedings consistent herewith.

REVERSED in part, AFFIRMED in part, and REMANDED.

COBB and COWART, JJ., concur.

      . The policies enunciated in section 6, Restatement 2d of Conflict of Laws are:
      (a)the needs of the interstate and international system,
      (b) the relevant policies of the forum,
      (c) the relevant policies of other interested states and the determination of the particular issue,

        (d) the protection of justified expectations,
      (e) the basic policies underlying the particular field of law,
      (f) certainty, predictability and uniformity of result, and
      (g)ease in the determination and application of the law to be applied.


author: WENTWORTH, Judge.

text:
    BREWSTER PHOSPHATES, First Mississippi Corporation and International Minerals & Chemical Corporation, Appellants, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. AO-473.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1984.

      Roger W. Sims and Lawrence E. Sellers, Jr., of Holland & Knight, Lakeland, for appellants.
    Bram D.E. Canter, Asst. Gen. Counsel, Dept, of Environmental Regulation, for ap-pellee.
    Thomas W. Reese, St. Petersburg, Edward P. de la Parte, Jr. and Edward M. Chew, of de la Parte & Gilbert, Tampa, Mygnon Evans, Florida Citrus Mutual, Lakeland, amicus curiae.
   WENTWORTH, Judge.

This is an appeal from final action of the Department of Environmental Regulation adopting amendments to rules 17-3.041 and 17-4.242 of the Florida Administrative Code. The amendment to rule 17-3.041 adds a section of the Little Manatee River to the list of Outstanding Florida Waters (OFW). Appellants own land in the watershed of the Little Manatee and its tributaries and objected to the OFW designation. Contending that the designation was invalid, appellants raise six points in this appeal. Stated succinctly, they are: (1) the designation is invalid because it was authorized by an improper delegation of legislative authority in violation of Article II, section 3 of the Florida Constitution; (2) the agricultural exemption amendment to rule 17-4.-242 which accompanied the designation was invalid; (3) the accompanying agricultural amendment violates the equal protection clause of the fourteenth amendment; (4) the environmental, social and economic benefits of the designation do not outweigh the associated costs; (5) the designated portion is not of exceptional recreational or ecological significance; and (6) the economic impact statement is insufficient. We disagree with appellants on all grounds, and affirm the rule amendments.

Appellants’ contention that rule 17-4.031 is the product of a standardless delegation of legislative power depends upon their assertion that the only specific authority for the rule is subsection 27 of § 403.061, Florida Statutes (1982 Supp.). That section provides:

403.061 Department; powers and duties. The department shall have the power and the duty to control and prohibit pollution of air and water in accordance with the law and rules and regulations adopted and promulgated by it, and for this purpose to:
(27) Establish rules which provide for a special category of water bodies within the state, to be referred to as “outstanding Florida waters,” which water bodies shall be worthy of special protection because of their natural attributes. Nothing in this subsection shall affect any existing rules of the department.

While subsection 27 may contain the only mention of the express words “outstanding Florida waters,” it is only one part of an extensive legislative scheme requiring the Department to study, classify, develop long range plans for, and supervise all of Florida’s waters. Subsection 27 should not be read in a vacuum, but in pari-materia with the overall legislative scheme as set out in Chapter 403 as whole. When so read, it becomes clear that there are sufficient standards to guide the Department in its determinations of which waters in Florida should be designated outstanding.

In Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1979), the Supreme Court noted that the required “specificity of standards and guidelines may depend upon the subject matter dealt with and the degree of difficulty involved in articulating finite standards.” Id. at 918. Obviously, the Legislature itself cannot perform the task it has assigned to the Department. Thus, delegation is necessary and the magnitude of the task makes the articulation of finite standards, to be applied to all of the waters of this state, impossible. Still, primarily through § 403.061, the Legislature has provided the Department with considerable standards for classifying state waters. The Department is charged with carrying out the purposes of the Act (to control and prohibit pollution of air and water) including but not limited to classifying waters by their most beneficial use, establishing ambient water quality standards, and conducting periodic field studies of pollution levels. In short, the standards found in § 403.061 are more specific than those which were held invalid in Cross Key, while the subject matter is necessarily much broader. Thus, § 403.061 provides the Department with sufficient standards enabling it to “flesh out” an articulated legislative policy, without offense to Article II, Section 3 of the Florida Constitution.

Appellants’ second and third points challenge the “agricultural exemption” amendment to rule 17-4.242 on procedural grounds and as being in violation of the equal protection clause of the United States Constitution. However, their argument focuses not so much on the effect of these alleged errors on the agricultural amendment, but on their contention that the alleged invalidation of the agricultural amendment somehow tainted the OFW designation of the Little Manatee. There is no apparent merit in appellants’ contention that the agricultural amendment is invalid, but even if there were, appellants have not demonstrated the consequent adverse impact on them or on the designation.

The agricultural amendment to rule 17-4.242 provides:

(f) Any activity that is exempted from permit programs administered by the Department, and any non-point source on land used for agricultural purposes is not subject to the requirements of Section 17-4.242.

As can be seen from the language of the amendment, it does not relate to appellants’ activities. Appellants assert that the designation of the Little Manatee would not have been approved by the Environmental Regulation Commission but for the passage of the agricultural amendment. This assertion, however, is nothing more than a speculative conclusion unsupported by the record. Appellants therefore have shown no standing to challenge the validity of the amendment on procedural grounds.

Appellants’ argument that the agricultural amendment denies them equal protection of the law borders on the frivolous. We find nothing arbitrary or unreasonable in treating the agricultural industry different from the phosphate mining industry. The equal protection clause does not prohibit the creation of regulatory classifications which are based on differing degrees of harm or risk of harm arising from the classified activity. Fischer v. State, 379 So.2d 947 (Fla.1979).

In the fourth point raised by appellants, they argue that the Commission’s implicit finding, that the environmental, social, and economic benefits of the designation do not outweigh the associated costs, is a finding not supported by competent substantial evidence. However, this is a direct appeal from a rule enactment pursuant to § 120.54, and not an appeal from a rule challenge pursuant to § 120.56. The scope of review of the quasi-legislative function of rulemaking is more limited than that with respect to quasi-judicial action, and upon such review a rule will not be reversed absent a flagrant abuse of discretion. In view of the department’s report to the Commission, which details the social, ecological, and economic benefits of the designation, appellants have not shown such an abuse.

Appellants’ fifth point on appeal, that the designated portion is not of exceptional recreational or ecological significance, is rejected for the same reason as point' four. That is, they have not shown a flagrant abuse of discretion on the part of the Commission in adopting the rule amendment.

In their final point, appellants argue that the designation was invalid because the economic impact statement compiled by the Department in accordance with § 120.-54(2)(a) was insufficient. According to appellants the Department under-estimated the cost of the designation to them because it ignored evidence presented by them at the public hearing. That evidence, however, was not provided to the Department until the night before the. hearing, and the record indicates that appellants were generally uncooperative with the Department’s efforts to compile an adequate statement. Thus, they may not now reasonably complain that the EIS is insufficient because it did not contain the same conclusions regarding estimated costs as did the appellants’ report. In essence appellants are arguing that the Commission erred in accepting the Department’s data and rejecting that from appellants. However, both reports are apparently predicated on competent evidence, and the Commission was responsible for rejecting or accepting one version or the other. We, of course, will not overturn their determination of what is essentially a factual issue.

As a matter of law, the economic impact statement was sufficient. As in State Department of Insurance v. Insurance Service Office, 434 So.2d 908 (Fla. 1st DCA 1983), the Department’s statement is a lengthy (ten page) document which complies paragraph by paragraph with the substantive requirements of § 120.54(2)(a). Admittedly, some of the costs are speculative or incapable altogether of estimation, in view of the fact that appellants have no immediate plans for development of their property as phosphate mining sites. As in State Department of Insurance, however, the Department can hardly be faulted for failing to make estimates on the basis of unknown variables.

For the foregoing reasons, the agency action amending rules 17-3.041 and 17-4.-242 of the Florida Administrative Code is affirmed.

LARRY G. SMITH and JOANOS, JJ., concur.

      .This opinion will briefly address each of the points raised by appellants. While we decline to specifically address some of the sub-issues argued by appellants, they have not been overlooked but have been considered and found to be without merit.

      . §§ 403.061(1); 403.061(5); 403.062; 403.087.

      . § 403.061(10).

      . § 403.061(11).

      . § 403.061(12).

      . In any event, the procedural requirements for rule adoption proceedings were substantially complied with so that even if appellants could show that they were affected by the amendment itself, they have not shown that they were prejudiced by the complained of deficiencies.

      . Fla.Admin.Code Rule 17-4.041(2)©.

      . Compare Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978).

      . Broward County v. Administration Commission, 321 So.2d 605 (Fla. 1st DCA 1975).

      . Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979).

      . Once again we note that even if appellants were correct regarding the standard of review, their argument would be unavailing since there is competent substantial evidence in the record indicating that the social, environmental and economic benefits of the designation outweigh the costs.

      . Fla.Admin.Code Rule 17-3.041(2)(f).

      . Section 120.54(2)(a)2 provides:
      (2)(a) Each agency, prior to the adoption, amendment, or repeal of any rule, shall provide information on its proposed action by preparing a detailed economic impact statement. The economic impact statement shall include:
      1.An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork;
      2. An estimate of the cost or the economic benefit to all persons directly affected by the proposed action;
      3. An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; and
      4. A detailed statement of the data and method used in making each of the above estimates.

      . See the concurring and dissenting opinions as they pertain to the issue of the economic impact statement in that case.

      . A planning director for International Minerals and Chemical Corporation testified that mining operations might commence "ten years down the road.” There does not appear to be record evidence that Brewster Phosphates has such specific plans.


author: PER CURIAM.

text:
    Jimmy A. SMITH, Appellant, v. GREATER NEW YORK MUTUAL INSURANCE CO., et al., Appellees.
    Nos. 82-1680, 82-2119.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.
    Rehearing Denied Feb. 17, 1984.
    Harry M. Hausman of David L. Kahn, P.A., Fort Lauderdale, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for appellee-Road 7 Workingman’s Nursery.
    Wayne W. Pomeroy, Fort Lauderdale; Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellee-City Equities Corp.
   PER CURIAM.

AFFIRMED on authority of International Brotherhood v. United Association, 341 So.2d 1005 (Fla. 4th DCA 1976).

DOWNEY, LETTS and HERSEY, JJ., concur.


text:
    Ralph Duane HANNAFIUS, Appellant, v. STATE of Florida, Appellee.
    No. 83-503.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.
    Rehearing Denied Feb. 17, 1984.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This cause is affirmed on the authority of Rose v. State, 425 So.2d 521 (Fla.1982).

DOWNEY, LETTS and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Norris BOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 83-960.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.
    Rehearing Denied Feb. 22, 1984.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was convicted of aggravated battery with a handgun and sentenced on April 28, 1983, as follows:

“To be imprisoned for a term of 5 years Youthful Offender, first 3 years, State Prison, The (sic) 2 yrs. Community Control”
“It is further ordered that the 3 year minimum provisions of F.S. 775.087(2) are hereby imposed for the sentence specified in this court, as the Defendant possessed a firearm.”

The record also contains an Order, dated May 9, 1983, which states:

“It is hereby ordered and adjudged that you be committed to the Department of Corrections for a term of three (3) years **, with credit for time served jail time; that after you have served _ of said term, you shall be placed on probation for a period of two (2) years under the supervision of the Department of Corrections ...”
“ **mand. min. 3 years”

The order of April 28, 1983, and the transcript of the sentencing proceeding indicate the trial judge contemplated classifying appellant as a youthful offender, pursuant to Chapter 958, Florida Statutes (1983). The record also demonstrates the trial judge felt the mandatory minimum sentence provided for in Section 775.087(2), Florida Statutes (1983), was indicated in view of the factual setting of this case. However, the two sentencing concepts are incompatible. If appellant is to be sentenced as a youthful offender he can be sentenced to the custody of the Department of Corrections for six years maximum but imprisoned for no more than four years, the balance to be served in a community control program. § 958.05(2), Florida Statutes (1981). If aggravating factors exist the trial judge can impose a minimum term of one year before eligibility for parole. § 958.05(3).

Thus, if the court intended to classify appellant as a youthful offender the sen- • tence to five years in prison is unlawful as is the three years mandatory minimum. On the other hand, a sentence of five years in prison with a three year mandatory minimum would be lawful if the court did not make use of the youthful offender statute.

We do not mean to indicate any preference in sentences. That is solely the trial judge’s function. We are compelled to vacate the sentence as it presently exists and remand the case to the trial court with directions to resentence appellant as the trial judge sees fit within the limitations set forth herein.

REVERSED AND REMANDED, with directions.

LETTS and HURLEY, JJ., concur.


author: DANAHY, Judge.

text:
    William Gregory GAWRONSKI, Appellant, v. STATE of Florida, Appellee.
    No. 82-826.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1984.
    Rehearings Denied Feb. 3, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The appellant was convicted and sentenced for burglary, grand theft, and accessory after the fact to attempted robbery. While the circumstantial evidence adduced was sufficient to sustain the convictions for burglary and theft, we find that it was not inconsistent with any reasonable hypothesis other than guilt of the accessory offense. Therefore, we affirm the convictions and sentences for burglary and grand theft, but reverse the conviction for accessory after the fact.

The facts pertinent to our reversal on the accessory charge are as follows. During the early evening of October 3, 1981, an attempted robbery of Long John Silver’s restaurant in Lakeland was reported to police. A man, later identified as Wesley Twelves, entered the restaurant and walked up and down the aisle several times between the exit and the area of the cash register. Twelves stared at the register for a time and then suddenly rushed toward the cashier, Theresa Williams, who was attending the register. She threw her weight against the cash drawer, locking it. Twelves then struck her, knocking her to the floor. After he unsuccessfully. attempted to pry open the cash register drawer, he ran out the door. A customer, Raymond Muoio, heard the cashier scream and saw her fall to the floor. He immediately ran into the parking lot after Twelves to identify his car and get his license number. Twelves jumped into the passenger side of a yellow Audi with a driver who had the motor running. Mr. Muoio could not identify the driver. The car sped off. Later, Lakeland police officers engaged the same car in a high speed chase which ended when the car crashed into a police car. Twelves and Gawronski, who was the driver and owner of the car, were arrested.

At trial, Gawronski testified that he was neither at the restaurant nor driving his car at that time. Instead, he testified that he had loaned his car to Twelves earlier in the evening and that he had waited at a friend’s house for Twelves to return. When Twelves returned, he did not say where he had gone or what he had done. Gawronski then drove his car a short distance when an unmarked police car chased him causing him to be innocently frightened, whereupon his car crashed into a marked police car. He and Twelves were then arrested.

To prove the offense of accessory after the fact against Gawronski, the state had to prove beyond a reasonable doubt that, he maintained, assisted, or gave Twelves aid, knowing that Twelves had committed the attempted robbery, with the intent that Twelves avoid or escape detection, arrest, trial or punishment. § 777.03, Fla.Stat. (1981); Schramm v. State, 374 So.2d 1043 (Fla. 3d DCA 1979). Because the evidence of defendant’s guilt was circumstantial, his conviction could not be sustained unless the evidence was both consistent with guilt and inconsistent with any reasonable hypothesis of innocence. Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980); McArthur v. State, 351 So.2d 972 (Fla.1977); Davis v. State, 90 So.2d 629 (Fla.1956); Mayo v. State, 71 So.2d 899 (Fla.1954); Chaudoin v. State, 362 So.2d 398 (Fla. 2d DCA 1978). It is not enough that the facts create a strong probability of, and are consistent with, guilt. Rather, for a conviction to stand, those facts must also eliminate all reasonable hypotheses of innocence. Owen v. State, 432 So.2d 579 (Fla. 2d DCA 1983).

We find that the circumstantial evidence in the instant case was not sufficient to exclude a reasonable hypothesis of innocence. The car at the restaurant was Gaw-ronski’s. The state’s theory at trial was that Gawronski was the driver at that time and that he aided Twelves’ escape knowing that Twelves had committed the attempted robbery. When the car was stopped later, Gawronski was the driver. That fact does not place Gawronski at the restaurant. No one saw him at the restaurant or in the car there. No evidence adduced by the state showed Gawronski’s story of the loan of his car to Twelves to be false. The presence of his car at the scene would demonstrate that Gawronski might have been there; but that was neither sufficient to establish his knowledge of Twelves’ crime nor proof that he aided or assisted Twelves with the intent that Twelves avoid detection, arrest, trial or punishment while he was possessed of that knowledge. Holley v. State, 406 So.2d 65 (Fla. 1st DCA 1981).

Therefore, we reverse his conviction for accessory after the fact because of insufficient evidence and direct that he be discharged for that offense. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). His other convictions and sentences for grand theft and burglary are affirmed.

SCHEB, A.C.J., and SCHOONOVER, J., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Carl DUKE, Appellant, v. STATE of Florida, Appellee.
    No. 82-2087.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1984.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant Carl Duke appeals from judgments and sentences entered after jury verdicts finding him guilty of two counts of attempted sexual battery under section 794.011(2), Florida Statutes (1981). A review of the record reveals that there was sufficient, competent evidence to support and uphold the verdicts. Therefore, we do not deem it necessary to set forth the odious facts involved here.

In the two-count information, appellant was charged with one count of attempting to insert his penis in the anus of a five-year-old female child and a second, separate count of attempting to insert his penis in the vagina of said child.

The trial court sentenced appellant to thirty years on Count I and thirty years on Count II to run consecutive to the term imposed on Count I. In addition, the court ordered appellant, who had been adjudged insolvent, to pay court costs pursuant to sections 960.20 and 943.25(4), Florida Statutes (1981).

Appellant first alleges that the trial court committed reversible error in sentencing him to thirty years on each count. In support of his position, he relies on the authority of our supreme court in Buford v. State, 403 So.2d 943 (Fla.1981), wherein that court announced that a violation of section 794.011(2) is no longer a capital crime.

Appellant contends that inasmuch as a conviction under 794.011(2) is no longer a capital felony, it drops one category to life felony. § 775.081(1), Fla.Stat. Therefore, assuming sexual battery is only a life felony, attempted sexual battery is a second degree felony which carries a maximum term of fifteen years. §§ 777.04(4)(b) and 775.082(3)(c), Fla.Stat.

As further support for his position, appellant directs us to the holding of our sister court in Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983). There, as here, the defendant was charged with sexual battery under section 794.011(2), Florida Statutes. In Hogan, the court rejected the argument that the trial court erred in ordering a six-person jury by reasoning that all facets of sexual battery as a capital offense disappeared when the death penalty for that offense was abolished. The court also held, as appellant argues, that sexual battery is a life felony, with the attempt to commit carrying a maximum sentence of fifteen years.

What appellant apparently fails to recognize is this court’s opinion in Rusaw v. State, 429 So.2d 1378 (Fla. 2d DCA 1983) that held

even though sexual battery under section 794.011(2) is not a capital crime in the sense that it may result in the imposition of the death penalty, the punishment for that crime must still be imposed under section 775.082(1) to its constitutional limits. This means that one convicted under section 794.011(2) must be automatically “punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole.” Section 775.082(1).

In so holding, this court followed the lead of the Florida Supreme Court in Donaldson v. Sack, 265 So.2d 499 (Fla.1972) wherein the court preserved the sentencing under section 775.082(1) when it said:

We find no difficulty with a continuation of the sentencing for these former “capital offenses” under § 775.082(1) as automatically life imprisonment upon conviction, inasmuch as that is the only offense left in the statute.'... The elimination of the death penalty from the statute does not of course destroy the entire statute. We have steadfastly ruled that the remaining consistent portions of statutes shall be held constitutional if there is any reasonable basis for doing so and of course this clearly exists in these circumstances.

265 So.2d at 502-03. Because of the foregoing language in Donaldson, we expressly disagreed with the premise in Hogan that sexual battery under 794.011(2) is a life felony for all purposes including sentencing. Therefore, applying our analysis in Rusaw to the instant case, appellant committed two first degree felonies, § 777.-04(4)(a), Fla.Stat., and therefore was correctly sentenced to thirty years for each violation. § 775.082(3)(b).

Appellant next contends the attack on the victim constituted only a single violation of the sexual battery statute and therefore the trial court erred in sentencing him for both offenses. Specifically, appellant submits that the elapsed period of time (a matter of seconds) was insufficient to separate one attempted penetration from the other. We disagree.

Section 794.011(l)(f) defines sexual battery as follows:

“Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.

As the statute indicates, each act is a sexual battery of a separate character and type which logically requires different elements of proof. Clearly, penetration of the vagina and penetration of the anus are distinct acts necessary to complete each sexual battery. Therefore, notwithstanding the short interval of time involved here, we believe each act is a separate criminal offense.

Appellant cites the case of Wade v. State, 368 So.2d 76 (Fla. 4th DCA 1979), as authority for his contention on this point. However, the opinion in Wade did not articulate the facts relied upon by the court in making its determination; and, therefore, we are unable to conclude whether the case is applicable to the factual situation before us.

In his third point, appellant asserts that the trial court erred in pronouncing sentence when the court had reasonable grounds to believe appellant was insane. At the sentencing hearing, counsel for appellant argued that based on the trial testimony and on the reports of the four court-appointed experts indicating appellant’s permanent brain damage, the court should set a hearing to determine sanity pursuant to Florida Rule of Criminal Procedure 3.740. We point out that the trial judge stated that he had no evidence before him indicating that appellant was insane prior to passing sentence. The court further noted that

[t]here is no evidence before me as of the present time that he does not understand the nature of these proceedings. He has been restored to his competency to stand trial[,] and I think that he is as competent as he presumes to have been during the course of the trial. He hasn’t changed since he came back from Chattahoochee[,] and he was determined to be competent to stand trial and that he is still competent, not only to stand trial, but to stand before the Court during the course of this sentencing.

The record discloses that each doctor’s testimony related to appellant's mental state at the time of the offense and at the time of the doctors’ original examinations of appellant, which had taken place months prior to the date of the sentencing hearing. In the absence of evidence indicating insanity at the time of sentencing, the trial judge is not required to order such an examination. Cabe v. State, 408 So.2d 694 (Fla. 1st DCA 1982), cert. denied, 435 So.2d 821 (Fla.1983); Gray v. State, 310 So.2d 320 (Fla. 3d DCA 1975). Having found no abuse of discretion, we conclude the trial court properly denied appellant’s request for further psychiatric examination.

Finally, appellant contends, and correctly, that the trial court erred in imposing costs in light of the fact that he had been declared insolvent. See Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983), and W.R.P. v. State, 426 So.2d 1307 (Fla. 2d DCA 1983).

For the reasons stated herein, we AFFIRM the judgments and sentences but STRIKE the court costs imposed under sections 960.20 and 943.25(4), Florida Statutes (1981).

SCHEB and LEHAN, JJ., concur.

      . Question certified as being in direct conflict with the decision in Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983) on the same question of law.

      . Question certified as being in direct conflict with the decision in Jenkins v. State, 422 So.2d 1007 (Fla. 1st DCA 1982).