author: SCHEB, Judge.

text:
    Susana IMERY, Appellant, v. Eduardo IMERY, Appellee.
    No. 83-792.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1983.
    Jeanne M. Trudeau and Raymond T. Elli-gett, Jr., of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellant.
    Joseph P. McNulty of McNulty, Moritz, Pecarek, Dickey & Herman, Largo, for ap-pellee.
   SCHEB, Judge.

On March 24,1983, Eduardo Imery filed a suit alleging that he was entitled to custody of his two minor children by virtue of a Venezuelan court order. At that time the children were in Pinellas County in physical custody of their mother, Susana Imery.

Immediately after the filing of the complaint, the trial judge entered an ex parte order awarding temporary exclusive custody to the father. Armed with this order the father demanded and received custody of the children from the school they were attending.

The mother subsequently received notice to show cause why the father’s custody should not be made permanent. She appeared with counsel on March 28 and pointed out to the trial court that the temporary order was entered without notice contrary to section 61.131, Florida Statutes (1981), and such lack of notice was a denial of her right of due process of law. The trial judge immediately rescinded the order but refused the mother’s demand to restore physical custody of the children to her. Since the father had physical custody of the children, he proceeded to voluntarily dismiss his petition, and the court entered an order of dismissal. This appeal ensued.

Once the court realized that it had erroneously permitted the father to obtain temporary custody, it was obligated to restore the physical custody of the children to the mother. Geisler v. Geisler, 397 So.2d 1216 (Fla. 2d DCA 1981). The court’s failure to order such restoration of custody upon demand of the mother constituted error.

We remand and direct the trial court to enter an order restoring physical custody of the children to the mother. Such restoration, of course, is without prejudice to the parties’ rights to continue to litigate the right of temporary and permanent custody.

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

      . Although styled as a plenary appeal, we treat this case as an appeal from a nonfinal order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii).


source: Caselaw Access Project

author: PER CURIAM. WALDEN, Judge,

license: Public Domain

text:
    Charles CREIGHTON, Appellant, v. C.J. BRANNAN, Jr., and Don Schaaf, individually, and d/b/a Gibraltar Oil & Gas Company, Appellees. C.J. BRANNAN, Jr., Appellant, v. Charles CREIGHTON and Clifford W. Trice, et al., Appellees. C.J. BRANNAN, Jr., and Don Schaaf, Appellants, v. Charles CREIGHTON and Clifford W. Trice, et al., Appellees.
    Nos. 82-2504, 83-63 and 83-287.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Earl Faircloth of Faircloth, Easthope & Traver, Fort Lauderdale, for Charles Creighton.
    James W. Crabtree of Smathers & Thompson, Miami, for Don Schaaf.
    Mark S. Schecter of Schecter & Sherr, P.A., Fort Lauderdale, for C.J. Brannan, Jr.
    Randolph W. Adams, Fort Lauderdale, for appellees-Clifford W. Trice and Oil Country Management, Inc.
   PER CURIAM.

AFFIRMED.

GLICKSTEIN and HURLEY, JJ., concur.

WALDEN, J., dissents, with opinion.

WALDEN, Judge,

dissenting.

In my opinion there was an ambiguity as concerns the written contract. Thus, parole testimony should have been allowed to explain the intent of the parties. I would reverse upon authority of Royal American Rlty. v. Bank of Palm Beach & Tr. Co., 215 So.2d 336 (Fla. 4th DCA 1968) and Friedman v. Virginia Metal Products Corp., 56 So.2d 515 (Fla.1952).


author: SCHOONOVER, Judge.

text:
    Paula JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1288.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.

      Richard L. Wilson, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Diane Barrs, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

Paula Johnson appeals her conviction of violating the Racketeer Influenced and Corrupt Organization Act (RICO), section 943.-462(3), Florida Statutes (1979). The appellant contends that the trial court erred by requiring her to proceed to trial immediately after the state was allowed to file a second amended information against her. We agree with her contention and reverse.

On December 21,1981, the appellee, State of Florida, filed an information charging the appellant with violating the RICO statute between August 1,1981, and September 30,1981. On April 6,1982, two days before the trial was scheduled to commence, an order was entered granting the state’s motion to file an amended information. The amended information alleged that the offense was committed between October 1, 1980, and September 30, 1981. On the morning of trial, over the appellant’s objection, the state was allowed to file a second amended information and an amended statement of particulars. These instruments alleged that the offense was committed between October 1,1980, and October 1, 1981.

After granting the state’s motion to amend, the trial court stated that a new trial date would be set later. However, when informed that any delay would violate the speedy trial rule, the court, over the appellant’s objection, ordered the parties to proceed to trial immediately. The appellant was found guilty, and this appeal timely followed.

The amendments were, under the circumstances of this case, changes of substance and not form, and had the effect of prejudicing the appellant’s right to a fair trial. Turner v. State, 376 So.2d 429 (Fla. 1st DCA 1979). Once the new information was filed, the appellant was entitled to receive a copy of the information at least twenty-four hours before being required to plead to it. Fla.R.Crim.P. 3.140(m). She was also entitled to have additional time to prepare her defense. State v. Stell, 407 So.2d 642 (Fla. 4th DCA 1981).

While the modern trend in both criminal and civil proceedings is to excuse technical defects which have no. bearing upon the substantial rights of the parties, the court is still required to determine if the accused is prejudiced by the state’s action. Lackos v. State, 339 So.2d 217 (Fla. 1976). If the record discloses that noncompliance with a rule of procedure results in prejudice to an accused, the conviction must be reversed. Hoffman v. State, 397 So.2d 288 (Fla.1981).

In the case sub judiee, the two amendments expanded the period of time in which the offense was allegedly committed from a period of sixty days to more than one year. Without the last amendment, the state admittedly could not prove the two offenses necessary to show that the appellant participated in the affairs of an enterprise through a pattern of racketeering activity. Beatty v. State, 418 So.2d 271 (Fla. 2d DCA 1982). The second of these offenses was allegedly committed on October 1, 1981, and the state admitted to the trial court that the amendment was crucial to the case. Furthermore, at oral argument on this appeal, the assistant attorney general agreed the requested amendment was one of substance.

Therefore, because the amendments were changes of substance, and not form, we cannot on this record find that the appellant was not prejudiced by being required to immediately proceed to trial. The trial court’s error cannot be deemed harmless because of the existing potential for surprise and possible denial of a fair trial to the appellant. Hoffman v. State; Lackos v. State; Turner v. State; Pedone v. State, 341 So.2d 532 (Fla. 3d DCA 1977).

We accordingly reverse and remand for a new trial.

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


author: LEHAN, Judge.

text:
    Everett R. DRAKER and Mary V. Draker, husband and wife, Appellants, v. Irma MILLER and Roy, Inc., a Florida corporation, Appellees.
    No. 83-580.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.
    Kenneth A. Jones of Humphrey, Jones & Myers, P.A., Fort Myers, for appellants. John G. Pierce, Orlando, for appellees.
   LEHAN, Judge.

The plaintiffs appeal a judgment entered upon a directed verdict against them in an action for fraudulent misrepresentation in connection with their purchase of a house. Plaintiffs also appeal the attorney’s fees and costs awarded to defendants. We affirm on all points except the award of certain costs.

Defendants admit that they were improperly awarded (1) $400 in travel expenses and $92.42 in long distance telephone tolls incurred by defendants’ out-of-town counsel; (2) $119.25 in photocopying costs; and (3) an expert witness fee of $157.35 for a witness who was never called to testify at trial. This cause is remanded for the trial court to revise the order by omitting the award of the foregoing costs.

We find appellants’ other contentions to be without merit.

REVERSED AND REMANDED.

OTT, C.J., and RYDER, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    CHEEZEM INVESTMENT PROGRAM I, LTD., and Cheezem & Associates, Inc., Appellants, v. Dale N. THOMAS, Debra K. Smith, d/b/a D & D Enterprises, Ptr., Appellees.
    No. 83-656.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.
    Michael J. Keane of John T. Allen, Jr., P.A., St. Petersburg, for appellants.
    Charles A. Buford of Robinson, MacPher-son, Harper, Kynes, Batt, Geller & Watson, P.A., Clearwater, for appellees.
   HOBSON, Acting Chief Judge.

Cheezem Investment Program I, Ltd., and Cheezem & Associates, Inc., defendants below in a breach of contract action, appeal a summary judgment order rendered in favor of Dale N. Thomas and Debra K. Smith, d/b/a D & D Enterprises, a partnership. We reverse and remand.

In their complaint, appellees sought the return of an earnest money deposit which they had made for the purchase of a condominium unit in a project developed and marketed by appellants. The central alie-gations in the complaint were that the ap-pellees had, pursuant to the purchase agreement, attempted to obtain mortgage financing from institutional lenders but could not qualify. It was further alleged that appellants then had the opportunity to provide comparable financing, but did not do so in a timely fashion.

Appellants answered the complaint and, subsequently, both parties filed motions for summary judgment. The motion was granted in favor of appellees. A final judgment was rendered directing the return of the earnest money deposit together with interest. Thereafter, appellants filed a motion for rehearing and also moved for leave to assert an additional affirmative defense. The additional affirmative defense, if allowed, asserted that the course of conduct of the parties constituted a waiver of the right to rely on the time-of-the essence provisions of the contract. Both of these motions were denied.

On appeal, appellants contend that there were genuine issues of material fact regarding whether appellees properly applied for mortgage financing for the purchase of the condominium. Upon examination of the record in a light most favorable to the non-moving party, we hold that a genuine issue of material fact exists as to whether or not appellees had, as required by the purchase agreement, properly submitted a duly executed loan application to an institutional lender engaged in mortgage financing of condominium units before appellants’ obligation to provide comparable financing arose. See Holl v. Talcott, 191 So.2d 40 (Fla.1966). Additionally, we note that the trial court erred in denying appellants’ motion for leave to amend to assert an additional affirmative defense. See Sea Shore Motel Corp. v. Fireman’s Fund Insurance Co., 233 So.2d 651 (Fla. 4th DCA 1970). Accordingly, we reverse the summary judgment order and remand.

Upon remand, the trial court is directed to initiate proceedings consistent herewith and to allow appellants to amend their pleadings to include the additional affirmative defense.

SCHEB and LEHAN, JJ., concur.

      . The pertinent provisions of the purchase agreement in dispute in this action state:
      (a) If the Purchaser elects to use mortgage financing to finance a portion of the total purchase price of the property, then the Purchaser shall, within ten (10) days from the date the Purchaser is given notice by the Developer to make such application, submit a duly executed loan application to an institutional lender selected by the Purchaser which engages in mortgage financing of condominium units (the “Mortgage Lender”) for a mortgage loan, in an amount equal to at least 70% of the purchase price and at the prevailing rate of interest at the time of closing or at the time Purchaser accepts Mortgage Lender’s commitment, payable in equal monthly installments over a period of not more than thirty (30) years and upon such other terms and conditions as are determined by the Mortgage Lender.
      (b) The Purchaser shall promptly execute all instruments required by the Mortgage Lender and the Purchaser shall promptly comply with any and all other requirements of the Mortgage Lender.
      (c)If the Purchaser fails to qualify for the loan for any reason other than the Purchaser’s failure to comply with the requirements of subparagraphs (a) and (b) above, and if the Developer fails to provide comparable mortgage financing to the Purchaser within thirty (30) days of receipt of written notice to the Developer by the Purchaser of the Purchaser’s failure to qualify, the Purchaser may:

      (2) Cancel the Purchase Agreement by giving written notice of cancellation to the Developer in which event this Purchase Agreement shall be null and void, the Developer shall return all deposits paid and accrued interest thereon to the Purchaser and the parties shall be relieved of any and all further obligations and liabilities hereunder.


author: OTT, Chief Judge.

text:
    Donald R. FIELDS, Appellant, v. JACK ECKERD CORPORATION, Appellee.
    No. 83-1339.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.
    Donald R. Fields, pro se.
    William E. Sizemore of Thompson, Size-more & Gonzalez, Tampa, for appellee.
   OTT, Chief Judge.

This is a proceeding in proper person. Appellant filed a complaint against appel-lee, his former employer, charging breach of employment contract, fraud, deceit, slander, and invasion of privacy. On October 15, 1982, the trial court granted appellee’s motion to compel discovery. Appellant timely petitioned this court for a writ of certiorari. On November 29, 1982, in conjunction with the petition for certiorari, the trial court adjudged appellant to be indigent within the meaning of section 57.081, Florida Statutes (1981), and ordered that appellant could proceed pursuant to rule 9.430 of the Florida Rules of Appellate Procedure. Appellant’s petition for certiorari was denied by this court without opinion. Fields v. Jack Eckerd Corp., 424 So.2d 768 (Fla. 2d DCA 1982). Upon remand of the case to the trial court, appellee’s motion to dismiss with prejudice was ultimately granted. Appellant timely filed his notice to appeal from the final order of dismissal on April 14,1983, without payment of filing fees. The following day, the trial court sua sponte entered an order, advising appellant that the order of insolvency in the prior “appeal” did not carry over to further appellate proceedings. The instant case involves review of the trial court’s April 15, 1983 order.

Appellant was adjudged insolvent for purposes of appellate action in the same case only 136 days prior to the filing of his second notice of “appeal.” Appellee was not given notice to requalify and no eviden-tiary hearing was held. There was no evidence, indication, or suggestion that appellant’s status as an indigent had changed. Given these facts, we think the sua sponte action of the trial court was unwarranted. Accordingly, the trial court’s April 15, 1983 order is VACATED, and appellant is granted the right to pursue his appeal in Fields v. Jack Eckerd Corp., No. 83-1338, with the concessions granted indigents in rule 9.430.

It is so ORDERED.

RYDER and LEHAN, JJ., concur.


author: WATSON, Justice. DENNIS, Justice, CALOGERO, Justice,

text:
    COMMISSIONER OF AGRICULTURE, State of Louisiana v. PLAQUEMINES PARISH COMMISSION COUNCIL.
    No. 82-CA-2657.
    Supreme Court of Louisiana.
    March 18, 1983.
    Dissenting Opinion May 10, 1983.
    Robert S. Leake, Riddick & Leake, Baton Rouge, for plaintiff-appellant.
    Louis B. Porterie, Gretna, for defendant-appellee.
    C. Ellis Henican, Henican, James & Cleveland, New Orleans, for intervenors-ap-pellees.
   WATSON, Justice.

The Commissioner of Agriculture of the State of Louisiana brought two suits for declaratory judgment against the Plaque-mines Parish Commission Council, the governing authority of that parish, contending that Plaquemines Parish Ordinances Nos. 212 and 372 are invalid because they were not submitted to the advisory commission on pesticides for a public hearing as required by LSA-R.S. 3:1623(D). The two suits were consolidated for trial.

Intervenors in the suits are Riverside Citrus Farms, Inc. and various citizens of Plaquemines Parish, who are involved in the operation of broadleaf vegetable farms and/or fruit tree orchards. The interve-nors oppose plaintiffs suit.

Ordinance number 212, adopted March 14, 1979, has the following title:

“An ordinance to regulate the aerial application of seeds, fertilizers, pesticides, and other materials in the Parish of Plaquemines; to require all persons, firms and corporations engaged in such aerial application to secure a permit from the Plaquemines Parish Commission Council prior to conducting such operations; and to provide procedures for conducting the operations, and penalties for the violation thereof and to provide otherwise both generally and specifically therewith.”

Ordinance number 372, adopted March 31, 1982, has the following title:

“An Ordinance to prohibit the application of certain herbicides in the Parish of Plaquemines; to provide for penalties for the application or use in violation thereof; and to provide otherwise, both generally and specifically, with respect thereto.”
LSA-R.S. 3:1623(D) provides that:
“(D) The commissioner shall have the authority to declare a pesticide a pesticide with restricted uses if he determines that the pesticide when applied in accordance with its directions for use, warnings, and cautions will present a hazard under specific conditions. A political subdivision of the state in order to enact more restrictive regulations than contained in this subpart may do so after public hearing duly held before the advisory commission and with the approval of the commissioner.”

The trial court held the above section of the statute unconstitutional as a violation of the separation of powers in Art. 2, § 2, Louisiana Constitution of 1974, as follows:

“Except as otherwise provided by this constitution, no one of these branches, [the legislative, executive and judicial] nor any person holding office in one of them, shall exercise power belonging to either of the others.”

The Commissioner of Agriculture has appealed from the declaration of unconstitutionality.

The federal scheme allows state pesticide regulation which is more but not less restrictive than the federal standards. See 7 U.S.C.A., § 136v.(a). Similarly, the state allows more restrictive local pesticide regulation under LSA-R.S. 3:1623(D), supra. The state has not preempted the field of regulation. Compare Rollins Environmental Serv. v. Iberville Parish, 371 So.2d 1127 (La., 1979). As pointed out in the concurring opinion of Justice Tate in Rollins, supra, a home rule local governing authority such as the Parish of Plaquemines can exercise all powers not denied by statute or the constitution.

The commissioner of agriculture is part of the executive branch of government. LSA-Const. Art. IV, § 1(A). The legislature may delegate certain powers to such administrative department heads. However, the legislature cannot lodge “unfettered discretion” with an administrative officer. Schwegmann Brothers Giant Super Mkts. v. McCrory, 112 So.2d 606 at 614 (La., 1959). In doing so, the legislature unconstitutionally surrenders the legislative power itself. State v. Rodriquez, 379 So.2d 1084 (La., 1980). “... [W]here a statute vests arbitrary discretion in a board or an official without prescribing standards of guidance there is an unconstitutional delegation of legislative authority to the executive branch of the government.” Rodriquez, supra, 379 So.2d 1084 at 1086. The commissioner of agriculture can administer laws only if there are adequate standards for execution of the legislative policy.

Here, the statute has no standards to guide the advisory commission on pesticides or the commissioner in determining whether to approve or disapprove more restrictive regulations by local political subdivisions. Absent any standards, the requirement is void as an unconstitutional delegation of legislative power to the executive branch of government.

For the foregoing reasons, the judgment of the trial court herein is affirmed.

AFFIRMED.

CALOGERO and DENNIS, JJ„ dissent and assign reasons.

APPENDIX

The text of Ordinance 212 is as follows: “BE IT ORDAINED BY THE PLAQUE-MINES PARISH COMMISSION COUNCIL THAT:

SECTION I

“A permit from the Plaquemines Parish Commission Council, bearing the signature of its President or Secretary, shall be required for the aerial application of seeds, fertilizers, pesticides and other similar materials within the Parish of Plaquemines. The permit shall be obtained by the aerial applicator prior to any such operations.

SECTION II

“Application for a permit for such aerial application shall be filed with the Council Secretary on forms provided by the Parish Council. The application shall be accompanied by copies of a vicinity map showing the exact area or areas in which the aerial application is to be conducted. Where the right of way aerial applications apply, a system or line map(s) outlining the right of way to be sprayed shall be submitted. Such area shall be shown, where possible, by reference to established landmarks. All permits shall be conditioned upon the aerial applicator obtaining, in advance of commencing work, the necessary permits from the Louisiana Department of Agriculture, other applicable state agencies, and all appropriate federal agencies.

SECTION III

“A permit shall be required for each application or approved series of applications. After the expiration of a permit, aerial application may continue or be resumed under a new permit issued on application made as provided in Section II.

SECTION IV

“No single permit will be issued for an area greater than 2,000 acres and no aerial applicator shall work outside the area or areas described in its permit or permits.

SECTION V

“Each aerial applicator working under a permit issued pursuant to this Ordinance shall always be accompanied by a parish agent. When an aerial applicator employs more than one component or unit, and the units are at such a distance apart that it is impossible for the parish agent to observe the work of each unit or component, an agent shall be assigned to each component or unit of the crew. The parish agent will be present continuously during the operation of the component or unit to which he is assigned; provided, however, upon good cause shown, a special permit may be granted by the President of the Plaquemines Parish Commission Council which may waive the necessity of the presence of the agent during the operation.

SECTION VI

“All aerial applicators who use any pesticide used in aerial operations shall use only EPA or State of Louisiana registered chemicals from clearly labeled containers. Such containers shall be made available for inspection upon request by the assigned parish agent.

SECTION VII

“All aerial applicators of pesticides shall have on hand and make available at the application site a copy of the manufacturers’ label to the pesticide being used concerning mixing directions, handling safety, application precautions, first-aid treatment, and decontamination procedures in the event of spills or accidents in transit, storage, or use. The parish agent is authorized and empowered to take or cause to be taken a sample or samples of each pesticide, fertilizer, seed or other material which is to be applied and to cause a chemical analysis, as he may deem necessary, to be made of each product by an independent laboratory.

SECTION VIII

“A separate report shall be made by the parish agent for each day of aerial application operations of the applicator, component or unit to which he is assigned whether or not such operations actually occur. The daily reports shall be filed with the Council Secretary at the end of each permit period on forms provided by the Council. The information on the forms shall accurately reflect the following information:

1. The identity and full address of the aerial applicator;

2. For whom the application is being made;

3. The exact location or site of the application;

4. The date and time of day of the application;

5. The name of the seed, fertilizer, pesticide or other material applied;

6. The weather conditions at the’ time and place of application including temperature, wind velocity and direction, humidity and other pertinent meteorological information;

The reports shall be signed by the parish agent. The aerial applicator shall furnish only such information to the parish agent as is required to fill out the daily reports. Should the Parish Council wish to secure any other information, it shall send the aerial applicator a written request.

SECTION IX

“The aerial applicator shall notify the Parish Council, through its Secretary, of the date of work initiation under the permit, of any work interruption, and of work cessation in any area. He shall keep the Council informed of the name and address of his representatives and employees and their locations and movements.

SECTION X

“When requested by the agent, because the operation will be conducted in the vicinity of crops, and subject to the approval of the Plaquemines Parish Commission Council, operations shall not be conducted between the hours of sunset and sunrise (nighttime), during periods of fog, or during any other period of restricted visibility due to smoke, smog, rain, or other such aerial visual obstruction.

SECTION XI

“A reasonable fee established by the Plaquemines Parish Commission Council shall be charged aerial applicators. This fee shall be used to pay the salary and expenses of parish agents assigned to aerial applicators working in the Parish of Plaque-mines and to cover other attendant and overhead expenses. All payments shall be made by the aerial applicator directly to the Parish Council. No payment shall be made by the aerial applicator to the parish agent. The aerial applicator shall furnish the parish agent with transportation over the working area if requested by the agent.

SECTION XII

“The Plaquemines Parish Commission Council may order cessation of any particular aerial application' if, in its opinion, such application will violate any of the provisions of this ordinance or any of the rules and regulations made pursuant hereto.

SECTION XIII

“The aerial applicator is required to notify the Secretary of the Parish Council immediately when the parish agent is not on the work site. Should it become necessary to relieve an agent at any time, the Parish shall arrange for the relief of the agent. No aerial application shall be made in the absence of a parish agent, except as otherwise provided in this ordinance.

SECTION XIV

“No parish agent shall have the authority to release any aerial applicator from any of the obligations imposed by this ordinance or the rules and regulations made pursuant hereto. Exceptions may be granted by the Council President only after written application stating the reasons for the exception. The release shall designate the particular area affected and the procedure to be followed in lieu of the established rules.

SECTION XV

“All aerial applicators shall use reasonable precautions in accordance with such approved and accepted methods to prevent destruction of, or injury to, life, property and crops, as well as oyster, shrimp and other aquatic life, wildlife and other natural resources. All aerial applications shall be conducted in accordance with the wind speed-minimum distance limitations promulgated by the Louisiana Pesticide Commission in its Rules and Regulations pursuant to the Louisiana Pesticide Law.

SECTION XVI

“Violation of any of the provisions of this ordinance or the refusal of any aerial applicator to comply fully herewith at the time of application or any attempt to unduly influence any parish agent from abstaining from the enforcement of these regulations shall constitute peremptory cause for the revocation of any permit which may have been issued and may be sufficient, grounds to bar such aerial applicator from future operations within the Parish of Plaque-mines.

SECTION XVII

“Any person, firm or corporation found guilty of violating any of the requirements of this ordinance or any of the rules and regulations made pursuant hereto shall be deemed guilty of a misdemeanor and, upon conviction by a court of competent jurisdiction, shall be fined not more than five hundred ($500.00) dollars or be imprisoned not more than six (6) months, or both, at the discretion of the court. Each day’s violation shall be considered a separate offense.

SECTION XVIII

“The Plaquemines Parish Commission Council is authorized to adopt and promulgate additional rules and regulations, not in conflict with any provisions herein, which it deems necessary for the proper enforcement hereof.

SECTION XIX

“Severability.

“If any provision or item of this Ordinance or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Ordinance which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Ordinance are hereby declared severable.

SECTION XX

“All Ordinances or parts of Ordinances in conflict with any of the provisions of this Ordinance are hereby repealed.

“WHEREUPON, in open session this Ordinance was read and considered section by section and as a whole.

“Commissioner Petrovich seconded the motion to adopt the ordinance.

“For the adotion (sic) of the Ordinance.

YEAS: Commissioners Chalin 0. Perez, Luke A. Petrovich, Albert J. Beshel, Michael E. Kirby and Lennard H. Mackenroth
NAYS: None.
ABSENT: None.
PRESENT BUT NOT VOTING: None.

“And the Ordinance was declared adopted on this the 14th day of March, 1979.” (Vol. I, Tr. 11-14)

The text of Ordinance 372 is as follows: “WHEREAS, the Parish of Plaquemines has a thriving citrus and broadleaf vegetable industry which is vital to the local economy of the Parish; and,

“WHEREAS, the citrus and broadleaf vegetable industry of the Parish stretches the entire length and breadth of the Parish, on both banks of the Mississippi River from Venice to the upper reaches; and,

“WHEREAS, the growing season for the citrus and broadleaf vegetable industry of the Parish involves and requires the full twelve months of each calendar year; and,

“WHEREAS, the citrus industry of the Parish has been severely damaged by the recent freeze of 1982 and the citrus trees are presently in a precarious state of recovery under constant care and supervision; and,

“WHEREAS, the application of certain herbicides in the Parish during any citrus or broadleaf vegetable growing season, and particularly one in which cautious recovery from a serious freeze is being attempted, would be harmful and damaging to such citrus trees and broadleaf vegetable crops; and,

“WHEREAS, Opinion No. 771, 512, dated April 10, 1978, of the Louisiana Attorney General reflects that Police Juries and other similar political subdivisions of the State of Louisiana have the police power to regulate and/or restrict the use of particular herbicides within their territorial boundaries and that the same is not in conflict with Federal or State legislation on the same issues; and,

“WHEREAS, Article II, Sec. 3, Sub-paragraph 15 & 20, the Charter for Local Self-Government for the Parish of Plaquemines, Louisiana, provides the authority for the Commission Council to provide the regulations as hereinafter set forth;

“NOW, THEREFORE:

“BE IT ORDAINED by the Plaquemines Parish Commission Council that:

“SECTION 1. As used herein, the following terms shall have the meanings ascribed to them unless otherwise hereinafter amended, modified or deleted:

a. ‘Pesticide’ means any substance or mixture of substances defined as a pesticide by La.R.S. 3:1622(13).
b. ‘Insecticide’ means any substance or mixture of substances intended for preventing or inhibiting the establishment, reproduction, development, or growth of; destroying; or repelling any member of the Class Insecta or other allied Classes in the Phylum Arthropoda that is defined as a pest under La.R.S. 3:1622(12).
c. ‘Herbicide’ means any substance or mixture of substances intended for use in preventing or inhibiting the growth of, killing, -or destroying plants and plant parts defined to be pests under La.R.S. 3:1622(12). The term ‘herbicide’ shall for the purposes of these regulations include a substance or mixture of substances intended for use as a plant growth regulator, defoliant, or desiccant.
d. ‘Phenoxy herbicides’ means any herbicide as defined above that contains a phenoxy derivative of lower aliphatic ac-ide as an ingredient thereof.
e. ‘Label’ means the written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers.

“SECTION 2. Ester compound of ‘Phe-noxy Herbicides’ containing an aliphatic alcohol radical with less than six carbon atoms shall not be applied within the territorial confines of Plaquemines Parish.

“SECTION 3. The application of the following herbicides within the territorial confines of Plaquemines Parish is hereby specifically prohibited:

CHEMICAL NAME COMMON NAME TRADE NAME
4-amino-3,5, 6-tricholoropicolinic acid pieloram Tordon, Tordon 22K Tordon Beads, Tordon 10K Pellets
3-chlorophenoxy-alpha-propionamide 3-CPA
4-chlorophenoxy acetic acid 4-CPA
2,5-dichloro-3-nitrobenzoic acid dinoben
2,4-dichlorophenoxy acetic acid 2.4-D Formula 40, Aqua Kleen, Barweel, Phenox, 24-DA, Weedrap, 2,4-D nas 2,4-D dive, 2,4 DE, Hormotox, AM Sol, Weedan 64, Weed-no-more, Hormo salt, Weedanol, Weed-one Dacamine, Weedey, Hedonol, Emulsamine
4-(2,4-dicho-lorophenoxy) butyric acid 2.4-DB 2,4-DB, Butyrac 118, Butoxone, Butyrac 200
2-{2,4-dicho-lorophenoxy) proprionic acid 2, (2,4-DP), DPA, 2,4-DP Proprihap, Dichloroprop Cornox RK, Hormatox, Polyt Polynone
2,3,6-trichloro-phenylacetic acid in combination with the dimethylamine salt of 2,4-dichlorophenoxy acetic acid fenac Fenac Plus
2,methoxy-3, 6-dichlorobenzoic dicamba Banvel, Mediben
2-methyl-4-chlorphenoxyacetic MCPA MCPA, MCP, Agroxone, Meth-oxone, Mephanac, Weedar, Bine-trol, Raphone, Weedone
4-(2 methyl-4chlorophenoxy) butyric acid MCPB, MPC, But-yric, Tropotox, MCPD, 4-(MCPB), Can-Trol, Thitrol, Legumex
2-(2 methyl-4- 2-MCPP chlorophenoxy) Propionic acid
sodium 2,4-dichlorophen-oxyethyl sulfate Sesone, Ses, 2, 4-des 2,4-DS
(2,4,5-trich- 2,4,5-T Various lorophenoxy) acetic acid
2-(2,4,5-trichloro-phenoxy) ethyJ, 2,2-dechloropropionate Erbon, Baron, Novon, Novege
2-(2,4,5-trichloro-phenoxy) propionic silvex 2,4,5-TP, Pro-pon, Kuron, Kurosal, Fenoprop, Weed-one, 2,4,5-TP, Silvi-Rhap
tris (2,4-dichloro-phenoxyethyl phosphite) 2,4-DEP, Falone
a mixture of tri-, tetra-, and polychlorobenzoic PEA, Zobar, and Benzac 354, Polychloro-Benzoic Acid

“SECTION 4. The provisions of Sections 2 and 3 shall not apply to the use of the above listed pesticides for the care of gardens in the immediate vicinity of a bonafide residential structure.

“SECTION 5. Violation of any of the provisions of this Ordinance or the refusal of any person, firm or corporation to comply fully herewith shall constitute peremptory cause for the revocation of any permit which may have been issued to such person, firm or corporation for the application of approved pesticides, insecticides or fertilizers and also may be sufficient grounds to bar such person, firm or corporation from future operations within the Parish of Plaquemines.

“SECTION 6. The Plaquemines Parish Commission Council is authorized to adopt the promulgate additional rules and regulations, not in conflict with any provisions herein, which it deems necessary for the proper enforcement hereof.

“SECTION 7. Any person, firm or corporation found guilty of violating any of the requirements of this Ordinance or any of the rules and regulations adopted pursuant hereto shall be deemed guilty of a misdemeanor and, upon conviction by a Court of competent jurisdiction, shall be fined not more than $500.00 or be imprisoned not more than six (6) months, or both, at the discretion of the Court. Each instance of application of any of the published substances listed in Section 3, hereinabove, shall be considered a separate offense.

“SECTION 8. If any provision or item of this Ordinance or the application thereof is held invalid, such invalidity shall not affect other provisions of this Ordinance which can be given effect without the invalid provisions, and to this end, the provisions of this Ordinance are hereby declared severa-ble.

“SECTION 9. All Ordinances or parts of Ordinances in conflict with any of the provisions of this Ordinance are hereby repealed.” (Vol. II, Tr. 6-10)

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority opinion correctly resolves the question of delegation of power and affirms the holding of the trial judge that La.R.S. 3:1623(D) is unconstitutional. Under either prong of the analysis announced in State v. Broom, 439 So.2d 357 (1983), the statute fails to pass constitutional muster: (1) the standards required for a constitutional delegation are completely absent, (2) the procedural protection required for a constitutional delegation are completely absent.

However, I do not join the majority opinion because it unsatisfactorily addresses the complex question of federal preemption. Even if the statute requiring prior approval by the Commission is unconstitutional, it is still possible that the ordinances are invalid because the field of pesticide regulation may be preempted by federal law. The majority opinion simply concludes that states are free to delegate to political subdivisions the power granted to them by 7 U.S.A.A. § 136v.(a), namely the right to enact more restrictive regulations. While this argument may be valid, I believe that it merits a serious consideration of the entire legislative history of the federal provision.

CALOGERO, Justice,

dissenting.

The majority affirms a judgment holding unconstitutional La.R.S. 3:1623(D), a holding which only touches on the larger issue presented in this case, whether the Commissioner of Agriculture is entitled to a declaratory judgment that certain Plaquemine Parish pesticide ordinances are invalid.

The limited majority decision that La.R.S. 3:1623(D) is unconstitutional because it delegates legislative authority without sufficient guiding standards fails to address the other prong of the test set out in State v. Broom, 439 So.2d 357 (La.1983), which could support the constitutionality of the statute.

A more troubling concern for me, however, is that the majority does not even address the Commissioner’s major contention, or the issue that is likely dispositive of the case.

The Commissioner argues that even if La.R.S. 3:1623(D) is unconstitutional, the Plaquemine Parish Commission Council does not have the authority to enact ordinances relative to pesticides. He argues that the Federal Government has fully preempted the field, granting the states only the authority to enforce the federal regulations and the authority to enact more restrictive, but not less restrictive or conflicting, provisions than those contained in the Federal Legislation and Regulations. The state governmental subdivisions, absent an express grant of authority by the state legislature, has no such authority. He supports this argument by reference to the legislative history of the federal enactment in which the proposal to likewise grant the state governmental subdivisions the authority to enact more restrictive local ordinances was specifically rejected. Therefore, the Commissioner argues that a finding that La.R.S. 3:1623(D) is unconstitutional leaves Plaquemine Parish with no authority to enact any ordinances regulating pesticides.

While consideration of the Commissioner’s argument may not necessarily require us to come to a different result in this case, this dispositive issue in the case should at least be addressed.

The Commissioner’s argument is a serious one and is perhaps meritorious considering that this Court found a similar contention meritorious in Rollins Environmental Serv. v. Iberville Parish, 371 So.2d 1127 (La.1979), relative to local ordinances regulating hazardous waste disposal. Therein the Court found the local ordinances unconstitutional upon finding, among other reasons, that the Federal Government with state participation of a limited sort had preempted the field of hazardous waste management.

Therefore, I dissent from the majority’s disposition of this case without addressing the principally relevant issue.

      . Carol J. Becnel, Arthur Becnel, Jr., Robert R. Becnel, Sr., Saxon R. Becnel, Sr., Thomas Bec-nel, Sr., Harold J. Becnel, Sr., Benjamin X. Becnel, Sr., Johnny J. Becnel, Sr., Roy Navarre, Joseph S. Ranatza, Jr., Inc., Joseph S. Ranatza, Jr., Konrad H. Becnel, Sr., Karl D. Becnel, Harold J. Becnel, Jr., Monica Becnel, Saxon R. Becnel, Jr., Cynthia Becnel, Jan B. Becnel, Eddie Navarre, Robin Navarre Sapir, and Thomas Becnel, Jr.

      . The text of Ordinance 212 is included in the appendix to this opinion.

      . The text of Ordinance 372 is included in the appendix to this opinion.

      . The statute was repealed, effective January 1, 1983. Local regulations must now be approved according to the procedures in LSA-R.S. 3:3224 and 3:3214, as follows:
      LSA-R.S. 3:3224 provides:
      “Parish and municipal governing authorities may adopt local requirements for the sale or application of pesticides only in accordance with the following provisions:
      “(1) The governing authority shall adopt a proposed ordinance containing the proposed restrictions. .
      “(2) The governing authority shall transmit the proposed ordinance to the commissioner with a request for a hearing on the matter.
      “(3) The commissioner shall conduct a hearing on the matter in accordance with Section 3214 of this Chapter.
      “(4) The commissioner shall approve or disapprove the proposed ordinance.
      “(5) If the commissioner approves the proposed ordinance, the governing authority shall publish the proposed ordinance in the official journals of the state and of the parish or municipality.
      “(6) The proposed ordinance shall become effective on the thirtieth day after publication.
      “(7) The parish or municipal governing authority shall pay all costs of the proceedings under this Section.”
      LSA-R.S. 3:3214 provides:
      “All adjudicatory hearings held by the commission shall be conducted in accordance with the following provisions:
      “(1) The commissioner shall convene the commission for the purpose of hearing the matter.
      “(2) The commissioner shall appoint a hearing officer, who shall preside over the hearing.
      “(3) The commissioner may issue subpoenas to compel the attendance of witnesses or the production of documents and records anywhere in the state in any hearing before the commission.
      “(4) The hearing shall be conducted in accordance with the provisions of the Administrative Procedure Act.
      “(5) The commission shall make an initial determination on the matter. This determination shall be submitted to the commissioner in writing.
      “(6) The commissioner shall make the final determination on the matter. If the determination of the commissioner differs from the determination of the commission, the commissioner shall issue a written opinion based on the record of the hearing.
      “(7) Appeals from determinations of the commissioner shall be by civil proceedings in the Nineteenth Judicial District Court.”

      . 7 U.S.C.A., § 136v.(a) provides:
      “(a) A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.”

      . LSA-Const. Art. IV, § 1(A) provides:
      “(A) Composition. The executive branch shall consist of the governor, lieutenant governor, secretary of state, attorney general, treasurer, commissioner of agriculture, commissioner of insurance, superintendent of education, commissioner of elections, and all other executive offices, agencies, and instru-mentalities of the state.”

      . While subsection A. of § 1636 provides that decisions of the commission relative to regulation of pesticide application according to time of year, area of application and/or wind velocity must be made in accordance with the administrative procedure act, it is not clear from the statute that this requirement applies to subsection D.

      . For example, the federal government may still have preempted the field even though it made a conscious choice to allow more restrictive state regulation. Since there is no indication that there was choice to allow the states to delegate this power, the action by the subdivision may be in a federally preempted area.

      . The Commissioner had contended that the ordinances were illegal because, prior to passage, they were not submitted to a public hearing before the advisory commission on pesticides as is statutorily required by La.R.S. 3:1623(D).

      . In State v. Broom, supra, we held that in considering whether a delegation of legislative authority is unconstitutional we must consider both the guiding standards and the procedural safeguards which limit the administrative agency’s ability to act arbitrarily. A lack of explicit guiding standards is not fatal to the constitutionality of the delegation if procedural safeguards otherwise prevent arbitrary action.