author: PER CURIAM.

text:
    George LEMON, Appellant, v. STATE of Florida, Appellee.
    No. 63410.
    Supreme Court of Florida.
    July 19, 1984.
    Rehearing Denied Oct. 29, 1984.

      Jerry Hill, Public Defender, and W.C. McLain, Asst. Public Defender, Chief, Capital Appeals, Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

George Lemon appeals from his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Upon appellant’s release from prison in January of 1982, after serving a sentence for assault with intent to commit first-degree murder for stabbing a female victim, he lived in a bedroom in an apartment belonging to one Lizzie Johnson. He soon met and began dating the victim, Kimble McNeil. Appellant wanted to marry McNeil, who was separated from her husband, but she began to retreat from the relationship. In August the two agreed to stop dating for a month to give McNeil time to think about the relationship. Appellant told Lizzie Johnson on two or three occasions that if he could not have McNeil no one would because he would kill her.

Appellant took a room at the Rama Inn in Lakeland and called McNeil on the evening of September 25. She told him she was still undecided and refused to meet him at the motel. The next morning appellant called again, and McNeil agreed to meet him at Lizzie Johnson’s apartment that evening.

Appellant arrived around 6 p.m., took to his former bedroom a bag containing two knives, a role of reinforced plastic tape, and a .25 caliber automatic pistol. McNeil arrived at about 7:30 p.m. and later accompanied appellant into the bedroom.

Malinda, the victim’s daughter, knocked on the bedroom door around 10 p.m. and called out to her mother. Hearing no answer, she returned home and was called later by appellant, who asked about her mother, and said he was at his motel. Malinda called Ms. Johnson, who discovered the victim’s body outside the bedroom window. Appellant called Malinda again and said he did it because McNeil had hurt him by rejecting his overtures. After the police arrived at Ms. Johnson’s, appellant called and said he was sorry it had happened. He was arrested at his motel room two days later.

According to appellant’s confession, after he and McNeil were alone, she undressed partially but refused to have sex and started to scream. Appellant silenced her, but did not remember whether he choked her at that time or put a pillow over her face. He was able to remove the tape from the bag and wrap it tightly around her neck without her screaming. Appellant dressed and then listened to McNeil’s heart, which continued to beat. He put her on the ground outside the bedroom window and stabbed her repeatedly with the carving knife from his bag. The medical examiner testified that the tape alone would have caused unconsciousness within one minute and eventual death, but that the victim was alive at the time of the stabbing.

A jury found appellant guilty of first-degree murder and recommended death. The court imposed the death sentence, after weighing two aggravating circumstances and one mitigating circumstance.

Appellant does not challenge his conviction. We nonetheless have reviewed the entire record as required by section 921.-141(4), Florida Statutes (1981), and Florida Rule of Appellate Procedure 9.140(f). We have determined that there is no reversible error.

Appellant argues that the trial court erred in refusing to read a psychological report which counsel did not attempt to introduce into evidence at the guilt phase of the trial. The report, attached to counsel’s memorandum, was delivered to the trial judge approximately thirty minutes prior to the sentencing hearing with no assurance that the state had been furnished copies. The judge declined to read the material, but told defense counsel that he would “consider at this hearing any remarks you wish to make in regard to that report and any remarks you might wish to address that might be included in that memorandum.” Defense counsel quoted from the report the portions most supportive of the defendant’s argument in favor of mitigation. Under the circumstances, we find no error. The defense was able to bring the most favorable portions of the psychologist’s report before the trial court, without having them accompanied by potentially prejudicial portions. The judge specifically considered all of the statutory mitigating factors which were not stipulated as inapplicable. He found the mitigating circumstance that the felony was committed under the influence of extreme mental or emotional disturbance, but rejected as mitigating circumstances the appellant’s age and that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. Although the consideration of all mitigating circumstances is required, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the judge and jury. Smith v. State, 407 So.2d 894 (Fla.1981), cert, denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). We find no error.

Appellant argues that the trial court erred in failing to consider and weigh certain nonstatutory mitigating factors such as remorse, cooperation with the police, and the nature of the crime as one of passion. We disagree. After considering the statutory aggravating and mitigating factors, the trial judge stated that there were no other aspects of the defendant’s character or record or other circumstances of the offense to establish any nonstatuto-ry mitigating circumstances. It was within his province to decide whether a particular mitigating circumstance was proved and the weight to be given it. Daugherty v. State, 419 So.2d 1067 (Fla.1982), cert, denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983); Riley v. State, 413 So.2d 1173 (Fla.), cert, denied, 459 U.S. 981, 103 S.Ct. 317, 74 L.Ed.2d 294 (1982); Smith v. State. We find no error.

Appellant contends that section 921.141 and the standard jury instructions improperly preclude the consideration of some mitigating evidence by using modifying terms such as “extreme,” “significant,” “relative,” and “substantial.” We previously have rejected this argument. Johnson v. State, 438 So.2d 774 (Fla.1983).

Appellant complains that the trial court erred in: refusing to instruct the jury on the definition of heinous, atrocious, or cruel from State v. Dixon, 283 So.2d 1 (Fla.1973), cert, denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974); refusing to instruct the jury that a life recommendation could be returned even if no mitigating circumstances were found; and failing to instruct the jury on all the aggravating and mitigating circumstances of section 921.-141, Florida Statutes (1981). We find no error. The standard jury instructions given by the trial court were adequate under the circumstances of this case.

Appellant asserts that the trial court erred in finding that the capital felony was especially heinous, atrocious, or cruel. We do not agree. The evidence indicates that Kimble McNeil was afraid of appellant and that she knew he intended to kill her when she pleaded, “Don’t do what you’re thinking.” The medical evidence was consistent with strangulation and repeated stabbing, either of which could have resulted in death. Arguably the strangulation would have rendered the victim unconscious and unable to feel pain by the time the stabbing occurred. Even so, strangulation itself, with the victim fully aware of her impending doom and begging the appellant not to proceed with his evil design, was heinous, atrocious, or cruel under these circumstances. See Smith v. State, 407 So.2d at 903.

Appellant argues that the sentence of death is disproportional to his crime. In support of this contention he relies upon Blair v. State, 406 So.2d 1103 (Fla.1981); Kampffv. State, 371 So.2d 1007 (Fla.1979); and Chambers v. State, 339 So.2d 204 (Fla.1976). Those cases, however, are distinguishable. In Blair, wherein several aggravating factors had been improperly found and there was a mitigating factor, this Court remanded for imposition of a life sentence because the death sentence was disproportional in that particular case. The defendant had killed his wife by shooting her after she threatened to tell the police about the defendant’s relationship with her daughter. The mitigating factor in that case was that the defendant had no significant history of prior criminal activity. The only valid aggravating factor was that the felony was committed either for the purpose of preventing a lawful arrest or to disrupt or hinder the enforcement of law in concealing and preventing the reporting of sexual battery upon a minor female child.

In Kampff, wherein the defendant killed his former wife by shooting her, there were mitigating circumstances and no proper aggravating circumstances. In Chambers, wherein the defendant beat his victim to death, the jury recommended life. When a jury override is involved, it is inappropriate for the trial court to impose the death penalty unless the facts suggesting death are so clear and convincing that no reasonable person could differ. Tedder v. State, 322 So.2d 908 (Fla.1975).

The state relies upon King v. State, 436 So.2d 50 (Fla.1983) and Harvard v. State, 414 So.2d 1032 (Fla.1982), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 979 (1983), in arguing proportionality. These cases are more similar to the present case in that both also involved defendants killing women with whom they had a relationship after a previous conviction for a similar violent offense. The death sentences were affirmed in these cases.

Appellant correctly points out that in the present case there is a mitigating factor, unlike in King and Harvard. The trial court did find that the defendant was acutely emotionally disturbed at the time of the offense, but indicated that there was some question as to the degree of the defendant’s emotional disturbance, i.e., whether it was extreme. The court found that the mitigating circumstance did not outweigh the aggravating circumstances. Comparing the murder and other circumstances herein with those in the cited cases, and past capital cases, we conclude that the sentence imposed here is not comparatively disproportionate. We affirm as to this point.

For the reasons expressed, we affirm the conviction and sentence of death.

It is so ordered.

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


source: Caselaw Access Project

author: ADKINS, Justice. McDONALD, Justice,

license: Public Domain

text:
    Aubrey Dennis ADAMS, Jr., Appellant, v. STATE of Florida, Appellee, and Aubrey Dennis ADAMS, Jr., Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    Nos. 65845, 65853.
    Supreme Court of Florida.
    Sept. 11, 1984.

      Kenneth R. Hart and Timothy B. Elliott of Ausley, McMullen, McGehee, Carothers & Proctor and Philip J. Padovano, Tallahassee, for appellant/petitioner.
    Jim Smith, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee/respondent.
   ADKINS, Justice.

This case is before us on appeal from the trial court’s denial of appellant’s motion to vacate his conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850. We also have before us a motion for stay of execution and a petition for habeas corpus. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla.Const.

This case has previously been before us on direct appeal from appellant’s conviction of first-degree murder and sentence of death. At that time, we affirmed appellant’s conviction and sentence. Adams v. State, 412 So.2d 850 (Fla.1982). A writ of certiorari to the United States Supreme Court was denied. Adams v. Florida, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982).

The facts of this case are set forth in this Court’s opinion on direct appeal and will not be repeated here.

Adams raises two points in his post-conviction petition. In the first of these, he claims that he received ineffective assistance of trial counsel when trial counsel failed to object to: 1) a general verdict of guilty which was based either upon a finding of premeditated murder or an alternative theory under the felony murder rule; 2) jury instructions which allowed the jury to consider all the aggravating circumstances listed in the death penalty statute even though there was no evidence to support some of these; 3) jury instructions which allowed the jury to consider all lesser degrees of homicide even though there was no evidentiary basis for them; 4) jury instructions that required the death penalty recommendation to be agreed upon by seven or more jurors, even though six is sufficient to recommend life; and 5) jury instructions that failed to clearly define and explain the nature and function of mitigating circumstances and failed to inform the jury they could recommend life even though they found aggravating circumstances. These are all matters which could have been raised on direct appeal and which, as the trial judge correctly held, were not properly entertained in a 3.850 motion. McCrae v. State, 437 So.2d 1388 (Fla.1983).

The failure of trial counsel to interpose objections to these matters during trial was not such a serious omission or such a deficient performance as to deprive defendant of a “fair trial, a trial whose result is reliable.” Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

Adams’ second point in his post-conviction petition is likewise without merit. He argues that the trial court erred in refusing an evidentiary hearing concerning his competency to stand trial or to participate in the sentencing phase of his trial and concerning the competency of his trial counsel.

Regarding his competency to stand trial, Adams now argues that an expert will testify that he now suffers from a mental disorder known as catathymic amnesia, which renders him incapable of recalling traumatic experiences, and this mental disorder in turn rendered him incompetent to stand trial. Once again, his competency to stand trial is a matter which either was or should have been determined on direct appeal. McCrae. In his direct appeal we noted that there was no testimony that Adams had suffered from mental illness in the past. 412 So.2d at 857. In any event, the testimony that is being offered is a diagnosis of Adams’ present condition and is not evidence that he suffered from this disorder at the time of trial.

Finally, none of the grounds asserted by Adams as deficiencies of his trial counsel warranted an evidentiary hearing either because they were not cognizable in post-conviction proceedings or were adequately set forth in his motion for post-conviction relief so that no evidentiary hearing was necessary.

In his habeas petition, Adams argues that he received ineffective assistance of counsel at the appellate level.

The standards to be applied in determining whether a defendant was denied his sixth amendment right to effective assist-anee of counsel were set forth by the United States Supreme Court in Strickland. The standards enunciated in that ease do not “differ significantly” with those espoused by this Court in Knight v. State, 394 So.2d 997 (Fla.1981); Jackson v. State, 452 So.2d 533, 535 (Fla.1984). See also Downs v. State, 453 So.2d 1102 (Fla.1984). Strickland held that a defendant’s claim for ineffective assistance of counsel has two components:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

104 S.Ct. at 2064.

To prove prejudice, the Court further stated that “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. 104 S.Ct. at 2068.

In applying the principles of Strickland to the case at bar, we find that Adam’s claim of ineffective assistance of counsel on appeal, as well as at trial, must fail. The conduct and performance of Adam’s appellate counsel was not substantially deficient under the circumstances. The record reflects that counsel 'properly prepared the case and that his strategy and decisions during the course of his representation of Adams conformed to the standards required of professionally competent counsel. Even if this Court had found counsel’s performance to be deficient, we would also have concluded that his performance did not prejudice Adams.

Accordingly, we affirm the order of the trial court denying Adam’s motion for post-conviction relief. The motion for stay of execution is denied. Adam’s petition for writ of habeas corpus is also denied.

It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur.

McDONALD, J., dissents with an opinion.

McDONALD, Justice,

dissenting.

I recognize that the issue was considered in the original appeal, but I adhere to the position that in view of the mitigating circumstances in this case, and the highly questionable aggravating factor that Adams killed the eight-year-old to avoid arrest, the death penalty is improper and disproportionate for Adams. Perhaps it is because of this conclusion that I search the record to justify a stay of an event that should not transpire. In any event, I believe that there were adequate grounds alleged in the 3.850 motion to require an evidentiary hearing on some of the claims.

Accordingly, I would grant a stay and remand to the trial court for further proceedings.

       Adams submits that his trial attorney:

      (9)Remained mute while the prosecution argued that the jury consider a statutory aggravating circumstance for which there was insufficient evidentiary support. The aggravating circumstance argued was that the murder was committed for the purpose of avoiding or preventing a lawful arrest. There was absolutely no evidence to support this. Counsel thereby permitted the jury to be influenced by and to consider aggravating circumstances which were not supported by evidence and thereby violating Defendant’s rights to due process. See e.g., Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976).
      (10) Failed to present expert testimony as to the degree to which Defendant could control his actions or conform them to the requirements of the law.
      (11) Failed to adequately investigate the issue of Defendant's competency to stand trial and assist in the preparation of his defense and the issue of Defendant’s sanity at the time of the alleged offense.
      (12) Limited the pre-trial psychiatrist examination and evaluation of the Defendant to one psychiatrist. This hampered his ability to recognize that the Defendant may have been incompetent to stand trial as well as to identify other potential mitigating factors such as the ability to control his actions or to confirm them to the requirements of the law....


text:
    THE FLORIDA BAR, Complainant, v. Gary A. POE, Respondent.
    No. 64812.
    Supreme Court of Florida.
    Sept. 20, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    L. Edward McClellan, Jr., Ocala, for respondent.
   PER CURIAM.

This cause is before the Court on the respondent’s conditional guilty plea to violations of article XI, Rules 11.02(3)(a), 11.-02(4) and 11.02(4)(c) of the Integration Rule of The Florida Bar, and Disciplinary Rules 1-102(A)(4), 6-101(A)(2), 6-101(A)(3), 7-101(A)(1), 7-101(A)(2), and 9-102(B)(3) of the Code of Professional Responsibility of The Florida Bar. We approve the conditional guilty plea, and, in accordance with the plea, publicly reprimand the respondent, direct that he be placed on two years’ probation, and require that he submit quarterly caseload reports to The Florida Bar.

The respondent shall appear before the Board of Governors of The Florida Bar for a public reprimand and this opinion shall be published in Southern Reporter.

Costs in the amount of $1,021.33 are assessed against the respondent.

It is so ordered.

OVERTON, Acting C.J., and ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur.


author: OVERTON, Justice.

text:
    CONTINENTAL VIDEO CORPORATION, Petitioner, v. HONEYWELL, INC., etc., Respondent.
    No. 63058.
    Supreme Court of Florida.
    Sept. 27, 1984.
    Larry S. Stewart, James B. Tilghman, Jr. and Bruce A. Christensen of Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack, Miami, for petitioner.
    G. William Bissett of Preddy, Kutner & Hardy, and James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for respondent.
    Henry I. Smyler, Miami, amicus curiae for Alarm Association of Florida, Inc.
    Fred R. Ober, Henry M. Knoblock and Kathleen M. Williams of Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, amicus curiae for Wells Fargo Alarm Services.
    Lawrence A. Fuller of Fuller & Feingold, Miami Beach, amicus curiae for Jewelers Mut. Ins. Co.
   OVERTON, Justice.

This cause is before us on a petition to review a decision of the Third District Court of Appeal reported as Continental Video Corp. v. Honeywell, Inc., 422 So.2d 35 (Fla. 3d DCA 1982). We originally accepted jurisdiction in this cause on the basis of direct conflict with Sniffen v. Century National Bank of Broward, 375 So.2d 892 (Fla. 4th DCA 1979), and Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205 (Fla. 4th DCA 1973), cert, denied, 289 So.2d 731 (Fla.1974). Apparent conflict was asserted by Judge Schwartz in his specially concurring opinion in Continental Video, 422 So.2d at 38, and by Judge Ferguson in a footnote in Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, Inc., 427 So.2d 332, 333 n. 4 (Fla. 3d DCA 1983).

The issue concerns the enforceability of exculpatory and liquidated damage clauses in a burglar alarm contract. Neither Snif-fen nor Ivey Plants dealt with burglar alarm contracts and the terms of the contracts involved are not similar. All the district court decisions concerning exculpatory and liquidated damage provisions of burglar alarm contracts are consistent. See Mankap; Ace Formal Wear, Inc. v. Baker Protective Service, Inc., 416 So.2d 8 (Fla. 3d DCA 1982); L. Luria & Son, Inc. v. Alarmtec International Corp., 384 So.2d 947 (Fla. 4th DCA 1980). Consequently, no conflict exists and there is no basis for this Court to accept jurisdiction in this cause. The petition for review is denied.

It is so ordered.

BOYD, C.J., and ALDERMAN, MCDONALD and SHAW, JJ., concur.

ADKINS and EHRLICH, JJ., dissent.


text:
    Carl DUKE, Petitioner, v. STATE of Florida, Respondent.
    No. 64876.
    Supreme Court of Florida.
    Sept. 27, 1984.
    Carl Duke, in pro. per.
    Jim Smith, Atty. Gen. and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

Approved. State v. Hogan, 451 So.2d 844 (Fla.1984); Rusaw v. State, 451 So.2d 469 (Fla.1984).

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Arnold SAPHIRSTEIN, Respondent.
    No. 65404.
    Supreme Court of Florida.
    Sept. 27, 1984.
    John F. Harkness, Jr., Executive Director, John A. Boggs, Director of Lawyer Regulation and John T. Berry, Staff Counsel, Tallahassee; and Michael D. Powell,

      Bar Counsel, Fort Lauderdale, for complainant.
    Arnold Saphirstein, in proper person, Plantation, for respondent.
   PER CURIAM.

This matter is before the Court on amended petition to approve conditional guilty plea to violations of Disciplinary Rules 2-110(A) and 6-101(A)(3) of The Flor-ida Bar Code of Professional Responsibility. We approve the amended petition, and we hereby reprimand respondent, Arnold Saphirstein, for these violations. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $213.25 are hereby taxed against the respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Edmund A. ADAMO, Respondent.
    No. 65682.
    Supreme Court of Florida.
    Sept. 27, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Fort Lauderdale, for complainant.
    Edmund A. Adamo, in pro. per., Pompano Beach, for respondent.
   PER CURIAM.

This cause is before the Court on respondent’s conditional guilty plea to violations of Disciplinary Rules 1-102(A)(1), 1-102(A)(4), 1-102(A)(6), and 7-102(B)(l) of the Code of Professional Responsibility of The Florida Bar and article XI, Rule 11.-02(3)(a) of the Integration Rule of The Flor-ida Bar. We approve the conditional guilty plea and suspend the respondent, Edmund A. Adamo, from the practice of law in Florida for a period of thirty days, effective thirty days from the date of this opinion, giving him time to protect the interests of his clients. In addition, at the end of the thirty-day suspension period, the respondent is placed on probation for a period of two years. As a specific condition of probation, and in accordance with the consent judgment, the respondent shall not engage in the use of or possess any drugs in violation of state or federal law and shall refrain from the use of alcoholic beverages. Should respondent be arrested for the use or possession of drugs or alcohol, the arrest will constitute a probation violation. In that event, the respondent must immediately refrain from the practice of law from the date of the arrest and will be automatically placed on the inactive list pursuant to article XI, Rule 11.01(4) of the Integration Rule of The Florida Bar.

Costs in the amount of $210.00 are assessed against the respondent.

It is so ordered.

OVERTON, A.C.J., and ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Drew C. APGAR, Respondent.
    No. 65706.
    Supreme Court of Florida.
    Sept. 27, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needel-man, Bar Counsel, Fort Lauderdale, for complainant.
    Drew C. Apgar, in pro. per., Huntington, W.Va., for respondent.
   PER CURIAM.

This matter is before the Court on the respondent’s conditional guilty plea to violations of Disciplinary Rules 6-101, 7-101(A)(2) and (3) of the Code of Professional Responsibility of The Florida Bar. We approve the conditional guilty plea and we hereby reprimand the respondent, Drew C. Apgar, for these violations. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Respondent shall pay the costs of these proceedings in the amount of $421.55.

It is so ordered.

OVERTON, A.C.J., and ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Bernard COHEN, Respondent.
    No. 65708.
    Supreme Court of Florida.
    Sept. 27, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Paul A. Gross and Harris J. Buchbinder, Bar Counsel, Miami, for complainant.
    Louis M. Jepeway, Sr. and Hugo L. Black, Jr., Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline to violations of article XI, Rule 11.02(4)(c) of the Integration Rule of The Florida Bar and Disciplinary Rules 1-102(A)(1) and 2-106(E) of the Code of Professional Responsibility of The Florida Bar. We approve the petition, and we hereby reprimand respondent, Bernard Cohen, for these violations. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $1,284.54 are hereby taxed against the respondent.

It is so ordered.

ADKINS, A.C.J., and OVERTON, ALDERMAN, MCDONALD and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Irwin COHEN, Respondent.
    No. 65709.
    Supreme Court of Florida.
    Sept. 27, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Paul A. Gross and Harris J. Buchbinder, Bar Counsel, Miami, for complainant.
    Louis M. Jepeway, Sr. and Hugo L. Black, Jr., Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline to violations of article XI, Rule 11.02(4)(c) of the Integration Rule of The Florida Bar and Disciplinary Rules 1-102(A)(1) and 2-106(E) of the Code of Professional Responsibility of The Florida Bar. We approve the petition, and we hereby reprimand respondent, Irwin Cohen, for these violations. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $1,284.54 are hereby taxed against the respondent.

It is so ordered.

BOYD, C.J., and ADKINS, ALDERMAN, EHRLICH and SHAW, JJ., concur.


author: SCHEB, Judge. PER CURIAM. BOARDMAN, Judge,

text:
    Dennis Clay NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 83-2157.
    District Court of Appeal of Florida, Second District.
    April 25, 1984.
    Rehearing Denied Oct. 10, 1984.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

This appeal presents a single issue. Did the trial court err in refusing to suppress evidence seized from Dennis Clay Neal, who was arrested by law officers under the mistaken belief that he was the person named in an outstanding warrant for arrest?

On April 6, 1983, investigator Robert Smith of the Lee County Sheriffs Department observed Neal in a parking lot outside Club 21 in Fort Myers. Smith mistook Neal for a man named Otis Blanks, because of Neal’s physical resemblance to Blanks. Smith knew Blanks but had not seen him since July 1982. Smith also knew that there was an outstanding warrant for Blanks’ arrest. After verifying that the warrant was still outstanding, Smith and two uniformed Lee County deputies detained Neal. When asked to identify himself, Neal gave his correct name. Nevertheless, one of the deputies searched Neal and retrieved a change purse, containing marijuana cigarettes, from his groin area. After the officers took Neal into custody, they reviewed photographs of Blanks and determined that Neal was not Blanks.

Although Neal was not the individual named in the outstanding warrant, the state charged him with possession of cannabis with intent to distribute, a violation of section 893.13, Florida Statutes (1981). Neal moved to suppress the cannabis seized from his person. At the hearing on the motion, Officer Smith was the only witness. His testimony supports the conclusion that the arrest was made on the basis of mistaken identity. After the trial court denied Neal’s motion to suppress, he pled nolo contendere, reserving the right to appeal the denial of the motion. ■ The court placed Neal on probation for five years, and this appeal ensued.

Neal raises only one point. Since the outstanding warrant did not name him and he displayed no evidence of wrongdoing, he argues that he was improperly detained and searched by the law enforcement officers. Thus, he contends that the marijuana seized from him must be suppressed. We disagree.

Neal's argument is too simplistic. He cites only two authorities in support of his contention. He analogizes this case to the principles in Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and our recent decision in Martin v. State, 424 So.2d 994 (Fla. 2d DCA 1983). The thrust of these decisions is that a void or nonexistent warrant cannot be made the basis for a legal arrest and search. We find these decisions unpersuasive to support Neal’s arguments as they do not focus directly on the issue before us.

Unquestionably, the law enforcement officers had probable cause to arrest Blanks as there was an outstanding warrant for his arrest. Therefore, the resolution of this case depends on whether Smith reasonably mistook Neal for Blanks and, if so, whether the arrest and subsequent search were valid.

When the police have probable cause to arrest one person and reasonably mistake a second person for the first person, then the arrest of the latter person is valid. Hill v. California, 401 U.S. 797, 802-03, 91 S.Ct. 1106, 1110, 28 L.Ed.2d 484, 489 (1971). In such circumstances the police are entitled to search the second person incident to the arrest. Id., at 804, 91 S.Ct. at 1110-11, 28 L.Ed.2d at 490.

There is little state court authority on the issue before us. The Minnesota Supreme Court, however, has held that the validity of an arrest of the wrong person under an outstanding warrant and a search incident to that arrest generally depend on whether the police had a reasonable basis for believing the person arrested was the person named in the warrant. State v. Sanders, 339 N.W.2d 557 (Minn.1983); State v. Frazier, 318 N.W.2d 42 (Minn.1982). These cases deal with police officers’ recollections from photographs alone. The Minnesota court based its decisions on independent photographic comparisons between the person arrested and the person named in the warrant. Sanders, 339 N.W.2d at 560; Frazier, 318 N.W.2d at 44.

Here, on the other hand, Officer Smith personally knew Blanks, although he had not seen him for nine months. No evidence contradicted Smith’s positive testimony that he mistook Neal for Blanks. Moreover, we feel the trial court was entitled to accord greater weight to Smith's personal knowledge than if his identification had been based solely on a photograph.

As noted, the police officers had probable cause to arrest Blanks. Since Officer Smith reasonably mistook Neal for Blanks, the arrest and subsequent search of Neal incident to arrest was a reasonable response to the situation facing the law enforcement officers at the time. See Hill, 401 U.S. at 804, 91 S.Ct. at 1110-11, 28 L.Ed.2d at 490. Consequently, the subsequent search of Neal was valid.

AFFIRMED.

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

ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing is DENIED.

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

BOARDMAN, J., dissents.

BOARDMAN, Judge,

dissenting with opinion.

Upon further consideration of this case, I would grant the motion for rehearing, reverse the trial court’s order, and discharge Neal.

I do not believe the record supports the conclusion that Officer Smith reasonably mistook Neal for Otis Blanks. Smith had not seen Blanks for nine months. Neal admittedly did not have certain scars which Otis Blanks was known to bear. Furthermore, Neal gave his correct name when questioned as to his identity, yet he was not afforded an opportunity to produce substantiating identification. Under the circumstances presented, I believe Officer Smith should have undertaken a more diligent effort to ascertain the correct identity of Neal before placing him under arrest on the outstanding warrant for Otis Blanks. Consequently, I would REVERSE.


author: JOANOS, Judge.

text:
    ALLIS-CHALMERS CREDIT CORP., Appellant, v. DEPARTMENT OF REVENUE, State of Florida, Appellee.
    No. AV-361.
    District Court of Appeal of Florida, First District.
    July 10, 1984.
    Kenneth R. Hart of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and J. Terrell Williams, Asst. Atty. Gen., Tallahassee, for appellee Dept, of Revenue.
   JOANOS, Judge.

Allis-Chalmers Credit Corp. (“ACCC”) has appealed the final order of the State of Florida Department of Revenue which assessed intangible tax against ACCC’s notes receivable which arose out of the sales of equipment in Florida. We affirm.

The issues before us are (1) whether, under the express provisions of Section 199.112, Florida Statutes, ACCC had sufficient business situs in the state for the assessment of intangible tax, and (2) whether the provisions of Section 199.112, Florida Statutes, violate the due process clause of the United States Constitution.

On July 12, 1982, the Department of Revenue issued an assessment against ACCC for the years 1979 and 1980 for intangible taxes, penalties, and interest in an amount totalling $35,079.70. An administrative hearing was held on March 29, 1983, at ACCC’s request.

ACCC and the Department of Revenue entered into the following stipulations with regard to the 1979-1980 assessment period:

1. ACCC is a Wisconsin corporation that qualified and is authorized to transact business in Florida. It is a wholly-owned subsidiary of Allis-Chalmers Corp.
2. ACCC’s principal business is financing the wholesale and retail sales of agricultural equipment, most of which is manufactured by ACCC. ACCC also finances a small amount of equipment manufactured by ACCC competitors.
3. During the 1979-1980 period ACCC was represented in Florida by one employee whose duties were to call on Allis-Chalmers’ Florida dealers to persuade those dealers to use ACCC for financing the sales they made, to keep those dealers supplied with necessary forms, and to give advice to the dealers should complicated or difficult financing situations arise. This employee worked out of the Atlanta office, but lived in Florida. ACCC closed its Florida office in 1973.
4. ACCC filed financing statements with the Florida Secretary of State under U.C.C. Art. 9, and paid the appropriate filing fee. ACCC also filed continuation statements when accounts were extended or refinanced beyond five years.
5. Customer payments were made to ACCC’s lock box in Atlanta.
6. In event of customer defaults ACCC, through its Florida representative, contacted delinquent customers by telephone or in person, and arranged in appropriate cases for extensions or refinancing of the initial obligation.

After examining the language and intent of Section 199.112, Florida Statutes, the hearing officer concluded that ACCC did not have a business situs in the state for the intangibles, which though generated in the state, were acquired and kept by ACCC without the state.

The Department of Revenue filed its exceptions to the hearing officer’s recommended order. It is the Department’s position that ACCC was transacting business in the state within the purview of Section 199.112, Florida Statutes, on the basis of (1) ACCC’s voluntary decision to qualify to do business in the state, (2) the business activities of ACCC’s employee within the state, and (3) the utilization by ACCC of the Secretary of State’s office in the filing of U.C.C. Art. 9 financing statements to perfect ACCC’s security interest in the installment notes executed by Florida borrowers.

The dispute herein involves the application and interpretation of Section 199.-112(1), Florida Statutes, which provides: 199.112 Business situs.—

(1) All bills, notes or accounts receivable, obligations, or credits, wheresoever situated, arising out of, or issued in connection with, the sale, leasing, or servicing of real or personal property in the state are subject to taxation under this chapter, it being the legislative intent to provide that such intangibles shall be assessable regardless of where they are kept, approved as to their creation, or paid. This provision shall apply to any person representing business interests in the state that may claim a domicile elsewhere, the intent further being that no nonresident, either by himself or through an agent, transact business in the state without paying the same tax which the state would impose on residents transacting the same business. Sales of tangible personal property are in this state if the property is delivered or shipped to a purchaser within this state, regardless of the f.o.b. point or other conditions of the sale. The provisions of this section shall in no way be construed to alter the tax status of intangibles not connected with the sale, leasing, or servicing of real or personal property in the state.

The section is free of ambiguity, and the legislative intent to tax intangibles “arising out of, or issued in connection with the sale, leasing, or servicing of real or personal property in the state ... regardless of where they are kept, approved as to their creation, or paid” is framed in clear, unequivocal language. Furthermore, the intention to tax non-residents conducting business in the state in the same manner as residents transacting the same business are taxed is equally clear and unequivocal. Fundamental to statutory construction is the rule that statutes which are expressed in clear and unambiguous language require no construction or interpretation. Therefore, appellant’s reliance on the rule that tax laws are to be strictly construed against the government and the assertion that doubt as to the meaning of Section 199.112, Florida Statutes, must be resolved in ACCC’s favor is misplaced.

Section 199.112(1) read in conjunction with Section 199.052(1) expresses the intent to assess intangible property tax against any entity, “regardless of domicile, who owns or has management, custody, or control of intangible property that has acquired a business situs in this state,” no matter where such intangibles “are kept, approved as to their creation or paid.” The real issue is not statutory interpretation, but whether ACCC has acquired a business situs in this state within the parameters of Chapter 199.

The primary factors in determining the existence of a business situs for purposes of assessing an intangible tax against a nondomiciliary are:

(1) the permanent nature of the business as opposed to transitory or occasional transactions, and
(2) the degree or extent of the authority exercised by the agent, i.e., whether the agent’s authority goes beyond merely clerical functions.

The permanent nature of the business and at least some discretionary authority vested in the agent are indispensable to a finding of business situs for tax purposes. Although not dispositive, other factors to consider are whether the debtor is domiciled in the taxing state and whether the tangible personalty related to the intangibles is within the taxing state. 71 Am.Jur.2d State and Local Taxation § 627 (1973).

Another technique or analysis employed to determine business situs is that of localization and integration of intangible property. (This is the approach favored by ACCC). Common elements found in the cases which adhere to this concept of determining business situs for purposes of intangible taxation are:

(1) proof establishing a continuous course of business or series of transactions,
(2) permanent location of the credits within the taxing state,
(3) proof establishing independent management of the credits as distinguished from custody and safekeeping, and
(4) proof establishing that credits of the non-resident owner are in possession and control of a local agent who manages them in the transaction of a permanent business, and circumstances which place the property in competition with local capital in the area where the agent operates.

Green v. Burroughs Corp., 137 So.2d 595, 599 (Fla. 1st DCA 1962). Burroughs traces the principles which have been held to determine business situs in Florida, as well as the elements stressed by other jurisdictions in making the same determination. In Burroughs, this court noted that the wording of the Louisiana and Georgia statutes made possible the rule urged by the then comptroller and which appellee urges here. As appellee points out, the Burroughs decision in 1962 predates the 1963 passage of the statute here under review. The analogous statutes of other jurisdictions and the cases construing them stress the fact that the debt which created the intangible was owned by a local citizen, it arose as a result of the non-resident’s business activities, and the local courts were available for enforcement of the nonresident’s rights. Burroughs, supra at 600; State v. Gay, 46 So.2d 165, 168 (Fla.1950).

The methodology suggested in Department of Revenue Rule 12C-2.06(3)(b) parallels the approach taken by the courts, i.e., in a determination of business situs consideration should be given to (1) whether the property is managed and invested in Flori-da and takes advantage of Florida laws and benefits, (2) whether the Florida agent’s authority goes beyond the performance of mechanical clerical functions and whether the local business utilizes property in operations and management, and (3) the extent to which Florida laws and courts extend benefits to the property. Subsection (a) of the Department’s Rule 12C-2.06(3) merely repeats the language of Section 199.112(1), Florida Statutes.

The arguments advanced as justification for taxation of intangibles of a nondomicili-ary are:

(1) the taxes are paid by the nonresident owner of the property for the protection afforded that property by the taxing state, Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339 (1939); First Bank Stock Corp. v. Minnesota, 301 U.S. 234, 57 S.Ct. 677, 81 L.Ed. 1061 (1937); State v. Gay, supra at 168, and
(2) unless such property is taxed by the non-domiciliary, a foreign corporation which established a business situs in the state would have an unfair advantage over similar businesses located and doing business in the state. Smith v. Lummus, 149 Fla. 660, 6 So.2d 625, 628 (1942).

The rationale of Smith v. Lummus, supra, is clearly expressed in Section 199.112(1), and the principle of Curry v. McCanless, et al., serves to counter the violation of due process argument of appellant.

Application of the foregoing tests and the clearly expressed statutory intent of Section 199.112(1) to the stipulated facts in the case sub judice demonstrates that (1) appellant is engaged in a permanent business in this state; (2) appellant has a resident agent in this state; (3) the intangibles here sought to be taxed arose out of sales in this state by appellant’s parent corporation to citizens of this state; (4) the intangibles (notes receivable) are not physically kept, approved or paid within this state; (5) the authority of the local agent consists of calling on local dealers of the parent corporation, to persuade those dealers to use ACCC financing for their sales, to supply the dealers with necessary forms, to give advice to dealers in complex financing situations, and to handle delinquent accounts either by telephone or in person and where appropriate — to arrange extensions or refinancing; (6) appellant is registered to do business in Florida; (7) appellant makes use of Florida laws for the protection of its intangibles; (8) the debtors reside in this state; (9) the personalty related to the intangibles is in this state; and (10) the capital which the intangibles represent is in competition with local capital, which, but for ACCC’s financing activities in the state, might have been utilized for financing the parent corporation’s sales. Appellant takes the position that since it purchased and took possession of these intangibles outside the state and receives payments thereon outside the state, the provisions of Section 199.112(1), Florida Statutes, do not apply to its operation. Of course, the sale of the property which gave rise to the intangibles took place in this state, and the sales of the intangibles were solicited within this state.

On the constitutional issue, appellant cites Gay v. Bessemer Properties, Inc., 159 Fla. 729, 32 So.2d 587 (1947), for the proposition that taxation of intangibles by an entity that “had no actual business situs in Florida for taxation purposes or otherwise” (32 So.2d at 591), is a violation of the due process clause of the 14th Amendment. Appellant fails to note that the court, in making its determination that plaintiff had no business situs in the state, said:

There appears also to have been a complete lack of protection or other benefits given by the State of Florida in relation to these intangibles on the basis of which it could properly have taxed them. (32 So.2d at 591). (e.s.)

A long line of cases affirm that property within the jurisdiction of a taxing power may be taxed concurrently by more than one jurisdiction, again on the principle that a taxpayer has a duty to contribute to the support of government. Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339 (1939); Graves v. Elliott, 307 U.S. 383, 59 S.Ct. 913, 83 L.Ed. 1356 (1939).

We hold that ACCC has a business situs in this state within the purview of Section 199.112(1), Florida Statutes. We recognize that the facts of this case present a close question. The intangibles here sought to be taxed were actually purchased outside the state. In addition, the duties of ACCC’s Florida representative appear to be mostly clerical — although he does exercise some discretionary authority. In every other respect, however, ACCC’s business activities in Florida fall within the provisions of Section 199.112(1). ACCC’s "intangibles arose from sales within this state, ACCC’s business transactions in the state are permanent, and the intangible tax sought to be imposed on ACCC is the tax imposed on residents transacting the same business. ACCC presently enjoys the same benefits from its financing of Florida equipment sales as it did when the corporation maintained an office in the state. And, ACCC enjoys the same protection of Florida law as it did when the corporation maintained an office in the State. The cases dealing with intangible taxation levied on non-residents make the point that the non-resident enjoys the protection of the state, and so should share the financial responsibility. The final order of the Department of Revenue is affirmed.

Nevertheless, believing the issues raised here to be of great public importance, we certify to the Supreme Court of Florida the following questions:

1. For intangible tax assessment purposes under the express provisions of Section 119.112, Florida Statutes, does a nonresident corporation have sufficient business situs in this state when (1) the corporation has qualified to do business in this state, (2) its business activities in the state are permanent and continuous as opposed to a single or temporary transaction, (3) it maintains a resident agent in this state, (4) the intangibles arose out of sales of personal property in this state — but the notes were acquired by the corporation outside this state and payments are received outside the state, and (5) the corporation perfects its security interest in the intangibles by filing U.C.C. Art. 9 financing statements with the office of the Secretary of State? In other words, for the imposition of intangible tax on a nonresident corporation, at what point is contact sufficient to establish business situs in the state lost?

2. Do the provisions of Section 199.112, Florida Statutes, which subject to intangible taxation all notes receivable arising out of the sale of real or personal property in this state, regardless of where the notes are paid or kept, violate the due process clause of the U.S. Constitution?

SHIVERS and BARFIELD, JJ., concur.

      . S.R.G. Corp. v. Dept, of Revenue, 365 So.2d 687, 689 (Fla.1978): "In statutory construction, case law clearly requires that legislative intent be determined primarily from the language of the statute, (citations) The reason for this rule is that the legislature must be assumed to know the meaning of the words and to have expressed its intent by the use of the words found in the statute." State v. Egan, 287 So.2d 1, 4 (Fla.1973); Mills v. Korash, 249 So.2d 765, 769 (Fla. 1st DCA 1971); Owen v. Cheney, 238 So.2d 650, 653 (Fla. 2d DCA 1970).

      . Appellant’s brief, pp. 16-17. State v. Gay, 46 So.2d 165, 167 (Fla.1950): “We cannot, therefore, see any reason for applying the rule of liberal construction in favor of the taxpayer, since there does not appear to be any ambiguity in the terms of the statute, and we do not think this court should read into the statute an exemption as to obligations owned by non-residents.” (e.s.)

      . 199.052 Returns.—
      (1) It is hereby made the duty of every person in the state, and every person who has become a legal resident of the state on or before January 1, who owns or has control, management, or custody of intangible personal property which is subject to annual taxation under this chapter to file a sworn return with the department on or before June 30 of each year, listing separately the character, description, location, and just valuation of all such property. This subsection applies to any person, regardless of domicile, who owns or has management, custody, or control of intangible property that has acquired a business situs in this state.

      . Metropolitan Life Ins. Co. v. New Orleans, 205 U.S. 395, 27 S.Ct. 499, 51 L.Ed. 853 (1907).

      . Smith v. Lummus, 149 Fla. 660, 6 So.2d 625 (1942). Generally, 71 Am.Jur.2d State and Local Taxation, §§ 672-676 (1973).


author: ERVIN, Chief Judge.

text:
    FRIENDS OF the EVERGLADES, INC., a non-profit Florida corporation, and Upper Keys Citizens Association, Inc., a non-profit Florida corporation, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, Florida and City National Bank of Miami, as Trustee, Appellees. FRIENDS OF the EVERGLADES, INC., a non-profit Florida corporation, Appellant, STATE of Florida, DEPARTMENT OF COMMUNITY AFFAIRS and City National Bank of Miami and Monroe County, Florida, Appellees.
    Nos. AS-156, AS-423.
    District Court of Appeal of Florida, First District.
    July 25, 1984.

      Michael F. Chenoweth, Miami, for appellant Friends of the Everglades.
    Thomas G. Pelham of Akerman, Senter-fitt & Eidson, Tallahassee, for appellant Upper Keys Citizens Ass’n, Inc.
    Lucien C. Proby, Jr., County Atty., Key West, for appellee Monroe County.
    Alan S. Gold and Anthony J. O’Donnell, Jr. of Greenberg, Traurig, Askew, Hoffman, Lipoff & Zuenten, Miami, for appellee City Nat. Bank.
    C. Laurence Keesey, Tallahassee, for ap-pellee Dept, of Community Affairs.
    Linda Koenigsberg, Miami, for amicus curiae Florida Chapter of The Sierra Club.
   ERVIN, Chief Judge.

In these two separate appeals, the Friends of the Everglades, Inc. (Friends), and the Upper Keys Citizens Association, Inc. (UKCA), appeal a final order of the Florida Land and Water Adjudicatory Commission (FLWAC) dismissing for lack of standing their administrative appeals from a Monroe County development order taken by Friends and UKCA after the South Flor-ida Regional Planning Council (SFRPC) and the Florida Department of Community Affairs (Department) declined to so appeal (Case No. AS-156). Friends also appeals orders of dismissal entered by the Leon County Circuit Court in a suit for injunc-tive relief brought by Friends pursuant to Section 403.412(2), Florida Statutes (1971), seeking to compel the Department to take an appeal to FLWAC or to commence an alternative equitable action to halt the development of Port Bougainville on North Key Largo (Case No. AS-423). Finding no error in Case No. AS-156, we affirm as to that case, but reverse the final order of dismissal in Case No. AS-423 and remand with directions.

The factual circumstances in both appeals stem from the development of Port Bougainville, located on Key Largo, a development of regional impact (DRI) which was commenced in 1973. As the result of a foreclosure, the City National Bank of Miami, as trustee, acquired title to the property in 1980. By that time changes had been made in the original development plan, changes which had been approved by Monroe County. In 1981 additional changes were approved by the county without the requisite determination of whether such changes amounted to a substantial deviation.

In mid-1982 the Department first learned of the 1981 changes, and on August 2, 1982 filed suit in Monroe County to halt construction until a substantial deviation determination could be made. The following day representatives of the developer and the Department met in Tallahassee and reached an agreement whereby construction would be halted for up to 90 days, during which time the developer would submit its revised plans to the county, the Department and SFRPC for review, the county would issue no new permits, and the Department would dismiss its suit without prejudice. Shortly thereafter, representatives of the developer, the Department and SFRPC met in Key West to discuss procedures to be followed in the review process, resulting in the preparation by SFRPC’s staff of a memo outlining the tentative agreements reached.

In October, Friends learned of the review proceedings which were underway and of the tentative agreements reached by the developer, the Department and SFRPC. Friends immediately sought to delay the public hearings scheduled on October 22 and 25 and at the same time filed petitions with the Department and SFRPC, challenging the validity of the tentative agreements reached by the parties. When the public hearings were not delayed, Friends intervened in the proceedings before both the local zoning board and the Monroe County Commission pursuant to Section 403.412(5), Florida Statutes (1971), and appeared before them, voicing its opposition to the granting of an amended development order and to what it considered were procedural due process violations. Despite its opposition, an amended development order was adopted by the county commission on October 24, 1982.

Friends’ next move was to file a complaint, pursuant to section 403.412(2), with the Department, requesting that an appeal of the amended development order be taken to FLWAC. When the Department declined, Friends and UKCA filed notices of appeal with FLWAC, and, apparently in an abundance of caution, Friends sought in-junctive relief in the Circuit Court of Leon County to compel the Department to appeal the action taken by the county to FLWAC. The direct appeals by Friends and UKCA were assigned to a hearing officer who recommended dismissal of the appeals because neither Friends nor UKCA had standing to initiate such appeals. FLWAC agreed and a final order of dismissal was entered on March 8,1983, which order is the basis for the appeal in Case No. AS-156.

In the suit before the Circuit Court, a preliminary injunction was initially entered, attempting to “toll” the time in which the Department could perfect an appeal to FLWAC. The injunction was later dissolved, and the case dismissed upon a finding that the circuit court had no authority to extend the jurisdictional time limits within which an appeal could be taken. Friends then filed a second complaint, requesting the court to enter an injunction compelling the Department to halt construction until full review could be had. The dismissal of those complaints forms the basis for the appeal in Case No. AS-423. Although not consolidated, both appeals will be separately addressed in this one opinion in the interest of judicial economy.

CASE No. AS-156

We find that the proper resolution of this case involves two basic issues: (1) whether Friends and UKCA have standing to appeal a development order to FLWAC after the developer, the property owner, the Department or the SFRPC have declined to do so, and, if not, (2) whether Section 380.07(2), Florida Statutes (1972), limiting standing only to those four groups, should be held unconstitutional? The answer to those issues first requires a review of the legislative purposes behind Chapter 380, Florida’s Environmental Land and Water Management Act of 1972, which, in part, was intended to facilitate “orderly and well-planned development” within this state. Section 380.021, Florida Statutes (1972). One of the principal architects of the Environmental Land and Water Management Act advises that the legislature intended to emphasize five major policies:

[Tjhat land regulation should remain as close to those affected as possible; that a large, centralized bureaucracy should be avoided; that the decision-making process should provide for a balanced consideration of all the competing environmental, economic, and social factors; that the state should have a potential regulatory capacity both geographically, in critical areas, and functionally, such as in construction of major public facilities; and that the decision-making process should provide for expeditious decisions on development applications within an institutional framework guaranteeing maximum protection against arbitrary action.

Finnell, Coastal Land Management in Florida, 1980 Am.B.Found. Research J. 303, 336-337 (e.s.) [Finnell ]. By its enactment, the legislature established a scheme wherein the rights of the local government, the region and the state would be preserved while, at the same time, preserving also the rights of the landowner by “including a specific timetable compelling expeditious action in order to quickly resolve the question of governmental dictates as to the use of his land.” Sarasota County v. Beker Phosphate Corporation, 322 So.2d 655, 658 (Fla. 1st DCA 1975). See also Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1377 (Fla.1981) (competing interests of state and landowner must be balanced). In heeding the legislative purposes outlined above, one should remember that the development of the regional impact process does not replace local regulatory procedures which must be followed by all property owners seeking to develop their property. Rather, the DRI process imposes additional restraints on the right of the owner or developer of a large scale development, which will have regional as well as local impact, to make use of his property. Su-wannee River Area Council Boy Scouts of America v. State, Department of Community Affairs, 384 So.2d 1369, 1374 (Fla. 1st DCA 1980). Because of that added burden, we have recognized:

[I]t is not the purpose of Chapter 380 to provide a forum for parties whose complaints focus on alleged detriment to activities they wish to conduct on adjoining land. “Regional impact” is concerned with matters affecting the public in general, not special interests of adjoining landowners.

Id. Although the DRI process is unquestionably subject to open and public debate at the local level, it is nevertheless “primarily a comprehensive land use review technique for large scale development involving primarily two groups — developers ... and ... governmental planners and permitting authorities.” Caloosa Property Owners Association, Inc. v. Palm Beach County Board of County Commissioners, 429 So.2d 1260, 1264 (Fla. 1st DCA 1983). Therefore, once local officials have made their determination either to grant or deny an application for a DRI development order, the legislature has expressly limited the right to appeal such a decision to “the owner, the developer, an appropriate regional planning agency ... or the state land planning agency.” Section 380.07(2) (e.s.). That express legislative grant of standing to only four groups or individuals, coupled with the above defined purposes of the DRI process in general and the goal of expeditious review in particular, so that the burden imposed upon the property owner is not increased by needless delay, has led this and other Florida courts to conclude that standing to appeal a development order to FLWAC is limited to those parties expressly stated in section 380.07(2). Accordingly, we have refused to create any judicial exceptions where none was intended. See Beker Phosphate; Caloosa; Londono v. City of Alachua, 438 So.2d 91 (Fla. 1st DCA 1983); Sarasota County v. Department of Administration, 350 So.2d 802 (Fla. 2d DCA 1977); Sarasota County v. General Development Corporation, 325 So.2d 45 (Fla. 2d DCA 1976). See also Finnell, supra at 378; Pelham, State Land-Use Planning and Regulation at 54-56 (1979) [Pelham]. Appellants, not falling within any of those categories, now ask this court to recede from its prior decisions on this issue and to carve out an exception to the standing rule. In so doing, they suggest several bases for such an exception, only two of which require discussion.

First, it is suggested that case law relating to the right of environmental groups such as Friends and UKCA to challenge local zoning decisions in circuit court should be expanded to allow standing to such groups to appeal DRI orders to FLWAC. The argument is that such groups have traditionally had standing to challenge judicially local zoning decisions; that Chapter 380 has not abrogated that right; that Chapter 380 has been interpreted as having shifted review of local zoning decisions away from the circuit courts and instead to FLWAC, and that therefore public policy requires that Friends and UKCA be granted standing to appeal the DRI order, which necessarily includes local zoning decisions, to FLWAC.

We agree with appellants’ first premise, recognizing that they have traditionally been granted limited standing to challenge zoning decisions. In Renard v. Dade County, 261 So.2d 832 (Fla.1972), and, more recently, in Citizens Growth Management Coalition of West Palm Beach, Inc. v. City of West Palm Beach, Inc., 450 So.2d 204 (Fla.1984), the Florida Supreme Court recognized that any “affected resident, citizen, or property owner” has standing to “attack a void ordinance, i.e., one enacted without proper notice required under the enabling statute or authority creating the zoning power”, while individuals having a more direct interest in the zoning decision, i.e., those having special damages or legally recognizable interests which will be adversely affected,, enjoy a broader grant of standing. Citizens Growth Management Coalition, 450 So.2d at 204. We thus have no quarrel with the assertion by Friends and UKCA that they would have, at the very minimum, standing in circuit court to challenge procedural irregularities in zoning decisions relating to Port Bougainville. See Save Brickell Avenue v. City of Miami, 395 So.2d 246 (Fla. 3d DCA 1981); Upper Keys Citizens Association, Inc. v. Wedel, 341 So.2d 1062 (Fla. 3d DCA 1977); Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3d DCA 1981).

We agree also that Chapter 380 has stated nothing to abrogate the rights of citizens to challenge local zoning decisions in circuit court. We do not agree, however, with appellants next premise, i.e., that review of local zoning matters has been transferred to FLWAC exclusively, thus entitling them to exercise their limited standing to challenge local zoning issues before FLWAC. The major antecedent behind the DRI concept in Florida is that “most land-use decisions have no significant effect on state or regional interests and therefore should be made at the local level.” Pelham, supra at 27. Chapter 380, accordingly, “carefully preserves the rights of local governments to the maximum extent possible in ‘zoning’ property within its [sic] boundaries.” Beker Phosphate, 322 So.2d at 658. We therefore conclude that there is nothing in Chapter 380 which otherwise overrides the clear legislative intent limiting standing to the four designated groups or individuals listed in section 380.07(2) to appeal DRI orders to FLWAC.

Second, appellants urge that they acquired standing to appeal the development order to FLWAC due to their being permitted to intervene in the local DRI process, thus making them parties for all purposes, including appeal. Intervention was accomplished with reference to Section 403.-412(5), Florida Statutes (1971) which provides:

In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the state, or a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.

(e.s.) Although the authorities have suggested that intervention under section 403.-412(5) may carry with it the right to appeal DRI orders to FLWAC notwithstanding the lack of standing otherwise, see Finnell, supra at 377-378 and Florida Bar, Continuing Legal Education, Environmental Regulation and Litigation in Florida, 20.39 (1981) [.Environmental Regulation ], we do not agree that section 403.412(5) creates a statutory exception to the limited standing granted by section 380.07(2). In reaching this conclusion, we are persuaded by the fact, as previously observed, that despite the encouragement of public input and participation at the local level, the DRI process is primarily one involving developers and property owners on the one hand and governmental planners on the other. Caloosa, 429 So.2d at 1264. In exchange for the developer’s subjection to additional review, “red tape” and expense, he is promised expeditious action. Beker Phosphate, 322 So.2d at 658. The right to an expedited review, we believe, is insured by limiting standing to appeal the DRI decision of the local government to the individuals and groups enumerated in section 380.07(2).

The review procedure established by Chapter 380, providing for broad public participation at the local decision-making level, while limiting standing to appeal, is by no means novel in administrative settings, and is clearly within the legislature’s prerogative. For example, in Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351, 1354 (Fla. 1st DCA 1981), we discussed the varying levels of public participation provided by Florida’s Administrative Procedure Act:

The fact that a person may have the requisite standing to appear as a party before an agency at a de novo proceeding does not mean that the party automatically has standing to appeal. The APA’s definition of a party recognizes the need for a much broader zone of party representation at the administrative level than at the appellate level. For example, in rulemaking, a large number of persons may be invited or permitted by the agency to participate as parties in the proceeding, so as to provide information to the agency concerning a broad spectrum of policy considerations affecting proposed rules. Yet, a person who participates in such a proceeding by authorization of a statute or rule, or by permission of an agency, may not necessarily possess any interests which are adversely, or even substantially, affected by the proposed action.

(citation omitted)

That same view has been expressed by Professor Shapiro when discussing the effect of intervention before agencies and courts:

When one is granted intervention, either as of right or in the exercise of discretion, it does not necessarily follow that he must be granted all the rights of a party at the trial and appellate levels, including ... the right to appeal from a final decision.

Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 727 (1968). We conclude, therefore, that intervention at the local DRI review level, whether pursuant to section 403.412(5), or by the grace of the local government authorities, does not create an exception to the express legislative limitation of standing found in section 380.-07(2). If such an exception is to be created, then it is for the legislature to so provide— not this court.

In the alternative, Friends and UKCA argue that if they are denied standing to appeal a development order to FLWAC, section 380.07(2) operates to deny their constitutional rights of equal protection, access to the courts and due process, thus rendering that section unconstitutional. We have considered and rejected similar equal protection and access to courts challenges to section 380.07(2) in Caloosa and decline to reconsider these issues now. As to the issue of due process of law, appellants assert they were entitled to adequate notice and an opportunity to be heard before the Monroe County Zoning Board and County Commission prior to approval by those bodies of a DRI development order. They contend they were denied that right, and that section 380.07(2), which acts to exacerbate such denial by precluding them from appeal, is therefore unconstitutional. We disagree. The concept of due process contemplates that before constitutionally recognized rights of life, liberty and property are infringed upon, the individuals having such rights must be given reasonable notice of the proposed action and an opportunity to appear and to be heard on the issue. Florida Public Service Commission v. Triple “A” Enterprises, Inc., 387 So.2d 940 (Fla.1980). Because the “extent of procedural due process protections varies with the character of the interest and nature of the proceeding involved,” it has been recognized that there is “no single, unchanging test which may be applied to determine whether the requirements of procedural due process have been met.” Hadley v. Department of Administration, 411 So.2d 184, 187 (Fla.1982). Accordingly, the task of determining “by what process and procedure legal rights may be asserted and determined provided that the procedure adopted affords reasonable notice and a fair opportunity to be heard before rights are decided”, is left to the legislature. Peoples Bank of Indian River County v. State, Department of Banking and Finance, 395 So.2d 521, 524 (Fla.1981).

Although it has been recognized that in enacting Chapter 380 the Florida legislature chose not to require the full panopoly of administrative procedures suggested by the Model Code, see Pelham, supra at 44, Chapter 380 nonetheless provides for public notice and hearing on applications for development approval, which proceedings are to be held “in the same manner as for a rezoning.” Section 380.06(1). Case law instructs that procedures relating to rezoning require that “an affected landowner be given prior notice and an opportunity to be heard before action is taken by a zoning authority to alter the use to which the owner is permitted to put his land.” Gulf & Eastern Development Corporation v. City of Fort Lauderdale, 354 So.2d 57, 59 (Fla.1978) (e.s.). Similarly, such notice and hearing is required in DRI proceedings. But, it has also been recognized that due process does not require that the local zoning authority “hold a plebiscite” or “poll” the neighborhood on the issue. City of Apopka v. Orange County, 299 So.2d 657, 659 (Fla. 4th DCA 1974).

Accordingly, we find nothing in Chapter 380 to suggest that the legislature has failed to provide for due process prior to approval of DRI development orders. Once due process is furnished at the local level, the failure to afford further review does not violate due process concepts. Again, if review is permitted, “the legislature has the power to regulate and prescribe the procedure by which causes tried in the courts of the first instance shall be transferred for review to other tribunals.” 10 Fla.Jur.2d, Constitutional Law § 373 (1979). Chapter 380 provides for notice and hearing at the local level and then provides for review by the FLWAC if the developer or property owner believes local authorities have acted improvidently in denying an application for development approval, or if the regional or state planning agencies believe that the public’s interests will not be served by the local government’s approval of a plan for development. Because it is within the legislature’s prerogative to provide for procedures to be followed when the rights of property owners are to be affected by governmental action, and to provide for review of such action, we cannot conclude that the limitation of standing to appeal development orders to FLWAC to, on the one hand, property owners directly affected and, on the other hand, to agencies designated to represent the public’s interest in such proceedings violates due process concepts.

To summarize our disposition of the issues raised under Case No. AS-156, we do not find that an exception to section 380.07(2) is created by either Friends’ or UKCA’s standing to challenge local zoning decisions before the circuit court, or their intervention in the local DRI proceedings in this case. Nor do we find that the legislative scheme for broad public participation at the local level in the DRI process, coupled with limited standing to appeal the ultimate decision of local authorities, violates constitutional guarantees of equal protection, access to courts and due process. We therefore affirm the final order of FLWAC dismissing for lack of standing the appeals taken from the Monroe County development order by Friends and UKCA.

CASE NO. AS-428

In addition to filing a notice of appeal with FLWAC on December 9, 1982, Friends also filed a complaint in the circuit court of Leon County pursuant to section 403.-412(2), seeking to compel the Department to take an appeal from the Monroe County development order. Because the time for taking such an appeal would expire the day following the filing of the complaint, Friends obtained a preliminary injunction purporting to “toll” the time in which an appeal could be taken. We have no problem in affirming the later order dissolving the injunction and dismissing, with leave to amend, Friends’ initial complaint because it is clear that

the trial court has no authority to extend the time within which to appeal beyond the time fixed by statute, even with the consent of the parties, and an order purporting to do so is ineffectual.

3 Fla.Jur.2d Appellate Review § 121 (1978); Salinger v. Salinger, 100 So.2d 393, 394 (Fla.1958).

Friends then filed an amended complaint, again seeking relief pursuant to section 403.412(2), requesting, among other things, that the Department be compelled to institute appropriate legal action to enjoin development of Port Bougainville, restrain Monroe County from issuing permits for the development, and to compel the owner and developer to submit all future changes for review by the county, SFRPC and the Department. Concluding that the amended complaint failed to state a cause of action for injunctive relief against the Department, the trial court dismissed that complaint with prejudice. Although we agree that the amended complaint, as it now stands, fails to state a cause of action against the Department, we are of the opinion that, for the following reasons, the trial court abused its discretion by dismissing the complaint without leave to amend.

Section 403.412, Florida Statutes (1971), Florida’s Environmental Protection Act, was enacted as a means of carrying out Florida’s constitutional mandate to abate air and water pollution within this state. Florida Wildlife Federation v. State, Department of Environmental Regulation, 390 So.2d 64, 66 (Fla.1980). See also Art. II, § 7, Fla. Const. The act has been described as reflecting “a legislative purpose to provide a procedure whereby governmental bodies could be compelled to enforce applicable environmental laws and individuals, corporations and governmental bodies could be restrained from violating any of the applicable environmental laws.” Orange County Audubon Society, Inc. v. Hold, 276 So.2d 542, 543 (Fla. 4th DCA 1973) (e.s. in original). Accordingly, it has been said to have “created a new cause of action, giving the citizens of Florida new substantive rights not previously possessed” and to enable those citizens to institute suit for the protection of their environment without a showing of “special injury” as previously required. Florida Wildlife Federation, 390 So.2d at 66-67. See also Comment, Environmental Law: The Inapplicability of the Special Injury Rule to the Florida Environmental Protection Act, 33 U.Fla.L.Rev. 425, 433 (1981). In lieu of the special injury requirement, however, individuals seeking to invoke the remedies provided by section 403.-412(2) must satisfy the following conditions precedent to the bringing of such actions:

An interested party must first file a complaint with the appropriate agency. The complaint must set out the facts upon which it is based and the manner in which the complainant is affected. Thereafter, the agency has thirty days in which to act on the complaint. Only after meeting these requirements and giving the agency the opportunity to act may a complainant file suit in a court of law.

Florida Wildlife Federation, 390 So.2d at 66. See also Wetzel v. A. Duda & Sons, 306 So.2d 533 (Fla. 4th DCA 1975); Furnans v. Santa Rosa Island Authority, 315 So.2d 481 (Fla. 1st DCA 1975).

In this case, which is one of first impression, Friends seek to invoke section 403.-412(2) to compel the Department to carry out its enforcement duties under Chapter 380. See Section 380.032(1), Florida Statutes (1981), which provides the Department with the “power and duty” to “[ejxercise general supervision of the administration and enforcement” of Chapter 380 (e.s.). Specifically, Friends sought first to compel the Department to institute an appeal pursuant to section 380.07(2), and second to commence enforcement proceedings pursuant to Section 380.11, Florida Statutes (1981). The general rule is that such relief is not available to Friends or to any other citizens:

It is well settled that a court of equity will not ordinarily substitute its judgment for that of an administrative board when acting within the scope of its authority as defined by law, neither will it move to restrain a presumptive breach of duty, a suspicion that an administrative Board will act illegally or will not follow the law. Its power will not be called into action when the right invaded is slight, technical or not substantial, where the injury may be easily compensated in damages or where the threatened injury to the one complaining would be slight in comparison to that about to be imposed on the public, or where fraud, malice, bad faith or bad motives are not shown.

State Road Department v. Newhall Drainage District, 54 So.2d 48, 50 (Fla.1951) (e.s.). See also Hathaway v. Munroe, 97 Fla. 28, 119 So. 149 (1929); Senior Citizens Protective League, Inc. v. McNayr, 132 So.2d 237 (Fla. 3d DCA 1961). Accordingly, courts will not generally “determine whether or not the action of public officers is wise, economical or advantageous, such questions belonging exclusively to the public officers and boards.” Broward County Rubbish Contractors Association v. Broward County, 112 So.2d 898, 903 (Fla. 2d DCA 1959). See generally 29 Fla.Jur.2d, Injunctions § 50 at 701 (1981).

This rule, however, is not without exception. See State Road Department, 54 So.2d at 50. Moreover, it has been recognized that

[w]hile administrative agencies are given broad latitude in the performance of their duties, we cannot accept a contention that their decisions in the exercise of quasi-judicial function are beyond the reach of the judicial process, regardless of how arbitrary or unreasonable they might be.

Tropical Park, Inc. v. Ratliff, 97 So.2d 169, 170 (Fla.1957). Florida decisions have thus acknowledged a constitutional right to judicial review of administrative action, even in the absence of a right being provided by statute, where it is alleged and proven that the challenged administrative action involves “illegality or a palpable abuse of authority amounting to illegality”, Hathaway, 119 So. at 150, the arbitrary or clearly erroneous exercise of authority, State v. Rose, 122 Fla. 227, 165 So. 60, 62 (1935), “fraud, corruption, [or] gross abuse of discretion”, Senior Citizens Protective League, 132 So.2d at 239, or other “arbitrary or unlawful conduct.” State v. Lee, 157 Fla. 62, 24 So.2d 798, 801 (Fla.1946). See generally 1 Fla.Jur.2d Administrative Law §§ 142, 154 (1977). We consider that section 403.412(2)(a), in authorizing a suit for injunctive relief against any governmental agency to compel it to enforce laws relating to the protection of the natural resources of the state, and to enjoin any person from violating such laws, at the very minimum accords a statutory right to all citizens of this state to enjoin patent violations of those laws, or such palpable abuse of authority which may be said to be commensurate with illegality.

Although Friends’ amended complaint fails to allege facts which might bring this case within the exception to the general rule that actions of an administrative agency are ordinarily not to be interfered with by the courts of this state, it does allege collusive actions by the Department, SFRPC, Monroe County and the developer of Port Bougainville that were designed to avoid the necessity of an extensive public review of changes in the development plans for that community. If allowed to amend their complaint, Friends may yet be able to allege facts which present a factual issue as to whether the Department’s actions and decisions relating to Port Bougainville were so arbitrary and capricious that they amounted to a palpable abuse of discretion. It is a well settled rule that if the facts in a complaint appear amenable to amendment, a dismissal without leave to amend may result in an abuse of discretion. See Townsend v. Ward, 429 So.2d 404, 406 (Fla. 1st DCA 1983).

Accordingly, we conclude that the trial court erred in dismissing the amended complaint with prejudice. In so holding, we do not attempt to suggest the ultimate success or failure of Friends’ action. We simply do not find the amended complaint so fatally deficient as to warrant dismissal with prejudice.

The final administrative order entered in Case AS-156 is AFFIRMED; the order dismissing Friends’ initial complaint in Case ,AS-423 is AFFIRMED, and the final order of dismissal with prejudice entered in Case AS-423 is REVERSED and that cause is REMANDED for further proceedings not inconsistent with this opinion.

NIMMONS and ZEHMER, JJ., concur.

      . The "agreement” outlined steps to be taken by the developer, SFRPC, Monroe County and the Department so that expeditious review of changes made in the original development order could be had. The basis of the agreement was that all parties would strive for development of a plan which would not amount to a substantial deviation from the original plan for development of Port Bougainville. If such a plan could be devised, a resolution and proposed amended development order would be prepared and circulated for review. The county, which was responsible for properly scheduling and noticing public hearings on the issue, would then consider and act upon proposals submitted to it. If the county adopted those proposals, copies of the amended development order were to be furnished to SFRPC and the Department for further review. Finally, if the final plan approved by the county did not differ significantly from draft plans tentatively approved by those agencies, then they would agree not to appeal the amended development order to FLWAC. Our research indicates that such agreements are not new to the DRI process which has been said to encourage such compromise and informal settlement of issues:
      Negotiations begin long before an application for development approval is filed, and the developer may make early changes to facilitate favorable action on the application. Additional changes may be suggested at each level.
      Finnell, Coastal Land Management in Florida, 1980 Am.B.Found. Research J. 303, 381. See also Pelham, DRI Agreements: A New Technique for Implementing Chapter 380, 56 Fla.Bar.J. 51 (1982).

      . Although the Department denied those petitions without hearing, SFRPC granted Friends’ request for a full administrative hearing on issues pertaining to the propriety of tentative agreements reached by the parties in August, as well as the public's alleged exclusion from the initial stages of the DRI review process. A final order, denying Friends’ requested relief on grounds of lack of standing as well as on the merits, was entered. An appeal of that order was then taken to the Third District Court of Appeal, which court eventually dismissed the appeal as moot. See Friends of the Everglades, Inc. v. South Florida Regional Planning Council, 447 So.2d 902 (Fla. 3d DCA 1984).

      . Section 380.07(2) provides:
      Whenever any local government issues any development order in any area of critical state concern, or in regard to any development of regional impact, copies of such orders as prescribed by rule by the state land planning agency shall be transmitted to the state land planning agency, the regional planning agency, and the owner or developer of the property affected by such order. Within 45 days after the order is rendered, the owner, the developer, an appropriate regional planning agency by vote at a regularly scheduled meeting, or the state land planning agency may appeal the order to the Florida Land and Water Adjudicatory Commission by filing a notice of appeal with the commission. The appellant shall furnish a copy of the notice of appeal to the opposing party, as the case may be, and to the local government which issued the order. The filing of the notice of appeal shall stay the effectiveness of the order and shall stay any judicial proceedings in relation to the development order, until after the completion of the appeal process.
      (e.s.)

      . The statute has in fact been cited as authority for "intervention and participation in the DRI hearing of a local government having jurisdiction over a proposed DRI”, see Environmental Regulation, supra at 20.38.

      . Section 403.412(2) provides, in part:
      (2)(a) The Department of Legal Affairs, any political subdivision or municipality of the state, or a citizen of the state may maintain an action for injunctive relief against:
      1. Any governmental agency or authority charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air, water, and other natural resources of the state to compel such governmental authority to enforce such laws, rules, and regulations;
      2. Any person, natural or corporate, governmental agency or authority to enjoin such persons, agencies, or authorities from violating any laws, rules or regulations for the protection of the air, water, and other natural resources of the state.
      (b) In any suit under paragraph (2), the Department of Legal Affairs may intervene to represent the interests of the state.
      (c) As a condition precedent to the institution of an action pursuant to paragraph (a), the complaining party shall first file with the governmental agencies or authorities charged by law with the duty of regulating or prohibiting the act or conduct complained of a verified complaint setting forth the facts upon which the complaint is based and the manner in which the complaining party is affected. Upon receipt of a complaint, the governmental agency or authority shall forthwith transmit, by registered or certified mail, a copy of such complaint to those parties charged with violating the laws, rules, and regulations for the protection of the air, water and other natural resources of the state. The agency receiving such complaint shall have 30 days after the receipt thereof within which to take appropriate action. If such action is not taken within the time prescribed, the complaining party may institute the judicial proceedings authorized in paragraph (a). However, failure to comply with this subsection shall not bar an action for a temporary restraining order to prevent immediate and irreparable harm from the conduct or activity complained of.

      . Section 380.11, Florida Statutes (1981), provided:
      Enforcement. — The Department of Veteran and Community Affairs, all state attorneys and all counties and municipalities are hereby authorized to bring an action for injunctive relief, both temporary and permanent, against any person or developer found to be in violation of the provisions of this act, or any rules, regulations, or order issued thereunder.
      We note that the 1983 legislature expanded the enforcement powers of the Department to include administrative as well as judicial remedies for violation of the provisions of Chapter 380. See Chapter 83-308, § 5, Laws of Florida.

      . In most cases coming within this exception, the rule is that the complaining party must plead and prove "special damages peculiar to himself and differing in kind rather than in degree from the damages suffered by the people as a whole.” Boucher v. Novotny, 102 So.2d 132, 135 (Fla.1958). Section 403.412 has, of course, abrogated the “special injury" rule in cases such as this where the enforcement or violation of "laws, rules, and regulations for the protection of the air, water, and other natural resources" is concerned, section 403.412(2)(a)l. and 2., and where the statutory conditions precedent set out in that section are met. Flori-da Wildlife Federation, 390 So.2d at 66.

      . Where no specific statutory review is provided, it has been recognized that relief may be sought through various common-law methods including the common-law writs of certiorari, mandamus, prohibition, injunction or declaratory judgment, assuming the complainant is able to satisfy the requisites for such remedies. See generally 1 Fla.Jur.2d Administrative Law § 154 at 765-767 (1977). The right to seek such relief is said to be constitutional in nature and to derive from Florida’s constitutional guarantee of access to courts. See Art. I, § 21, Fla. Const.; Getzen v. Sumter County, 89 Fla. 45, 103 So. 104, 106 (1925).

      .For example, paragraphs 21-30 of Friends' amended complaint allege the following:
      21. The Department did not appeal the illegal development order, even though it made numerous statements during the appeal period which suggested that an appeal would be forthcoming.
      22. The Department has the power and the duty to exercise enforcement of "The Florida Environmental Land and Water Management Act of 1972”, as amended (Chapter 380, Flori-da Statutes).
      23. The Department stated in its August 2, 1982 complaint, "[The 1981 plat and PUD plan] DO constitute a substantial deviation from the previously Amended Development Order, plat and Development Plans (1980)...”. emphasis in original.
      24. On December 6, 1982, Fritz E. Scharen-berg, the beneficial owner of the property on which Port Bougainville and Garden Cove are proposed to be constructed, stated that the 1981 plan and the 1982 plan are the same.
      25. The interrelated Garden Cove portion of the development is found by the Amended Development Order to be a substantial deviation.
      26. The Department failed to appeal the finding by the Board of County Commissioners of Monroe County that Port Bougainville’s
      1982 plan is not a substantial deviation, in spite of its August 2, 1982 position that the same (according to Mr. Scharenberg) plan-called "1981 plan” — was a substantial deviation.
      27. Section 380.06(17)(a), Florida Statutes, provides, in part, "if the proposed changes are found to be a substantia! deviation, the development shall be subject to further review pursuant to this section.”
      28. The Department has agreed with this statutory provision, as indicated in Paragraph 8 of its August 2, 1982 complaint: "If a substantial deviation is found, the developer must undergo further review through another application." emphasis added.
      29. The Department has a statutory duty to prevent the developer from proceeding with a plan for development until "further review” of the development is completed under Section 380.06, Florida Statutes.
      30. The Department has the duty and statutory authority under Section 380.11, Florida Statutes, to enjoin the developer from proceeding under the illegal 1982 Amended Development Order.


text:
    Donald Angus CRAIG, Appellant, v. R. Don CLYMER and Transamerica Insurance Company, Appellees.
    No. 84-633.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    Rehearing Denied Sept. 12, 1984.
    Jonathan L. Alpert, Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, and John McFarland Hartman, P.A., Fort Myers, for appellant.
    John F. Stanley, Vega, Brown, Nichols, Stanley & Martin, P.A., Naples, for appel-lee Clymer.
   PER CURIAM.

Affirmed. See Gull Construction Co. v. Hendrie, 271 So.2d 775 (Fla. 2d DCA 1973).

HOBSON, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.