author: PER CURIAM. HURLEY, Judge,

text:
    FLORIDA COAST BANK OF POMPANO BEACH, Appellant, v. Dale KIMMITT and William Popfinger, jointly and severally, and d/b/a Khartoum Racing Stable and Bruce K. Nickells, d/b/a Bruce K. Nickells Racing Stable, Appellees.
    No. 79-1760.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1983.

      Jack L. Large of Miller, Zachman & Bal-lasso, P.A., Fort Lauderdale, for appellant.
    John L. Korthals of Musselman, Welch & Korthals, P.A., Pompano Beach, for appel-lees.
   PER CURIAM.

This appeal relates to a controversy in which a bank unsuccessfully sought to recover an overdraft against a depositor. The same recovery was also sought against another defendant who was not a customer of the bank. The appeal was initially considered on a motion to dismiss filed in this court. We initially granted that motion but later reversed our ruling by order of March 10, 1983. We conclude that this court has jurisdiction to entertain the appeal, and that the appellant’s motion for new trial served within three days of the court’s orally directing a verdict in the jury trial below was timely under Rule of Civil Procedure 1.530(b). The case of Tri-State Systems, Inc. v. Seminole County, 302 So.2d 168 (Fla. 4th DCA 1974), does not require dismissal of this appeal. The Tri-State case was a nonjury matter, and Rule of Civil Procedure 1.530(b) makes a clear distinction between jury and nonjury matters.

As to the merits, we conclude that the court correctly directed a verdict in favor of the defendant, William Popfinger. Although no clear Florida authority exists on the subject, we adopt the rationale of the New Hampshire Court in Cambridge Trust Company v. Carney, 115 N.H. 94, 333 A.2d 442 (1975).

As to the bank’s appeal against defendant, Bruce Nickells, we are considerably hampered by the absence of a brief on behalf of this party. We hold that an issue of fact was presented as to whether the bank was a holder in due course and that the court thus erred in directing a verdict. The judgment is reversed as to defendant, Nickells, and affirmed as to defendant, Popfinger.

AFFIRMED IN PART and REVERSED IN PART.

ANSTEAD, C.J., and DOWNEY, LETTS, BERANEK, HERSEY, GLICKSTEIN, DELL and WALDEN, JJ., concur.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring specially.

There is a procedural aspect to this case which, I think, merits further discussion. It involves the legal effect of a “premature” motion for new trial or rehearing. (By “premature” I mean a motion for new trial or rehearing which is filed before the rendition of a verdict in a jury action or the entry of judgment in a non-jury action. See Rule 1.530(b), Fla.R.Civ.P.) Two of our decisions: Karl A. Kandell Associates v. Urbanek, 391 So.2d 782 (Fla. 4th DCA 1980), and Tri-State Systems, Inc. v. Seminole County, 302 So.2d 168 (Fla. 4th DCA 1974), suggest that such a premature motion is a nullity which does not suspend rendition of the final judgment. In my view, both decisions are incorrect and I would recede from them.

Rule 1.530(b), Fla.R.Civ.P.,' defines a timely motion for new trial as one which is “served not later than 10 days after rendition of verdict in a jury action or the entry of judgment in a non-jury action.” It seems to me that we are required by the facts of this ease to determine the effect of a premature motion for new trial in a jury action. I would hold that a motion for new trial which is filed before the verdict is rendered, that is, before the verdict is filed with the clerk, is effective to postpone rendition of the final judgment entered on the verdict until the trial court disposes of the motion for new trial.

The following dates and events comprise the factual backdrop to this part of the case: (1) March 21, 1979 — at the conclusion of the plaintiffs case, the trial court orally granted directed verdicts in favor of two out of three defendants (the directed verdicts were not reduced to writing or filed with the clerk); (2) March 23, 1979 — plaintiff filed a motion for new trial; (3) May 23, 1979 — final judgment filed with the clerk; (4) June 28, 1979 — order filed denying plaintiffs motion for new trial; (5) July 26, 1979 — plaintiff/appellant filed its notice of appeal.

Initially, this appeal was dismissed because of our holdings in Tri-State and Urbanek, supra, that a premature motion for new trial is ineffective to postpone rendition. Thus, this court concluded that appellant's notice of appeal was untimely and that we lacked jurisdiction. Now, however, the majority notes that Tri-State is inapplicable because it involved a non-jury matter. Ante, at 135. I do not believe that is a sufficient basis on which to distinguish the case.

Appellant’s motion for reconsideration drew our attention to the similarity between Rule 1.530(b), Fla.R.Civ.P., and Rule 59(b), Fed.R.Civ.P. The pertinent part of the Florida rule reads:

A motion for a new trial or for rehearing shall be served not later than 10 days after the rendition of verdict in a jury action or the entry of judgment in a non-jury action.

The Federal rule states:

A motion for a new trial shall be served not later than 10 days after the entry of the judgment.

Appellant cogently argued that the similarity between these two rules should allow invocation of the following well known maxim:

Generally, it must be assumed that in adopting a rule identical to a Federal rule that our Supreme Court intended to achieve the same results that would inure under the Federal rule. Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So.2d 525 (Fla. 1st DCA 1962). Recently this court, speaking through Judge McNulty, said:
... it’s well known that our Rules of Civil Procedure are patterned very closely after the Federal rules, and it has been the practice of the Florida courts closely to examine and analyze the Federal decisions and commentaries under the Federal rules in interpreting ours. [Citation omitted.]

Zuberbuhler v. Division of Administration, 344 So.2d 1304, 1306 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 135 (Fla.1978).

A study of the cases construing Rule 59(b), discloses that federal courts have eschewed the limitations which we have placed on the state rule. For example, in Partridge v. Presley, 88 U.S.App.D.C. 298, 189 F.2d 645, cert. denied, 342 U.S. 850, 72 S.Ct. 79, 96 L.Ed. 642 (1951), the court held:

Appellee’s argument that the motion for a new trial was premature because it was filed before the actual entry of judgment must be rejected, since Rule 59(b) of the Federal Rules of Civil Procedure requires a motion for a new trial to be “served not later than 10 days after the entry of the judgment.” It is perhaps somewhat unusual practice to move for a new trial before the actual entry of a judgment, but to do so is not forbidden by Rule 59(b).

189 F.2d at 646.

The Tenth Circuit, citing the principle that “the rules must be liberally construed to effectuate the ends of justice and to promote the consideration of appeals on their merits,” reached the same conclusion in Director of Revenue v. United States, 392 F.2d 307 (10th Cir.1968). See also McCulloch Motors Corp. v. Oregon Saw Chain Corp., 245 F.Supp. 851 (S.D.Cal.1963); Annot., 45 A.L.R.Fed. 104 (1979); 6A Moore’s Federal Practice, Section 59.-09[1] (2d ed. 1982).

Our decisions are pegged to the dubious premise that “[i]t is apparent the rule does not contemplate such a motion absent a written judgment.” Tri-State Systems, Inc. v. Seminole County, supra, at 169. Upon reflection, I am constrained to suggest that this observation is incorrect. Nothing in the rule’s language suggests that a motion for new trial must be invalidated simply because it bears an earlier time stamp than the verdict or the final judgment. Consequently, I would recede from those decisions which suggest such a rule and, in place thereof, I would adopt the rationale of the federal cases.

The decision of our Supreme Court in Williams v. State, 324 So.2d 74 (Fla.1975), is analogous to the case at bar and provides further support for this position. Williams dealt with the efficacy of a notice of appeal filed prior to the rendition of the judgment. There the court held:

[A] notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. At the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court.

Id. at 79.

Williams recognized that it was a senseless waste of counsel’s time and client’s money to require dismissal of one appeal, only to permit the perfection of a new appeal, Sloman v. Florida Power & Light Co., 382 So.2d 834 (Fla. 4th DCA 1980). Put another way, Williams refused to place form over substance, W.B.D., Inc. v. Howard Johnson Co., 382 So.2d 1323 (Fla. 1st DCA), petition for review denied, 388 So.2d 1114 (Fla.1980), and thereby reinforced a litigant's right of access to the courts. I would apply the same principle here.

Accordingly, I would hold that appeK lant’s motion for new trial in a jury action, filed prior to the rendition of the verdict' and the final judgment, was “timely” within the meaning of Rule 9.020(g), Fla.R. App.P., and, thus, postponed rendition from May 23, 1979, to June 28, 1979, the date on which the motion was denied. Therefore, since appellant’s notice of appeal was timely filed, see Rule 9.110(b), Fla.R.App.P., I would reinstate the appeal on that basis.

      . I recognize that an argument can be made for the proposition that a verdict is rendered when it is orally pronounced. Cf. Ellis v. State, 100 Fla. 27, 129 So. 106 (1930); McNitt v. Osborne, 371 So.2d 696 (Fla. 3d DCA 1979). However, I believe that the drafters of the rules employed the term “rendition" with the intent and reasonable expectation that its meaning would be uniform throughout the rules. Accordingly, I would opt for uniformity and simplicity and hold that the term “rendition,” as used in Rule 1.530(b), Fla.R.Civ.P., is subject to the definition of rendition found in Rule 9.020(g), Fla.R. App.P. Therefore, I would hold that a verdict is rendered when a written, signed verdict is filed with the clerk. Recently the Third District reached a similar conclusion and held that “the rendition of verdict occurs when it is returned, entered and filed_’’ Menfi v. Exxon Co., 433 So.2d 1327 (Fla. 3d DCA 1983).
      “Rendition” has two related, yet distinct meanings. On the one hand, it signifies the physical act of filing. Rule 9.020(g), Fla.R.App.P., defines rendition (of an order) as “the filing of a signed, written order with the clerk of the lower tribunal.” On the other hand, rendition denotes finality. For example. Rule 9.110(b), Fla.R. App.P., states that a party may invoke an appellate court’s jurisdiction by filing a notice of appeal within 30 days of rendition of the order to be reviewed. Since a timely motion for new trial postpones rendition until the motion has been ruled upon, it is clear that in this context, "rendition” means something more than the date on which a document was filed.

      . Tri-State was a non-jury action in which the plaintiff/appellant filed a motion for rehearing prior to the entry of judgment. (Note that entry of judgment differs from filing of the judgment. Casto v. Casto, 404 So.2d 1046, 1048 (Fla.1981), defined entry of judgment as "the recording of the judgment — the spreading of the judgment upon the court’s official records.”) The significant point of Tri-State is that it generated the principle that a premature motion for new trial is a nullity.

      . Moore's Federal Practice provides this historical commentary:
      Under the early English common law "the motion for a new trial preceded the entry of judgment, which was not entered upon the verdict as a matter of course, nor at all until after the first four days of the next term after trial.” Rule 59(b) requires that a motion for new trial be served "not later than 10 days after the entry of the judgment.” This wording was designed to be broad enough to permit the motion to be made both before and after the entry of the judgment.
      6A J. Moore, Moore’s Federal Practice § 59.-09[1] (2d ed. 1982) (footnotes omitted).

      . In fact, Rule 1.530, Fla.R.Civ.P., is silent on the question of when a motion for new trial may be filed. What it does specify — and this is true of the federal rule as well — is when a motion for new trial must be served. Sadowski v. Bombardier, Ltd., 527 F.2d 1132 (7th Cir.1975), underscored the distinction between service and filing when it said:
      To attribute to Rule 59 a time requirement for filing is to disregard the plain and unambiguous language expressed in the rule and to imply careless draftsmanship of the Federal Rules of Civil Procedure. Id., at 1134.
      In light of the Florida Supreme Court’s holding in Casto v. Casto, 404 So.2d 1046 (Fla.1981), there can be no doubt that the draftmanship of the Florida rule is entitled to similar deference.


source: Caselaw Access Project

author: DELL, Judge.

license: Public Domain

text:
    FORT LAUDERDALE TRANSFER AND RIGGING, INC., Appellant, v. CALLAHAN MOTOR COMPANY, INC., Appellee.
    No. 82-1731.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Rehearings Denied March 29, 1984.

      Neil J. Berman and Fred N. Kellner of Neil J. Berman, P.A., Miami, for appellant.
    Melanie G. May of Bunnell, Denman & Woulfe, P.A., Fort Lauderdale, for appel-lee.
   DELL, Judge.

Fort Lauderdale Transfer and Rigging, Inc., appeals from a final judgment of $35,-000, plus costs, in favor of appellee, Callahan Motor Company, Inc., and the denial of its motion for new trial or remittitur.

This action arose from an oral contract in which appellant agreed to relocate a press brake machine in appellee’s factory. While moving the 58,000 pound press brake, appellant dropped it. Appellee sued for breach of contract and negligence and claimed damages for the total loss of the press brake machine, lost profits, loss of use of the machine, costs and expenses for repair and labor to move and fix the machine, plus expenses to fix the area of the plant where the machine fell and costs and expenses for purchasing and setting up a new machine.

Appellee initially attempted to repair the machine and presented evidence of the cost of such repairs as well as the cost to repair the concrete surface on which it fell. However, appellee’s attempts to repair were unsuccessful and appellee purchased a replacement machine. The replacement machine failed and appellee found it necessary to purchase a second machine. Appellee introduced evidence showing the value of the damaged machine prior to the loss but failed to submit any evidence as to its value after the loss other than it had no value to appellee. Apparently, the machine was repaired to the extent that it could bend short pieces of metal but was no longer useful to appellee because of its inability to bend large pieces of metal.

Appellant contends that the trial court should have directed a verdict on the claim for the total loss of the machine because appellee failed to produce evidence as to the value of the machine after the loss, that appellee’s proof on its claim for loss of profits was inadequate as a matter of law, and that the trial court erred in permitting appellee’s president to estimate a portion of the cost of labor incurred as a result of this accident.

We agree with appellant’s contention that appellee failed to adequately prove its claim for damages for the total loss of the machine. Appellee’s evidence established only that the machine had a value of $35,000 before the loss. Appel-lee’s expert testified that the machine had a market value and that it could be fixed. However, the expert failed to offer any opinion as to either the salvage value of the machine or as to its repaired value. The Restatement of Torts sets forth the measure of proof which we hold necessary to recover damages such as those claimed by appellee for the loss of the press brake machine:

Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for
(a) the difference between the value of the chattel before the harm and the value after the harm or, at the plaintiff’s election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs, and
(b) the loss of use. [Emphasis supplied.]

Restatement of Torts § 928 (1939).

McMinis v. Phillips, 351 So.2d 1141 (Fla. 1st DCA 1977); Travelers Indemnity Co. v. Skyway Marine, Inc., 251 So.2d 327 (Fla. 3d DCA 1971); Airtech Services, Inc. v. MacDonald Construction Co., 150 So.2d 465 (Fla. 3d DCA 1963). Appellee’s failure to introduce evidence of the value of the machine after the loss compels us to reverse the trial judge’s denial of appellant’s motion for a directed verdict on this element of damage.

We have carefully reviewed the record concerning the proof offered by ap-pellee on its claim for lost profit and find appellee’s evidence on this element of damage too -uncertain and speculative to support a claim for lost profits. The trial court should have granted appellant’s motion for directed verdict on this claim. We find the evidence presented by appellee on its remaining damage claims sufficient to go to the jury.

Therefore, we reverse the trial court’s denial of appellant’s motion for directed verdict on appellee’s claim for the loss of its machine and its claim for lost profits. We affirm.the trial court’s denial of appellant’s motion for directed verdict on the remaining elements of damage and remand for a new trial on appellee’s claims for costs and expenses for labor to move the machine, expenses incurred in attempting to repair the machine, expenses incurred in setting up a new machine and expenses incurred to repair the damaged floor of appellee’s plant.

Reversed in part; affirmed in part and remanded.

GLICKSTEIN and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    HOME BUILDERS AND CONTRACTORS ASSOCIATION OF PALM BEACH COUNTY, INC., a Florida corporation, individually and on behalf of all others similarly situated, and Ted Satter Enterprises, Inc., a Florida corporation, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, Bill Bailey, as Chairman of said Board of County Commissioners, Dennis P. Koehler, Peggy B. Evatt, Frank Foster, and Norman Gregory, as Members of said Board of County Commissioners and George R. Brockway, Building Official of Palm Beach County, Edgar Howell, Building Official of City of Boynton Beach, Roy Reid, Building Official of City of Delray Beach, and Alvin Butterfield, Building Official of Village of Tequesta, Appellees.
    No. 82-659.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Rehearing Denied Feb. 1, 1984.

      Grover C. Herring and James L. Watt of Arnstein, Gluck & Lehr, and Larry Klein, West Palm Beach, for appellants.
    Charles F. Schoech, County Atty., West Palm Beach, and Fred P. Bosselman and Edward F. Ryan, Chicago, Ill., Nancy E. Stroud, of Burke, Bosselman, Freivogel, Weaver, Glaves & Ryan, Boca Raton, for appellees.
    Stephen W. Metz, Tallahassee, amicus curiae for Florida Home Builders Ass’n.
   DOWNEY, Judge.

This case involves the validity of a Palm Beach County ordinance imposing an impact fee on new development for the purpose of constructing roads made necessary by the increased traffic generated by such new development.

Appellants, Home Builders and Contractors Association of Palm Beach County; Inc. (hereafter Home Builders), and Ted Satter Enterprises, Inc., filed suit against the Board of County Commissioners of Palm Beach County for declaratory and injunctive relief to invalidate Palm Beach County Ordinance 79-7, as amended, denominated the “Fair Share Contribution for Road Improvements Ordinance.” From a final judgment upholding the validity of the ordinance, Home Builders has perfected this appeal.

The Palm Beach 1980 County Comprehensive Plan recognized that in view of the unusual growth rate being experienced in the county and in order to maintain a consistent level of road service and quality of life, extensive road improvements would be necessary, requiring regulation of new development activity which generates additional automobile traffic. The County Commission therefore enacted Ordinance 79-7 in order to finance the necessary road capital improvements and to regulate increases in traffic levels. The ordinance would require any new land development activity generating road traffic to pay its “fair share” of the reasonably anticipated cost of expansion of new roads attributable to the new development.

The ordinance has a formula which takes into consideration the costs of road construction and the number of motor vehicle trips generated by different types of land use. It provides for a fee of $300 per unit for single family homes, $200 per unit for multi-family, $175 per unit for mobile homes with other amounts for commercial or other development, all subject to annual review. The fee is to be paid upon commencement of any new land development activity generating traffic. The ordinance divides the county into forty zones, indicated on a map incorporated by reference into the ordinance, and establishes a trust fund for each zone. Funds collected from building activity in a particular zone may only be spent in that zone, and must be spent within a reasonable time after collection (not later than six years) or returned to the present owner of the property.

The briefs of the parties and amicus present the following questions for resolution:

1. Whether Palm Beach County has authority to impose an impact fee on new development for the construction of public roads.
2. Whether the proposed ordinance violates the equal protection clauses of the Constitutions of the United States and State of Florida.
3. Whether the ordinance imposes a regulatory fee or a tax.

In a well considered final judgment the trial judge either expressly or impliedly answered the foregoing questions adversely to appellants.

I.

The initial question which must be answered is the challenge to the county’s authority to enact an ordinance of this kind. Palm Beach County is a non-charter county, and thus we must look to Article VIII, Section 1(f) of the Florida Constitution and various enabling statutes to resolve the scope of the county’s authority in this area.

Article VIII, Section 1(f), Florida Constitution, provides:

(f) NON-CHARTER GOVERNMENT. Counties not operating under county charters shall have such power of self-government as is provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law, but an ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict.

Ordinance 79-7, the ordinance in question, expressly cites as authority for the enactment of that legislation Sections 125.-01 and 163.3161, Florida Statutes. Section 125.01(l)(m) & (w), Florida Statutes (1981), provide:

(l) The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power shall include, but shall not be restricted to, the power to:
(m) Provide and regulate arterial, toll, and other roads, bridges, tunnels and related facilities; eliminate grade crossings; provide and regulate parking facilities; and develop and enforce plans for the control of traffic and parking.
(w) Perform any other acts not inconsistent with law which are in the common interest of the people of the county, and exercise all powers and privileges not specifically prohibited by law.

In addition, Section 163.3161, Florida Statutes, known as the Local Government Comprehensive Planning Act, contains a broad grant of power for local governments to enact plans and programs to guide and control future development.

The Supreme Court of Florida in Speer v. Olson, 367 So.2d 207, 210-11 (Fla.1979), characterized the legislative intent in enacting Chapter 125 as follows:

The intent of the Legislature in enacting the recent amendments to Chapter 125, Florida Statutes, was to enlarge the powers of counties through home rule to govern themselves.
The first sentence of Section 125.01(1), Florida Statutes, (1975), grants to the governing body of a county the full power to carry on county government. Unless the Legislature has pre-empted a particular subject relating to county government by either general or special law, the county governing body, by reason of this sentence, has full authority to act through the exercise of home rule power.

The court went on to point out that one of the legislative purposes in passing Chapter 125 was to enable local governments to govern themselves without the necessity of running to the legislature every year for authority to act (citing State v. Orange County, 281 So.2d 310 (Fla.1973)).

We know of no general or special act which purports to limit the grant of authority contained in the foregoing constitutional and statutory enactments nor is the ordinance inconsistent with any general or special law. Art. VIII, sec. 1(f), Fla. Const. Accordingly, we hold that Palm Beach County had the power and authority to enact the fee impact ordinance in question, assuming the ordinance involves a regulatory fee rather than a tax.

II.

Home Builders contends the ordinance is invalid because of the disparity between the people who benefit and the people who pay. As stated in its brief:

Our position is that since anyone can drive a vehicle over any of these roads, regardless of whether he lives in the zone or has paid the impact fee, there is too great a disparity between those who pay and those who receive the benefit, making the charge in reality a tax, which the county does not have the power to impose.

If by that argument it is Home Builders’ position that the benefits accruing from roads constructed with the impact fees collected must be used exclusively or overwhelmingly for the subdivision residents in question, we would have to differ. It is difficult to envision any capital improvement for parks, sewers, drainage, roads, or whatever, which would not in some measure benefit members of the community who do not reside in or utilize the new development. For example, landowners abutting a subdivision may well derive substantial benefit from intrasubdivision drainage facilities. Parks within subdivisions are not restricted to subdivision residents only. Furthermore, intrasubdivision streets and roads may be extensively used by persons not residents thereof.

A resume of the decisions in this and other jurisdictions demonstrates that those attacking impact fees often rely upon this same argument; it is one frequently found and generally rejected. In Call v. City of West Jordan, 606 P.2d 217 (Utah 1979), on rehearing 614 P.2d 1257 (Utah 1980), the appellant contended that an ordinance requiring a developer to contribute seven percent of the development land, or a fee in lieu thereof, for public use for flood control, parks, or recreation areas was invalid because, among other things, the land dedicated or the fees paid would not be used solely for the benefit of the subdivision in question and that nonresidents of the subdivision and of the county would be using the improvements also. The Supreme Court of Utah rejected this contention, and held that it is sufficient if the improvements constructed with the fees imposed bear a reasonable relationship to the needs created by the subdivision. Call, supra, at 220. Similar arguments met the same fate in the oft cited case of Associated Home Builders v. City of Walnut Creek, 4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606 (1977), and in the case of Ayres v. City Council of City of Los Angeles, 34 Cal.2d 31, 207 P.2d 1 (1949). Our recent decision in Hollywood, Inc. v. Broward County, 431 So.2d 606 (Fla. 4th DCA 1983), also supports a holding that benefit accruing to the community generally does not adversely affect the validity of a development regulation ordinance as long as the fee does not exceed the cost of the improvements required by the new development and the improvements adequately benefit the development which is the source of the fee.

III.

Next Home Builders contends that the ■ fair share ordinance is arbitrary and discriminatory and thus violates the equal protection provisions of the Federal and State Constitutions. The thrust of the argument is that since municipalities may “opt out” of the ordinance under Article VIII, Section 1(f) of the Florida Constitution, and thirty-three of the thirty-seven municipalities in the county have opted out, equal protection is denied to those subject to the ordinance.

We disagree. Using the rational basis test articulated in In re Estate of Greenberg, 390 So.2d 40 (Fla.1980), we believe the evidence demonstrates that the ordinance bears a reasonable relationship to a legitimate state purpose. The Florida Constitution itself provides that county ordinances of non-charter counties shall not be effective in a municipality if it conflicts with a municipal ordinance. Surely that in itself should not render all non-charter county regulatory fees ineffective or impact fees could only be allowed in charter counties. Furthermore, the fact that an impact fee is payable on land located in the county whereas it would not be payable on nearby land in a municipality which has opted out does not offend equal protection. Unequal or different charges or fees assessed in incorporated and unincorporated areas, like different hours for retail liquor sales and other areas of regulation which may lack uniformity, are not improper where such legislation is otherwise a valid exercise of governmental power. As the court said in Wednesday Night, Inc. v. City of Fort Lauderdale, 272 So.2d 502, 505 (Fla.1973):

Insofar as concerns equal protection, it is well settled that the Constitution of the United States does not prohibit legislation which is limited to the territory within which it is to operate. The constitution guaranty of equal protection of laws does not require territorial uniformity. See Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231, and McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393.

In addition, we would observe that for aught we know any of these municipalities which have opted out may themselves one day enact impact fees, which will tend to lessen the ostensible unequal treatment of land development in different areas.

IV.

Finally, appellants maintain that the ordinance is a tax rather than a regulatory fee and thus in violation of Article VII, Section 1(a) of the Florida Constitution. In all candor we concede this is the most difficult point raised in this appeal. As one reads the various cases involving the dichotomy between a fee and a tax the distinction almost seems to become more amorphous rather than less. In any event, some years ago this court decided Broward County v. Janis Development Corp., 311 So.2d 371 (Fla. 4th DCA 1975), and held that a county ordinance imposing an impact fee for roads was in reality a tax rather than a fee. Appellants naturally rely heavily upon Janis to support their argument that this ordinance is a tax in sheep’s clothing and that impact fees and roads are simply not compatible. However, the problem with the Janis ordinance was not that it involved an impact fee for roads (as opposed to parks or drainage, etc.) but rather that the legislation had several inherent defects. For example, the money generated by the ordinance far exceeded the cost of meeting the needs brought about by the new development. In addition, the ordinance was lacking in specific restrictions regarding the use of revenue received. These are the features which required this court to hold it was not dealing with a regulatory fee. The amount and use of the funds simply did not jibe with the concept of regulation; it smacked more of revenue raising which is descriptive of a tax.

In Contractors & Builders Ass’n of Pinellas County v. City of Dunedin, 329 So.2d 314 (Fla.1976), cert. denied 444 U.S. 867, 100 S.Ct. 140, 62 L.Ed.2d 91 (1979), and Hollywood, Inc., supra, the supreme court and this court pointed out the features of the Janis ordinance which kept it from passing muster as an acceptable impact fee ordinance. Consequently, the Palm Beach County ordinance in question here was crafted with Dunedin’s lessons in mind. The present ordinance recognizes that the rapid rate of new development will require a substantial increase in the capacity of the county road system. The evidence shows that the cost of construction of additional roads will far exceed the fair share fees imposed by the ordinance. In fact the county suggests that under the ordinance the cost will exceed the revenue produced by eighty-five percent. The formula for calculating the amount of the fee is not rigid and inflexible, but rather allows the person improving the land to determine his fair share by furnishing his own independent study of traffic and economic data in order to demonstrate that his share is less than the amount under the formula set forth in the ordinance. Lastly, expenditure of the funds collected is localized by virtue of the zone system.

Thus, it appears that the Palm Beach County ordinance meets the tests laid down in Dunedin and followed in Hollywood, Inc., which supports the trial judge’s findings that the ordinance imposes a regulatory fee and not a prohibited tax. We would sum up this point by quoting from an informative article by Juergensmeyer and Blake entitled Impact Fees: An Answer to Local Governments’ Capital Funding Dilemma, 9 Fla.St.U.L.Rev. 415, 440-41, wherein it is said:

The appropriate framework for determining whether an impact fee is a regulation or a tax is one of public policy in which a number of factors should be weighed. The home rule powers granted local governments in Florida, the legislative mandate that local governments must plan comprehensively for future growth, and the additional broad powers given them to make those plans work effectively, indicate that properly limited impact fees for educational or recreational purposes should be construed as regulations. Characterization as a regulation is particularly appropriate where an impact fee is used to complement other land use measures such as in lieu fees or dedications. If an impact fee is characterized as a regulation, its validity should then be determined by reference to the dual rational nexi police power standard.

Although the foregoing quote is by its own terms limited to fees for educational and recreational purposes, we see no reason why it could not have included roads.

For the foregoing reasons, we affirm the judgment appealed from.

AFFIRMED.

LETTS, J., and GOLDMAN, MURRAY, Associate Judge, concur.

      . This standard requires an analysis of regulatory fees similar to that adopted by this court in Hollywood, Inc., supra.


author: PER CURIAM. JORGENSON, Judge,

text:
    Nikki COREY, Appellant, v. SUNAR LIMITED, Appellee.
    No. 82-2386.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied Dec. 9, 1983.
    Gary E. Garbis, Miami, for appellant.

      Fowler, White, Burnett, Hurley, Banick & Strickroot and Kathleen M. Williams and A. Blackwell Stieglitz, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed.

JORGENSON, Judge,

dissenting.

I respectfully dissent. This is a products liability case involving a file cabinet which, in deviation from a designed-in safety feature, tipped over and fell onto the plaintiff. The trial court directed a verdict for the defendant on strict liability. In my view this was error. I would adopt the well-reasoned opinion of Judge Ervin in Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981). As Judge Ervin points out, a legal inference sufficient to establish a prima facie case for jury consideration of strict liability arises when a product malfunctions during normal operation. The plaintiff asserted such a defect and was entitled to have a jury consider that issue. I would therefore reverse and remand for further proceedings consistent with the rule delineated in Cassisi.


author: ORFINGER, Chief Judge.

text:
    Jeffrey Allen JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 82-899.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1983.
    J. Russell Hornsby, Orlando, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Chief Judge.

An information charging that the defendant did “by force, violence, assault or putting in fear, take away from the person or custody of [another] certain property ...” is not fundamentally deficient. Harpham v. State, 435 So.2d 375 (Fla. 5th DCA 1983). Thus, there was no error in permitting the State to amend the information to allege the defendant’s intent to permanently deprive the victim of the property, especially where, as here, it was conceded by defendant that such amendment would not prejudice him. See Lackos v. State, 339 So.2d 217 (Fla.1976).

Appellant’s contention that he was entitled to be discharged because of the violation of the speedy trial rule, Fla.R. Crim.P. 3.191, is also without merit. Appellant’s trial was commenced within 180 days following his arrest. When a mistrial was declared on appellant’s motion, his trial was then set 77 days later, and at that time he entered a plea of nolo contendere, reserving his right to appeal the denial of his motion to dismiss the information and for discharge because of speedy trial violation.

Fla.R.Crim.P. 3.191(g) provides that a person who is to be tried again because of a mistrial shall be brought to trial within 90 days from the date of declaration of mistrial by the trial court. Appellant was brought to trial within the 90-day period. His contention that he was entitled to discharge because his subsequent trial date was beyond the 180-day period from the date of his arrest is unavailing, because once a mistrial has been declared, the 180-day period of Rule 3.191(a) no longer applies, and a new and independent 90-day period begins. Rule 3.191(g); Durrance v. Rudd, 398 So.2d 1012 (Fla. 1st DCA 1981).

AFFIRMED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: NESBITT, Judge.

text:
    Henry HILSENROTH, Appellant, v. Alfred KESSLER, individually, Robert J. Dominix, Richard Kessler, as Personal Representative of the Estate of Sydney Kessler, and Benjamin Budowsky, Appellees.
    No. 82-983.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.
    As Modified on Denial of Rehearing March 26, 1984.

      Lapidus & Stettin and Herbert Stettin, Miami, for appellant.
    Ress, Gomez, Rosenberg & Howland and Sheldon Rosenberg, James A. Horland, Ro-bey & Pelstring and R. James Pelstring, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

In September, 1972, Hilsenroth contracted to purchase land from Alfred Kessler as trustee for himself, Budowsky, Dominix, and Sydney Kessler, now deceased. The express purpose was to build apartment houses. The contract allowed Hilsenroth to rescind before closing if the property was subject to a moratorium on the issuance of building permits. Thereafter, on December 1, 1972, the Dade County Pollution Control Department issued a moratorium on building permits which prohibited further connections to the sewer system. The moratorium lasted until December, 1978, and applied to all of the property being sold to Hilsenroth. Unaware of this restriction, Hilsenroth closed on the property in June, 1973. He paid approximately $200,000 in return for which he received 2.5 acres free and clear of mortgages. The remaining property was acquired subject to an existing first mortgage and individual promissory notes, in favor of each of the four members of the selling group, secured by a single purchase money second mortgage.

In September, 1973, Hilsenroth learned of the sewer moratorium from his engineers. One month later, he sought a declaratory decree (the 1973 suit) concerning his right to a moratorium in principal and interest under the terms of the second mortgage. Hilsenroth prevailed at trial and on appeal. Kessler v. Hilsenroth, 325 So.2d 72 (Fla. 3d DCA 1975). At a hearing in this case on June 20, 1974, Hilsenroth first learned from Kessler’s testimony that Kessler had known of the moratorium prior to closing.

At the end of 1975, Hilsenroth. filed suit to rescind the contract to purchase the property on the grounds of fraud and deceit. Only one member of the selling group, Dominix, counterclaimed for enforcement of his note and foreclosure on his second mortgage. That counterclaim was abated until the end of the sewer moratorium. All of the sellers obtained a summary judgment on Hilsenroth’s claim for rescission upon the theory that by seeking and obtaining a moratorium in payments due under the mortgage in the 1973 suit, Hilsenroth had elected his remedies, had chosen to affirm the contract, and could not rescind. This was affirmed on appeal. Hilsenroth v. Kessler, 353 So.2d 874 (Fla. 3d DCA 1977), cert. denied, 366 So.2d 881 (Fla.1978).

The moratorium ended in 1978. In April, 1979, the members of the selling group (excluding Dominix who had filed a counterclaim for foreclosure in the 1975 suit) filed a suit to foreclose on their mortgage. Hilsenroth counterclaimed seeking money damages for fraud and deceit and breach of contractual warranties. In February, 1980, Hilsenroth filed an amendment to his 1975 suit seeking the same relief as in his counterclaim in the 1979 foreclosure suit. The 1975 and 1979 suits were consolidated.

At a nonjury trial, the judge found that Hilsenroth was entitled to compensatory damages for breach of contractual warranties and for fraud and deceit. Punitive damages were imposed against Alfred Kes-sler as the one whom the court found had withheld the information regarding the moratorium. Compensatory damages were limited to architectural fees incurred from the closing date until the suit was filed for declaratory relief. The trial court specifically denied recovery under benefit of the bargain or out-of-pocket theories of recovery because Hilsenroth failed to mitigate damages. The court further determined that the selling group was entitled to foreclose on its purchase money mortgage and recover the principal, interest, and real estate taxes paid by it. Hilsenroth was not permitted to set off the compensatory and punitive awards against the mortgage indebtedness. Finally, the court determined that the sellers were not entitled to attorneys’ fees and costs. Both sides appeal.

We first consider the cross-appeal by the sellers in which they allege that the damage award in favor of Hilsenroth was improper. The compensatory damages award against Dominix was based on the 1980 amendment to the complaint for rescission originally filed in 1975. The 1975 case resulted in a summary judgment in favor of the sellers. This terminated the trial court’s jurisdiction over the complaint, General Capital Corp. v. Tel Service Co., 212 So.2d 369 (Fla. 2d DCA 1968), and thus no amendment to the complaint could be made.

With respect to the remaining sellers, affirmative relief was granted to Hil-senroth based on the 1980 amended complaint as well as Hilsenroth’s counterclaim to these sellers’ foreclosure action. We have already determined that the summary judgment in favor of the sellers in the 1975 suit left the trial court without jurisdiction to consider an amended complaint against Dominix. The same is true with respect to these defendants and thus the purchaser’s recovery for compensatory and punitive damages on this basis must be reversed.

Furthermore, as a claim for affirmative relief, Hilsenroth’s counterclaim for compensatory damages would have been barred by the applicable statute of limitations. § 95.11(3)(j), Fla.Stat. (1981). Nonetheless, it is an established principle that even after an action for affirmative relief is barred by the statute of limitations, it may be asserted by way of defense to a claim against him. Payne v. Nicholson, 100 Fla. 1459, 131 So. 324 (1930); Horace Mann Insurance Co. v. DeMirza, 312 So.2d 501 (Fla. 3d DCA 1975). Thus, we conclude that Hilsenroth is not precluded from raising these issues as affirmative defenses in reduction of the aggregate unpaid balance on the mortgages.

Accordingly, we must remand to the trial court for a determination of the amount of reduction which the purchaser is entitled to because of the sellers’ fraud. In doing so, we direct that the trial court should allow a setoff for oút-of-pocket expenses or damages for loss of the benefit of the bargain. See DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla. 3d DCA 1970), cert. denied, 238 So.2d 105 (Fla.1970). We reject the sellers’ contention that Hilsenroth’s failure to mitigate damages by building his own sewage plant precluded damages based on these theories. Were we to require that such action be taken by the purchaser, we would be rewriting the parties’ contract which contemplated a governmental sewage plant. See Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 232 A.2d 307 (1967) (parties are not required to give up a substantial right of their own to minimize the loss). Nor do we find that Hilsenroth was precluded from recovering these damages because of his earlier declaratory judgment action. Levey v. Getelman, 408 So.2d 663 (Fla. 3d DCA 1981).

When the fraud which has been perpetrated on Hilsenroth has been rectified by reduction of the unpaid balance of the promissory notes in accordance with our decision, then the malefactors are entitled to the satisfaction of their rights under the contract. Schwartz v. Zaconick, 68 So.2d 173, 176 (Fla.1953). This would include foreclosure if an unpaid balance remains after the setoff, and costs and attorneys’ fees as provided by the contract, but does not permit the sellers to foreclose against unpaid ad valorem taxes. Bie v. Hulet, 149 Fla. 227, 5 So.2d 457 (1942); Blue Heron Land Co. v. Brown, 98 Fla. 1238, 125 So. 369 (1930).

For the foregoing reasons, the judgment in favor of Hilsenroth for compensatory and punitive damages is reversed. That portion of the trial court order allowing foreclosure is remanded to determine the aggregate unpaid balance of the mortgage including principal, interest, costs, and attorneys’ fees after the setoff allowed the buyer under either a benefit of the bargain or out-of-pocket theory of recovery.

Reversed and remanded with directions.

      . Hilsenroth sought recovery for sums spent to acquire the property, for its maintenance while he waited for the moratorium to be lifted and the claimed benefit of the bargain contracted.

      . Had Hilsenroth filed a separate lawsuit against Dominix in 1980, it would have been barred by the statute of limitations.

      . The fact that Hilsenroth was not required to mitigate his damages by building his own sewage plant does not relieve him of the duty to keep his damages as low as reasonably possible, see Richard v. A. Waldman & Sons, Inc., 232 A.2d at 310-11. Accordingly, except as noted, the trial court is free to apply the doctrine of mitigation of damages, if applicable.

      . The appellee is correct, however, in his claim that the declaratory judgment would bar Hilsen-roth’s claim for cancellation. See Levey (ratification of contract bars claim for rescission).


author: FERGUSON, Judge. SCHWARTZ, Chief Judge

text:
    Robert B. WHITE, Trustee and Luis Facundo Bacardi, Appellants, v. Adriana BACARDI, Appellee.
    Nos. 82-943, 82-996.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied March 19, 1984.

      Steven Naclerio, Miami, Roger D. Haag-enson, Fort Lauderdale, for appellants.
    Nard S. Helman, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Husband, the beneficiary of a spendthrift trust, along with one of the trustees, appeals an order of the trial court directing that the trust income be garnished to satisfy a provision in the final judgment of dissolution which requires husband to pay $2,000 per month in alimony, and which also provides for a continuing writ of garnishment for future alimony payments without further order of court.

The main issue is whether the income from a spendthrift trust is exempt from legal process to enforce a court ordered payment of alimony and attorney’s fees to an ex-wife. We answer this question in the affirmative, and hold that such income is exempt.

The parties were married for only two years and had no children. It was the second marriage for each of them. The final judgment dissolving the marriage incorporated a property settlement agreement whereby the husband agreed to pay the wife $2,000 per month until the death of either of them or until the wife’s remarriage. The wife subsequently obtained two judgments for unpaid alimony, with execution authorized, in the total amount of $14,-000. She obtained a third judgment for attorney’s fees in the amount of $1,000. In aid of execution on the three judgments, she served a writ of garnishment on Robert White as one of the three trustees of the spendthrift trust (two signatures are required for a disbursement). Additionally, she obtained an order imposing a continuing garnishment against the trust income for future payments of alimony as the sums became due.

A history of the case is pertinent to the discussion. In 1971, prior to the marriage of the parties (and apparently during the marriage of the husband and his first wife), Louis I. Bacardi, the settlor, after consulting with counsel as to the validity of spendthrift trusts in Florida, created the subject trust, by terms of which no part .of his son’s beneficial interest was to be subject to execution to satisfy the son’s debts. The trust provided that the son (appellant-husband) and the three children of his first marriage would be supported from the trust income. The agreement further provided in paragraph nine:

No part of the interest of any beneficiary of this trust shall be subject to hypothe-cation, pledge, transfer or subject to any debt of said beneficiary or any judgment of said beneficiary or process in aid of execution of said judgment.

We make two observations at this point. First, Florida courts have recognized as valid and enforceable spendthrift provisions in a trust whereby the trust income is protected as inalienable from acts of the beneficiary or those of his creditors. Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603 (1947). Second, Florida has enacted no legislation which limits or qualifies the validity of spendthrift trusts, compare Missouri and Pennsylvania, nor has it passed any law which specifically exempts spendthrift trust income from legal process. Cf § 122.15(1), Fla.Stat. (1981) (benefits accruing under Florida Retirement System Act shall not be subject to “any legal process whatsoever”).

There are no reported Florida cases which address this precise question. We have waded through many cases and statutes of other jurisdictions and find only a total absence of uniformity. Three basic schools of thought exist, with assorted variations, as to whether the income from a spendthrift trust which names the husband as beneficiary is exempt from execution to satisfy a court ordered payment of alimony to a wife after the marriage is dissolved. One view is that the trust income can be reached. The opposing view is that an ex-wife may not reach the trust unless it is clear that the settlor intended the former spouse to share as if she were a beneficiary. A third view is similar to the first in that it permits a former wife to reach the trust income but imposes a qualification or limitation that the extent to which, if any, the trust income will be diverted depends upon the needs of the former spouse and the fairness to the trust beneficiary. We examine the rationales given by these courts in reaching their decisions.

Courts which adopt the view that a wife or former wife may reach the trust income rely upon the husband’s legal obligation to' provide for the support of his wife and children. In this regard, In Re Moorehead’s Estate, 289 Pa. 542, 137 A. 802 (1927) is hailed as the leading spendthrift trust case. Moorehead holds that a deserted wife may reach the trust income for support monies, relying in part on the theory that the obligation of support is not a true debt because of the legal unity of a husband and wife. The case also relies heavily on the notion that it is against public policy to refuse to permit a wife to reach the income of a spendthrift trust. The court stated:

Public policy is not so vague and wavering a matter as not to be rightly invoked in a case of this character, where the degenerating tendencies of marital relations of the present day are so faithfully exemplified by one who comes into court and demands judicial condonation of his violations of law. In every civilized country is recognized the obligation, sacred as well as lawful, of a husband to protect and provide for his family, and to sustain the claim of the husband in the case at bar would be to invest him with a right to be both a faithless husband and a vicious citizen. 137 A. at 806.

Other states which have permitted a former wife to reach the income of a spendthrift trust to satisfy an alimony award have done so solely on public policy grounds, finding that the husband’s duty to support is more compelling than the enforcement of a trust in accordance with a settlor’s expressed intent. See Safe Deposit & Trust Co. of Baltimore v. Robertson, 192 Md. 653, 65 A.2d 292 (1949) (the rule that gives legal effect to spendthrift provisions as against creditors should not be extended to claims for alimony as the wife is a favored suitor and her claim is based upon the strongest grounds of public policy); Lucas v. Lucas, 365 S.W.2d 372 (Tex.Civ.App.1962) (it is against public policy to allow a beneficiary of spendthrift trust to be well taken care of when those who have every right to look to him for support are doing without); Dillon v. Dillon, 244 Wis. 122, 11 N.W.2d 628 (1943) (public policy is not so vague and wavering as to permit a spendthrift trust beneficiary to be both a faithless husband and vicious citizen).

This is essentially the position taken by the Restatement (Second) of Trusts § 157 (1959), which provides:

§ 157. Particular Classes of Claimants. Although a trust is a spendthrift trust or a trust for support, the interest of the beneficiary can be reached in satisfaction of an enforceable claim against the beneficiary,
(a) by the wife or child of the beneficiary for support, or by the wife for alimony; ....

Safe Deposit & Trust Co. of Baltimore, supra, purports to follow the Restatement view and collects other cases which reach the same result by applying the Restatement rule. E.g., Keller v. Keller, 284 Ill.App. 198, 1 N.E.2d 773 (1936); Clay v. Hamilton, 116 Ind.App. 214, 63 N.E.2d 207 (1945); In Re Sullivan’s Will, 144 Neb. 36, 12 N.W.2d 148 (1943); Cogswell v. Cogswell, 178 Or. 417, 167 P.2d 324 (1946). While the Restatement claimed — in 1935— to represent the majority view, it has been criticized as “far too broad” and unrepresentative of the state of the law. Seidenberg v. Seidenberg, 126 F.Supp. 19, 21 (D.D.C.1954), aff'd 225 F.2d 545 (D.C.Cir.1955). The Restatement view has been specifically rejected by several jurisdictions, e.g., Roorda v. Roorda, 230 Iowa 1103, 300 N.W. 294 (1941); Bucknam v. Bupknam, 294 Mass. 214, 200 N.E. 918 (1936); Erickson v. Erickson, 197 Minn. 71, 266 N.W. 161 (1936).

It is not universally agreed, however, that a husband’s obligation to support the wife continues with the same cogency after a divorce, as the legal “unity” dissipates upon divorce. See, e.g., Garretson v. Garretson, 306 A.2d 737 (Del.1973) (court which accepted the argument that a wife who is separated from her husband is not a creditor of husband noted that there might be an entirely different situation if the parties were actually divorced, as the legal duty to support is no longer a factor); Kiffner v. Kiffner, 185 Iowa 1064, 171 N.W. 590 (1919) (once the trust income passes into the hands of the beneficiary, it becomes his unqualified property subject to legal process to satisfy his obligations, but so long as it is in control of the trustee, it is beyond the reach of the former wife who is no more than a creditor of the beneficiary).

Nor are the public policy arguments as strong in relation to a divorced wife. This was the view of .the court in Lippincott v. Lippincott, 349 Pa. 501, 37 A.2d 741 (1944), the same court which had seventeen years earlier decided In Re Moorehead’s Estate, supra. In Lippincott, the Pennsylvania court did not permit an ex-wife to reach the income from a spendthrift trust, holding:

After such complete and final separation it is not considered that any public policy requires the allowance of such an extraordinary and drastic remedy as seizure by execution of the income of a spendthrift trust, against the desire and intent of the creator of that trust. 37 A.2d at 743.

Other jurisdictions have embraced the Lip-pincott view that the public policy favoring the husband’s obligation of support cannot prevail over the express intent of a spendthrift trust’s creator. See Schwager v. Schwager, 109 F.2d 754 (7th Cir.1940) (court acknowledges thoroughly established public policy which imposes upon a husband the duty to support his wife but is convinced that there is nothing in such policy which requires or permits the destruction of a spendthrift trust under the circumstances); Pemberton v. Pemberton, 9 Mass.App. 9, 411 N.E.2d 1305 (App.Ct.1980) (settlor’s intent accorded particular deference even in face of strong public policy arguments).

Several courts which also refuse to permit a spouse to reach the income of a spendthrift trust focus solely on the intent of the settlor, giving little consideration to notions of countervailing public policy. For instance, the California court in San Diego Trust & Savings Bank v. Heustis, 121 Cal.App. 675, 10 P.2d 158 (1932), acknowledged and rejected In Re Moore-head’s Estate, noting that the funds did not originate with the beneficiary but with the settlor who had the right to bestow his benefactions as he pleased. On the public policy point it observed:

We agree entirely with all that has been said about the duty of the beneficiary to support his wife and child; but that does not authorize interference with the right of another individual to dispose of his own property as he may see fit. In this case, the pressure was prematurely applied. There are methods of reaching the beneficiary directly. 10 P.2d at 165.

The court held that the testator who created the spendthrift trust owed no duty, legal or moral, to provide for the debts of his son, and the wife, with an alimony judgment, could not satisfy that judgment by levying against the trustee of the spendthrift trust. See also Burrage v. Bucknam, 301 Mass. 235, 16 N.E.2d 705 (1938) (trust created in “plain words” for support of beneficiary would not be construed to include support of wife); Erickson v. Erickson, 197 Minn. 71, 266 N.W. 161 (1936) (a spendthrift provision added to the trust by the settlor after the beneficiary divorced his wife was free from the claim of alimony); Moore v. Moore, 137 N.J.Eq. 314, 44 A.2d 639 (N.J.Ch.1945) (beneficiary could not, even by agreement, defeat the intent of the founder of spendthrift trust, and court’s adoption of the agreement in a divorce decree was ineffective); Martin v. Martin, 54 Ohio St.2d 101, 374 N.E.2d 1384 (1978) (if language of trust does not show intent of settlor that trust income be used for the payment of alimony to an ex-wife, such intention will not be imputed).

The third point of view which permits a former wife of the beneficiary to reach the trust income in a reasonable amount is, in effect, a limitation on the ability to reach it in the first instance. We disagree with the suggestion of the court in Safe Deposit & Trust Co. of Baltimore, supra, that this view need not be set apart as a separate and distinct one for the stated reason that an alimony award is always subject to review for reasonableness where there is a change in circumstances. That court failed to consider the possibility that an agreement for alimony may have been unreasonable ab initio, and a court should not be precluded from assessing the reasonableness of the award as against the income of a spendthrift trust even in the absence of changed circumstances. In light of the decision we reach, however, the discussion on this point is irrelevant.

Addressing the question in the belief that we are the first court in this state to do so, we align with what appears to be both the modern trend and the best reasoned view. We hold that a former wife of a spendthrift trust beneficiary may not reach the income of that trust for alimony before it reaches the beneficiary unless she can show by competent and substantial evidence that it was the settlor’s intent that she participate as a beneficiary. This holding squares with public policy as expressed in Waterbury v. Munn, supra, which recognizes as valid, provisions in a spendthrift trust barring alienation of the corpus or income by acts of the beneficiary or his creditors. See generally Croom v. Ocala Plumbing & Electric Co., 62 Fla. 460, 57 So. 243 (1911). Whether that public policy should give way to a public policy which recognizes the duty to support a former wife, we think, is a matter for the legislature. See Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932) (where there is disagreement as to which of two conflicting public policies ought to prevail, the legislature, acting within its constitutional authority, is the final arbiter). Public policy, although often used loosely, means the law of the state, whether found in or clearly implied from its constitution, statutes'or judicial decisions. Building Service Employers International Union v. Gazzam, 339 U.S. 532, 537, 70 S.Ct. 784, 787, 94 L.Ed. 1045, 1050 (1950); Brown v. American Railway Express Co., 128 S.C. 428, 123 S.E. 97, 98 (1924). On the question presented, a clear public policy different from our holding is neither expressed by nor implied from the Florida or federal Constitutions, or from the statutes or judicial opinions of this jurisdiction. An exhaustive examination of the judicial opinions from other states also fails to reveal any consistent contrary policy.

Reversed and remanded for further proceedings.

SCHWARTZ, Chief Judge

(dissenting).

Judge Ferguson’s discussion of the relevant authorities is, as usual, complete and fairly stated. But while I therefore appreciate the scholarship contained in the majority opinion, .1 cannot agree with its conclusion. In my judgment, we should adopt, for the reasons summarized in the court’s opinion itself, the view expressed by the Restatement and what is still a majority of the cases that a spendthrift trust should not be immune from garnishment upon an alimony claim.

The majority says that this result would involve an example of of-course-to-be-despised judicial public policy-making, while its own conclusion does not. Although I freely and shamelessly confess to the correctness of the former assertion, I respectfully think that the latter one is false in both its modesty and content. Every judicial ruling is no more nor less than a conclusion that one “policy,” which yields a given result, is to be preferred to that which produces the opposite. In this case, the court rejects the application of the “policy” which favors obligations generated by marriage in favor of the “policy” which deifies the supposed will of the settlor of a spendthrift trust. Although the majority purports not to acknowledge even that it has made such a choice, I recognize of course that it has the perfect right to do so. I simply think not only that it has made the wrong one but that its conclusion is not in accord with prior authority of this very court.

In City of Miami v. Spurrier, 320 So.2d 397 (Fla. 3d DCA 1975), cert. denied, 334 So.2d 604 (Fla.1976) we followed the holding of City of Jacksonville v. Jones, 213 So.2d 259 (Fla. 1st DCA 1968) that Florida’s “public policy” for the enforceability of such orders, as reflected by Sec. 61.12, Fla.Stat. (1981), which provides for garnishment in alimony and support eases, overrides a duly enacted municipal ordinance which on its face restricted pension benefits to the use of the employee, who himself earned them, alone. I believe that Spurrier presents an a fortiori situation to this one, in which the merely private desires of the senior Bacardi have been permitted to prevail over the public concerns which we vindicated there.

With startling frankness, the majority suggests that the law’s interest in favoring marriage and enforcing marital obligations no longer obtains because we now realize that all marriages are not made in heaven. I am sure that is true — and I suspect that even judges have known for some time that this is true — but I profoundly disagree with the proposition that our decisions should be based upon any such conclusion. Our system of law should be based, I think, upon the ideals of our society, rather than upon a “realistic,” cynical perception of what some parts of it may be like. Public Health Trust v. Brown, 388 So.2d 1084 (Fla. 3d DCA 1980), rev. denied, 399 So.2d 1140 (Fla.1981), approved in Fassoulas v. Ramey, 450 So.2d 822 (Fla.1984); Bergman v. Serns, 443 So.2d 130 (Fla. 3d DCA 1983). If this is not the case, there is really no purpose to be served by having rules of law, indeed, of conduct at all. The court’s reliance on the observation that modern marriages are often improvident and therefore often give rise to improvident debts carries its nihilism to its depth. In the present context, I would answer only that there is no reason that the courts should intervene to protect any spouse — including the younger Bacardi, whose own interests, rather than his father’s, are those really at stake — from the consequences of his voluntary acts and the requirements imposed by the standards of society and, until today’s decision, by the law as well.

      . The unique remedy of a continuing writ of garnishment is authorized by Section 61.12(2), Florida Statutes (1981), to enforce an order of the court for periodic payment of alimony or child support or both. The parties have devoted a large portion of their briefs to the issue of whether this section is applicable only to wages and salaries, or whether a continuing writ of garnishment may be directed to the trustee of a trust. We need not answer the question in light of our holding.

      . We also dispose of, briefly, two cases cited by appellee in support of her contention that the trust income is reachable by legal process. Buzzard v. Buzzard, 412 So.2d 388 (Fla.App. 2d DCA), rev. denied, 419 So.2d 1195 (Fla.1982), holds that state pension funds are by statute exempt from legal process to pay alimony. City of Miami v. Spurrier, 320 So.2d 397 (Fla. 3d DCA 1975), cert. denied, 334 So.2d 604 (Fla.1976), holds that a fireman’s city pension fund may be reached by a divorced wife to satisfy court ordered payments of child support, medical expenses, and alimony. The two cases purport to reach different conclusions for different reasons, neither of which is particularly pertinent to the issue presented. Both cases involve legal process against a defendant’s own property to satisfy the defendant’s own obligations. The significant distinguishing (and troublesome) element in this spendthrift trust case is that the subject property • is originally that of a third person (settlor), who had no legal or moral obligation to the plaintiff-wife, and who gave legal title to the property to a trustee for the beneficial use of the defendant-husband with expressed and valid limitations on use. The pension fund cases do not present conflicting points of law and public policy, i.e. the obligation of a husband to support a wife versus the giving of force and effect to a legal spendthrift trust in accordance with the settlor’s intent that the income not be subject to legal process for payment of a beneficiary’s improvident debts.

      . Both states have by statute made spendthrift provisions in a trust instrument invalid as against the claim of a wife for alimony. Mo. Ann.Stat. § 456.080 (Vernon 1956) (spendthrift trust null and void as against claims of wife or children for support and maintenance, and as against claim of wife for alimony); 20 Pa. Cons. Stat.Ann. § 6112 (Purdon 1975) (income of trust subject to spendthrift provisions shall nevertheless be liable for the support of anyone whom the income beneficiary shall be under a legal duty to support).

      . The illustrations to this section show that the Restatement position applies equally to a wife seeking support, and to a former wife seeking satisfaction of her claim for alimony. Although the section literally adopts the first view, Comment (b) to this section indicates that this position is not absolute for the wife may receive only an amount that the court deems fair to the beneficiary himself. Thus, the Restatement actually adopts the intermediate view or third view examined infra. This provision of the Restatement remains unchanged since its original promulgation as the Restatement (First) in 1935.

      . The California court further justified its conclusion by stating that a trustee owes no duty to the creditor, but on the contrary, his trusteeship is in hostility to the creditor. Heustis, 10 P.2d at 165. Thus, a trustee may be distinguished from a typical stakeholder such as a bank or employer. The theory is that a garnishee is one who merely holds property belonging to a defendant, or who owes the defendant a debt. Edwards v. Stein, 94 N.J.Eq. 251, 119 A. 504, 506 (N.J.Ch.1923). A trustee, however, in the strictest sense, holds legal title to property which he administers for another’s benefit in accordance with the terms of the instrument creating the trust. Reinecke v. Smith, 289 U.S. 172, 53 S.Ct. 570, 77 L.Ed. 1109 (1933). The only interest of a true garnishee is to be relieved of further obligation to the defendant if he is ordered by the court to deliver the property or the debt to the plaintiff. A trustee, on the other hand, has a right of ownership and possession recognized by law, and is charged with carrying out specific duties imposed by the settlor, including protection of both the trust corpus and the income beneficiary’s interest.

      . We agree that this intermediate view is unnecessary when applied to alimony set by a court after hearing. Such an award is presumptively reasonable and is always subject to modification in light of changed circumstances. § 61.14(1), Fla.Stat. (1981). When the alimony award is incorporated into a divorce decree as part of a true property settlement agreement between the parties, however, the amount may be modified due to a change in circumstances only if the agreement itself so provides. See Grabow v. Grabow, 442 So.2d 262 (Fla. 3d DCA 1983).

      . We do not decide whether the income of a spendthrift trust may be reached to support a wife where there has been no dissolution of marriage, or where there are dependent children. On those questions, public policy may be clearer. Neither do we decide whether there are any equitable circumstances where a spendthrift trust should be defeated, as a policy matter, in order to provide reasonably for an alimony-debtor ex-spouse. On the record before us no special circumstances are presented.

      . The strong earlier views favoring the obligation of a husband to support a former wife over the clear intent of a settlor to exclude the beneficiary’s wife (past, present or future), seem to rest, at least in part, on Victorian notions that all marriages are made in heaven — attendant with commitments more enduring than the parties. The elder Mr. Bacardi was more pragmatic, obviously realizing that which we as judges know to be fact, that many marriages (particularly short-lived ones which the courts are called upon to terminate) are improvidently entered into, giving rise to debts which are therefore improvident. The fact that the debt takes the form of alimony should not, absent extraordinary circumstances, defeat the clear purpose of a spendthrift trust.
      On a philosophical note the dissent suggests, we think, that the judiciary has a responsibility to stem the shifting of societal mores by addressing a contemporary dilemma with remedies borne of fixed ideals. That may be true, but only to a small extent. Such an undertaking is not the court’s primary function, nor is it within the court’s capability. To the contrary, the courts, in the never-ending process of shaping the law, are obligated to adjust to uncontrollable shifts in social mores (which do not infringe on the rights of others), or risk becoming irrelevant. That is not courting nihilism.

      .In further proceedings appellee may attempt to learn the whereabouts of the beneficiary which fact, if known by the trustee, is not protected by any privilege.

      . See, e.g. Frohock v. Frohock, 117 Fla. 603, 158 So. 106 (1934); Posner v. Posner, 233 So.2d 381 (Fla.1970).

      . If Bacardi were so bemused by rum (yes, the parties are the Bacardis), or otherwise, that he was incapable of entering into either the marriage or the settlement agreement, other remedies are available to him. See 25 Fla.Jur.2d Family Law §§ 354 et seq. § 359 (1981).


author: BOOTH, Judge.

text:
    Robert C. HILLMAN, Harry P. Wendler, Jack R. Leary, Charles G. Lynch, Thomas J. Spurlock, Harry Bolinger, Patrick C. Gallagher, Norman Kassoff, Melvin S. Zahn, et al., Charles C. Black, Andrew Darpini, and Burton E. Whitaker, Jr., Appellants, v. DIVISION OF RETIREMENT, Appellee.
    Nos. YY-349 to YY-357, AB-201, AB-202 and AB-204.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1984.
    Rehearing Denied Feb. 24, 1984.

      Jose E. Martinez of English, McCaughan & O’Bryan, Coral Gables, for appellants.
    Stanley M. Danek, Asst. Div. Atty., Dept, of Admin., Div. of Retirement, Tallahassee, for appellee.
   BOOTH, Judge.

These consolidated cases are before us on appeal from final orders of the Retirement Commission determining that appellants are not entitled to special risk classification in the State Retirement System. Appellants challenge the constitutionality of Section 121.0515(4), Florida Statutes (1978); alternatively, they assert that the statute was improperly interpreted and applied by the agency. We affirm the agency’s orders, with the exception of those cases which we remand to the agency for clarification or reconsideration in light of changes in the statutory law which have occurred since the proceedings below.

On December 1, 1970, the Florida Legislature consolidated all existing retirement systems into a mandatory, contributory plan by the enactment of Chapter 70-112, Laws of Florida, codified as Chapter 121, Florida Statutes (1971). Appellants are members of this system and classified as “special risk members,” making them eligible, under certain conditions, for retirement at an earlier age than “regular members” and entitling them to a “special risk credit” as an extra benefit.

Effective July 1, 1974, the Legislature enacted a “preservation of rights” provision, Section 121.011(3)(d), Florida Statutes, providing:

(d) The rights of members of the retirement system established by this chapter shall not be impaired by virtue of the conversion of the Florida Retirement System to an employee noncontributory system. As of July 1,1974, the rights of members of the retirement system established by this chapter are declared to be of a contractual nature, entered into between the member and the state, and such rights shall be legally enforceable as valid contract rights and shall not be abridged in any way.

On January 1, 1975, the retirement plan changed from a contributory to a noncontributory plan, the State assuming the full burden of making the plan actuarially sound; employees were no longer required to contribute. Section 121.071, Florida Statutes (1975).

Prior to amendment of Chapter 121 by Section 121.0515, Florida Statutes (1978), the statute did not specify the criteria which applied to special risk membership. Until October 1, 1978 (the effective date of the amendment), “special risk member” was defined by Section 121.021(15), Florida Statutes (1975), as follows:

[A]ny officer or employee whose application is approved by the administrator and who receives salary payments for work performed as a peace officer; law enforcement officer; policeman; highway patrolman; custodial employee at a correctional or detention facility; correctional agency employee whose duties and responsibilities involve direct contact with inmates, but excluding secretarial and clerical employees; fireman; or an employee in any other job in the field of law enforcement or fire protection if the duties of such person are certified as hazardous by his employer.

Effective October 1,1978, amended Section 121.021(15)(b) clarified the term “special risk member” to mean a member who is designated as a special risk member by the Division in accordance with Section 121.-0515, employed as a law enforcement officer, a fire fighter, or a correctional officer, and who meets certain other special criteria as set forth in Section 121.0515(2). Section 121.0515(1) states the legislative intent as follows:

(1) LEGISLATIVE INTENT. — In creating the special risk class of membership within the Florida Retirement System, it is the intent and purpose of the Legislature to recognize that persons employed in certain categories of law enforcement, firefighting, and criminal detention positions are required as one of the essential functions of their positions to perform work that is physically demanding or arduous, or work that requires extraordinary agility, and mental acuity, and that such persons, because of diminishing physical and mental faculties, may find that they are not able, without risk to the health and safety of themselves, the public, or their coworkers, to continue performing such duties and thus enjoy the full career and retirement benefits enjoyed by persons employed in other positions and that, if they find it necessary, due to the physical and mental limitations of their age, to retire at an earlier age and usually with less service, they will suffer an economic deprivation therefrom. Therefore, as a means of recognizing the peculiar and special problems of this class of employees, it is the intent and purpose of the Legislature to establish a class of retirement membership that awards more retirement credit per year of service than that awarded to other employees; however, nothing contained herein shall require ineligibility for special risk membership upon reaching age 55.

In 1982, the Legislature further amended the statute, retroactive to October 1, 1978, to include as special risk a law enforcement officer who is an active member of a bomb disposal unit, or the supervisor of such a member, and to provide that a special risk member who is moved or reassigned to a non-special-risk law enforcement, fire fighting, or correctional administrative support position may apply the service in such a position toward satisfaction of the speeial risk normal retirement date, under certain conditions. Rule 22B-1.05, promulgated by the Department of Administration, implements the statute.

Appellants assert that the statutory-amendment limiting special risk membership to those who satisfy its criteria unconstitutionally abridges vested contract rights. In Grady v. Division of Retirement, 387 So.2d 419 (Fla. 1st DCA 1980), this court held that since none of the appellants in that case had either retired or satisfied those conditions of the law authorizing a member’s entitlement to pension benefits before the legislation in question was enacted, none had any vested right to retirement benefits which are available to those who meet the current criteria applicable to such classifications. In Florida Sheriffs Association v. Department of Administration, Division of Retirement, 408 So.2d 1033 (Fla.1981), the Florida Supreme Court held that the July 1, 1974 “preservation of rights” provision of the Florida Retirement System statute vested all rights and benefits previously earned, but was not intended to bind future legislatures from prospectively altering benefits which accrue for future State service. We hold that Section 121.0515 is constitutional and does not impair appellants’ vested rights.

Appellants’ second assertion is that the agency improperly interpreted and applied certain of the statutory requirements for special risk membership. A majority of the appellants have sought special risk status under the provisions of Section 121.-0515(2)(a), Florida Statutes, as certified law enforcement officers whose duties and responsibilities “include the pursuit, apprehension, and arrest of law violators and suspected law violators.” In denying special risk status sought under this category, the Division has relied upon its interpretation of the statute to include only those law enforcement officers whose “regular and actual,” as opposed to “theoretical,” duties include the pursuit, apprehension, and arrest of law violators. The Division bases this interpretation upon the expressed intent of the Legislature to include as “special risk” persons employed in certain categories who are required as one of the essential functions of their positions to perform work that is physically demanding or arduous, or work that requires extraordinary agility and mental acuity. Section 121.-0515(1), Florida Statutes, supra. If the basis of the Division’s denial of special risk status is its finding that the appellants who claim special risk under this category do not satisfy the requirements of the statute because the pursuit, apprehension, and arrest of law violators is not one of the essential functions of their positions, but only an incidental duty that is imposed upon all sworn law enforcement officers, we find that this interpretation is reasonably within the spirit and intent of the statute. However, language in some of the Commission’s final orders indicates that the standard applied by the Division may require that law enforcement officers have as their “primary duties” the pursuit, apprehension, and arrest of law violators. We find this interpretation to be an unreasonable one, beyond the authority of the agency and contrary to the legislative intent. We therefore remand to the agency those cases in which special risk membership was sought and denied under this category, for clarification by the agency of its interpretation of the statute and the basis for its finding as to each appellant found not to qualify for special risk membership under Section 121.0515(2)(a).

Because the statute has been amended subsequent to the proceedings below, to include as special risk any law enforcement officer who is “an active member of a bomb disposal unit whose primary responsibility is the location, handling, and disposal of explosive devices” and the supervisor or command officer of a member or members who have such responsibilities, Section 121.0515(2)(a), Florida Statutes (1982), those appellants who qualify under this category may seek special risk membership under this provision and should have the issue decided by the agency, after appropriate proceedings. We therefore remand to the agency for that purpose those cases to which this amendment may apply.

We find reasonable the agency’s interpretation of the term “supervisor” in Section 121.0515(2)(a) to mean only those whose duties and responsibilities include the immediate supervision of special risk members and its findings that the Legislature did not intend to extend special risk benefits to those in positions of remote supervision along the chain of command, several steps removed from the special risk members. Competent, substantial evidence in the record supports the agency’s findings that none of the appellants satisfy this requirement for special risk membership, and we affirm the denial of special risk membership sought on this basis.

Under the category “correctional officer” of Section 121.0515(2)(c), the Division of Retirement interprets the term “superintendent” to mean only the person in charge of day-to-day operation of each individual detention facility, regardless of his title. Although this definition differs from the Department of Corrections’ definition of “superintendent,” the Division of Retirement is not bound by another agency’s definition. The Division’s interpretation of the statute is reasonably within the spirit and intent of the statute. Competent, substantial evidence in the record supports the agency’s finding that none of the appellants who have applied for special risk membership under Section 121.0515(2)(c) meet this definition of superintendent. We therefore affirm the agency’s denial of special'risk membership to Hillman, Kassoff, and Gallagher on the basis of this category.

Hillman, Gallagher, Darpini, and Lynch have sought special risk status under the category for correctional officers whose “primary duties and responsibilities must be the custody, and physical restraint when necessary, of prisoners or inmates,” Section 121.0515(2)(c), Florida Statutes. Competent, substantial evidence in the record supports the agency’s finding that custody and control is not the primary duty of any of these appellants, as required by the statute. We therefore affirm the agency’s finding that these appellants do not qualify for special risk status under this category.

We affirm the agency’s denial of special risk membership in each of these cases, with the exception of those cases previously indicated for remand, and as to those cases, we remand for reconsideration and clarification in accordance herewith.

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

      . Except appellants Gonzales, Richter, and Lowe.

      . Regular members may retire at age 62 after ten or more years of creditable service or after 30 years of creditable service, regardless of age; a special risk member may retire at age 55 after ten or more years of creditable service, after 25 continuous years of creditable service, regardless of age, or at age 52, after 25 years of creditable service.

      . The amount of the monthly retirement benefit is calculated by multiplying the member's average monthly compensation by the number of years of creditable service times a percentage. For "regular members” this percentage is 1.6 percent, up to the member’s normal retirement age (and thereafter increases to a maximum of 1.68 percent); for a "special risk member,” the percentage is two percent for all creditable years of special risk service prior to October 1, 1974, three percent thereafter until October 1, 1978, and two percent thereafter. See Section 121.091, Florida Statutes (1981).

      .Section 121.0515(2), Florida Statutes (1982), provides, in pertinent part:
      (2) CRITERIA. — A member, to be designated as a special risk member, must meet the following criteria:
      (a)The member must be employed as a law enforcement officer and be certified in compliance with s. 943.14, or be on temporary waiver as provided by s. 943.14 until certified; however, sheriffs and elected police chiefs shall be excluded from meeting the certification requirements of this paragraph. In addition, the member’s duties and responsibilities must include the pursuit, apprehension, and arrest of law violators or suspected law violators; or the member must be an active member of a bomb disposal unit whose primary responsibility is the location, handling, and disposal of explosive devices; or the member must be the supervisor or command officer of a member or members who have such responsibilities; provided, however, administrative support personnel, including but not limited to, those whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel, shall not be included.

      (c) The member must be employed as a correctional officer and be certified in compliance with s. 944.585. In addition, the member’s primary duties and responsibilities must be the custody, and physical restraint when necessary, of prisoners or inmates within a prison, jail, or other criminal detention facility, or while on work detail outside the facility, or while being transported; provided, however, administrative support personnel, including, but not limited to, those whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel, shall not be included; however, superintendents and assistant superintendents shall participate in the special risk class.

      . While in such position, the member remains certified as a law enforcement officer, fire fighter, or correctional officer; remains subject to reassignment at any time to a position qualifying for special risk membership; and completes an aggregate of ten or more years of service as a designated special risk member prior to retirement. Section 121.0515(7)(a), Florida Statutes.

      . Rule 22B-1.051, F.A.C.:

      22B-1.051 Criteria for Special Risk Membership — Law Enforcement. The criteria set forth below shall be used pursuant to Section 22B-1.05 in determining membership in the special risk class for members who are filling law enforcement positions, regardless of title of such a position.
      (1) Any member, except a sheriff or an elected police chief, who seeks to be approved for special risk membership under this section must be issued one of the following from the Police Standards and Training Commission established by Chapter 943, Florida Statutes:
      (a) Certificate of Compliance (or valid temporary waiver of certificate of compliance); or,
      (b) Certificate of Comparative Compliance; or,
      (c) Certificate of Recognition; or,
      (d) Any other document issued by the Commission that certifies the employee’s compliance with Section 943.14, F.S.
      (2) Any member who seeks special risk membership must hold one of the following law enforcement positions:
      (a) Sheriff or elected police chief (certificate issued pursuant to (1) above not required); or,
      (b) Law enforcement officer whose duties include the pursuit, apprehension and arrest of law violators or suspected law violators; or,

        (c) Command officer or supervisor of a special risk member or members whose duties include the pursuit, apprehension and arrest of law violators or suspected law violators. However, administrative support personnel cited in subsection 3 shall not be included.
      (3) Except for those cited in (2)(a) above, no administrative support personnel, including but not limited to those whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel, shall be admitted to special risk membership.
      Amended in 1982 as follows:
      (2)

      (c) Active member of a bomb disposal unit whose primary responsibility is the location, handling, and disposal of explosive devices.
      (d) Command officer or supervisor of a special risk member or members whose duties include the pursuit, apprehension and arrest of law violators or suspected law violators or members of a bomb disposal unit. However, administrative support personnel cited in Subsection (3) shall not be included.

        Rule 22b-1.053, F.A.C.:

      22B-1.053 Criteria for Special Risk Membership — Correctional Officers. The criteria set forth shall be used pursuant to Section 22B-1.05 in determining membership in the special risk class for members who are filling correctional officer positions, regardless of the title of such a position.
      (1)Any member who seeks to be approved for special risk membership under this section must be issued one of the following from the Correctional Standards Council established by Chapter 944, Florida Statutes:
      (a) Certificate of Compliance; or,
      (b) Certificate of Recognition; or,
      (c) Certificate of compliance that indicates compliance with Section 944.585, F.S.; or,
      (d) Any other document issued by the Council that certifies the employee's compliance with Section 944.585, F.S.
      (2) Any member who seeks special risk membership must hold one of the following correctional officer positions:
      (a) Correctional officer whose primary duty and responsibility is the custody and physical restraint, when necessary, of prisoners or inmates within a prison, jail, or other criminal detention facility, or while on work detail or while being transported outside the facility.
      (b) Superintendent or Assistant Superintendent (regardless of title) of a correctional or detention facility that maintains custody c prisoners or inmates and employs correction al officers. However, an Assistant Superintendent, regardless of title, whose primary duties are in administrative support as cited in (3) below shall not be included.
      (3) No administrative support personnel, including but not limited to those whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel, shall be admitted to special risk membership.
      Amended in 1982 as follows:
      (2)

      (b) Superintendent or Assistant Superintendent (regardless of title) of a correction or detention facility where duly committed inmates are confined, housed, or maintained and where correctional officers are employed. Superintendent shall mean the person directly in charge of the day to day operations of a specific correction or detention facility. Assistant Superintendent shall mean the one person whose responsibilities include direct line authority from the Superintendent over all subordinate employees for the day to day operations at the facility. If no one employee in a corrections facility has such responsibility, then for retirement purposes there is no assistant superintendent at that facility.

      . Section 121.0515(2)(a), Florida Statutes, expressly excludes from special risk membership law enforcement officers "whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel.” Subsection (2)(c) contains a similar exclusion, but also provides, as to correctional officers, that to be designated as special risk “the member’s primary duties and responsibilities must be the custody, and physical restraint when necessary, of prisoners or inmates.” There is no equivalent provision in the statute as to law enforcement officers. The Legislature did not impose the "primary duty” requirement as to law enforcement officers, and the agency is without authority to add this requirement by interpretation.

      . The parties have indicated that these may number as many as 14.

      . This non-rule policy, upon which the agency relied in denying special risk membership to those who applied under the "superintendent" criterion, was sufficiently explicated and supported by the record to permit judicial review of its actions. Rule 22B-1.053(2)(b), as amended in 1982, codified the agency’s definition of "superintendent” and "assistant superintendent." (See Footnote 6). We note that the unamended rule improperly denied special risk membership to "an Assistant Superintendent, regardless of title, whose primary duties are in administrative support,” contrary to the clear legislative intent. However, this incorrect interpretation of the statute is not at issue here, since none of the appellants who have sought special risk membership under this criterion meet the basic definition of "assistant superintendent,” nor do any of them bear that title.