author: PER CURIAM. ALDERMAN, Chief Justice, BOYD, Judge, SHAW, Judge,

text:
    Lucious ANDREWS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 60584.
    Supreme Court of Florida.
    Dec. 8, 1983.

      Michael E. Allen, Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of the Circuit Court of Leon County imposing the death penalty. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. The offense was sexual'battery upon a person under the age of eleven years by a person eighteen or more years of age. § 794.-011(2), Fla.Stat. (1979). For the following reason, we reverse appellant’s conviction and vacate the sentence which has been imposed upon him.

The victim testified in court as follows: Appellant was asked by the victim, Quinez-ett Bryant, aged eight, to take her to the store one evening. Appellant drove the victim to the store and purchased popcorn and bubble gum for her. He then drove her home and parked his car in front of the victim’s house. Allegedly, appellant pushed the victim down in the seat of the car, pushed her panties aside, and attempted to insert his penis into her anus. She suffered pain in the anal area due to three small tears in the anal tissue. Appellant then discontinued the attempt at penetration. The victim’s sister, Tonya, came out to the car looking for her sister and told her to go inside the house. The victim went to the bathroom and “felt something come out.” She didn’t know what it was but it was white; she flushed it down the toilet. The victim then washed her panties and went to sleep.

The next morning, the victim’s mother questioned the girl about her outing from the house and learned of the sexual battery. The victim was taken to the hospital where an examination found three shallow or superficial lacerations around the anus. Medical swabs were also taken of the anal area and these were later determined to contain some amounts of blood but no semen. Chemical testing of the victim’s panties, gown and robe revealed no semen present.

Jury trial commenced on April 7, 1981. The state’s witnesses were the victim, her sister, the emergency room physician, the investigating officer, a forensic serologist, and the victim’s mother. Appellant’s witnesses were a sheriff’s deputy, a state’s attorney investigator, a lab technician, the victim’s father, the victim’s mother, three character witnesses, and the appellant.

On April 8, 1981, the jury returned a verdict of guilty of the offense charged.

On April 30, 1981, the sentencing phase was conducted. The state presented no additional evidence and said it was not seeking the death penalty. Appellant called several character witnesses as well as the victim’s mother in mitigation. The jury recommended life imprisonment as a sentence. The jury foreman made a statement to the court that the jury unanimously felt that even the life sentence “is more severe than the particular circumstances involved in this case.” Immediately thereafter, the trial judge overrode the jury’s recommendation and imposed a sentence of death.

I

Andrews, who is black, initially contends that the trial court erred in denying his motion to dismiss the indictment against him, which motion alleged that black citizens of Leon County had been systematically excluded from serving as grand jury foremen. He does not challenge the racial composition of the grand juries empaneled in Leon County.

First, applying the principles announced by the Supreme Court in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); and reaffirmed as they apply to the selection of a Tennessee grand jury foreman in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), we find that the trial court correctly denied Andrews’ motion to dismiss.

In Rose the Supreme Court held that in order to show that an equal protection violation has occurred in the context of grand jury foremen selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The Court then said that a defendant was required to prove a prima facie case of discrimination in the selection of a grand jury foreman as follows:

The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied_ Next, the degree of un-derrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as [foreman], over a significant period of time.... This method of proof, sometimes called the “rule of exclusion,” has been held to be available as a method of proving discrimination in jury selection against a delineated class...: Finally ... a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. [Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280.]

443 U.S. at 565, 99 S.Ct. at 3005. Only after the defendant in this manner establishes a prima facie case of discrimination does the burden shift to the state to rebut that prima facie case.

Assuming, for the purposes of analysis only, that Andrews established that he is a member of a group recognizable as a distinct class capable of being singled out for different treatment under the laws, that the selection procedure is susceptible of abuse, and that there has been a degree of underrepresentation of blacks as grand jury foremen over a significant period of time, this would establish a prima facie case of discrimination under the Rose test, and the burden would shift to the state to rebut the presumption of discrimination.

The state then would have the burden of showing that racially neutral selection procedures produced the disparity established by Andrews. In its order denying the motion to dismiss, the trial court found that:

Every circuit judge involved with the selection of grand jury foremen in Leon County during the critical period, who testified, gave the specific criteria he used in selecting a grand jury foreman. Each denied that race was one of these criteria. Leadership and ability to preside over the deliberations seem to be the most common and persuasive criteria used.

In an analogous case, the United States Court of Appeals, Eleventh Circuit, in United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982), addressed the issue of alleged discrimination in the Southern District of Florida in the selection of a federal grand jury foreman where the defendant had made a prima facie case of discrimination. It reiterated the principles announced in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), and Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 532 (1970), that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case and that denial of a discriminatory intent will not suffice. It held, however, that the government had rebutted the defendant’s case of discrimination. In reaching this conclusion, the Eleventh. Circuit stated:

The government’s rebuttal case below consisted entirely of testimony from eight district judges involved in the foreman selection process for the years in question. Each judge testified that he acted independently of the other judges in choosing a grand jury foreman, although each employed similar guidelines in making a selection. These guidelines generally consisted of four separate factors: (1) occupation and work history; (2) leadership and management experiences; (3) length of time in the community; and (4) attentiveness during the jury empan-elment. These factors directly relate to the ability to perform the administrative functions and duties of a grand jury foreman. This is not then a case in which arbitrary and unrelated criteria operated to exclude distinct groups from a position- We can think of no better criteria for determining which grand jury member is best able to serve as foreman.

672 F.2d at 1387-88 (footnotes omitted) (citation omitted). The criteria used by the federal judges in the Southern District of Florida were for the most part the same ones used by the circuit judges in Leon County in selecting grand jury foremen. As was the case in Perez-Hernandez, the record in the present case does not show that these judges abused their discretion by selecting foremen without regard to their stated criteria or by excluding equally qualified blacks.

The Eleventh Circuit also reached the same result in a case from the Northern District of Florida. United States v. Holman, 680 F.2d 1340 (11th Cir.1982). In that ease the defendants sought reversal because of alleged discrimination in selection of the grand jury foreperson. During the relevant period from 1969 to 1979, only one black female was appointed to that position in the Northern District of Florida. Circuit Judge Hatchett of the Eleventh Circuit, who was sitting by designation as the trial judge, denied the defendants’ motion to dismiss the indictment. Finding that a prima facie case of discrimination had been established, Judge Hatchett nevertheless concluded that the government had met its burden of rebutting the defendants’ case. United States v. Holman, 510 F.Supp. 1175 (N.D.Fla.1981). On appeal, the Eleventh Circuit, accepting Judge Hatchett’s conclusion that a prima facie case had been made, affirmed his ruling that it was rebutted by the government's proof of a lack of discriminatory intent. In reaching this decision, the court said: “Both judges of the Northern District of Florida who testified at the hearing and in deposition asserted that their selections were rendered with no view to the jurors’ race or sex; Judge Stafford stated that he was unaware that the jurors’ race was even indicated on the questionnaire.” 680 F.2d at 1357.

If the federal district judges of the Southern District of Florida in Perez-Hernandez and of the Northern District of Florida in Holman acted properly in selecting grand jury foremen, then certainly the circuit judges of Leon County did also. Just as in the federal cases, this is not a case in which arbitrary and unrelated criteria operated to exclude distinct groups from a position. The record in this case clearly establishes that the circuit judges in Leon County were “color blind” in their selection of grand jury foremen and that the criteria they used in their selection were racially neutral.

Next,’even though for the purposes of analysis we have applied the principles in Rose to show that the foreman selection process did not violate the equal protection clause of the fourteenth amendment, we question whether Rose is applicable to Florida’s grand jury foreman selection process. Judge Morgan, in his specially concurring opinion in Perez-Hernandez, concludes that the Supreme Court’s holding in Rose does not apply to the selection of grand jury foremen in the federal system. For the same reasons expressed by Judge Morgan, it also does not apply to Florida’s grand jury foreman selection process. Judge Morgan contends that before a defendant may challenge his indictment because of discrimination in the judicial system, the discrimination should be related to a significant position in the administration of justice. He points out that the federal grand jury foreman is not such a significant position and that there are material differences between the role of the federal grand jury foreman and that of the Tennessee grand jury foreman involved in Rose. Selection of the federal foreman, he asserts, is not even remotely necessary to the administration of justice since he or she performs only menial, insignificant tasks and has no more power than any member of the grand jury panel. In the federal system, the grand jury is randomly selected and then a foreman and deputy foreman are selected by the court from that group. The federal foreman administers oaths, signs the indictments, and he or another member of the grand jury whom he designates keeps the records. Fed.R.Crim.P. 6(c).

The grand jury foreman in Tennessee, on the other hand, plays an independently significant role in the administration of justice. The Supreme Court in Rose detailed the selection process and the functions of a grand jury foreman in Tennessee. 443 U.S. at 548 n. 2, 99 S.Ct. at 2996 n. 2. He or she is chosen by a judge from the entire population for a two-year term of office and is then added to a randomly selected grand jury panel as a thirteenth member. This procedure allows discrimination in the selection of the foreman to infiltrate discrimination into the entire grand jury panel. The Tennessee grand jury foreman plays an essential role in the administration of justice in that he or she is charged with the duty of assisting the district attorney in investigating crime and may order the issuance of subpoenas for witnesses before the grand jury. Without his or her endorsement, an indictment is fatally defective.

The selection process and duties of the grand jury foreman in Florida courts are analogous to the federal court system. Both are unlike the grand jury foreman in the Tennessee state court system. In Florida, the court selects one of the grand jurors as foreman and another to act as foreman during the absence of the foreman from a randomly selected grand jury. § 905.08, Fla.Stat. (1981). The Florida foreman plays no more significant a part in the proper administration of justice than does the federal grand jury foreman. He administers oaths to witnesses, appoints one of the members of the grand jurors as clerk to keep minutes of the proceedings, appoints interpreters to translate language of witnesses, and either he or an acting foreman signs the indictment. §§ 905.22, 905.13, and 905.15, Fla.Stat. (1981); Fla.R. Crim.P. 3.140(f). Therefore, even if there had been discrimination in the selection of the grand jury foreman in Leon County, which there was not, it would not have justified quashing the indictment and certainly does not require setting aside the conviction.

Finally, the applicability of the test announced in Rose to the Florida foreman selection process is questionable on another basis. In light of the fact that the Florida grand jury foreman is chosen from the randomly selected grand jury rather than selected from the entire population and then added as an additional member to the panel, the second criteria announced in Rose for establishing a prima facie case of discrimination, i.e., that the degree of un-derrepresentation may be proved by comparing the proportion of the group in the total population to the proportion called to serve as foreman over a significant period of time, is inappropriate in the present case. Rather, we should compare the proportion of the group in grand jury panels to the proportion called to serve as foremen. Thus the trial court was correct when it concluded:

5.There is no evidence of nor challenge to the racial composition of the grand juries empaneled in Leon County during the critical period.
6. If the selection of the grand juries was racially neutral as we must assume it was, it could result in a racial composition disproportionate to the population without being constitutionally objectionable.
7. Statistical calculations based on a comparison of the number of black grand jury foremen selected to the number of blacks in the general population are not competent to establish a systematic and deliberate exclusion of blacks from that position without a showing as to the number of blacks from which the selection was made; i.e., the grand jury panel.
8. The defendants did not in this Court’s opinion establish a prima facie case of discrimination under the “rule of exclusion.”

Based on the foregoing analyses, we hold that the trial court correctly denied Andrews’ motion to dismiss the indictment.

II

Appellant’s second point, however, raises an issue which indeed rises to the level of reversible error and causes us to set aside the conviction. Appellant claims that the trial court committed reversible error when it denied appellant’s motion for a mistrial after the court had commented, without request and without cautionary instruction, upon appellant’s right to decline to testify. With this we agree.

In its opening instructions to the jury, the trial court said, inter alia:

The Defense may or may not call witnesses. The Defense is not required to call any witnesses nor is the defendant required to take the stand.

Defense counsel promptly moved for a mistrial alleging improper comment by the court upon the defendant’s right not to testify and not to take the stand. The state was not unsympathetic to the mistrial motion but the trial court denied it. Trial was held and appellant testified in his own behalf.

The Florida Standard Jury Instructions in Criminal Cases that was applicable at the time of appellant’s trial provided for the following preliminary instruction:

The defendant may or he may not testify during the trial. At no time is a defendant in a criminal case required to prove his innocence or furnish any evidence whatsoever. This right is guaranteed to all defendants by the Constitution and no other right is more thoroughly ingrained in our system of justice. The decision to testify or not testify is his alone to make, and a jury cannot draw any inference of guilt whatsoever from the failure of a defendant to take the witness stand in his own defense.

Fla.Std.Jury Inst. (Crim.) 1.01. A footnote referring to this instruction says:

The above is to be given only with consent of defendant.

Fla.Std.Jury Inst. (Crim.) 1.01, n. 1.

The giving of similar instructions over the objection of the defendant is not error. Carlton v. State, 111 Fla. 777, 149 So. 767 (1933); Fogler v. State, 96 Fla. 68, 117 So. 694 (1928); Harvey v. State, 187 So.2d 59 (Fla. 4th DCA), cert. denied, 194 So.2d 619 (Fla.1966), cert. denied, 386 U.S. 923, 87 S.Ct. 894, 17 L.Ed.2d 795 (1967). See also Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978). However, the trial court in the instant case omitted any cautionary instruction to the jury not to draw any inference of guilt from the defendant’s failure to take the stand in his own defense. That omission is most significant. As the United States Supreme Court noted in Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981):

The significance of a cautionary instruction was forcefully acknowledged in Lakeside, where the Court found no constitutional error even when a no-inference instruction was given over a defendant’s objection. The salutary purpose of the instruction, “to remove from the jury’s deliberations any influence of unspoken adverse inferences,” was deemed so important that it there outweighed the defendant's own preferred tactics.

450 U.S. at 301, 101 S.Ct. at 1119-1120 (footnote omitted). Without the cautionary instruction, the jurors were free to infer or speculate that a defendant who does not testify must surely be guilty, otherwise he would take the stand in his own behalf. A bald judicial comment on the refusal to testify, by itself, “is a remnant of the ‘inquisitorial system of criminal justice’ .... It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106 (1965) (footnote and citations omitted). But the cautionary no-inferenee instruction’s “very purpose is to remove from the jury’s deliberations any influence of unspoken adverse inferences.” Lakeside v. Oregon, 435 U.S. at 339, 98 S.Ct. at 1095.

The fact that appellant did later testify does not remedy the error committed by the trial court. The fatal instruction effectively deprived appellant of the opportunity to make his decision whether or not to testify “in an atmosphere free of coercion or intimidation.” Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). Whereas in Provence there was little doubt that from the outset the defense intended to put the defendant upon the stand (in order to present a self-defense argument to balance the picture of the deceased's body with its eight stab wounds), here the record does not suggest that it was appellant’s intention from the outset of his trial to testify. The state’s case consisted basically of the testimony of a young child. It could easily have been defense counsel’s trial strategy not to have the defendant testify and argue the total unreliability of the young child’s testimony. Defense counsel may very well have concluded that the absence of a cautionary instruction effectively eliminated any free choice he may otherwise have had on the matter of defendant’s testifying or electing to remain silent. Thus, an impermissible element of coercion was present in the instant case, and this was sufficient, we believe, to deprive appellant of his right to make his decision about testifying in a free and principled manner.

We thus conclude that the trial court’s comment, over appellant’s objection, with no cautionary no-inference instruction, should have been the basis for the court’s granting the motion for mistrial. Since the motion was not granted, we hereby reverse appellant’s conviction and vacate his sentence. Upon retrial, appellant may not be subject to the death penalty for this crime. Coler v. State, 418 So.2d 238 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983); Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).

It is so ordered.

OVERTON and McDONALD, JJ., concur with Part I and II.

ALDERMAN, C.J., and BOYD, J., concur with Part I and dissent with Part II with opinions.

SHAW, J., concurs with Part II and dissents with Part I with an opinion, with which ADKINS and EHRLICH, JJ., concur.

ALDERMAN, Chief Justice,

concurring in part, dissenting in part.

I concur that the trial court correctly denied Andrews’ motion to dismiss the indictment. I also agree that Andrews may not be subject to the death penalty for the crime for which he was convicted. I dissent, however, to the reversal of Andrews’ conviction on the basis that the trial court erred in denying Andrews’ motion for mistrial after the trial court had instructed the jury on Andrews’ right not to testify.

The trial court did not reversibly err in instructing the jury as to Andrews’ right not to testify. In the context of its opening explanation to the jury as to how a criminal trial proceeds, the trial court said:

The Defense may or may not call witnesses. The Defense is not required to take the stand. In a criminal case the State is required to prove its case beyond and to the exclusion of a reasonable doubt. I will instruct you at a later time to what reasonable doubt is. It is not a complicated physics formula or any engineering type of formula. It is simply one that will be of a common sense explanation.

This was not an improper comment on the possible failure of Andrews to testify but merely supplemented the presumption of innocence charge and emphasized that the burden in a criminal case is upon the state to prove its case beyond and to the exclusion of a reasonable doubt. It was not an adverse comment on defendant’s failure to testify and certainly did not amount to an instruction that a defendant’s silence is evidence of guilt and therefore was not constitutionally proscribed. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The comment did not violate Andrews’ constitutional privilege against compulsory self-incrimination since there was no element whatsoever of compulsion in the trial court’s opening instruction. In Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), the Supreme Court reemphasized that the concern of the Court was with adverse comment on a defendant’s refusal to testify and expressly stated that although it may be wise for a trial court not to give a cautionary instruction relating to a defendant’s right not to testify over a defendant’s objection, “[w]e hold only that the giving of such an instruction over the defendant’s objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amend-merits.” 435 U.S. at 340-41, 98 S.Ct. at 1095 (footnote omitted).

We are not here dealing with a request by a defendant for a cautionary instruction to a jury that they should not draw adverse inferences from his failure to testify as was the ease in Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). In that case the defendant had requested a court instruction that the jury not draw inferences from defendant’s failure to testify. The Supreme Court held that the defendant, upon request, had the right to have the trial court give this instruction in order to minimize the danger that the jury would give evidentiary weight to his failure to testify. It is reversible error to refuse to give this cautionary instruction where defendant requests it, but, as the majority expressly recognizes, it is not reversible error to give it over a defendant’s objection. Carlton v. State, 111 Fla. 777, 149 So. 767 (1933); Fogler v. State, 96 Fla. 68, 117 So. 694 (1928); Mosley v. State, 402 So.2d 559 (Fla. 1st DCA 1981).

In the present ease, Andrews chose to take the stand and to testify. The judge’s instruction was not adverse to him, and his argument that the comment coerced him to testify is without merit. I find no reversible error in the trial court’s giving this instruction.

I find that Andrews’ other point relating to his conviction is also without merit. Accordingly, I would affirm his conviction, but would vacate his death sentence and remand with directions to reduce his sentence to life imprisonment, with the requirement that he serve no less than twenty-five years before becoming eligible for parole.

BOYD, Judge,

concurring in part and dissenting in part.

I concur with Part I of the majority opinion, holding that the trial court correctly denied appellant’s motion to dismiss the indictment. I also agree that even though the offense of sexual battery by an adult upon a young child as defined by statute is designated a capital offense under Florida law, a sentence of death may not be imposed for such crime. I dissent to Part II in which the majority orders a new trial on the ground of improper comment on the defendant’s right not to testify. I agree with Chief Justice Alderman’s view that there was no such improper comment. I therefore dissent to the order of a new trial. I would grant relief to appellant, however, on the ground, not raised in his brief, that because of the paucity of evidence of the crime of sexual battery, we should in the interest of justice reduce the severity of the conviction to attempted sexual battery.

Regarding the argument that appellant was indicted by a grand jury selected by a system that purposely excludes black citizens from the position of grand jury foreman, I agree with Part I of the majority opinion holding that the argument does not entitle appellant to a new trial. I believe that the exclusion of black citizens from any position in our legal system or society in general, including grand jury foreman, is intolerable. We in the judiciary should continue in our efforts to remedy any such exclusionary tendencies and to ensure that black citizens fully participate in all phases of the judicial process. However, where the evidence is sufficient and the trial is fair a conviction should not be reversed on the ground of racially disparate participation in the position of grand jury foreman unless it be shown that there was intentional racial discrimination in the selection of persons for such position. Here there was a sufficient showing that the inequality in service by black citizens as grand jury foreman was not the result of intentional discrimination. See United States v. Cabrera-Sarmiento, 533 F.Supp. 799 (S.D.Fla. 1982); United States v. Breland, 522 F.Supp. 468 (N.D.Ga.1981); United States v. Manbeck, 514 F.Supp. 141 (D.S.C.1981); United States v. Holman, 510 F.Supp. 1175 (N.D.Fla.1981); United States v. Jenison, 485 F.Supp. 655 (S.D.Fla.1979); State v. Garrett, 627 S.W.2d 635 (Mo.1982) (en banc). Therefore I agree that the trial court did not err in denying the motion to dismiss the indictment.

Regarding the appellant’s argument that the court improperly commented on his right not to testify, I believe that clear legal authority and an examination of the record show that this argument is completely without merit. The court instructed the jury as follows:

The Defense may or may not call witnesses. The Defense is not required to call any witnesses nor is the Defendant required to take the stand. In a criminal ease the State is required to prove its case beyond and to the exclusion of a reasonable doubt. I will instruct you at a later time to what reasonable doubt is. It is not a complicated physics formula or engineering type of formula. It is simply one that will be of a common sense explanation.

Such a comment on a defendant’s right not to testify “merely supplements the ‘presumption of innocence’ charge with particular reference to the failure of the accused to testify.” Fogler v. State, 96 Fla. 68, 71, 117 So. 694, 695 (1928). The United States Supreme Court has specifically rejected the argument that any comment on a defendant’s decision not to testify is reversible error. Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978). “To be constitutionally proscribed, a comment must be adverse.” State v. Mata, 125 Ariz. 233, 238, 609 P.2d 48, 53, cert. denied, 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d 161 (1980). An adverse comment is one which allows the jury to draw adverse inferences from a defendant’s decision not to testify and thereby puts pressure on him to personally respond to the charges. See Lakeside v. Oregon; State v. Mata. Since the comment in this case was not adverse and did not put pressure on the appellant to testify, the instruction did not violate appellant’s right not to be a witness against himself.

Regarding the sufficiency of the evidence, my review of the record convinces me that there was no proof beyond a reasonable doubt of penetration or union within the meaning of section 794.011(l)(f), Florida Statutes (1979). There was, however, ample evidence of an attempt to commit the crime of sexual battery upon a child of eleven or younger. I would therefore vacate the conviction and sentence and remand with instructions to enter judgment for attempted sexual battery and to impose an appropriate sentence.

SHAW, Judge,

concurring in part and dissenting in part.

After being indicted, the appellant, who is black, filed a motion to dismiss the indictment because black citizens of Leon County had been systematically excluded from serving as grand jury foremen. Counsel for the appellant and the state agreed that the following stipulation from a pending case could be used in the present case:

1. Since 1955 there has not been a black grand jury foreman in Leon County.
2. It is unknown whether there were any black grand jury foremen in Leon County prior to 1955.
3. According to the United States Census Bureau, the population of Leon County in 1950 was 59,590, blacks represented 39.5% of that population.
4. According to the United States Census Bureau, the population of Leon County in 1960 was 74,225, blacks represented 32.9% of the population.
5. According to the United States Census Bureau, the population of Leon County in 1970 was 103,047, blacks represented 25.3% of the population.
6. There is no census figure yet available for 1980, but the Leon County Planning Department estimates that the 1980 population of Leon County is 147,500. The Department estimates that 19.7% of the 1980 population is black.

The Leon County Deputy Clerk testified that fifty grand jury foremen had been selected in Leon County since 1955. Five witnesses testified on behalf of the state. One witness was an assistant state attorney who testified concerning general grand jury procedures, but provided no insight as to the criteria used for the selection of the grand jury foreman. Two circuit court judges testified concerning grand jury selection in counties other than Leon. Neither had ever impaneled a grand jury in Leon County. Testimony was adduced from the two remaining circuit court judges, both of whom had impaneled grand juries in Leon County. One judge testified that in making a grand jury foreman selection he looked for

[a] person who in my opinion has had the county’s interest at heart and will continue to have the county’s interest at heart and particularly for leadership qualities to head up a group of people for six months, 18 people for six months. I want one with leadership qualities to avoid having a run-away grand jury that will go off on a tangent and won’t be responsible.
The second judge testified that
[personally, after I have drawn the grand jury, then I usually confer with the sheriff and the clerk and anyone else I feel that would be helpful and draw on my own knowledge of the people, if I do know, to try to select persons who are generally sufficiently either educated or experienced to preside over the grand jury and to act as a presiding officer. I just try to take into consideration the qualifications of the individual.... Well, I want someone that I feel would be sufficiently knowledgeable about procedures to chair a meeting, either from experience as a business person or one who is educated. I just feel that someone who was completely uneducated, who had never been to school or never had had any particular .. who had no experience, would be very uncomfortable and could not serve adequately in that capacity.

The only credible evidence concerning the criteria and method used in the Leon County selection process is found in the testimony of these two latter witnesses. The issue at that point was whether Andrews presented a prima facie case of unconstitutional underrepresentation and, if so, whether the testimony of the two relevant witnesses was sufficient to rebut that case.

The circuit court made the following findings of fact and conclusions of law:

1. The defendants are black and blacks as a group are a recognizable distinct class often singled out for different treatment under the laws, as written or applied.
2. The Judge who selects a grand jury foreman is generally aware of which jurors are black and the process is therefore susceptible to abuse.
3. The evidence establishes a degree of under representation of blacks in the position of Leon County Grand Jury Foreman as compared to the general population of Leon County for a significant period which would be unlikely to occur by chance.
4. These black defendants have a constitutional right to a grand jury the foreman of which was not selected by a process which deliberately and systematically excluded blacks.
5. There is no evidence of nor challenge to the racial composition of the grand juries empaneled in Leon County during the critical period.
6. If the selection of the grand juries was racially neutral as we must assume it was, it could result in a racial composition disproportionate to the population without being constitutionally objectionable.
7. Statistical calculations based on a comparison of the number of black grand jury foremen selected to the number of blacks in the general population are not competent to establish a systematic and deliberate exclusion of blacks from that position without a showing as to the number of blacks from which the selection was made; i.e., the grand jury panel.
8. The defendants did not in this Court’s opinion establish a prima facie case of discrimination under the “rule of exclusion.”
9. THe Supreme Court of the United States has held that a prima facie case of discrimination could be established by a statistical comparison of the number of persons with Spanish Surnames called for jury duty to the number of “persons of Spanish Language or Spanish Surnames” in the general population, Castaneda v. Partida [430 U.S. 482], 97 S.Ct. 1272 [51 L.Ed.2d 498 (1977) ], and this Court should therefore, for the sake of judicial efficiency, determine whether or not a prima facie case would have been rebutted had it been established.
10. Every circuit judge involved with the selection of grand jury foremen in Leon County during the critical period, who testified, gave the specific criteria he used in selecting a grand jury foreman. Each denied that race was one of those criteria. Leadership and ability to preside over the deliberations seemed to be the most common and persuasive criteria used.
11. The evidence presented by the State was sufficient to rebut a prima facie case that blacks had been deliberately and systematically excluded from the position of grand jury foreman had such a case been established.

In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), the United States Supreme Court spelled out the test for determining whether a prima facie case has been presented regarding a claim of racial discrimination in selection of grand jury foremen:

The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied_ Next, the degree of un-derrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as [foreman], over a significant period of time.... This method of proof, sometimes called the “rule of exclusion”, has been held to be available as a method of proving discrimination in jury selection against a delineated class_ Finally ... a selection procedure that is susceptible to abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.

Id. at 565, 99 S.Ct. at 3005, quoting Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977).

Once a prima facie case of discrimination is established using this approach, the burden shifts to the state to rebut that prima facie case. The circuit judge in this instance found as fact: (1) that the defendants are black and blacks as a group are a recognizably, distinct class often signled out for different treatment under the laws, as written or applied, (2) that the judge who selects a grand jury foreman is generally aware of which jurors are black and the process is therefore susceptible to abuse, and (3) that the evidence establishes a degree of underrepresentation of blacks in the position of Leon County grand jury foreman as compared to the general population of Leon County for a significant period which would be unlikely to occur by chance. These crucial findings clearly established a prima facie case, thereby shifting to the state the burden to rebut the presumption of discrimination. It then became the state’s burden to show that racially neutral selection procedures produced the disparity. Simple affirmations of good faith in making the individual foreman selections are insufficient to rebut such a case. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 532 (1970).

The majority opinion points out that testimony similar to that adduced in the instant case was deemed sufficient for rebuttal purposes in United States v. Holman, 510 F.Supp. 1175 (N.D.Fla.1981), and United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982). This analogy fails to recognize that in Perez-Hernandez eight federal district judges testified (and established by way of their testimony) that in selecting the grand jury foremen during the years in question they considered (1) occupation and work- history, (2) leadership and management experience, (3) length of time in the community, and (4) attentiveness during the jury impanelment. The majority opinion also fails to recognize the distinction between those cases and the present one in that Perez-Hernandez deals with a four-year time span, and in Holman the court was dealing with a ten-year time span. Even so, in Holman, Circuit Judge Hatchett, sitting by designation to hear the appellant’s motion to dismiss, cautioned that “[although the court approves the criteria now being used, this criteria over a relevant period of time must result in a fair cross-section of the community in the office of grand jury foreperson, or be subject to attack on constitutional grounds.” 510 F.Supp. at 1180 n. 3.

Here we are dealing with a period of twenty-five years, from 1955 through 1980, and fifty grand juries in which there has never been a black grand jury foreman selected in Leon County. Obviously the state’s burden should be heavier when attempting to rebut a twenty-five year period of prima facie discrimination as opposed to a four-year or even a ten-year period. The evidence adduced by the state was neither of the quality nor quantity as that adduced in Perez-Hernandez or Holman. The relevant testimony came from the judges who had impaneled grand juries in Leon County. The three criteria enunciated by these judges were (1) leadership qualities, (2) the county’s interest at heart, and (3) sufficient education or experience to preside over a grand jury and to act as a presiding officer. I question whether community interest is an acceptable criteria. It is an extremely subjective test that of necessity reflects the qualifying judge’s background, experience, beliefs, and possible prejudice and has no measurable norm. See Turner, 396 U.S. at 361, 90 S.Ct. at 540, where jury commissioners disqualified blacks because they were not “upright.”

Conceding for the sake of argument that leadership ability, community interest, and sufficient education to preside over a grand jury are desirable qualities to have in a grand jury foreman, the next logical question is how has Leon County gone about the process of ascertaining which members of the grand jury panels possess these qualities. For our answer we must rely upon the testimony of the two judges who have impaneled grand juries in Leon County. One judge testified that he used his own knowledge of the grand jurors. The second judge testified that after the grand jury was sworn he usually conferred with the sheriff, the clerk, and anyone else he felt would be helpful and drew upon his own knowledge as to the people. There is nothing in the record to indicate that the jurors were questioned regarding their work history, leadership abilities, management experience, education, length of time in the community, experience in presiding over meetings, or that there was any similar inquiry calculated to ascertain the qualifications of individual jury members. It is unlikely that the judge, the sheriff, the clerk, or others who happened to be available at the time could evaluate the qualifications of the jurors without such inquiry. In 1980, there were over 75,000 registered voters in Leon County from whom the grand jurors were randomly selected. The fact that the judge might recognize juror number three as an outstanding community leader does not negate the fact that juror number five, unbeknownst to the judge absent inquiry, might be equally outstanding in his community and equally qualified. Where the selection procedure is susceptible to abuse, as it is here, and a prima facie case of unconstitutional discrimination is established, it is incumbent on the state to show that the selection procedure is racially neutral. Leon County contains the state capital with two universities, a multitude of black state employees, a sizeable black academic community, and an electorate where blacks comprise approximately 20% of the registered voters from which the grand jurors are randomly selected. Thus, it can be presumed that some 20% of the grand jurors would be drawn from a black community likely to produce qualified grand jury foremen. Inexplicably, this process has not produced a black foreman within the recorded history of Leon County. Testimony of the judges that they themselves are racially neutral is insufficient to rebut the overwhelming prima facie case of systematic exclusion. This is not to suggest that the judges are racially biased. It is the selection process that is under scrutiny, not the personal attitudes of the judges.

The majority opinion goes on to point out that even if Andrews has established a prima facie case of discrimination he is still not entitled to relief because the grand jury foreman in Florida, like the grand jury foreman in the federal court system, plays an insignificant role in the proper administration of justice. I perceive this to mean that in Florida, even if unrebutted discrimination is shown in the selection of the grand jury foreman, no relief is available. To support this position the opinion draws upon the concurring opinion of Judge Morgan in Perez-Hernandez. I would only point out that the majority opinion in Perez-Hernandez considered and rejected Judge Morgan’s argument by holding that the position of grand jury foreman in the federal court system is a constitutionally significant position. The trial court properly found, and case law supports its finding, that black defendants have a constitutional right to a grand jury foreman selection process which does not deliberately and systematically exclude blacks. This Court’s opinion appears to say that in Florida there is no such constitutional right.

Finally, the majority questions whether Rose v. Mitchell is even applicable to the Florida grand jury foreman selection process in light of the fact that the Florida grand jury foreman is chosen from a randomly selected grand jury rather than from the entire population and then added as an additional member of the panel. The court would require a statistical calculation based on a comparison of the proportion of blacks in the grand jury panels to the proportion called to serve as foreman and would place the burden on the defendant to produce the necessary figures before a pri-ma facie case could be established. I disagree. Rose, Holman, and Perez-Hernandez all rely on the proportion of the group in the total population to the proportion called to serve as foremen over a significant period of time. Once the defendant establishes a prima facie case based on the controlling criteria in Rose, the burden shifts to the state to rebut the case. If the state wishes to rely on the proposition that the composition of the jury venire is significantly different from that of the general population, it should have the burden of producing the relevant figures and demonstrating that these figures rebut the prima facie case of unconstitutional exclusion. In Florida, qualifications of jurors are governed by section 40.01, Florida Statutes (1981). The only qualification is that the jurors be registered electors of the county. If the grand jury venires are racially neutral, as the trial court found, then it is logical to assume that grand juries, over a significant period of time, will approximately parallel the composition of the county electorate. Barring the introduction of evidence by the state showing that this assumption is incorrect, it is misleading to argue that the defendant must somehow accurately ascertain the racial composition of grand jury panels over an extended period of time despite testimony that such figures do not exist. The Court’s approach places upon the appellant a greater degree of proof than the circumstances permit or controlling case law requires. A state wishing to perpetuate a discriminatory practice could simply fail to keep such figures and thereby successfully defeat any challenge. Bearing in mind that the sole importance of figures in this type of case lies in their use as a tool to show significant underrepresentation, I see nothing wrong with using census figures when other figures are unavailable through no fault of the party alleging systematic exclusion.

The majority approach ignores the stark reality that between 1955 and 1980, a period of twenty-five years encompassing fifty grand juries, there never was a black grand jury foreman even though the statistical likelihood of such a result occurring by chance is astronomical. If the selection process that produced this phenomenon is permitted to continue, there is nothing to suggest that another twenty-five years will not elapse without a black being selected to serve as a grand jury foreman. Perhaps there is a constitutionally acceptable explanation for the phenomenon. The state in this instance has failed to supply that explanation by showing that racially neutral selection procedure produced the disparity. I would therefore reverse on the ground that the state failed to rebut a prima facie case of unconstitutional discrimination. I respectfully dissent from that portion of the majority opinion that approves the Leon County grand jury foreman selection process and concur in the remainder of the opinion.

ADKINS and EHRLICH, JJ., concur.

      . See Carter v. Kentucky, 450 U.S. at 303 n. 21, 101 S.Ct. at 1120 n. 21:
      The importance of a no-inference instruction is underscored by a recent national public opinion survey conducted for the National Center For State Courts, revealing that 37% of those interviewed believed that it is the responsibility of the accused to prove his innocence. 64 ABAJ 653 (1978).

      . See official reports on registered voters from the Florida Department of State for the years 1956-1980.

      . I . have no wish to introduce evidence during appellate review, but official reports from the Florida Secretary of State on the proportion of registered black voters for the years in question are readily available. In October 1980, 72,291 registered voters were identified as to race (Democrat and Republican parties); 14,390 (19%) of those registered voters were black; an additional 4,238 registered voters (other parties) were not identified as to race. If all of the 4,238 other party registered voters are assumed to be white, an unlikely assumption, the percentage of black voters is reduced only to 18%. See Department of State, Tabulation of Official Votes, Florida General Election 1 (November 4, 1980).

      . The record shows that blacks comprised 39.5% of the Leon County population in 1950, 32.9% in 1960, 25.3% in 1970, and an estimated 19.7% in 1980. Figures now available show that blacks actually comprised 24.6% of the Leon County population in 1980. 1980 Census of Population, Volume I, Chapter B, Part II, page 11-16, Department of Commerce, Bureau of the Census, issued August, 1982. Appellant without challenge points out that if we assume that the average percentage of blacks in the population during the period was 25%, then, statistically, the likelihood of no black foreman being selected is approximately one in 1.6 million.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant/Cross-Appellee, and The Citizens of the State of Florida, Appellee/Cross-Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, Appellee/Cross-Appellant.
    No. 62181.
    Supreme Court of Florida.
    Dec. 22, 1983.

      Earl B. Hadlow of Mahoney, Hadlow & Adams, Jacksonville, William B. Barfield, Miami, and Drury B. Thompson and John F. Beasley, Atlanta, Ga., for appellant/ cross-appellee.
    Jack Shreve, Public Counsel, Benjamin H. Dickens, Jr. and Stephen Fogel, Associate Public Counsels, Office of the Public Counsel, Tallahassee, for the Citizens of the State of Fla., and William S. Bilenky, Gen. Counsel, Patrick K. Wiggins, Deputy Gen. Counsel, and Susan F. Clark, Noreen Davis, Bruce W. Renard and Kathleen Vil-lacorta, Associate Gen. Counsels, Tallahassee, for the Florida Public Service Commission, appellees/cross-appellants.
   OVERTON, Justice.

This is a direct appeal by Southern Bell Telephone and Telegraph Company from an order of the Florida Public Service Commission approving, in part, Bell’s petition for a rate increase for telephone service. The rate increase allowed was less than the amount Bell had requested. We have jurisdiction, article V, section 3(b)(2), Florida Constitution, and we affirm the order of the Public Service Commission.

Southern Bell filed a petition with the Public Service Commission seeking approval of rates which would increase annual revenues by $288,374,110. Bell’s request was based on a test year ending July 31, 1981, which, at the time of filing, consisted of three months’ actual and nine months’ projected figures. Bell utilized a year-end rate base with an end-of-year factor, but did not request an attrition allowance. The Public Service Commission, in Order No. 10449, which was issued on December 15, 1981, authorized a rate increase providing Bell with $139,799,327 in additional annual revenue. The Commission utilized an average rate base rather than a year-end rate base and provided an attrition allowance in lieu of the various adjustments requested by Bell. The decision also incorporated a change in Bell’s depreciation methodology. In its decision, the Commission rejected Bell’s proposal to remove all investments, expenses, taxes, and revenues attributable to the company’s activities in the publication and sale of yellow-page advertising. The Commission also rejected Bell’s request that the company’s charitable contributions be included as an operating expense for rate-making purposes.

Bell contends that the Commission erred in reducing its requested rate increase because (1) the Commission failed to make pro forma adjustments to Bell’s “test year” for two major known and imminent changes amounting to $59 million in increased costs for Bell and, instead, provided an attrition allowance of $12,700,000; (2) the Commission erred in including within Bell’s net operating income and rate base the investments, revenues, expenses, and taxes associated with Bell’s publication of the yellow pages; (3) the Commission erred in refusing to allow Bell’s charitable contributions to be treated as operating expenses; (4) the Commission erred in using an average rather than a year-end rate base; and (5) the Commission erroneously imposed a depreciation change retroactively-

The Citizens of the State of Florida were a party to the proceedings and filed a cross-appeal. In their cross-appeal, the Citizens contend that the Commission’s order departed from the essential requirements of law because it based Bell’s rate increase on a projected test year, which is not subject to verification by audit.

After argument of this cause before this Court, the Commission filed a suggestion of mootness. The Commission contends that Bell’s points (1), (2), and (4) have been rendered moot by a subsequent rate filing by Bell and by the passage of legislation in 1983. The Citizens agree that these issues are moot. Bell agrees that the issue concerning the yellow pages has been rendered moot by new legislation but argues that points one and four are important issues for this Court to decide. We note that the Commission has not moved to moot the entire case.

We agree that the yellow-pages issue has been settled by the legislature, which has determined that investments, revenues, expenses, and taxes associated with the publication of the yellow pages are properly included in a telephone utility’s net income and rate base. See ch. 83-73, § 1, Laws of Fla. This issue is, therefore, moot. No party, however, has suggested that the entire case is moot and we deem it appropriate to address the issues argued before us with the exception of the yellow-pages issue.

The first point for consideration is Bell’s contention that the Commission erred by refusing to make pro forma adjustments for known and imminent changes to Bell’s “test year” data. A “test year” is used by rate-making bodies to measure the adequacy and reasonableness of a utility’s rates. Gulf Power Co. v. Bevis, 289 So.2d 401 (Fla.1974). According to Bell, the Commission failed to adjust its test year for two known and imminent changes amounting to $59 million in increased costs: (1) wage and benefit increases of $43 million and (2) certain increased settlement costs to independent telephone companies of $16 million. The Commission rejected Bell’s argument that pro forma adjustments be made, and instead provided Bell with an attrition allowance in accordance 'with this Court’s decision in Citizens v. Hawkins, 856 So.2d 254 (Fla.1978). As we have previously stated, “[attrition is a term used to describe the phenomenon present when factors, other than extraordinary growth, are forcing costs upward without a concomitant increment in revenues.” Citizens v. Public Service Commission, 435 So.2d 784, 787 (Fla.1983). In Citizens v. Hawkins, we determined that “all adjustments for attrition [are] to be encompassed within a separate allowance.” 356 So.2d at 258. Here, the Commission heard expert testimony from its staff, from Bell, and from the Citizens on how Bell’s attrition allowance should be computed. The Commission rejected the testimony offered by Bell and accepted the testimony of the Citizens’ expert, and concluded that the expenses were attrition related and would be properly recognized through an attrition allowance computed at $12,700,000. It is not this Court’s responsibility to reweigh the evidence in reviewing an order of the Public Service Commission. Rather, we are to determine whether the Commission’s action is supported by competent, substantial evidence. We conclude that the Commission’s computation of Bell’s attrition allowance is supported by competent, substantial evidence.

The second point raised concerning the yellow-pages issue has been rendered moot.

With regard to the third point, Bell asserts that the Commission should have treated its charitable contributions, in the amount of $377,000, as operating expenses. Bell cites our decision in City of Miami v. Florida Public Service Commission, 208 So.2d 249 (Fla.1968), as authority for this argument. In City of Miami, we stated:

We are of the opinion that the better concept on this matter is that ... if contributions are of a reasonable amount to recognized and appropriate charities, then they may be classified as legitimate operating expenses.

208 So.2d at 259. (Emphasis supplied.)

To support its argument that charitable contributions are customary and legitimate expenses which allow corporations to meet their fair share of civic responsibility, Bell also cites a Federal Power Commission opinion which stated:

Reasonable charitable contributions are very much an obligation of a business enterprise to the community it serves and upon which it is dependent for its revenues_ This is particularly applicable to a regulated enterprise whose identification with the public interest is instinctive in the legislation which gives rise to its regulation.

Re El Paso Natural Gas Co., 46 F.P.C. 454, 466-67, 90 P.U.R.3d 462, 473 (1971).

Bell claims that since 1977 the Public Service Commission has been inconsistent in its decisions on the charitable deductions issue and that this inconsistency is reflected by the following cases in which the Commission has allowed and disallowed charitable contributions as operating expenses of a utility: Southern Bell Telephone and Telegraph Co., PSC Order 8041 (Nov. 14,1977) (allowed); Winter Park Telephone Co., PSC Order 8330 (June 6, 1978) (disallowed); United Telephone Co., PSC Order 9208 (Jan. 14, 1980) (allowed); Florida Telephone Corp., PSC Order 9551 (Sept. 17, 1980) (allowed); Tampa Electric Co., PSC Order 9599 (Oct. 17, 1980) (allowed); General Telephone Co., PSC Order 10250 (Sept. 2, 1981) (disallowed); Florida Power & Light Co., PSC Order 10306 (Sept. 23, 1981) (disallowed).

In response to Bell’s argument, the Commission asserts that in September, 1981, it effectively changed its policy on the treatment of charitable contributions for rate-making purposes. The Commission explained its position in the Florida Power & Light Company rate case, stating:

The Company has included as an operating expense $386,411 in charitable contributions. In earlier rate eases, we have held that it is within our discretion and authority to allow charitable contributions in reasonable amounts as operating expenses for ratemaking purposes, and the decision to include or exclude them is discretionary with the Commission. However, there are policy considerations which argue both for and against the inclusion of such expenses for ratemak-ing purposes. In this case, FP & L Witness Tallón asserted that the Company’s customers are the beneficiaries of the work that charitable organizations accomplish. However, upon consideration, we disagree that such contributions are “truly contributions from the corporation” rather than from the customers. We are persuaded that such contributions are instead more in the nature of involuntary contributions by ratepayers. As a matter of policy, we do not believe such contributions should be borne by ratepayers. We note our disallowance of such contributions for ratemaking purposes does not have the effect of precluding the Company from continuing to make contributions to charities. It only requires that such contributions be borne by stockholders rather than ratepayers. Accordingly, we have removed from operating expenses the entire amount of contributions to charities projected for the test period.

PSC Order 10306 (Sept. 23, 1981).

We disagree with Bell’s contention that this Court’s decision in City of Miami mandates that charitable contributions be treated as an operating expense of a utility. In that case we said that “if contributions are of a reasonable amount to recognized and appropriate charities, then they may be classified as legitimate operating expenses.” 208 So.2d at 259. (Emphasis deleted; emphasis added.) This language left the Commission with discretion as to whether charitable contributions are to be treated as operating expenses. The Commission has the authority to determine, as a policy issue, whether charitable contributions are to be included in the operating expenses of a public utility provided, however, that the Commission’s action is not arbitrary or capricious or a violation of due process. This discretionary authority may not be implemented in an arbitrary or haphazard manner that would permit the charitable contributions of one utility to be included as an operating expense while denying such treatment to another utility. We agree with the comment of a Georgia court that

the decision to allow or disallow charitable contributions as a business expense should not be dependent upon who is sitting on the Commission at a particular time and should not be subject to the whims of individual members of the Commission. ... The allowing or disallowing of this particular expenditure should be a constant, not a variable.

Southern Bell Telephone and Telegraph Co. v. Georgia Public Service Commission, No. C-75044 (Ga.Super.Ct. Sept. 21, 1981). Although there was some inconsistency between 1977 and 1981 in the way the Commission handled this issue, it appears that a clear policy of disallowing charitable contributions as an operating expense emerged in 1981.

The Commission adopted this policy in a non-rulemaking proceeding, and we find that there was adequate support in the record below for its decision. Although we believe that a rulemaking proceeding is preferable in cases like this where established, industry-wide policy is being altered, the Commission is not required to institute a rulemaking proceeding every time a new policy is developed. See City of Plant City v. Mayo, 337 So.2d 966 (Fla.1976); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). We conclude that the Commission acted within its discretion when it disallowed Bell’s treatment of charitable contributions as an operating expense. The Commission has established a policy on this issue and has not, in our view, acted in an arbitrary or capricious manner.

In point four, Bell argues that the Commission erred in requiring it to use an average rather than a year-end rate base. According to Bell, the extraordinary growth it has experienced since 1977 requires that a year-end rate base be used. We agree with the Commission that the record does not reflect the type of situation which would mandate the use of a year-end rate base. Clearly, this record does not establish that the failure to utilize a year-end rate base results in rates “so low as to be confiscatory to the utility.” See City of Miami v. Florida Public Service Commission, 208 So.2d 249, 258 (Fla.1968).

In its final point, Bell asserts that the Commission wrongfully imposed a retroactive effective date for implementing a change in Bell’s method of depreciation. Bell does not dispute the change itself, but only the implementation date of January 1, 1981. The record reflects that the Commission’s choice of this date is supported by competent, substantial evidence and complies with the essential requirements of law.

In its cross-appeal, the Citizens contend that basing rate relief on a projected test year departs from the essential requirements of law. We disagree. Section 364.035(1), Florida Statutes (1981), provides that the Commission has the authority to fix “just, reasonable, and compensatory rates.” Nothing in the decisions of this Court or any legislative act prohibits the use of a projected test year by the Commission in setting a utility’s rates. We agree with the Commission that it may allow the use of a projected test year as an accounting mechanism to minimize regulatory lag. The projected test period established by the Commission is a ratemaking tool which allows the Commission to determine, as accurately as possible, rates which would be just and reasonable to the customer and properly compensatory to the utility. We also agree with the Commission that the utility met its burden of establishing the accuracy of the test period used and that the decision to use the projected test period was supported by competent, substantial evidence.

For the reasons expressed, the order of the Public Service Commission is affirmed.

It is so ordered.

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


author:
      SHAW, Justice.
      BOYD, Justice,

text:
    Jerry R. LINSCOTT, Appellant, v. ORANGE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a public body corporate and politic, Appellee.
    No. 63308.
    Supreme Court of Florida.
    Dec. 22, 1983.

      Jerry R. Linscott and Rosemary O’Shea of Baker & Hostetler, Orlando, for appellant.
    Griffith F. Pitcher, James J. Cooney, J. Michael Nifong and Cristina Novo of Squire, Sanders & Dempsey, Miami, and Leighton D. Yates, Jr. of Maguire, Voorhis & Wells, Orlando, for appellee.
   SHAW, Justice.

This is a direct appeal from a judgment of the circuit court validating the issuance of industrial development revenue bonds for the construction of a regional headquarters office of a multi-state insurance company. We have jurisdiction under article V, section 3(b)(2), Florida Constitution. We find that the bonds do not involve a pledge of the public credit and that the project serves a public purpose as determined under chapter 159, part II, Florida Statutes (1981).

The Orange County Industrial Development Authority (Authority) adopted a resolution authorizing the issuance of tax exempt revenue bonds in a principal amount not to exceed $4,500,000 to finance the construction of a regional headquarters facility (project) in Orange County for American States Insurance Company. The resolution specified that the bonds would be payable solely from the revenue and proceeds derived from the sale, operation, or leasing of the project and would not constitute a debt, liability, or obligation of the Authority or the state or any political subdivision thereof; that the Authority would not be obligated to pay either the bonds or service charges thereon except from revenues and proceeds pledged therefor; and that neither the faith and credit nor the taxing power of the Authority or the state or any political subdivision thereof would be pledged to the payment of the bond service charges.

The trial court entered a final judgment finding, inter alia: (1) the Authority was authorized to issue the bonds by the laws of the state, particularly parts II and III of chapter 159, Florida Statutes (1981); (2) the resolution had been duly adopted; (3) the interest on the bonds would be exempt from federal income tax, subject to certain express qualifications; (4) the principal of, premium and interest on, the bonds would be payable solely from the revenues and proceeds of the project pledged thereof; (5) the project would serve the purposes declared by the legislature in section 159.26 of promoting the economic development of Florida by providing economic benefits to Orange County and central Florida; (6) the necessary actions or proceedings had been taken or conducted to provide for the issuance of the bonds; and (7) all requirements of the constitution and other laws of Florida had been strictly followed. Thereafter, appellant, a citizen and taxpayer of Orange County, timely filed a notice of appeal, pursuant to rule 9.110(i), Florida Rules of Appellate Procedure.

Appellant urges that the trial court erred in validating the bonds because the project neither constitutes an “industrial plant” within the meaning of article VII, section 10(c) of the Florida Constitution nor serves a paramount public purpose. For the reasons set forth below, we find that appellant’s arguments are unpersuasive.

The Constitution of 1885, article IX, section 10, prohibited government bodies from obtaining money for, or pledging the public credit to, any private entity. ■ Under case law, revenue bonds payable solely from capital project revenues (non-recourse bonds) were held to be pledges of the public credit and were prohibited unless it could be shown that the capital project served a predominantly or paramount public purpose. Contrast State v. Town of North Miami, 59 So.2d 779 (Fla.1952), where non-recourse revenue bonds were held to be invalid because they served a predominantly private purpose with only incidental public benefit and State v. Board of Control, 66 So.2d 209 (Fla.1953), where the bonds were validated because they served a predominantly public purpose with only incidental private benefit. In Town of North Miami, the trial court ruled that the non-recourse bonds for the construction of a private plant were valid because they did not involve a pledge of the public credit. Implicit in our decision overruling the circuit court was a determination that the bonds involved either obtaining money for, or pledging the public credit to, a private entity.

Town of North Miami, and its progeny, began to have a significant effect on Florida’s economic development in the 1960s because of a ruling by the Internal Revenue Service, later codified, which made the interest on industrial revenue bonds exempt from federal income tax. As a result of this ruling, Florida was placed at a competitive disadvantage with other states which could offer tax exempt, non-recourse revenue bonds to private entities for capital projects. See, for example, State v. Jacksonville Port Authority, 204 So.2d 881 (Fla.1967), where non-recourse bonds for a major port expansion were held to be invalid. Significantly, Jacksonville Port Authority was decided in July, 1967, when the Florida Legislature was considering revisions to the Constitution of 1885. The legislative interest in the economic impact of Jacksonville Port Authority was evidenced by the immediate passage of legislation attempting to nullify the court ruling. See 204 So.2d at 892. Concurrently, in August, 1967, each house adopted joint resolutions proposing revisions to the constitutional provisions prohibiting the pledge of public credit to private entities. In pertinent part, the thrust of the Senate version was to overturn Jacksonville Port Authority; that of the House version to overturn Town of North Miami. These differing versions, subsections 10(c)(1) and (2) respectively, became House Joint Resolution No. 1-2X 559-60, Laws of Florida (1968), which was submitted to, and approved by, the voters of Florida in November, 1968.

The impact of the adoption of article VII, section 10(c) of the Florida Constitution (1968) was to recognize constitutionally that the public interest was served by facilitating private economic development and to overturn Town of North Miami and Jacksonville Port Authority holdings that non-recourse revenue bonds were pledges of the public credit. We recognized this impact in Nohrr v. Brevard County Educational Facility Authority, 247 So.2d 304, 309 (Fla.1971), where we stated;

In order to have a gift, loan or use of public credit, the public must be either directly or contingently liable to pay something to somebody. Neither the full faith and credit nor the taxing power of the State of Florida or of any political subdivision thereof is pledged to the payment of the principal of, or the interest on, these revenue bonds. The purchaser of the revenue bonds may not look to any legal or moral obligation on the part of the state, county, or authority to pay any portion of the bonds.

See also State v. Housing Finance Authority of Polk County, 376 So.2d 1158, 1160 (Fla.1979); Wald v. Sarasota County Health Facilities, 360 So.2d 763, 768-69 (Fla.1978).

Appellant characterizes subsection (c) as an exception to the prohibition against the pledging of public credit contained in the first paragraph of section 10. This characterization is misleading because it tends to focus exclusive attention on “industrial and manufacturing.” More properly and closely read, subsection (c) is actually an interpretation of the first paragraph: non-recourse revenue bonds do not pledge the public credit. Nohrr. Nothing is permitted by subsection (c) which is prohibited by the first paragraph. A governmental body may not pledge the public credit for a private entity. This distinction between an exception and an interpretation can be clearly seen if subsection (c) is contrasted with subsection (d), which permits a government body to become a joint owner with, or give, lend, or use its taxing power or credit to aid, any corporation, association, partnership or person, for projects involving electrical energy generation or transmission facilities. Subsection (d) thus grants an exception to the prohibitions of the. first paragraph; subsection (c) grants no such exception.

We agree with appellant that a regional headquarters facility for an insurance company is not an industrial or manufacturing plant within the meaning of article VII, section 10(e) of the Florida Constitution. However, as we have previously noted, this is not dispositive of the issue before us:

[T]he naming of these particular projects was not intended to be exclusive, denying ab initio public revenue bond financing of all other types of projects. The language employed is not that no public revenue bonds shall be issued to finance any projects except those described in Section 10(c), but that the prohibition against lending a public unit’s credit does not apply to the projects described in Section 10(c). This language may or may not apply to other projects, depending upon the particular circumstances in each instance.

Nohrr, 247 So.2d at 308. See also Wald, 360 So.2d at 768.

With the adoption of the Constitution of 1968, the “paramount public purpose” test developed by case law under the Constitution of 1885 lost much of its viability. The test is still applicable when a pledge of public credit is involved, but where such pledge is not involved, as here, it is enough to show only that a public purpose is served. We recognized this change in the equation in Housing Finance Authority of Polk County:

Under the constitution of 1968, it is immaterial that the primary beneficiary of a project be a private party, if the public interest, even though indirect, is present and sufficiently strong. State v. Putnam County Development Authority, 249 So.2d 6 (Fla.1971). Of course, public bodies cannot appropriate public funds indiscriminately, or for the benefit of private parties, where there is not a reasonable and adequate public interest. An indirect public benefit may be adequate to support the public participation in a project which imposes no obligation on the public, and the qualification of the direct beneficiary complies with the principles of due process and equal protection.

376 So.2d at 1160.

Chapter 159, part II, Florida Statutes (1981), contains a legislative determination that private economic development serves a public purpose and that it is in the public interest to facilitate the financing of capital projects such as a headquarters facility by the issuance of non-recourse revenue bonds. This legislative determination is entitled to great weight, particularly since it is consistent with the implicit recognition in section 10(c) that the public interest is served by facilitating private economic development. State v. Orange County Industrial Development Authority, 417 So.2d 959, 962 (Fla.1982). Further, section 159.33 specifically provides that bonds issued under the provisions of part II shall not constitute a pledge of public credit but shall be payable solely from the revenues of the capital project.

Appellant has failed to show that the bonds in question constitute a pledge of public credit or that the legislative determination of public purpose was so clearly wrong as to be beyond the power of the legislature.

Accordingly, we affirm the trial court’s judgment validating the bonds and the power of the Orange County Industrial Development Authority to issue said bonds.

It is so ordered.

ALDERMAN, C.J., and ADKINS and McDONALD, JJ., concur.

OVERTON and EHRLICH, JJ., concur in result only.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I must respectfully dissent to the Court’s approval of the instant industrial development bond issue. The project to be financed with the proceeds of the bond issue — an office building to serve as the management headquarters of an insurance company — is neither a project serving a paramount public purpose nor does it fall within one of the exceptions to the general prohibition expressed in article VII, section 10 of the Florida Constitution.

The general constitutional prohibition and the exceptions are provided for as follows:

SECTION 10. Pledging credit. — Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person; but this shall not prohibit laws authorizing:
(a) the investment of public trust funds;
(b) the investment of other public funds in obligations of, or insured by, the United States or any of its instrumentalities;
(c) the issuance and sale by any county, municipality, special district or other local governmental body of (1) revenue bonds to finance or refinance the cost of capital projects for airports or port facilities, or (2) revenue bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants to the extent that the interest thereon is exempt from income taxes under the then existing laws of the United States, when, in either case, the revenue bonds are payable solely from revenue derived from the sale, operation or leasing of the projects. If any project so financed, or any part thereof, is occupied or operated by any private corporation, association, partnership or person pursuant to contract or lease with the issuing body, the property interest created by such contract or lease shall be subject to taxation to the same extent as other privately owned property.
(d)a municipality, county, special district, or agency of any of them, being a joint owner of, giving, or lending or using its taxing power or credit for the joint ownership, construction and operation of electrical energy generating or transmission facilities with any corporation, association, partnership or person.

I disagree with the majority’s characterization of article VII, section 10(c) as embodying an interpretation of rather than specific exceptions to article VII, section 10. Of course, many capital projects for public facilities serving a purely public or governmental purpose may be financed by bonds without being affected by the general prohibition of article VII, section 10. We are not concerned here with such a case.

In Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971), this Court said:

All other proposed public revenue bond projects not falling into the exempted class described in Section 10(c) of Article VII would, of course, have to run the gauntlet of prior case decisions to test whether the lending or use of public credit for any of them was contemplated. See, for example, the case of State v. Jacksonville Port Authority, 204 So.2d 881 (Fla.1967), which presents a good index to decisions of this Court on both sides of the subject. It will be noted that under similar language in the 1885 Constitution (Section 10, Article IX) to that appearing in the first paragraph of Section 10 of Article VII of the 1968 Constitution the eases hold that the validity of each proposed public revenue bond financing project depends upon the circumstances, e.g., whether the purpose of the project serves a paramount public purpose, although there might be an incidental private benefit, and other criteria.

Id. at 308-09. Thus under article VII, section 10 if the bonds in any way aid a private concern and the proposed project is not an airport, a port, an industrial or manufacturing plant, or an electrical energy generating or transmission facility, it must serve a paramount public purpose as that concept was developed in a long line of precedent pre-dating the 1968 constitutional revision. Under the paramount public purpose doctrine, general economic stimulation is not a sufficient public benefit to justify using public bond proceeds primarily to aid a private business. See, e.g., State v. Jacksonville Port Authority, 204 So.2d 881 (Fla.1967); State v. Manatee County Port Authority, 193 So.2d 162 (Fla.1966); State v. Town of North Miami, 59 So.2d 779 (Fla.1952). The legislative determination that a business headquarters is an authorized project, which would normally be entitled to great weight, is not determinative or persuasive because it is contrary to the constitution. To the extent that it conflicts with the constitution, the statute is of course invalid. The specific effects of the above-cited cases were, of course, changed by the adoption of the exceptions in article VII, section 10 in 1968. But the principle of those decisions remains intact. Since office buildings serving as business management headquarters are not among the projects authorized by the exceptions in article VII, section 10, the present proposed bond issue should be rejected.

As the majority opinion correctly points out, article VII, section 10, by prohibiting the use of the taxing power to aid a private entity, requires that bonds benefitting a private entity be payable only from facility revenues and not from taxation. This is a necessary condition to the validity of such bonds, but by itself it is not a sufficient condition. The facility or project itself must also serve a paramount public purpose. See Wald v. Sarasota County Health Facilities Authority, 360 So.2d 763 (Fla.1976).

Article VII, section 10 forbids any state agency to “give, lend, or use its taxing power or credit to aid any corporation, association, partnership or person.” When a local authority or other agency issues bonds, it is engaging in borrowing and therefore is using its “credit.” If the proceeds of the borrowing are to be used to construct an office building for a privately-owned insurance company, as is the case here, then the local authority is unquestionably giving, using, or lending its credit to aid a corporation, association, partnership, or person. Since the bonds are non-recourse bonds, perhaps it cannot be said that the authority is giving or lending its credit, but it is at least using it. Regardless of whether the insurance company has guaranteed to hold the authority harmless and regardless of the disclaimers of recourse to any public resources in repaying the borrowed money, the simple fact remains that the authority will be the primary borrower and the purpose of the borrowing is to help the insurance company. This is strictly prohibited except as specifically allowed in the paragraphs which follow the general prohibition in article VII, section 10.

I find no substantial difference between this case and Orange County Industrial Development Authority v. State, 427 So.2d 174 (Fla.1983), where the Court affirmed the denial of validation of bonds to finance development of a commercial television station. Our decision there was grounded not only on the lack of statutory authorization but also on the constitution. Moreover, the reasons given in my dissent in State v. Osceola County Industrial Development Authority, 424 So.2d 739, 743 (Fla.1982), are equally applicable here. The purpose of article VII, section 10 is to prevent the complications and abuses that can result from allowing the use of the public borrowing power for the benefit of private commercial ventures. The limited exceptions allowed by the constitution cannot and should not be expanded either by the legislature or by this Court.

      . Storace and Gong, The Florida Industrial Development Financing Act: Public-Private Investment in Social Engineering, 24 Univ. of Fla.L. Rev. 433 (1971-72).

      . See constitutional revision material in Supreme Court Library: Minutes, Committee of the Whole House 30-31, Aug. 22, 1967; Senate Joint Resolution 2-XXX(67) 51, engrossed Aug. 11, 1967, and Aug. 16, 1967; Joint Committee on Style and Drafting 73-75, Memorandum dated Sept. 29, 1967.

      .Subsection 10(c)(1), initiated by the Senate, pertains to revenue bonds issued by port authorities; subsection 10(c)(2), initiated by the House, pertains to revenue bonds issued by other governmental units. Both subsections require that such bonds be payable solely from project revenues. Subsection 10(c)(1) does not require that the bonds be tax exempt whereas subsection 10(c)(2) does require that the bonds be tax exempt.


author: GLICKSTEIN, Judge.

text:
    Dave BUSH, Appellant, v. PALERMO REALTY, INC., et al., Appellees.
    No. 81-1856.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Rehearing Denied Feb. 7, 1984.
    Michael P. Smodish, Boynton Beach, for appellant.
    Ronald Sales of Sales & Weissman, P.A., West Palm Beach, for appellees.

       Did not participate in oral argument and assigned to case after recusal by Associate Judge William C. Owen, Jr.

   GLICKSTEIN, Judge.

Appellant, Dave Bush, filed a three-count complaint in the trial court. Counts I and II, directed against Palermo Realty, Inc., and Joseph A. Palermo, a licensed real estate broker, alleged breach of these defendants’ fiduciary duty these defendants owed to appellant and intentional and tortious interference with an advantageous business relationship in connection with negotiations for the purchase of a tract of land in Palm Beach County. Count III, directed at Joseph A. Palermo, individually, alleged slander of appellant which resulted in sale of the subject real property to Palermo and an associate instead of to appellant. The trial court granted defendants’ motion for summary judgment on all three counts and entered a final judgment in their favor. We reverse as to the first count but affirm as to the second and third.

The facts are as follows. Palermo was a licensed real estate broker doing business through Palermo Realty, Inc., of which he was president, a director and sole shareholder. Palermo received an open listing of the Ferguson tract in 1975. When that listing expired, Palermo obtained a written exclusive listing agreement, entitling him to a 10% commission upon sale of the parcel during the term of the exclusive listing. The listing price was $302,432. Palermo had personally viewed the parcel during the open listing period, but had made no purchase offer. After he obtained the exclusive listing Palermo personally showed the property to two or three prospective purchasers.

Appellant Dave Bush inquired at Palermo Realty about any listing of land for sale. After being shown the Ferguson tract by a Palermo salesman and making a study of the residential development potential of the parcel, Bush made a written purchase offer through a second Palermo salesman. The offer was rejected. Thereafter that salesman arranged a meeting between the seller, appellant Bush, appellee Palermo, the Palermo salesman previously involved and himself. Before the seller’s arrival Palermo asked and received Bush’s permission to copy Bush’s feasibility study. Palermo made a copy of the plat, at least. Palermo and others present denied that any copy of the rest of the report was made. At the meeting Bush made an oral offer of $300,-000 on certain terms, which the seller indicated was reasonable. At the close of the meeting, Palermo stated to those present there was another interested person who would submit an offer. When Bush pressed for an enforceable contract, the seller said he would consider only written offers. Eight days later Bush submitted his written offer through a Palermo salesman. While the seller was considering Bush’s offer, the same Palermo salesman hand-delivered to the seller a written offer of “Pine Acres Associates,” signed by Palermo, who was aware of Bush’s written offer. The Palermo offer was for $270,000, with no broker’s commission. Thereafter Bush was informed by the Palermo salesman that Bush’s offer had been rejected and that Palermo had purchased the property. Just when Bush was first informed that Palermo was an interested party is unclear. Ultimately Palermo bought the property for $265,000 with no commission. Bush alleged that Palermo used Bush’s feasibility report as the basis for his own decision to make an offer, and that Palermo made disparaging remarks about Bush’s character and financial standing, to influence the seller.

A pivotal question is whether a licensed real estate broker owes a fiduciary duty to a prospective buyer, such that the broker may not purchase a property for himself while he is acting as intermediary between the prospective buyer and the seller. A score of years ago a sister court wrote:

In Florida, a real estate broker occupies a status under the law with recognized privileges and responsibilities. In many situations involving real estate brokers, the general rule that an agent is responsible only to his principal has no application. Those dealing with a licensed broker may naturally assume that he possesses the requisites of an honest, ethical man; and where a real estate broker is acting as agent for the seller, he nevertheless owes a duty to the buyer. Zichlin v. Dill, 1946, 157 Fla. 96, 25 So.2d 4. As was stated in Prescott v. Kreher, Fla.App.1960, 123 So.2d 721, 727:
“There is a fiduciary relation between parties where confidence is reposed by one and a trust accepted by the other. * * * Such a relation has been said to exist and to suffice as a predicate for relief in all cases wherein influence has been acquired and abused, or wherein confidence has been reposed and betrayed. The origin of the confidence is immaterial. The principle applies both to technical fidu ciary relations and to informal relations wherein one man trusts in and relies upon another. * * * ” (Emphasis added.)

United Homes, Inc. v. Moss, 154 So.2d 351, 354 (Fla. 2d DCA 1963). Nor are the broker’s primary fiduciary duties to the seller undermined by the broker’s obligation to the prospective buyer. Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill.2d 379, 59 Ill.Dec. 905, 432 N.E.2d 849, 852 (1982) (citing, inter alia, United Homes, Inc. v. Moss, supra).

In a famous opinion, the fiduciary duty has been characterized this way:

Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate.... Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.

Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (Cardozo, C.J.). When a real estate broker acts as an intermediary between a seller and a prospective buyer, he is under a duty to deal fairly and honestly with the prospective buyer. Funk v. Tifft, 515 F.2d 23, 25 (9th Cir.1975). Indeed, one who owes another such a duty can take no comfort from the maxim, vigilantibus non dormientibus leges subveniunt, when the slumber of the second person was induced by his reliance on the faithfulness of the first. So serious is a breach of this duty that if the broker purchases the land from the seller for himself without advising the prospective buyer of his actions, he becomes a constructive trustee for the benefit of the prospective buyer. Id.; Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927). Likewise a broker’s duty precludes him from using for his personal aggrandizement information he acquires from a prospective purchaser.

Palermo, or his sales organization, was not merely a middleman or finder whose duties were limited to introducing the parties and leaving them to negotiate their own transactions. See Hale v. Wolfsen, 276 Cal.App.2d 285, 290, 81 Cal.Rptr. 23, 27 (1969). Rather Palermo and his salesmen took an active role in the negotiations between seller and prospective purchaser. There remain genuine issues of material fact respecting whether Palermo and Palermo Realty Co., Inc., violated their duty toward Bush by failing to disclose Palermo’s interest in buying the subject parcel, and whether Palermo individually violated his duty toward Bush by determining to acquire the Ferguson tract on the strength of Bush’s feasibility study. The fact that the evidence preponderantly shows Palermo did not copy the entire study does not erase the possibility that Palermo saw enough of the significant content thereof to conclude that purchase of the parcel would be a good investment, or that access to the plat alone was enough to bring him to that conclusion. Appellees were not entitled to judgment as a matter of law on Count I.

The trial court properly granted summary judgment on the count of tortious interference with an advantageous business relationship and the slander count. Accordingly this court affirms summary judgment as to Counts II and III, but reverses summary judgment as to Count I, and remands for further action consonant with this opinion.

ANSTEAD, C.J., and HURLEY, J., concur.

      . The laws assist those who are awake, not those who are asleep.