author: RYDER, Judge.

text:
    STATE of Florida, By and Through the STATE ATTORNEY FOR the TWELFTH JUDICIAL CIRCUIT, Appellant, v. GENERAL DEVELOPMENT CORPORATION, a Delaware corporation authorized to do business in Florida, Appellee.
    No. 83-58.
    District Court of Appeal of Florida, Second District.
    March 23, 1984.

      James A. Gardner, State Atty., and David M. Levin, Asst. State Atty., Sarasota, for appellant.
    Joseph Z. Fleming of Fleming & Huck and Robert Josefsberg of Podhurst, Or-seck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Wayne L. Allen and Valerie F. Fravel, Miami, and Judith S. Kavanaugh of Dye, Cleary, Scott & Deitrich, P.A., Bra-denton, for appellee.
   RYDER, Judge.

In this appeal we are presented with a question of first impression concerning civil and administrative enforcement of the state’s environmental laws, particularly Chapter 403, by an individual state attorney. Specifically, appellant James A. Gardner, the State Attorney for the Twelfth Judicial Circuit, seeks review of an order dismissing his independently initiated complaint for damages and civil penalties filed pursuant to section 403.141(1), Florida Statutes (1981), and alternative petition for enforcement of agency action filed pursuant to section 120.69(l)(a), Florida Statutes (1981) (complaint/petition).

In the alternative actions, appellant alleged appellee General Development Corporation (GDC) had committed and was committing violations concerning various environmental laws and rules and regulations promulgated by the Department of Environmental Regulation (DER) with respect to its commercial developmental activities that were occurring in the North Port Drainage District in Sarasota County. The trial court, although acknowledging appellant’s “conscientious attempt to enforce the environmental laws of Florida,” dismissed the complaint/petition with prejudice and ruled the state attorney lacked standing to independently bring either action on behalf of the state. Although we note that the 1968 Florida Constitution mandates a policy of protecting the state’s natural resources, article II, section 7, and we also acknowledge the efforts of the state attorney to ensure that this policy is properly effectuated, we must, nevertheless, affirm the trial court’s ultimate rulings because we hold neither the state constitution, nor any statute, nor any case law gives a state attorney independent authority to commence, in his appropriate judicial circuit and on behalf of the state, a civil action for damages and penalties under section 403.-141(1) and/or institute an administrative action to enforce DER’s related rules and regulations under section 120.69(l)(a).

BACKGROUND

On September 27, 1982, appellant filed the above-mentioned alternative actions in the Twelfth Judicial Circuit in Sarasota County. Appellant alleged: (1) section 27.-02, Florida Statutes (1981), when read in conjunction with article V, section 17, Florida Constitution (1968), gave him authority to file the civil action for damages and penalties, and section 120.69(l)(a) gave him authority to file the alternative petition for enforcement because a state attorney is “an agency” under section 120.52(l)(b); (2) GDC, a Delaware corporation, d/b/a in Florida, is subject to the provisions of chapter 403, specifically 403.161(1), and its correlative rules and regulations promulgated by DER; (3) GDC’s various dredge and fill operations since July 1979 in Sarasota County with respect to construction and/or modification of certain canals and impound-ments and creation of artificial lakes without valid DER permits resulted in prohibited air and water pollution under section 403.161(1); and (4) GDC’s similar activities since December 1978 with respect to the creation and/or maintenance of the “Snover Waterway,” the “Cocoplum Waterway,” and the “Myakkahatchee Relief Canal” resulted in violations of water quality standards and related regulations also proscribed by section 403.161(1). Additionally, appellant alleged that “[n]o other agency of the State of Florida has filed or is diligently prosecuting a Petition for Enforcement in this matter.”

In response to the complaint/petition, GDC filed a motion to dismiss on October 26, 1982, contending appellant lacked standing to file either alternative action and filed a motion for summary judgment on grounds which also included the lack of standing contention.

Other relevant facts were adduced at the hearing on the motions and are as follows: On January 26, 1982, DER’s enforcement supervisor sent to GDC a “Warning Notice” stating unauthorized canal construction had been occurring at the “Snover” and “Cocoplum” systems since 1979 and indicating GDC might be civilly and criminally liable for violations of environmental laws. GDC was also advised to cease all activity relating to the stated violations. Subsequently, on April 27, the same official sent an “Amended Warning Notice” to GDC stating other unauthorized dredge and fill violations had been discovered by DER and indicating GDC might be both civilly and criminally liable for these violations as well as the ones mentioned in the previous letter. The second notice also hinted that further investigations might be forthcoming.

It is unclear from the record, however, whether DER took any further action concerning the alleged violations prior to the time appellant filed the instant complaint/petition on September 27, 1982. In any event, on the date the complaint/petition was filed, appellant sent an unverified copy to DER along with a letter which stated he was suing on behalf of the state because of DER’s inactivity, refusal to institute suit, and lack of cooperation with his office. The letter actually requested that DER treat the suit as one brought pursuant to section 403.412, Florida Statutes (1981).

However, during the hearing on GDC’s motions, appellant admitted that he was not proceeding under either section 403.412 with respect to the complaint for civil damages and penalties or section 120.69(l)(b), Florida Statutes (1981), with respect to the administrative action. At the conclusion of the hearing, the trial court took the case under advisement and then later issued its final order on December 22, 1982. In that order, the court specifically ruled: (1) section 27.02 is merely enabling legislation for article V, section 17 of the Florida Constitution and simply “authorizes a state attorney to bring criminal and civil actions, but does not give special authority to bring an action [pursuant to section 403.141(1)],” and (2) section 120.69(l)(a) does not authorize a state attorney to bring a petition for enforcement of agency action because a state attorney is not included within the narrow definition of “agency” as set forth in section 120.52(l)(b). It is from this order that the state attorney appeals.

ISSUES

In this appeal, we have discerned the following two related and important issues which merit our discussion: (1) whether a state attorney has independent authority under section 27.02 (or any other statute) to institute in his judicial circuit and on behalf of the state a civil action for damages and penalties pursuant to section 403.141(1) for alleged violations of section 403.161(1) occurring in his circuit, and (2) whether a state attorney has independent authority under section 120.69(l)(a) to similarly institute a petition for enforcement to ensure compliance of certain rules and regulations promulgated by DER with respect to Chapter 403 which allegedly are not being enforced by the department itself. Our examination of the applicable constitutional provisions, statutes, and case law compels us to answer both of the above questions in the negative.

SECTION 403.141(1) CIVIL ACTION FOR DAMAGES AND PENALTIES

The Relevant Statutory Provisions

Chapter 403, and in particular Part I (sections 403.011 through 403.415(3)), is one of the legislature’s comprehensive endeavors, consistent with the mandate of article II, section 7 of the Florida Constitution and the state’s exercise of its police powers, to control, reduce, and prevent pollution of the “Sunshine State’s” air and water; to provide for recreational, wildlife, and marine life needs; and to ensure continuing economic and industrial growth in accordance with a sound environmental policy. § 403.021(l)-(9), Fla.Stat. (1981); see generally 22 Fla.Jur.2d Environmental Rights and Remedies § 27 (1980).

Section 403.061 specifically gives DER “the power and the duty to control and prohibit pollution of the air and water in accordance with the law and rules and regulations adopted and promulgated by it.” § 403.061(l)-(27), Fla.Stat. (1981). In particular, and relevant to the issues before us, DER is empowered to:

(3) Utilize the facilities and personnel of other state agencies, including the Department of Health and Rehabilitative Services, and delegate to any such agency any duties and functions as the department may deem necessary to carry out the purposes of this act.
(6) Exercise general supervision of the administration and enforcement of the laws, rules, and regulations pertaining to air and water pollution.
(8) Issue such orders as may be necessary to effectuate the control of air and water pollution and enforce the same by all appropriáte administrative and judicial proceedings.
(11) Establish ambient air quality and water quality standards for the state as a whole or for any part thereof ....
(14) Establish a permit system whereby a permit may be required for the operation, construction, or expansion of any installation that may be a source of air or water pollution and provide for the issuance and revocation of such permits and for the posting of an appropriate bond to operate.
(27) Perform any other act necessary to control and prohibit air and water pollution, and to delegate any of its responsibilities, authority, and powers, other than rulemaking powers, to any state agency now or hereinafter established. (Emphasis supplied).

With respect to proscribed developmental activities, section 403.087(1), Florida Statutes (1981), prohibits the operation, maintenance, construction, expansion, or modification, without an appropriate and currently valid permit, of any “stationary installation which will reasonably be expected to be a source of air or water pollution,” “unless exempted by department rule.” In accordance with its mandate under section 403.087, DER properly promulgated and adopted rules and regulations relating to the issuance of such permits. No exemption was issued by the department in favor of GDC. Additionally, consistent with its mandate under section 403.061(11), the department also promulgated and adopted rules and regulations concerning water quality standards. As previously mentioned, it was GDC’s alleged failure to obtain valid permits for its dredge and fill operations and GDC’s alleged violation of DER’s water quality standards which formed the basis of appellant’s civil suit for damages and penalties.

Section 403.161(1), Florida Statutes (1981), enunciates what shall constitute violations of Chapter 403. This section provides that it shall be prohibited:

(a) To cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant or aquatic life or property.
(b) To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.

Subsection (2) of section 403.161 states that “[w]hoever commits a violation specified in subsection (1) is liable to the state for any damage caused and for civil penalties as provided in s. 403.141.”

Subsection (1) of section 403.141, which is the alleged basis of appellant’s standing, provides in relevant portion:

(1) Whoever commits a violation specified in s. 403.161(1) is liable to the state for any damage caused to the air, waters, or property, including animal, plant, or aquatic life, of the state and for reasonable costs and expenses of the state in tracing the source of the discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including animal, plant, and aquatic life, of the state to their former condition, and furthermore is subject to the judicial imposition of a civil penalty for each offense in an amount of not more than $10,000 per offense .... Nothing herein shall give the department the right to bring an action on behalf of any private person.

With respect to enforcement under Chapter 403, section 403.121 states, inter alia:

(1) Judicial remedies:
(a) The department may institute a civil action in a court of competent jurisdiction to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, and aquatic life, of the state caused by any violation.
(b) The department may institute a civil action in a court of competent jurisdiction to impose and to recover a civil penalty for each violation in an amount of not more than $10,000 per offense. However, the court may receive evidence in mitigation. Each day during any portion of which such violation occurs constitutes a separate offense.
(2) Administrative remedies:
(a) The department may institute an administrative proceeding to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, or aquatic life, of the state caused by any violation ....
(b) If the department has reason to believe a violation has occurred, it may institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action. (Emphasis supplied).

Accordingly, we must analyze appellant’s assertions in light of the relevant statutory provisions.

Discussion

Appellant essentially argues that section 27.02 when read in conjunction with article Y, section 17 grants him the authority to independently initiate a section 403.141(1) civil action on behalf of the state. He further states that this interpretation is consistent with the dictates of article II, section 7, particularly where DER has allegedly failed to enforce, as required, this constitutional policy and its parallel legislative policy as announced in section 403.021. Although we might be tempted to find solace in this argument because it appeals to our (or undoubtedly any other concerned citizen’s) acute awareness and concern for today’s burgeoning environmental. problems that are inevitable with commercial development, we, nevertheless, reject appellant’s novel contention with respect to this issue. We reach this conclusion after examining article V, section 17 and section 27.02 together, as well as determining the legislature’s intention with respect to this issue as evidenced by the enactment of various statutes relating to the authority of state attorneys and by the enactment of certain sections of Chapter 403.

The Florida Constitution is the starting point for our analysis of appellant’s eontention. Article V, section 17 creates the office of a state attorney for each judicial circuit and defines his authority to act on behalf of the state. The relevant part of section 17 provides: “In each judicial circuit a state attorney shall be elected for a term of four years. He shall be the prosecuting officer of all trial courts in that circuit and shall perform other duties prescribed by general law_” (Emphasis supplied). We believe that the plain meaning of the emphasized sentence directly empowers a state attorney to independently bring appropriate criminal proceedings, including related proceedings, in his circuit on the state’s behalf without further legislative approval. However, the provision does not give a state attorney the authority to initiate a cause of action created by statute in favor of the state to recover civil damages and penalties for violations of section 403.161(1). Rather, only a specific general law can grant him the power to file such a suit. Such a construction of article V, section 17 is consistent with the scope of authority traditionally granted to and exercised by a state prosecuting attorney.

Furthermore, we hold that section 27.02 contrary to appellant’s contention, is not such a specific general law but only broadly sets forth, as its heading indicates, a state attorney’s general duties. It enables him to appear and represent the state before appropriate courts in all cases, whether criminal or civil, once the state is a party to a particular suit. This section alone does not give him standing to make the state a party to a statutorily-created civil action. The cases appellant cites in support of his argument are not applicable here because they only involve the exercise of a state attorney’s authority to enforce violations of statutes proscribing criminal conduct.

Importantly, our holding is supported by the legislature’s own construction of article V, section 17 as evidenced by the legislature’s enactment of over twenty specific general laws that have explicitly given a state attorney the authority to independently initiate civil suits on behalf of the state in other areas concerning the health, safety, and welfare of Florida’s citizens and environment. One such specific general law is section 380.11, Florida Statutes (1981), “The Florida Environmental Land and Water Management Act of 1972.” This law expressly gives the state attorney the power to institute a civil action to enjoin violations of section 380.11. Furthermore, another example is section 60.05(1), Florida Statutes (1981), the public nuisance statute. This law expressly grants the state attorney the authority to sue civilly on behalf of the state in order to abate and enjoin public nuisances which are causing injuries or damage to the general community. State ex rel. Shevin v. Tampa Electric Co., 291 So.2d 45 (Fla. 2d DCA 1974). See also Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972); Health Club, Inc. v. State ex rel. Eagan, 338 So.2d 1324 (Fla. 4th DCA 1976). In fact, a public nuisance action seems to be one of the “rights of action or remedies in equity under the common law or statutory law,” which is not abridged or altered by Chapter 403 and is cumulative to the remedies provided in that chapter. § 403.191; State ex rel. Shevin at 48, n. 8.

Therefore, on the basis of our foregoing analysis, we hold the constitution requires that a specific general law be enacted to enable a state attorney to independently initiate a section 403.141(1) civil suit on behalf of the state. Because no other constitutional provision specifically grants a state attorney the authority he sought to invoke in this case and no other statute provides such authority, we must now decide whether Chapter 403, and in particular Part I, gives a state attorney standing to institute and proceed on the complaint that was filed in this case.

We first note, after scrutinizing its numerous sections, that no provision of Chapter 403 makes any reference whatsoever to a state attorney -much less expressly granting him the power to instigate a section 403.141(1) civil suit. In fact, section 403.-231, Florida Statutes (1981), specifically states that “The Department of Legal Affairs shall represent the state and its agencies as legal advisor in carrying out the provisions of this act.” This lends further support to GDC’s contention that appellant lacks standing to bring the section 403.-141(1) suit. Moreover, assuming arguendo that section 403.061(27) allows DER to delegate its civil enforcement authority to a state attorney, a question here we do not decide, no such delegation of authority has been made by the Secretary of DER. See Chapter 17, Fla.Admin.Code.

Further support for the above conclusion is found in 1972 Op.Att’y Gen. 072-239 (Aug. 2, 1972). The opinion states that a public prosecutor, specifically a county solicitor (whose duties the opinion noted were to be assumed by the state attorney under the 1972 amendments to article V), had no authority to institute an action for civil penalties pursuant to section 403.121(l)(b), Florida Statutes (Supp.1972). The opinion also mentioned that the Department of Legal Affairs was named by the statute as DER’s legal representative.

Additionally, even though the state attorney contends that his right to civilly enforce section 403.161(1) violations is consistent with the mandates of article II, section 7, the argument fails because of two reasons. It neglects to consider the constitutional restraints imposed on a state attorney in article V, section 17 (which we have previously outlined) and also fails to consider that article II, section 7 itself allows the legislature to make general laws relating to the abatement of air and water pollution. With respect to this latter point, the legislature has enacted Chapter 403 and clearly has intended for DER to be the state entity responsible for bringing civil actions for damages and penalties pursuant to section 403.141(1). See §§ 403.061(6); 403.121; 404.131. We do, however, make the observation that a state attorney is not powerless to play a role in protecting the environment since the legislature has specifically empowered him to criminally prosecute section 403.161(1) violators. § 403.-161(3).

Thus, it seems clear from a plain and ordinary construction of section 403.141(1) that this particular provision merely creates the civil cause of action in favor of the state and subjects a section 403.161(1) violator to liability in favor of the state for damages, penalties, costs and expenses. Cf. Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75, 77 (Fla. 1st DCA 1974) (interpreting pre-1972 provisions). Moreover, section 403.141(1) must be read in pari materia with the rest of Part I of Chapter 403 and, in particular, with sections 403.121, 403.141, and 403.161. Section 403.121 clearly delineates the judicial and administrative procedures available to DER to civilly enforce violations of section 403.161(1) and also specifically empowers DER to seek and recover the aforementioned damages, penalties, costs, and expenses, State Department of Pollution and Control v. International Paper Co., 329 So.2d 5, 7 (Fla.1976). Simply put, section 403.161 sets forth the violations; section 403.141 creates the civil liability in favor of the state; and section 403.121 empowers DER alone to sue for civil damages and penalties.

Accordingly, as we interpret the powers of a state attorney with respect to Chapter 403, it is clear to us that he indeed lacks standing to bring a section 403.141(1) civil action against an alleged polluter such as GDC. It only makes sense that a statewide agency which is specifically chartered by the legislature as the state’s chief pollution control agency, as opposed to a localized state attorney whose primary responsibility is the enforcement of criminal laws, has the sole authority to institute civil actions pursuant to section 403.141(1). That the legislature has chosen DER instead of the various state attorneys to civilly enforce provisions of Chapter 403 is a valid exercise of the legislature’s inherent powers. Absent a clear indication by the legislature through a specific general law that a state attorney can independently bring a section 403.141(1) civil action, we resist the invitation to legislate and thus will not grant that authority. The trial court was correct in ultimately ruling appellant lacked standing to institute the complaint for damages and penalties.

SECTION 120.69(l)(a) PETITION FOR ENFORCEMENT OF AGENCY ACTION .

As noted previously, appellant also contends he has standing to independently initiate on behalf of the state a section 120.69(l)(a) action to enforce rules and regulations adopted and promulgated by DER in accordance with the provisions of Part I, Chapter 403. In order to reach his conclusion, he first argues that he is an “agency” within the “[e]ach other state officer” language of section 120.52(l)(b). He then argues that as an agency he can enforce DER’s rules and regulations in accordance with the “[a]ny agency” language of section 120.69(l)(a).

Appellant reasons that without such standing serious harm will result to the state’s environment because the agency empowered to act in this area has failed to enforce the rules and the laws it is required to enforce. Although this rationale seems meritorious on its face at first blush, the interpretation proffered by appellant is in-apposite to the rules of statutory construction, common sense, and the legislative intent behind the law.

The Relevant Statutory Provisions

With respect to enforcement of agency action, section 120.69(l)(a), excluding the “except as otherwise provided” clause (which is not applicable here), states: “Any agency may seek enforcement of an action by filing a petition for enforcement, as provided in this section, in the circuit court where the subject matter of the enforcement is located.” Section 120.52 provides, inter alia:

As used in this act:
(1) “Agency” means:
(a) The Governor in the exercise of all executive powers other than those derived from the constitution.
(b) Each other state officer and each state department, departmental unit described in s. 20.04, commission, regional planning agency, board, district, and authority ....
(Emphasis supplied)
(c) Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.

Accordingly, in order to reach our conclusion, we must first examine section 120.-52(1), which defines “agency” for Chapter 120 purposes.

Discussion

As a starting point, subsection (l)(a) of section 120.52 must be read in pari mate-ria with subsection (l)(b). § 1.04, Fla.Stat. (1981). In doing so, it is evident that “[e]ach other state officer” refers only to the other state executive branch officers, in particular the Cabinet and Lieutenant Governor, and does not include every state official that might nominally be called a state officer. Our conclusion is supported by In re Advisory Opinion of the Governor, 334 So.2d 561 (Fla.1976). In that case, the supreme court interpreted section 120.52(l)(a) and stated that the requirements of Chapter 120, the Administrative Procedures Act (APA), not only do not apply to the clemency powers conferred on the governor by the constitution but also do not apply to the clemency powers of “the members of the cabinet.” Id. at 563. Clearly then, the court implicitly found that the cabinet members were included within the “[e]ach other state officer” language of subsection (l)(b) that was in existence at the time of the decision.

Moreover, we believe the Lieutenant Governor is also a part of this class. First, it can be inferred from the supreme court’s advisory opinion that the legislature intended for the Lieutenant Governor to be included under section 120.52(1)(b). Id. at 562. Additionally, he too is a statewide executive officer as defined in article IV, section 2 — thus the logical use of “state officer” instead of cabinet member in section 120.52(1)(b). Together, the Governor, Cabinet, and Lieutenant Governor make up the state officers of the executive branch of government. Art. IV, Fla. Const. We note that a major commentary on the Florida APA, A. England, Jr. and L.H. Levinson, Florida Administrative Practice Manual (D & S), § 9.03(3), p. 8 (1979 ed.) refers to the other “executive officers” when discussing section 120.52(1)(b).

A further point which clearly demonstrates why appellant’s argument must fail involves the examination of legislative intent behind the enactment of the current version of the Florida APA. Section 120.-72, Florida Statutes (1981), provides, inter alia: “The intent of the Legislature in enacting this complete revision of chapter 120 is to make uniform the rulemaking and adjudicative procedures used by the administrative agencies of this state.” First, a state attorney does not conduct adjudicatory proceedings, and, furthermore, it would be stretching the clear and plain meaning behind this language, State of Florida, Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980), to hold that a state attorney is an administrative agency that is required to adopt rules and regulations as mandated by section 120.53. The procedural rules which govern the actions and proceedings of a state attorney are those promulgated by our supreme court. Our research has found no rules or regulations adopted by appellant or any other state attorney in accordance with the APA. Therefore, we conclude that the “[e]ach other state officer” clause of subsection (1)(b) does not include a state attorney, whose jurisdiction is limited to a localized judicial circuit.

Even assuming that appellant had been able to show that he is an “agency” within the meaning of section 120.52(l)(b), he still would not have any authority under section 120.69(l)(a) to institute a petition for enforcement of DER’s rules and regulations. Under section 120.69(l)(a), only DER, the agency specifically designated by the legislature responsible for adopting and enforcing the rules and regulations allegedly violated in this case, has standing to file an action under that section. In our view, this is the clear meaning of the section.

Our holding is consistent with the Reporter’s Comments that accompanied the Law Revision Council’s 1974 revision of the APA. Comment (a) explains: “This provision enables any agency to seek judicial enforcement of its determinations, except as otherwise provided by statute.” (Emphasis supplied). See also England and Levinson, § 1602, p. 2 (1979 ed.) (“any agency may seek enforcement of its action by filing a petition in the circuit court where the subject matter of the enforcement is located.”) (Emphasis supplied). Therefore, we hold only DER can sue under section 120.69(l)(a).

CONCLUSION

Accordingly, we agree with the trial court’s ultimate rulings and hold that a state attorney has no standing to independently initiate a section 403.141(1) civil action for damages and penalties against an alleged violator of Chapter 403, and a state attorney has no standing under section 120.69(l)(a) to file a petition for enforcement of the rules and regulations promulgated by DER in relation to Chapter 403.

AFFIRMED.

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

      . By "independently initiated" we mean appellant was not directed by the Governor, the Attorney General, or the Department of Environmental Regulation (DER) to institute the action nor did he file the suit with the consent or approval of any of these state officials.

      . Section 7 states: "It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise.”

      . Section 27.02 provides: "The state attorney shall appear in the circuit and county courts within his judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions civil or criminal, in which the state is a party ....”

      . Article V, section 17 states:
      In each judicial circuit a state attorney shall be elected for a term of four years. He shall be the prosecuting officer of all trial courts in that circuit and shall perform other duties prescribed by general law; provided, however, when authorized by general law, the violations of all municipal ordinances may be prosecuted by municipal prosecutors. A state attorney shall be an elector of the state and reside in the territorial jurisdiction of the circuit. He shall be and have'been a member of the bar of Florida for the preceding five years. He shall devote full time to his duties, and he shall not engage in the private practice of law. State attorneys shall appoint such assistant state attorneys as may be authorized by law.

      . See §§ 403.087(1); 403.161(l)(a), (b); Rules 17-4.02(3), (17); 17-4.03, 17-4.28(1)(3), Fla.Admin.Code.

      . See § 403.161(l)(b); Rules 17-3.011(5); 17-3.-091(13); 17-3.121(14); 17-3.161(3).

      . This section, entitled the "Environmental Protection Act of 1971,” provides, inter alia:

      (2)(a) The Department of Legal Affairs, any political subdivision or municipality of the state, or a citizen of the state may maintain an action for injunctive relief against:
      1. Any governmental agency or authority charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air, water, and other natural resources of the state to compel such governmental authority to enforce such laws, rules, and regulations.
      2. Any person, natural or corporate, governmental agency or authority to enjoin such persons, agencies, or authorities from violating any laws, rules or regulations for the protection of the air, water, and other natural resources of the state.
      The act is commonly referred to as "little NEPA,” the Florida version of the National Environmental Protection Act. See J. Kavanaugh & J. Quinlan, Federal, State, and Local Enforcement Procedures in Environmental Cases, Environmental Regulation and Litigation in Florida (CLE), chapter 24, p. 28 (1981 ed.).

      . This provision states, in relevant portion: "A petition for enforcement of any agency action may be filed by any substantially interested person who is a resident of the state.”

      . See also § 403.081, Fla.Stat. (1981).

      . "Installation" is defined as “any structure, equipment, facility, or appurtenances thereto, or operation which may emit air or water contaminants in quantities prohibited by rules of the department.” § 403.031(8), Fla.Stat. (1981).

      . See note 5.

      . See note 6.

      . See notes 3 and 4 respectively.

      . See note 2.

      . Such proceedings could involve petitions for writs of certiorari, mandamus, prohibition, or habeas corpus because these actions historically have always been within a prosecuting attorney's authority.

      . See §§ 60.05(1); 83.761(4); 246.229; 286.-011(4); 351.18; 380.11; 409.245; 496.13(6); 533.05; 540.02; 544.04; 545.08; 559.78; 559.-813(4); 559.923(2); 585.195(5); 817.561(4); 849.0915(3), Fla.Stat. (1981). See also §§ 116.-32; 210.12; 372.316; 523.14; 849.12; 932.704, Fla.Stat. (1981), (relating to state attorney's independent authority to bring various forfeiture proceedings on behalf of the state). The legislature has also specifically granted a state attorney authority to institute other civil actions on behalf of the state if an action is referred to or delegated to him by a particular state agency or official. See §§ 106.25(4)(a); 161.071; 206.07; 206.22; 207.022; 253.05; 402.17(5); 501.052; 526.10; 542.15; 585.36; 586.09(1), Fla.Stat. (1981).

      . This provision, unchanged since 1972, sets forth a judicial remedy (civil penalties) available to DER for section 403.161(1) violations.

      . As noted earlier in the text of the opinion and emphasized therein, section 403.121 specifically states in subsections (l)(a), (l)(b), and (2)(a) that "[t]he department may institute" the available actions. Section 403.131(1), Florida Statutes (1981), provides: "The department may institute a civil action ... to seek injunctive relief.” (Emphasis supplied). The unambiguous emphasis in these sections is on DER's authority to act on behalf of the state. See generally Kavanaugh & Quinlan, chapter 24, pp. 26-28.

      .Additionally, we again note that a state attorney is not precluded from filing a public nuisance action against GDC. § 60.05(1), Fla.Stat. (1981); State ex rel. Shevin. We do not express any opinion as to whether a state attorney has standing under section 403.412.

      . Because of this conclusion, we need not address GDC’s argument that the case should be suspended or dismissed under the doctrine of "primary jurisdiction." Compare United. States v. Western Pacific Railroad Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956) with Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952); State ex rel. Shevin.

      . Section 120.69(2) provides:
      A petition for enforcement may request declaratory relief; temporary or permanent equitable relief; any fine, forfeiture, penalty, or other remedy provided by statute; any combination of the foregoing; or, in the absence of any other specific statutory authority, a fine not to exceed $1,000.

      . Appellant does not contend, nor could he successfully, that a state attorney is included under subsection (l)(c).

      . The Cabinet includes the Attorney General, the Secretary of State, the Comptroller, the Treasurer, the Commissioner of Agriculture, and the Commissioner of Education. Art. IV, § 4, Fla. Const.

      . First of all, "state officer” is nowhere defined in Chapter 120. Giving the term a literal interpretation, however, is untenable in light of the focus of the provision. Under the broad construction advanced by appellant, every individual law enforcement officer (e.g., state trooper, parole and probation officer, agricultural and road guard inspectors, etc.) would be deemed an "agency” under section 120.52(l)(b). Furthermore, what would preclude, under appellant’s view, a public defender from suing pursuant to the APA? We decline to give the statutory phrase in question such an absurd interpretation. Cf. Griffis v. State, 356 So.2d 297 (Fla.1978); Austin v. State ex rel. Christian, 310 So.2d 289 (Fla. 1975).

      .While the 1974 revision of the APA was being prepared by the Florida Law Revision Council pursuant to its authority under Chapter 67-472, Laws of Florida, former Supreme Court Justice England, prior to his joining the court, served as its reporter, and Professor Levinson served as chairman of the Council’s administrative law committee which supervised the revision.

      . Art. V, §§ 2(a), 15.

      . Because of our holding that the legislature has excluded state attorneys under section 120.-52(l)(b), we need not address GDC's contention that state attorneys are expressly excluded by section 120.50(2).

      . In Lewis v. Judges of the District Court of Appeal, 322 So.2d 16 (Fla.1975), and In re Advisory Opinion of the Governor, the supreme court emphasized the "historical relevance of the Law Revision Council's draft statutes and accompanying commentary” as extrinsic aids to interpreting the 1974 revision of the APA. In re Advisory Opinion at 562.

      .We express no opinion as to whether appellant has standing under section 120.69(l)(b).


source: Caselaw Access Project

author: ZEHMER, Judge.

license: Public Domain

text:
    Theodora WALSH, Appellant, v. Frank ALFIDI and Siesta Motor Inn, Inc., Appellees.
    No. AR-339.
    District Court of Appeal of Florida, First District.
    March 27, 1984.
    Rehearing Denied May 15, 1984.

      Gary A. Benson, of Weil, Johnson & Benson, Jacksonville, for appellant.
    Michael Basford, of Basford & Basford, and Michael J. Korn, of Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellees.
   ZEHMER, Judge.

Appellant Walsh received a final judgment for compensatory damages on her claim that appellees, Alfidi and Siesta Motor Inn, fraudulently misrepresented the condition and business use of the motel restaurant she leased from them. Both parties have appealed. Walsh contends that the trial court erred in refusing to submit her claim for punitive damages to the jury. Appellees complain of two evi-dentiary rulings and also contend that the evidence is insufficient to establish fraud on their part. We agree with Walsh and reverse.

On November 12, 1981, Walsh filed a complaint against appellees alleging fraud and seeking compensatory and punitive damages. The two primary allegations of the complaint were that Alfidi fraudulently and intentionally misrepresented the character of the restaurant operation on the motel property as a “mom and pop style family restaurant” when Alfidi knew that the restaurant catered to prostitutes and drug users. Walsh also alleges that Alfidi fraudulently and intentionally misrepresented the condition of the plumbing system in the restaurant when he knew that such system was defective. Based upon Alfidi’s representations, appellant undertook to lease and operate the restaurant.

The case was tried to a jury, and at the close of Walsh’s case the trial judge directed a verdict against her on punitive damages. The trial judge specifically held that although Walsh had proven all of the necessary elements of fraud she had failed to produce any evidence of malicious or outrageous conduct by Alfidi that would support an award of punitive damages. The jury retúrned a verdict in favor of appellant for $2,946 compensatory damages. Both parties have appealed.

Addressing, first, appellees’ cross-appeal, we hold that the trial court did not commit reversible error in receiving the evidence complained of by appellees and that the trial court was correct in denying appellees’ motion for directed verdict on Walsh’s fraud claim. There was sufficient evidence for the jury to find that Alfidi intentionally misrepresented the condition of the restaurant plumbing system when he knew that the system was substantially defective or, because of past adverse experience with the plumbing on the entire premises, knew that he lacked sufficient knowledge to make such affirmative representation; that Alfidi intentionally misrepresented the restaurant was a “mom and pop style family restaurant” operation while knowing that the neighborhood clientele included a significant number of prostitutes and drug users; that Alfidi made these misrepresentations for the purpose of inducing Walsh to lease the property; and that Walsh relied upon these fraudulent statements to her detriment.

Addressing, next, the issue raised by Walsh, we hold that the trial court erred in taking the punitive damage claim from the jury. Punitive damages may be awarded when there is evidence that the defendant acted with malice, moral turpitude, wantonness, willfulness, or reckless indifference to the rights of others. Campbell v. Government Employees Insurance Co., 306 So.2d 525 (Fla.1975); Florida Power & Light Co. v. Walker, 440 So.2d 659 (Fla. 1st DCA, 1983); Florida Standard Jury Instruction 6.12 (1982). In Arab Termite & Pest Control of Florida, Inc. v. Jenkins, 409 So.2d 1039 (Fla.1982), the Supreme Court defined the respective roles of the trial court and the jury regarding punitive damages, quoting from Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978):

When claims for punitive damages are made, the respective provinces of the court and jury are well defined. The court is to decide at the close of evidence whether there is a legal basis for recovery of punitive damages shown by any interpretation of the evidence favorable to the plaintiff. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222 (Fla.1936). A legal basis for punitive damages exists where torts are committed in an outrageous manner or with fraud, malice, wantonness or oppression. Id. [171 So.] at 221. Once the court permits the issue of punitive damages to go to the jury, the jury has the discretion whether or not to award punitive damages and the amount- which should be awarded. Punitive damages ‘are peculiarly left to the discretion of the jury as the degree of punishment to be inflicted must always be dependent on the circumstances of each case, as well as upon the demonstrated degree of malice, wantonness, oppression, or outrage found by the jury from the evidence.' (emphasis supplied) Id.

409 So.2d at 1041. Of course, the jury should not be instructed that punitive damages will be awarded if the defendant is found guilty of fraud; the instructions must make clear the jury’s duty to determine that any fraudulent conduct found by the jury must also be accompanied by malice, moral turpitude, wantonness, willfulness, or reckless indifference to the rights of others in order to award punitive damages. Schief v. Live Supply, Inc., 431 So.2d 602 (Fla. 4th DCA 1983). This purpose is served by Florida Standrd Jury Instruction 6.12 (1982).

Whether a fraudulent act is “sufficiently outrageous so as to justify an award of punitive damages is a question for the jury.” Schief v. Live Supply, Inc., supra, at 603; Tinker v. De Maria Porsche Audi, Inc. (Fla. 3d DCA 1984) [9 FLW 398]. In Tinker, which involved circumstances somewhat analogous to the case sub judice, it was held that the trial court reversibly erred in denying plaintiffs requested instruction on “negligent fraud” (the trial court instructed the jury on “actual knowledge” fraud and “gross negligence” constituting fraud) and erred in striking plaintiffs claim for punitive damages. Regarding the punitive damages claim, the court stated:

It was error for the trial court to strike the demand for punitive damages. Punitive damages are recoverable where the tortious act complained of is fraud. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936); City of Hollywood v. Coley, 258 So.2d 828 (Fla. 4th DCA 1971). Even if a jury were to find De Maria’s act unintentional, an award of punitive damages would be justified if there is shown an entire want of care by defendant in the exercise of the duty it assumed toward the plaintiff. The gross negligence required to support an award of punitive damages may be imputed from a want of slight care or attention to duty which a defendant owes to a plaintiff; the issue is one for the jury. Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957); see also Dean Witter Reynolds, Inc. v. Leslie, 410 So.2d 961 (Fla. 3d DCA 1982); Hanft v. Southern Bell Telephone & Telegraph Co., 402 So.2d 453 (Fla. 3d DCA 1981), quashed in part, 436 So.2d 40 (Fla.1983) (partial reversal based on determination that facts did not support gross negligence finding). On this record it was clearly error to strike the claim for punitive damages. The court (erroneously) instructed the jury that, in order to support a verdict for the plaintiff, it had to find, and it did find, either ‘actual fraud’ or ‘gross negligence’— which supports a claim for punitive damages.

At 9 FLW at 401.

Similarly, in this case the trial judge found that Walsh had presented sufficient evidence to warrant submission of her fraud claim to the jury and instructed the jury that defendants could be found guilty of fraud if the false statements were “made by one knowing that the representation is false” or “if he did not know, ought to have known of its falsity.” Such acts of fraud form the legal basis for an award of punitive damages; therefore, it was for the jury, not the trial judge, to determine whether punitive damages should be awarded. The judgment is reversed and the cause remanded for a new trial on the issue of punitive damages only.

REVERSED and REMANDED.

ERVIN, C.J., and BOOTH, J., concur.


text:
    Frank Robert GENTILE, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. AS-365.
    District Court of Appeal of Florida, First District.
    March 27, 1984.
    Rehearing Denied May 15, 1984.

      Edward P. de la Parte, Jr., of de la Parte & Gilbert, P.A., Tampa, for appellant.
    John E. Griffin, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Appellant, Frank Robert Gentile, appeals an order of the Board of Medical Examiners denying him a medical license by endorsement. His application for licensure, made under oath, failed to indicate his employment and experience as a physician on the staff of Memorial Hospital of Alamance County, North Carolina. Upon standard inquiry, the Board of Medical Examiners learned from the North Carolina State Board of Medical Examiners that appellant had been affiliated with Memorial Hospital. Through correspondence with that hospital, it was determined that appellant had voluntarily resigned from the medical staff at a time when he was under investigation by the hospital. In response to a question as to whether appellant had performed competently while at the hospital, officials from the hospital responded, “Questionable.”

On June 24, 1982, the Florida Board of Medical Examiners entered an order denying appellant’s application for licensure by endorsement, stating the following reason:

The petitioner has not demonstrated to the Board that he is capable of safely engaging in the practice of medicine with reasonable skill and safety to his patients based upon his voluntary resignation of his membership and clinical privileges at Memorial Hospital of Alamance County, Inc., Burlington, North Carolina, just pri- or to disciplinary action taken by the hospital.

Appellant requested a section 120.57 hearing, and immediately prior to such hearing appellant and the Board executed a written stipulation in which they agreed that the only issue of fact to be presented to the hearing officer was as follows:

Whether Dr. Gentile’s practice at Memorial Hospital of Alamance County, Burlington, North Carolina, demonstrated that he is incapable of safely engaging in the practice of medicine with reasonable skill and safety to his patients?

The parties also stipulated that there was only one issue of law to be ruled upon by the hearing officer:

Whether Dr. Gentile is of good moral character and whether he has committed any act or offense within or without the state which will constitute a basis for disciplining a physician pursuant to Section 458.331, as required by Section 458.-313(l)(b), Florida Statutes (1981)?

A final hearing was held on October 14, at which the attorney for the Board offered into evidence a substantial amount of testimony regarding appellant’s failure to disclose the fact that he had been on the staff at Memorial Hospital in response to a question on his application regarding with what hospitals he had staff privileges. The Board also offered to show that, in direct response to a request from the Board for an accounting of his time during the period he was on staff at Memorial Hospital, appellant failed to mention his practice at that hospital. Appellant admitted that he failed to make such disclosure, but explained that such failure was due to his misunderstanding of the information being requested. Testimony regarding appellant’s apparent untruthfulness was, to some extent, objected to by counsel for appellant, and the hearing officer made a somewhat vague ruling that could be construed as either admitting the evidence as relevant or excluding the evidence as irrelevant. In any event, the hearing officer, in her recommended order, did not make a finding of fact as to whether appellant was intentionally untruthful during the application process or whether he simply misunderstood the information being requested. The hearing officer concluded that there was no evidence to indicate that appellant’s practice at Memorial Hospital demonstrated him to be incapable of safely engaging in the practice of medicine, that appellant was lacking good moral character, or that appellant had committed any act that would constitute a basis for denying him a license. Accordingly, the hearing officer recommended that.the Board grant appellant the license.

On April 18, 1983, the Board entered its final order in which it accepted all of the hearing officer’s findings of fact but added thereto an additional finding that appellant was not truthful or responsive to the Board’s inquiries concerning the nature and history of his employment at Memorial Hospital. The Board rejected the conclusions of law made by the hearing officer and instead concluded that, based upon its findings of fact, appellant is not of good moral character and is not capable of safely engaging in the practice of medicine. Accordingly, the Board denied the license to appellant. Appellant appeals this final order of the Board.

Appellant seeks reversal with directions to issue the license. At oral argument, counsel for appellee stated that appellee does not oppose reversal if the case is remanded for further hearing on the issue of appellant’s entitlement to a license in view of his apparent untruthfulness during the application process. Both parties agree that the Board based its final decision on this issue, although it was not clearly before the hearing officer under the parties’ written stipulation.

The stipulation entered into by the parties is vague and ambiguous regarding the issues to be decided by the hearing officer. Although the stipulated issue of fact was whether appellant’s practice at Memorial Hospital demonstrated him to be incapable of safely engaging in the practice of medicine, the hearing officer, based upon our reading of the transcript, received evidence of appellant’s inaccurate statements on his application in response to the Board’s inquiries, deeming them statements relevant to his practice at that hospital. Although considering evidence of appellant’s failure to disclose his association with that hospital as within the stipulated issue of fact, the hearing officer nevertheless did not make a specific finding as to whether the failure to disclose was intentional or .was merely an oversight or misunderstanding.

Obviously, making false or misleading statements on his application is relevant to whether appellant is of good moral character and can safely engage in the practice of medicine. If appellant perjured himself by intentionally falsifying his application or untruthfully responding to Board inquiries, this is a valid ground for denying him a license. § 458.331(l)(a), Fla.Stat. (1981). Indeed, the Board might well have been remiss in performing its duties had appellant’s lack of candor on the application been ignored.

Appellant’s untruthfulness regarding his past experience was arguably encompassed within the stipulated issues, and we hold that the Board is not foreclosed by the stipulation of the parties from considering appellant’s misrepresentations in deciding whether to grant him a license. Although the evidence appears facially sufficient to support the Board’s finding, we also recognize that a significant amount of confusion existed at the hearing concerning whether that issue should be decided by the hearing officer. In view of the confusion concerning the trial of this issue by the hearing officer and her failure to make any specific finding on this issue, in fairness appellant should be granted a further administrative hearing at which he will have the opportunity to adduce further evidence of explanation or mitigating circumstances.

The final order of the Board is REVERSED and this case is REMANDED for further proceedings consistent with this opinion.

ERVIN, C.J., and BOOTH, J., concur.

      . Appellee has argued that this order does not set forth the real reason the Board denied the medical license to appellant. Appellee alleges that at its June 5 meeting the Board expressed concern over appellant’s apparent untruthfulness during the application process and that such untruthfulness was the real basis for denial of the license. Because we do not have a transcript of the Board’s June 5 meeting in the record on appeal, we are unable to accurately consider this argument.


author: BASKIN, Judge. SCHWARTZ, Chief Judge

text:
    Bonnie B. BAILEY, Personal Representative of the Estate of Clarence W. Bailey, deceased, Appellant, v. CARNIVAL CRUISE LINES, INC., and S.Y. Thompson, et al., Appellees.
    No. 83-422.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.
    Rehearing Denied May 4, 1984.

      Colson, Hicks & Eidson and Dean Colson, Miami, for appellant.
    Smathers & Thompson and Rodney Earl Walton, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   BASKIN, Judge.

This appeal from the trial court’s order dismissing an action for damages predicated upon negligence on the high seas resulting in death, presents two questions: first, whether the Death on the High Seas Act (DOHSA), 46 U.S.C., section 761 et seq. (1981), provides the exclusive remedy for negligence on the high seas resulting in death and second, whether DOHSA suits must be instituted only in federal admiralty forums. Rejecting appellant’s contention that her action may be maintained under state statutes or decided by state courts, we affirm. We hold that in enacting DOH-SA Congress provided an exclusive remedy which must be pursued in a federal admiralty forum. Consequently, DOHSA preempts the Florida Wrongful Death Act, section 768, Florida Statutes (1981), for negligence on the high seas resulting in death; Florida courts do not have concurrent jurisdiction over DOHSA actions.

Charles Bailey suffered a heart attack during a cruise on a ship operated by Carnival Cruise Lines, Inc. The personal representative of his estate instituted an action in which she contended that Bailey’s death was caused by the company’s failure to maintain the ship’s emergency medical equipment in working condition and by the company’s failure to render proper medical care. Finding that it lacked subject matter jurisdiction, the trial court dismissed the cause. This appeal ensued.

We begin our review by focusing our attention on whether DOHSA provides litigants with the only remedy for negligence resulting in death on the high seas. Appellant argues that in enacting DOHSA, Congress intended that states be permitted to apply state laws to wrongful deaths caused by negligence occurring in international waters.

The law is replete with decisions discussing whether section seven of DOHSA preempts state laws which provide remedies for wrongful deaths. We believe that the more persuasive cases are those holding that DOHSA constitutes the exclusive remedy for deaths caused by negligence on the high seas. Those cases further the tradition of achieving uniformity in admiralty law. Decisions addressing the issue include: Bodden v. American Offshore, Inc., 681 F.2d 319, 327 (5th Cir.1982); Heyl v. Carnival Cruise Lines, 1981 AMC 2393 (5th Cir.) (per curiam) (marked “Do not publish”), cert. denied, 449 U.S. 1066, 101 S.Ct. 795, 66 L.Ed.2d 611 (1980); Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D.Cal.1954); see also Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77 (9th Cir.1983); Vaz Borralho v. Keydril Co., 696 F.2d 379, 384 n. 6 (5th Cir.1983); Hlodan v. Ohio Barge Line, Inc., 611 F.2d 71 (5th Cir.1980); Renner v. Rockwell International Corp., 587 F.2d 1030 (9th Cir.1978); Jennings v. Goodyear Aircraft Corp., 227 F.Supp. 246 (D.Del.1964); Noel v. United Aircraft Corp., 204 F.Supp. 929 n. 5 (D.Del.1962); Echavarria v. Atlantic & Caribbean Steam Navigation Co., 10 F.Supp. 677 (E.D.N.Y.1935); Touhey v. Ross Fous Medical Group, 111 Cal.App.3d 958, 168 Cal.Rptr. 910 (1980); Cairl v. Boeing Co., 39 Cal.App.3d 137, 113 Cal.Rptr. 925 (1974); Gordon v. Reynolds, 187 Cal. App.2d 472, 10 Cal.Rptr. 73 (1960). Contra In re Red Star Towing & Transportation, 552 F.Supp. 367 (S.D.N.Y.1983); In re Complaint of Exxon, 548 F.Supp. 977 (S.D.N.Y.1982); Alexander v. United Technologies Corp., 548 F.Supp. 139 (D.Conn.1982); Lowe v. Trans World Airlines, 396 F.Supp. 9 (S.D.N.Y.1975); Safir v. Compagnie Generale Transatlantique, 241 F.Supp. 501 (E.D.N.Y.1965).

We agree with the analysis of the issue expressed in Wilson and Higa v. Transocean Airlines, 230 F.2d 780 (9th Cir.1955), recognizing Congress’s intention to have DOHSA provide the sole remedy for redress of negligence on the high seas resulting in death. We adopt the rationale of Wilson and Higa as the foundation for our decision on this issue.

Dugas v. National Aircraft Corp., 438 F.2d 1386 (3rd Cir.1971) cited by appellant is inapposite because the action under review involved both a state survival statute and a DOHSA claim; nevertheless, Dugas agrees that DOHSA supersedes state wrongful death statutes for deaths occurring on the high seas. 438 F.2d at 1388. See also Solomon v. Warren, 540 F.2d 777 (5th Cir.), cert. dismissed sub nom Warren v. Serody, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977). But see Nygaard (admiralty pre-empts state remedies even in territorial waters); Nelson v. United States, 639 F.2d 469 (9th Cir.1980) (Moragne action applies both to seaworthiness and to negligence).

We turn to the next question: whether a DOHSA action must be brought solely in an admiralty forum. Appellant maintains that section one of the Act supports her contention that state courts may entertain DOHSA actions.

Section 1 of DOHSA provides:

Whenever the death of a person shall be caused by a wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued, (emphasis added)

46 U.S.C. § 761 (1981).

Appellant asserts that the words “the personal representative ... may maintain a suit .... ” permit state courts to apply the federal law of DOHSA to suits filed in state courts even though the alleged negligence occurred beyond state territorial waters. We disagree. DOHSA specifies that lawsuits must be brought in admiralty. Bailey’s contention that in DOHSA Congress failed to rebut the presumption of concurrent state court jurisdiction lacks merit. Congress clearly announced the appropriate forum for maintaining DOHSA lawsuits, thereby limiting the remedy it had created. Our view is supported by Wilson. In Wilson the court examined the language of DOHSA and observed:

[I]n a single sentence the statute both creates a right of action, which did not previously exist, and stipulates that the right is to be enforced in the federal courts of admiralty. The provision that enforcement is to be in admiralty is a limitation on the right itself.

121 F.Supp. at 94.

The court rejected the assertion that Congress provided admiralty as a forum to complement state court review. The court reasoned that DOHSA provided a right of action where none had previously existed.

The court went on to state:

The use of a mandatory word such as “shall” in this context would have been entirely inappropriate. The remainder of the sentence designating the forum is a qualification of the permission to maintain a suit.
Moreover, the construction offered by plaintiff would render the words “in admiralty” mere surplusage. Yet, as plaintiff, herself, notes, “no rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect shall, if possible, be accorded every word in a statute.” No express permission would have been necessary merely to open the courts of admiralty for the enforcement of the maritime right created by the statute. A suit to enforce a maritime right is a case within the admiralty jurisdiction. The District Courts of the United States have original jurisdiction of “any civil case of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333.
Other language of the Death on the High Seas Act is also persuasive that suits under the Act are exclusively within the jurisdiction of the admiralty courts. Section 5 of the Act provides that:
“If a person die as the result of such wrongful act, neglect, or default as is mentioned in section 1 during the pend-ency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 2 of this act.”
If the Congress contemplated that suits enforcing the right of action given by the Death on the High Seas Act should be maintained in courts of law, there would have been no reason to limit the right of substitution granted in Section 5 of the Act to suits for personal injuries which were pending in the admiralty courts.

121 F.Supp. at 94-95.

Congressional committee reports and the floor debate in the House persuaded the court that Congress intended to vest exclusive jurisdiction over DOHSA actions in the admiralty courts. See Senate Report 216, House Report 674, 66th Congress; Vol. 69 Congressional Record, Part 5, pp. 4482-4486, 66th Congress.

Wilson was followed by Higa. In Higa the court agreed that Congress had created a substantive right to be asserted solely in federal courts, in admiralty:

Here, however, the Death on the High Seas Act creates the right to recover for wrongful death and designates not only the federal court for its enforcement, but a particular jurisdiction of that court. The right is a matter of federal law where state courts would have no special competence. There is more here than “the grant of jurisdiction, of itself * * ” which indicates that jurisdiction was intended to be exclusive.

230 F.2d at 783. See also Kropp v. Douglas Aircraft Co., 329 F.Supp. 447 (E.D.N.Y.1971); Pardonnet v. Flying Tiger Line, Inc., 233 F.Supp. 683 (N.D.Ill.1964); Jennings; Blumenthal v. United States, 189 F.Supp. 439 (E.D.Pa.1960), aff'd 306 F.2d 16 (3rd Cir.1962).

We are aware that New York courts, while agreeing that DOHSA provides the exclusive remedy, nevertheless permit DOHSA actions to be decided by New York state courts. Ledet v. United Aircraft Corp., 10 N.Y.2d 258, 219 N.Y.S.2d 245, 176 N.E.2d 820 (1961); Elliott v. Steinfeldt, 254 App.Div. 739, 4 N.Y.S.2d 9 (1938). Additionally, cases which hold that DOHSA is not the exclusive remedy permit DOHSA claims to be pursued in non-admiralty forums. Lowe; In re Complaint of Exxon; Rairigh v. Erlbeck, 488 F.Supp. 865 (D.Maryland 1980); Drakatos v. R.B. Denison, Inc., 493 F.Supp. 942 (E.D.Conn.1980). These cases present a minority view which we decline to follow.

The Death on the High Seas Act was designed to afford a uniform right of action for deaths resulting from wrongful acts beyond a state’s territorial waters. Wilson. Until Congress alters its stated policy, DOHSA actions may not be maintained in state courts.

In Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), Justice Stevens writing for the Court stated: “[W]hen [DOHSA speaks] directly to a question, the courts are not free to ‘supplement’ Congress’ answer so thoroughly that the Act becomes meaningless.” 436 U.S. at 625, 98 S.Ct. at 2015. Although we discern no reason why the courts of this state are not competent to entertain DOHSA actions, we are bound by Congress’s determination that DOHSA actions are cognizable solely in admiralty. To hold otherwise would be to undermine Congress’s answer so thoroughly that DOHSA’s directives would be rendered meaningless.

Congress has spoken directly to the question of the authority of state courts to entertain DOHSA claims and has decided that the sole forum for DOHSA actions lies in admiralty. We are, therefore, precluded from holding that Florida courts may take cognizance of DOHSA claims.

Appellant’s remaining arguments lack merit.

For these reasons we affirm the trial court’s decision.

Affirmed.

SCHWARTZ, Chief Judge

(dissenting in part, specially concurring in part)

I would hold that Florida courts have jurisdiction over actions arising under the Death on the High Seas Act. As the Supreme Court recently stated the rule in Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981):

The general principle of state-court jurisdiction over cases arising under federal laws is straight-forward: state courts may assume subject-matter jurisdiction over a federal cause of action absent provision by Congress to the contrary or disabling incompatibility between the federal claim and state-court adjudication.

Id. at 477-478, 101 S.Ct. at 2874-2875. See also Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507-508, 82 S.Ct. 519, 522-523, 7 L.Ed.2d 483 (1962); Claflin v. Houseman, 93 U.S. 130, 136, 23 L.Ed. 833 (1876). Gulf Offshore Co., 453 U.S. at 478, 101 S.Ct. at 2875, holds that an actual presumption exists in favor of state court concurrent jurisdiction over a federally-created action. In the present instance of the DOHSA, that presumption is not effectively overcome in any of the ways Gulf Offshore Co., 453 U.S. at 478, 101 S.Ct. at 2875, indicates it may be: (a) the statutory language itself says only that a DOHSA claim “may” be maintained in admiralty, not that it must be filed there, nor that it may not be in any other forum; see Galveston, H. & S.A.R. Co. v. Wallace, 223 U.S. 481, 32 S.Ct. 205, 56 L.Ed. 516 (1912) (action under original Carmack Amendment, 49 U.S.C. § 620 (1887), providing that an action “might” be brought in federal court, maintainable in state court); Charles Dowd Box Co. v. Courtney, supra, (action under 29 U.S.C. § 185(a), providing that collective bargaining suits “may” be brought in federal court, maintainable in state court); (b) the legislative history, as the Supreme Court indicated in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), is equivocal at best; and (c) there is plainly no incompatibility between a federal interest reflected by the statute and the exercise of state jurisdiction, which is, of course, fully competent to entertain and determine a wrongful death action like this. Accordingly, I believe that such cases as Ledet v. United Aircraft Corp., 10 N.Y.2d 258, 219 N.Y.S.2d 245, 176 N.E.2d 820 (1961), Bugden v. Trawler Cambridge, Inc., 319 Mass. 315, 65 N.E.2d 533 (1946), and Red Star Towing & Transp. Co. v. “Ming Giant, 552 F.Supp. 367 (S.D.N.Y.1983), which permit state jurisdiction in DOHSA actions, represent the better view and would therefore reverse the order below insofar as it holds otherwise.

I do concur that, on the facts presented, no claim may be maintained under the Florida wrongful death statute. I do not agree with the court that the enactment of the DOHSA preempted such authority under the supremacy clause; indeed, I think that quite the contrary is true, Moragne v. States Marine Lines, Inc., supra, n. 14, Complaint of Exxon Corp., 548 F.Supp. 977 (S.D.N.Y.1982), Safir v. Compagnie Generate Transatlantique, 241 F.Supp. 501 (E.D.N.Y.1965). In my opinion, however, Florida, under its own choice-of-law rules, would, to achieve uniformity and ease of application — and since no competing interest is indicated — apply the DOHSA to a death occurring on the high seas beyond its territorial waters. Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980); State Farm Mutual Automobile Ins. Co. v. Olsen, 406 So.2d 1109 (Fla.1981); Proprietors Ins. Co. v. Valsecchi, 435 So.2d 290 (Fla. 3d DCA 1983) (Schwartz, C.J., dissenting).

      . See United States Court of Appeals, 11th Circuit, Local Rule 25.4 which states:
      Unpublished Opinions. Unpublished opinions are precedent. However, because every opinion believed to have precedential value is published, an unpublished opinion should normally be cited only when it (1) establishes the law of the case, (2) is relied upon as a basis for res judicata or collateral estoppel, or (3) involves, related facts. If an unpublished opinion is cited, a copy shall be attached to each copy of the brief.

      . Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).

      . In language which casts grave doubt on the analysis in Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D.Cai.1954) and Higa v. Transocean Airlines, 230 F.2d 780 (9th Cir.1955), upon which the majority heavily relies, the Court said:
      Wc note that § 1 of the Act, which authorizes "a suit for damages in the district courts of the United Stales, in admiralty,” has been construed to place exclusive jurisdiction on the admiralty side of the federal courts for suits under the Act, e.g., Devlin v. Flying Tiger Lines, Inc., 220 F.Supp. 924 (D.C.S.D.N.Y. 1963), although there was earlier authority to the contrary. Bugden v. Trawler Cambridge, 319 Mass. 315, 65 N.E.2d 533 (1946). If wc found from the legislative history that Congress imposed exclusive jurisdiction because of a desire to avoid the presentation of wrongful-death claims to juries, that might support an inference that Congress meant to forbid nonstatutory maritime actions for wrongful death, which might come before state or federal juries. Cf. Fitzgerald v. United States Lines, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). However, that is not the case. The only discussion of exclusive jurisdiction in the legislative history is found in the House floor debates, during the course of which Representative Volstead, floor manager of the bill and chairman of the Judiciary Committee, told the members that exclusive jurisdiction would follow necessarily from the fact that the Act would be part of the federal maritime law. 59 Cong.Rcc. 4485. This erroneous view disregards the "saving clause" in 28 U.S.C. § 1333, and the fact that federal maritime law is applicable to suits brought in state courts under the permission of that clause. See n. 1, supra. When asked whether it was true that jury trials would never be available in suits under the Act, Representative Volstead replied: “I do not think so. Perhaps, for certain purposes, under the practice that prevails, they may have a jury, but ordinarily a jury is not allowed. However, I do not know much about admiralty practice.” 58 Cong.Rec. 4485. From this we can derive no expression of policy bearing on the matter under discussion, [c.s.]
      398 U.S. at 400, n. 14, 90 S.Ct. at 1787, n. 14.

      . The original version of Section 7 of the DOH-SA provided:
      The provision of any State statute giving or regulating rights of action or remedies for death shall not be affected by this Act as to causes of action accruing within the territorial limits of any State, [c.s.]
      109 Cong.Rcc. H4482 (1920). It is highly significant that the emphasized portion was stricken during debate.


author: GLICKSTEIN, Judge.

text:
    Harris ADKINS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1468.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Rehearing Denied May 17, 1984.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.'
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was convicted of burglary with an assault as well as sexual battery with slight force. He raises two issues on appeal, neither of which has merit but one of which, the trial court’s exclusion of evidence upon the defense of consent, we wish to discuss in affirming.

Both parties appropriately rely upon section 794.022(2), Florida Statutes (1981), which provides:

Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in prosecutions under s. 794.011; however, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court outside the presence of the jury that such activity shows such a relation to the conduct involved in the case that it tends to establish a pattern of conduct or behavior on the part of the victim which is relevant to the issue of consent.

In cases dealing with the foregoing statute, we are of the opinion that each appellate court can be of great assistance to the trial bench and bar by (a) differentiating between reputation and specific acts and (b) reciting the proffered evidence the trial judge rejected in the case under consideration. Accordingly, we appreciate our companion court’s opinion in McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982), which recited:

The defense’s proffered testimony indicated that the victim was an unchaste woman. Most of this evidence revealed that the victim had a reputation for promiscuity. Such evidence consisted of the victim’s having adulterous affairs, picking up strange men at bars, and making dates with truck drivers over a C.B. radio. One witness saw the victim leave local bars with strangers. There was additional evidence relating to specific instances of sexual conduct in which one local citizen admitted having a sexual relationship with the victim a year before the alleged crime, and another testified she had seen the victim in bed with her ex-husband on two separate occasions. The trial court declined the admission of the proffered evidence, but permitted testimony revealing that co-defendant Watt, also charged with aiding and abetting the sexual battery, participated in a sexual encounter with the victim the night before the alleged crime.
The appellant’s proffer actually involves two types of evidence: hearsay/reputation evidence and evidence of specific sexual conduct. At common law the former type of evidence was admissible into evidence. See Thomas v. State, 249 So.2d 510 (Fla. 3d DCA 1971).

Id. at 747. On those facts, the court said:

A commentator has suggested that the omission of hearsay/reputation evidence from the statute requires that the common law be followed. See, Note, Florida’s Sexual Battery Statute: Significant Reform But Bias Against the Victim Still Prevails, 30 U.Fla.L.Rev. 419, 432-433 (1978).
The Florida Evidence Code has not changed the law in this respect. Section 90.404(l)(b)(l) provides:
(1) Character evidence generally.— Evidence of a person’s character or a trait of his character is inadmissible to prove that he acted in conformity with it on a particular occasion, except:
(b) Character of the victim,—
(1) Except as provided in s. 794.022, evidence of pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; ....
We therefore conclude that evidence relating to the victim’s reputation as to unchaste conduct should have been admitted, and its exclusion constitutes reversible error.
Section 794.022 does, however, bar evidence of specific sexual acts unless that evidence establishes a pattern of conduct relevant to the issue of consent. Hodges v. State, 386 So.2d 888 (Fla. 1st DCA 1980). There, we held that one isolated act of premarital sex did not constitute a “pattern of conduct” within the meaning of Section 794.022(2). Although the proffered testimony in this case does reveal three specific instances of sexual activity, that evidence is not so repetitive or frequent as to establish a “pattern of behavior.” Accordingly, we agree that the lower court did not err in refusing to admit such testimony into evidence.

Id. at 747-748. See, also, Winters v. State, 425 So.2d 203 (Fla. 5th DCA 1983) which held:

Appellant proffered evidence of some specific consensual sexual activities between the victim and other persons, but this does not meet the test of the statute. The few isolated instances presented did not present a “pattern of conduct or behavior,” see Hodges v. State, 386 So.2d 888 (Fla. 1st DCA 1980), and the trial court properly excluded that evidence.

Id. at 204. Here, the defense sought to determine if the victim, a twenty-three year old nurse, had lived with two men in the past other than the doctor with whom she had been living for five months at the time of the offense. The trial judge considered, in his judgment, such evidence to be insufficient to meet the statute’s requirement and appellant has provided neither authority nor reason to erase the exercise of that judgment. Judge Larry G. Smith, in Hodges v. State, 386 So.2d 888, 889 (Fla. 1st DCA 1980) provided us with (a) an analysis for application of the statute and (b) an overview of what the trial judge is about in such cases:

We agree with the ruling of the trial judge that the proffered testimony fails to show such a relation to the conduct involved in the case that it tends to establish a pattern of conduct or behavior on the part of the victim which is relevant to the issue of consent. Such a determination obviously involves the exercise of judgment on the part of the trial court, sitting as a trier of the facts in determining admissibility of evidence under the statute. Here, one episode of sexual intercourse three or four weeks before the assault hardly establishes a “pattern of conduct or behavior” on the part of the victim;' and the evidence of having slept with her boyfriend on one occasion bears no relation to the issue of whether the victim consented during this hitchhiking encounter. Evidence merely disclosing prior sexual activity or looseness of morals in that regard is not admissible under the statute. In order to be admissible, the evidence must be of such a nature as to give rise to a reasonable assumption that because the victim engaged in a certain disclosed pattern of conduct or behavior, the victim probably consented to the same activity with the accused. In this respect, _ the test for admissibility is much like that for admission of “other crime” evidence under Williams v. State, 110 So.2d 654 (Fla. 1959), and its progeny. The proffered conduct simply fails to meet the test required by the statute.

Each ease to which section 794.022(2) applies is going to involve a judgment call by the trial judge. Trial judges will apply common sense to distinguish shadows on the wall from legitimate indicators of consensual conduct. We shall do likewise to distinguish rulings we should uphold from those we should upset. The object is to prevent equally the transformation of victimized females into persons on trial and innocent male defendants into victims.

ANSTEAD, C.J., and DOWNEY, J., concur.

      . The question was erroneously posed to the victim in the presence of the jury. The statute expressly requires counsel to proffer the evidence on the subject outside of the jury’s presence.


author: SCHEB, Judge.

text:
    Drs. M.N. FARAG and S.T. Iranpur, jointly and severally, Appellants, v. NATIONAL DATABANK SUBSCRIPTIONS, INC., Steven A. Robbins and Robert White, Appellees.
    No. 83-519.
    District Court of Appeal of Florida, Second District.
    March 28, 1984.
    Rehearing Denied April 23, 1984.

      Douglas A. Lockwood, III, of Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., Lakeland, for appellants.
    Howard P. Ross of Battaglia, Ross, Hastings, Dicus and Andrews, St. Petersburg, for appellees Nat. Databank Subscriptions, Inc. and Steven A. Robbins.
    Michael J. Keane of John T. Allen, Jr., P.A., St. Petersburg, for appellee Robert White.
   SCHEB, Judge.

Plaintiffs challenge the trial court’s entry of a final judgment on the pleadings in favor of the defendants. We reverse.

Plaintiffs, Drs. Farag and Iranpur, sought damages and other relief from defendants with whom they invested money in an alleged tax shelter investment. Plaintiffs alleged they were sought out by defendants in 1981 and induced to enter into a contractual arrangement. They claim that National Databank and its agents, Steven Robbins and Robert White, subsequently sold them microfiche from various corporate documents, which plaintiffs would then donate to certain charitable organizations for the purpose of claiming a charitable deduction on their 1981 income tax returns. Plaintiffs attached to their complaint a lengthy sales brochure describing this program in detail and charged the defendants with fraudulent misrepresentations, breach of express and implied warranties, overreaching, and breach of a fiduciary duty. Specifically, plaintiffs alleged that defendants sold them unregistered securities in violation of 15 U.S.C.A. §77 l (West 1982) and the Florida Securities Act, Chapter 517, Florida Statutes (1981).

Defendants Databank and Robbins filed their answer, affirmative defenses, and counterclaim against plaintiffs. Plaintiffs responded to defendants’ affirmative defenses and raised their own affirmative defenses in answering the counterclaim. Databank and Robbins filed a reply and a motion to strike the plaintiffs’ affirmative defenses, and moved for judgment on the pleadings.

Defendant White followed a different procedural route. He moved to dismiss the complaint and, without filing an answer, filed his own motion for judgment on the pleadings.

The trial court heard all of the motions and subsequently entered a final judgment on the pleadings in favor of all defendants. This appeal ensued.

Plaintiffs forcefully argue that the court erred in entering judgment on the pleadings because of the existence of numerous disputed issues of fact.

For a proper evaluation of the plaintiffs’ argument, we must turn to the general rules governing motions for judgment on the pleadings. A motion for judgment on the pleadings may be filed only after the pleadings are closed. Fla.R. Civ.P. 1.140(c). When considering the motion, all material allegations of the opposing party’s pleadings are to be taken as true, and all those of the movants, which have been denied, are taken as false. The motion is to be decided wholly on the pleadings, without the aid of outside matters such as affidavits, depositions, or other showings of fact. Shay v. First Federal of Miami, Inc., 429 So.2d 64 (Fla. 3d DCA 1983). The motion may be granted only if the moving party is clearly entitled to judgment as a matter of law. It follows therefore that it is improper for a trial court to enter judgment on the pleadings where factual questions remain. Krieger v. Ocean Properties, Ltd., 387 So.2d 1012 (Fla. 4th DCA 1980).

Plaintiffs’ complaint contains six counts. Count I focuses on whether the charitable contribution program they purchased was a security. The definition of “security" in section 517.021(15), Florida Statutes (1981), embraces a variety of instruments, including any “investment contract.” The parties here agree that if the charitable contribution program is a “security” within the statutory definition, it is because it is an “investment contract.” Although “investment contract” is not defined in the Florida Securities Act, the United States Supreme Court, by definition, has established a three-pronged test which must be met in order to prove the existence of an investment contract. SEC v. W.J. Howey Co., 328 U.S. 293, 299, 66 S.Ct. 1100, 1102, 90 L.Ed. 1244, 1249 (1946). First, there must be an investment of money; second, the investment must be in a common enterprise; and third, there must be an expectation of profits to be derived solely from the efforts of another. Id. Florida courts have adopted the Howey definition. See Adams v. State, 443 So.2d 1003 (Fla. 2d DCA 1983).

The plaintiffs have unquestionably made an investment of money. However, defendants contend that the second and third prongs of Howey have not been established. First, they submit that there was no common enterprise, because the sales brochure clearly indicated that there was no necessary interaction, joint participation, or dependency among the plaintiffs or any other investors. See Brown v. Ra-irigh, 363 So.2d 590 (Fla. 4th DCA 1978). However, we point out that the mere fact that an investor’s return is independent of that of other investors in the scheme is not decisive. SEC v. Koscot Interplanetary, Inc., 497 F.2d 473 (5th Cir.1974). A common enterprise could be found, even though there is no joint participation or dependency among investors, if the success of the enterprise is determined to be dependent on the promoter obtaining a number of investors, so that in truth they are not independent of each other. Brown v. Rairigh.

Defendants also submit that the third element of Howey was not met. This test has been interpreted to require that “the efforts made by those other than the investor must be the significant ones in comparison to those made by the investor.” Le Chateau Royal Corp. v. Puntaleo, 370 So.2d 1155, 1157 (Fla. 3d DCA 1979). Defendants argue that the sales brochure indicated that if any profit was to be realized, it would come solely from the efforts of the investor, and not the seller. However, we think that a precise characterization of this element cannot be accomplished without a thorough examination of the representations made by the defendants and the economic inducements held out to the prospective purchasers. See Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036 (10th Cir.1980).

As the court observed in Howey, a security is not always an easily recognized creature. Several considerations are necessary, such as what character the investment is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out by the sellers. It is not inappropriate that a promoter’s offerings be judged as being what they were represented to be. SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88 (1943). While there is language in the sales brochure published by National Databank from which it could be inferred that what plaintiffs purchased was not a security, resolution of this issue was inappropriate without greater factual exploration. We agree with our sister courts that the question of whether a particular investment constitutes a security depends on the facts and circumstances of each individual case. Rudd v. State, 386 So.2d 1216 (Fla. 5th DCA 1980), petition for review denied, 392 So.2d 1380 (Fla.1981); Levine v. I.R.E. Properties, Inc., 344 So.2d 938 (Fla. 3d DCA 1977). Since material questions of fact exist, the trial court erred in entering judgment on the pleadings.

Even if it were conclusively shown that this particular investment is not a security, we still would reverse the judgment on the pleadings, because the remaining five counts of the complaint raise a number of issues which involve questions of fact. These issues may not normally be disposed of by judgment on the pleadings without further factual determination. See generally Reinhard v. Bliss, 85 So.2d 131 (Fla.1956); Krieger v. Ocean Properties; Wittington Condominium Apartments, Inc. v. Braemar Corp., 313 So.2d 463 (Fla. 4th DCA 1975), cert. denied, 327 So.2d 31 (Fla.1976); Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla. 1st DCA 1975).

For instance, in counts II and V, plaintiffs allege they were fraudulently induced to enter into the contractual arrangement and that the contract is unconscionable. Fraud, of course, is not ordinarily a suitable subject for summary judgment. Levey v. Getelman, 408 So.2d 663 (Fla. 3d DCA 1981). It follows that where there are allegations of fraud, judgment on the pleadings seems even more inappropriate since no evidence is considered by the court in rendering its decision. In counts III and IV plaintiffs allege numerous express and implied warranties made by the defendants concerning tax deductions available to plaintiffs. These allegations were denied by defendants and, thus, factual questions concerning representations made by defendants as to such warranties remain unresolved. Count VI also raises questions of fact concerning whether White breached a fiduciary duty owed to the plaintiffs.

In view of our decision, the remaining issues posed by the plaintiffs are moot. However, as noted above, rule 1.140(c) contemplates that a party may move for a judgment on the pleadings only after the pleadings are closed. Therefore, it seems appropriate to point out that since White had not filed an answer and his motion to dismiss had not been ruled on, the judgment on the pleadings in his favor was procedurally improper. This is so, even though the judgment favored White and he needed only to file his answer in order to close the pleadings. Metropolitan Bank & Trust Co. v. Vanguard Insurance Company, 400 So.2d 184 (Fla. 2d DCA 1981); Navarra v. Central National Insurance Co., 213 So.2d 612 (Fla. 1st DCA 1968).

Reversed and remanded for further proceedings consistent with this opinion.

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