author: ZEHMER, Judge. PER CURIAM.

text:
    Nelson B. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. AV-219.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1984.
    Rehearing Denied Oct. 2, 1984.

      Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Nelson B. Jackson appeals his conviction of vehicular homicide in violation of section 782.071, Florida Statutes (1982 Supp.). He questions the admissibility of the results of a blood test and complains of the failure to give his requested instruction on the definition of reckless driving. We affirm.

Appellant and codefendant Jerry Miller were charged in three counts with manslaughter by driving while intoxicated, manslaughter by culpable negligence, and vehicular homicide. Construed most favorably to the state, the evidence at trial showed that on November 2, 1982, appellant, after having consumed at least two beers and while consuming another, was driving approximately 65 to 70 miles per hour in a 45 mile per hour zone in an apparent race with codefendant Miller, who was also driving at a high rate of speed. Both vehicles were weaving and dodging in and out of traffic, passing each other back and forth, and coming very close to and tailing other cars. As they approached the intersection of Highway 301 and Market Road on the outskirts of the city of Starke, appellant’s vehicle collided with a car that was crossing the road, killing the driver of that car.

Trooper Donald Roberts of the Florida Highway Patrol saw appellant at the emergency room of the Bradford County Hospital and smelled alcohol on his breath. At that time Trooper Roberts, based on his own investigation and on information obtained from a fellow officer, knew that the accident had occurred under the circumstances stated above and that as a result a person had been killed. Based on this information about the accident and the smell of alcohol on appellant’s breath, Roberts ordered a blood sample taken from appellant for testing. Trooper Roberts testified that he had no opinion regarding whether appellant’s normal faculties were impaired at the time of the accident or when the blood sample was ordered. The results of the blood test showed .17 percent by weight of alcohol in appellant’s blood.

Appellant was tried by a jury and convicted of the count for vehicular homicide. He raises two issues on appeal:

1. Whether the trial court erred in admitting the blood test results because (a) the officer who directed that the blood sample be taken lacked probable cause to believe that appellant’s normal faculties were impaired by alcohol; (b) section 316.1933(1), Florida Statutes (1982 Supp.), violates the constitutional prohibition against unreasonable seizures since it fails to provide the degree of intoxication required before probable cause will be deemed to exist; and (c) the blood test was administered in violation of statutory and regulatory procedures.
2. Whether the trial court erred in rejecting appellant’s requested jury instruction defining the “recklessness” element in the vehicular homicide statute as “driving with willful or wanton disregard for the safety of other persons,” which is the statutory definition of the separate offense of reckless driving in section 316.192, Florida Statutes (1982 Supp.).

Regarding the first issue, section 316.-1933(1), Florida Statutes (1982 Supp.), states in pertinent part:

[I]f a law enforcement officer has probable cause to believe that a motor vehicle driven by.. .a person under the influence of alcoholic beverages... has caused the death or serious bodily injury of a human being, such person shall submit, upon the request of a law enforcement officer, to a test of his blood....

Appellant argues that the phrase, “under the influence of alcoholic beverages,” is the same as “intoxicated” and contends that the key to determining whether someone is intoxicated is whether their “normal faculties are impaired,” citing State v. Harris, 348 So.2d 283 (Fla.1977). Because Trooper Roberts, the officer who ordered the blood test, testified that he had no opinion on whether appellant’s normal faculties were impaired, appellant argues that there was no probable cause to justify the ordering of a blood test. We disagree.

The phrase “under the influence of alcoholic beverages” is not equivalent to the term “intoxicated.” As explained in Harris, although an intoxicated person is necessarily under the influence of alcoholic beverages, a person does not have to be intoxicated or have his normal faculties impaired in order to be “under the influence of alcoholic beverages.” Probable cause exists under section 316.1933(1) to order a blood test if the officer, based upon reasonably trustworthy information, has knowledge of facts and circumstances sufficient to cause a person of reasonable caution to believe that the suspect driver was under the influence of alcoholic beverages at the time of the accident and caused the death or serious bodily injury of a human being. See, Behr v. State, 376 So.2d 398 (Fla. 1st DCA 1979). Although probable cause must be based on objective facts and circumstances, not on personal opinions or suspicions, see, Brown v. State, 330 So.2d 861 (Fla. 4th DCA 1976), the state has met its burden in this case by showing that Trooper Roberts smelled alcohol on appellant’s breath, knew the circumstances causing the accident, and knew that appellant was the driver of the motor vehicle which caused a death.

We likewise find no merit in appellant’s argument that section 316.1933(1) is unconstitutional under the fourth and fourteenth amendments to the United States Constitution because it permits seizure of a person’s blood without probable cause to believe that such person’s normal faculties were impaired at the time of the accident. Appellant argues that since section 316.-193, Florida Statutes (1982 Supp.), defining the offense of driving while under the influence of alcoholic beverages, requires that a person be under the influence to the extent that normal faculties are impaired before he can be guilty of the offense, section 316.1933, to be constitutionally acceptable, should contain the same standard for determining when a blood test can be taken. Stated another way, appellant contends that since no statutory offense is committed unless the driver’s normal faculties are actually impaired due to his consumption of alcohol, probable cause that a criminal offense has been committed requires a showing of actual impairment. Appellant relies on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826,16 L.Ed.2d 908 (1966); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); State v. Bender, 382 So.2d 697 (Fla.1980); Drury v. Harding, 443 So.2d 360 (Fla. 1st DCA 1983); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Appellant does not specifically state whether he contends the statute to be facially insufficient or unconstitutional as applied in this case. In either event, however, the cited cases do not persuasively support appellant’s argument because they are factually dissimilar and do not deal specifically with the question here presented. They do, however, support the proposition that the facts relied on by the officer must show probable cause to believe a criminal offense has been committed.

The purpose of the blood test taken under section 316.1933(1) is to aid in determining whether the driver causing a serious automobile accident, when reasonably believed to be under the influence of alcoholic beverages, had his normal faculties impaired by alcohol. The statutory provision contains sufficient requirements to establish probable cause to believe a criminal offense has been committed because, in addition to the required showing that the driver is “under the influence,” the statute also requires that the driver “has caused the death or serious bodily injury of a human being.” As previously discussed, these elements were present when appellant’s blood test was ordered by Trooper Roberts. We hold that the statute is neither unconstitutional on its face nor as applied in this case.

Appellant also argues that the blood test was inadmissible because it was not conducted strictly in accordance with the procedures required by statute and regulations. We disagree, but find it necessary to discuss only one ground argued by appellant, i.e., that the blood test was inadmissible because the state failed to show that the individual who analyzed the blood specimen, Mr. Peter Lardizabel, held the statutorily required permit from the Department of Health and Rehabilitative Services. § 316.1933(2)(b), Fla.Stat. (1982 Supp.). After the state had qualified Mr. Lardizabel as an expert and had offered the blood test results into .evidence, counsel for appellant made a general objection to the admissibility of the blood test results because “the proper predicate” had not been laid by the state. But appellant’s counsel did not at any time state the specific objection that Mr. Lardizabel was not properly licensed as required by the statute. The general objection by appellant’s counsel was not sufficient to put the court and the state on notice that appellant questioned whether the witness held such a permit, especially in view of the witness’s qualification testimony that he had testified numerous times on this subject in Florida courts. If appellant had raised this specific objection when the witness was tendered as an expert witness or when the test results were offered into evidence, it could have been disposed of quite simply by putting one more question to the witness. An appellate court will not consider grounds of objection to the admissibility of evidence unless they have been stated with specificity in the trial court. Tabasky v. Dreyfuss, 350 So.2d 520 (Fla.3d DCA 1977). Counsel’s failure to make a specific objection based on the lack of an HRS permit amounts to a waiver of that objection for appellate review.

Finally, appellant contends that the trial court erred in refusing to give his requested jury instruction which defined driving in a “reckless manner,” as that term is used in the vehicular homicide statute to mean “willful or wanton disregard for the safety of other persons.” Appellant argues that he was entitled to this instruction because the essential element of the offense of vehicular homicide is reckless driving and the offense of reckless driving is defined by statute as driving with “willful or wanton disregard for the safety of persons or property.” § 316.192, Fla.Stat. (1982 Supp.); McCreary v. State, 371 So.2d 1024 (Fla.1979). The trial court gave, without objection, the following instruction from the Standard Jury Instructions in Criminal Cases:

Before you can find the defendants guilty of Vehicular Homicide as charged in Count III, the State must prove more than a failure to use ordinary care, and must prove the following three elements beyond a reasonable doubt:
1. ATILLA TOTH is dead;
2. The death was caused by the operation of a motor vehicle by NELSON B. JACKSON, JR. and/or JERRY B. MILLER.
3. NELSON B. JACKSON, JR. and/or JERRY B. MILLER operated their motor vehicles in a reckless manner likely to cause the death of or great bodily harm to another person.
An intent by the defendants to harm or injure the victim or any other person is not an element to be proved by the State.

The instruction given defined the offense of vehicular homicide sufficiently to inform the jury that the offense requires more than ordinary lack of care, but something less than culpable negligence. McCreary v. State, supra. In our view, there is no significant difference in meaning between driving a vehicle “in willful or wanton disregard for the safety of other persons” and driving it “in a reckless manner likely to cause the death of or great bodily harm to another person.” Indeed, it might even be argued that the instruction actually given suggests a more stringent burden of proof on the state than the requested instruction that was denied. Accordingly, the trial court did not err in refusing to give appellant’s requested instruction.

The judgment of conviction is AFFIRMED.

SHIVERS and THOMPSON, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant’s motion for rehearing is DENIED. Appellant’s alternative motion to withhold the mandate pending the Florida Supreme Court’s decision in Drury v. Harding, 443 So.2d 360 (Fla. 1st DCA 1983), rev. granted, S.Ct. Case No. 64,727 is DENIED. Drury relates solely to the use of blood test results in the absence of duly adopted HRS rules for testing blood alcohol content as required by section 316.1932, Florida Statutes (Supp.1982). Appellant’s argument that Drury is applicable to the present case is founded upon the assumption that the blood sample herein was taken under section 316.1932. As discussed in our opinion, the blood sample was properly taken pursuant to the authority of section 316.1933, Florida Statutes (Supp.1982), and not pursuant to section 316.1932. Accordingly, we find Drury inapplicable to this case.

SHIVERS, THOMPSON and ZEHMER, JJ., concur.

      . The statutes provide:
      “Vehicular homicide” is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Appellant signed a consent form after he was informed by Trooper Roberts that a blood sample would be taken. The state, however, does not rely on appellant’s voluntary consent to the sample under section 316.1932, Florida Statutes (1982 Supp.), as a basis for admitting the test results into evidence.

      . The presence of 0.10 percent or more by weight of alcohol in the person’s blood is prima facie evidence that such person is under the influence to the extent his normal faculties are impaired. § 316.1934, Fla.Stat. (1982 Supp.).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John C. MILLER, II, by his parents and natural guardians, John C. MILLER and Melody Miller, and John C. Miller and Melody Miller, individually, Appellants, v. Rhonda ENDO, Appellee.
    No. 83-2078.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 1984.
    Rehearing Denied Sept. 20, 1984.

      Michael J. Ferrin of Beverly & Freeman, West Palm Beach, for appellants.
    Michael F. Tew and Curtright C. Truitt of Tew & Truitt, P.A., Fort Myers, for appellee.
   PER CURIAM.

■ We reverse the dismissal of appellants’ complaint and hold that the allegations contained in the complaint are sufficient to state a cause of action for negligence.

Appellants’ complaint alleged that appellant John C. Miller, II, was a passenger in appellee’s automobile, and appellee was negligent, reckless, and careless. Appellee drove her automobile onto a school athletic track without permission, knowing school regulations prohibited such action. Appel-lee had knowledge that many students often drove onto and around the track. Ap-pellee parked her vehicle so that John was placed in a dangerous position, and appel-lee knew or should have known she was placing John in a dangerous position. Ap-pellee failed to warn John of the danger and John was seriously injured when a car being driven around the track struck him.

This court was faced with the issue of whether a complaint stated a cause of action for negligence in Ankers v. District School Board of Pasco County, 406 So.2d 72, 73 (Fla. 2d DCA 1981):

To sustain a cause of action in negligence, a complaint must allege ultimate facts which establish a relationship between the parties giving rise to a legal duty on the part of the defendant to protect the plaintiff from the injury of which he complains. It must also show that the defendant negligently breached that duty, and that the plaintiff’s injury was proximately caused by the. defendant’s negligence. Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976); 23 Fla. Jur. Negligence § 101 (1979).

Appellee, as driver of the vehicle, owed John, her passenger, the duty of exercising ordinary or reasonable care to avoid injuring him. See generally 4 Fla. Jur. 2d Automobiles and Other Vehicles § 242. Appellants’ complaint sufficiently alleges the relationship giving rise to a duty (that of driver and passenger), a negligent breach of that duty, and that appel-lee’s negligence caused John’s injuries. Therefore, the trial court erred in dismissing appellants’ complaint.

REVERSED and REMANDED for further proceedings.

SCHEB, A.C.J., and OTT and SCHOON-OVER, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Jay SCORATOW, Appellee.
    No. 82-2330.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1984.
    Rehearing Denied Oct. 22, 1984.
    Jim Smith, Atty. Gen., and Jack Luden Asst. Atty. Gen., for appellant.
    Don S. Cohn, Miami, for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

The appellee, Jay Scoratow, was the petitioner in the circuit court for a writ of habeas corpus challenging his extradition.

The trial judge heard contradictory evidence on the question of whether the petitioner was in North Carolina on the dates alleged in the governor’s warrant. The petitioner did not testify but offered evidence tending to prove that he was not in North Carolina at the time of the commission of the alleged crime. The state’s witness, a co-defendant, testified that he knew Scoratow and that both of them had participated in committing the crime charged. The court concluded that the State of Flori-da produced insufficient evidence to rebut the evidence presented by the petitioner as to his identity and presence in [or absence from] the State of North Carolina on the dates alleged in the governor’s warrant. Accordingly, the writ of habeas corpus was granted and the petitioner was discharged. We find error and reverse.

The law is well settled that an executive warrant which is regular on its face and which complies with the essential statutory requirements establishes a pri-ma facie showing of the propriety of extradition. State v. Diaz, 440 So.2d 1318 (Fla. 3d DCA 1983); Moore v. State, 407 So.2d 991, 992 (Pla. 3d DCA 1981), and cases cited therein. The burden is on the accused, in habeas corpus proceedings such as this one, to “overthrow conclusively the presumption against him.” State ex rel. Kimbro v. Starr, 65 So.2d 67, 68 (Fla.1953); accord Turiano v. Butterworth, 416 So.2d 1261 (Fla. 4th DCA 1982); Bonazzo v. Michell, 221 So.2d 186 (Fla. 4th DCA 1969). Furthermore, where there is merely contradictory evidence on the issue of the accused’s presence in or absence from the demanding state, the court should not discharge one arrested under the governor’s warrant. State ex rel. Kimbro v. Starr, supra; Turiano v. Butterworth, supra; Bonazzo v. Michell, supra; Buchanan v. State ex rel. Bartling, 185 So.2d 509 (Fla. 3d DCA 1966).

We have found that there is competent evidence to support the governor’s rendition warrant and that the petitioner failed to overcome the prima facie case made by the warrant. Therefore the judgment discharging the accused, Scoratow, is reversed.

Reversed.

      . See §§ 941.03; 941.07, Fla.Stat.(1983).


author: FERGUSON, Judge.

text:
    Westley JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1549.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1984.
    Rehearing Denied Oct. 22, 1984.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven Kolod-ny, Asst. Atty. Gen., for appellee.
    Before FERGUSON and JORGENSON, JJ., and NORRIS, WILLIAM A., Jr., Associate Judge.
   FERGUSON, Judge.

Defendant brings this appeal from the denial of his motion for judgment of acquittal and subsequent conviction and sentence for trafficking in heroin.

At trial several witnesses offered different and somewhat conflicting versions of the events leading up to defendant’s arrest. The evidence viewed in a light most favorable to the State, see Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965), shows the following: The police received a call from defendant’s girlfriend, Ms. Fowler, which had nothing to do with drug activity. In response to that call, two officers met Ms. Fowler at an apartment building in Over-town and she directed them to another apartment building. According to Officer Dehay, when they arrived at the apartment house, Ms. Fowler walked up to a particular door as if she knew it. Defendant was inside the apartment and opened the door. He then went back into the apartment. The officers exited their vehicle, knocked on the door, and were permitted entry into the apartment. Officer Russell discovered in plain view a gray metal box containing white powder (stipulated by both counsels to be heroin) and several syringes. Defendant insisted, and it is not disputed, that he lived in a different apartment complex with Ms. Fowler and their daughter.

The defendant in this case was not in actual physical possession of the contraband, therefore, the State had the burden of proving constructive possession. Three elements are necessary to establish constructive possession: (1) the defendant’s ability to exercise dominion and control over the contraband; (2) his knowledge of the presence of the contraband; and (3) his awareness of the illicit nature of the contraband. Brown v. State, 428 So.2d 250 (Fla.), cert. denied, — U.S. —, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Kuhn v. State, 439 So.2d 291 (Fla. 3d DCA 1983). The defendant here challenges the State’s proof of the element of control, claiming that the evidence showed only that defendant was found in close proximity to the contraband discovered in the apartment.

Mere proximity to contraband, without more, is legally insufficient to prove possession. Bass v. United States, 326 F.2d 884 (8th Cir.), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964). In many instances, however, the ability to control narcotics will be inferred from the ability to exercise control over the premises where they are found. For this reason, the cases have sharply distinguished between the culpability of a mere visitor from that of an owner or an occupant of premises containing illicit drugs in plain view. Compare Brown (ownership and/or joint occupancy of premises is sufficient to support a conviction for constructive possession as to each person where drugs are discovered in plain view in their presence) with Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975) (defendant’s proximity to marijuana in plain view was merely circumstantial evidence insufficient to support conviction for constructive possession where defendant did not own or live on the premises and did not have control or joint control of the premises or the drugs).

In United States v. Holland, 445 F.2d 701 (D.C.Cir.1971), police officers entered a woman’s apartment and found the woman and the defendant undressed in the bedroom. Narcotics were discovered in plain view atop a dresser. When defendant was asked to get dressed, he took clothing from a closet in the bedroom and from a drawer in the dresser. The federal court found the evidence of constructive possession “entirely inadequate” to defeat defendant’s motion for judgment of acquittal. The court reiterated that constructive possession involves being in a position to exercise dominion and control over a thing. It added:

Such a position should not be lightly imputed to one found in another’s apartment or home. If an inference of constructive possession must be made, the jury must have before it information about the regularity with which the person in question occupied the place and about his special relationship with the owner or renter. Id. at 703.

The court further stated that the necessary background information was “strikingly absent” in this case, failing to show that defendant’s presence in the apartment was “neither fortuitous nor brief, but residential.” Id.

Similarly, in the instant case, the State offered no proof that defendant regularly occupied the apartment or had a relationship with its owner or renter. At best, the evidence showed that defendant went to the apartment where the contraband was found and was alone in the apartment for some unspecified period of time. As a matter of law, the evidence is insufficient to support a conviction for constructive possession.

The conviction and sentence for trafficking in heroin are reversed and the cause is remanded with instructions to discharge the defendant.

      . Officer Russell, the other arresting officer, testified that they first saw the defendant standing outside the apartment. When defendant saw the police, he entered the apartment and closed the door. The police subsequently came to the door of the apartment and knocked. Defendant answered and allowed the officers to enter. Ms. Fowler, the only defense witness, also stated that defendant was outside the apartment when they first arrived and entered the apartment only after seeing the officers.

      . The police did not check to find out who owned the apartment where the drugs were found nor did the State offer evidence of this at trial. According to Ms. Fowler, an old man whom she did not know owned the apartment, and the apartment was known to be a place where drug addicts congregated.


author: DOWNEY, Judge.

text:
    Vivian MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1563.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.
    Rehearing Denied Oct. 25, 1984.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

This is an appeal from a judgment of guilty of first degree murder and a life sentence without parole for twenty-five years.

Appellant, Vivian Morris, age thirteen at the time of the crime, was indicted by the Broward County Grand Jury for the premeditated murder of Deana Ann Harris, a three year old, on May 19, 1981, by stabbing her with a sharp object. During the pretrial period, over objection of the defense, the court appointed several psychiatrists to examine Vivian to determine whether she was competent to stand trial in view of the common law presumption of the incapacity of a child under fourteen years of age to commit a crime. The order of appointment provided that no statements made by Vivian could be used against her. The resulting examinations showed Vivian to be competent and the case proceeded to trial resulting in a verdict of guilty.

In addition to contending the appointment of the psychiatrists was error, Vivian presents five other points on appeal. Points III and V concern the admission of evidence that we hold was either admissible or harmless error in view of the other evidence of Vivian’s fingerprints on the instrument used to effect death and her confession of guilt. Point IV raised the propriety of the court’s refusal to allow Vivian to adduce proof that she offered to take a polygraph test. That evidence we hold was irrelevant and was unnecessary to show “the circumstances under which appellant’s confession was made,” as contended by Vivian in her brief. See generally Annot., Lie Detector test — Willingness, 95 A.L.R.2d 819.

Under her first point Vivian argues that it was reversible error to require her to submit to examination by psychiatrists to determine her competency. Although a great deal of time and effort was given to this contention, it is legally wrong. In McCray v. State, 424 So.2d 916 (Fla. 4th DCA 1983), the appellant, thirteen years old at the time of the offense, contended the trial court erred in refusing her request to instruct the jury on the common law rule applicable to juveniles between the ages of seven and fourteen raising a progressively decreasing rebuttable presumption of incapacity to commit a crime. We held there that the legislature by enacting Chapter 39, Florida Statutes (1979), supplanted that presumption with a comprehensive statutory scheme for determining when a juvenile may be deemed capable of committing an offense for purposes of being treated as an adult:

we believe that by specifying the instances when a juvenile may be treated as an adult for purposes of criminal prosecution that the legislature intended to replace the common law presumption with the statutory scheme set out in Chapter 39 and under which [appellant] was prosecuted herein. Thus, we conclude that a juvenile tried as an adult under this scheme is not entitled to an instruction to the jury on the common law presumption of disability by reason of age.

424 So.2d at 918.

Therefore we find no error in this regard in the present case.

Finally, we treat Vivian’s sixth point wherein she contends the trial court erred in refusing her request to be sentenced pursuant to the mandate of Section 39.-111(6), Florida Statutes (1979). The state replies that at the time Vivian was sentenced, June 22, 1982, the legislature had amended Section 39.02(5)(d) by deleting the word “indictment” therefrom as a means of transfer and so the court was not required to follow Section 39.111(6) because her being prosecuted under an indictment meant she was not a “transferred child” within the meaning of Section 39.111(6).

It must be remembered that Vivian was charged with a crime committed May 19, 1981, and the statutory amendments referred to above became effective on October 1, 1981. Therefore, Vivian was entitled to be sentenced under the law effective when the crime was committed, 14 Fla. Jur.2d Criminal Law § 18.

Accordingly, we affirm the judgment in all respects but reverse the sentence and remand the cause for resentencing in accordance herewith.

AFFIRMED IN PART; REVERSED IN PART, and remanded.

ANSTEAD, C.J., and RODGERS, EDWARD, Associate Judge, concur.


text:
    In re Charles STURRUP, D.D.S., License Number 1966.
    No. 83-1794.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.
    Rehearing Denied Oct. 25, 1984.
    Steadman S. Stahl, Jr., P.A., Deerfield Beach, for appellant.
    Julie Gallagher, Staff Atty., Dept, of Professional Regulation, Tallahassee, for appellee.
   DOWNEY, Judge.

This is an appeal from a final order of the Department of Professional Regulation affirming the findings of a hearing officer that Charles Sturrup, D.D.S., procured marijuana in violation of Sections 466.-028(l)(q) and (r), Florida Statutes (1981).

Appellant, a practicing dentist, owned the building in which he carried on his dental practice. Appellant and his son renovated a back room by partitioning it into two rooms. One of the rooms was used for general storage and the other was kept locked with only appellant and his son having keys. Appellant’s dental assistants discovered the locked room had what appeared to be marijuana plants growing therein. One of the plants was delivered to the police and eventually led to issuance and execution of a search warrant. When the search warrant was being executed appellant denied he had a key to the room, so the police kicked the door in. Later, they found a key to the room in appellant’s desk drawer. The room contained 31 marijuana plants, potting soil, fertilizer, and water canisters.

The Department of Professional Regulations filed an administrative complaint against appellant, alleging violation of Chapter 466, Florida Statutes (1981).

Although appellant contended the marijuana belonged to his son and that he was unaware of its existence, the hearing officer rejected that contention and found the doctor had constructive possession of the contraband in accordance with Florida law on constructive possession. Specifically, the hearing officer found appellant guilty of procuring a contraband drug in yiolation of Sections 466.028(l)(q) and (r).

i Finally, appellant contends that, even if he did have constructive possession of the contraband, that is not a violation of the aforementioned statute. We disagree. By definition, to procure means to possess. Webster’s Seventh New Collegiate Dictionary.

Having considered appellant’s other arguments for reversal and having found no reversible error demonstrated, we affirm the judgment appealed from.

AFFIRMED.

ANSTEAD, C.J., and RODGERS, EDWARD, Associate Judge, concur.


author: WIGGINTON, Judge.

text:
    WHITEHALL BOCA, an Illinois limited partnership, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee. and HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, Appellants, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    Nos. AW-15, AW-16, AW-179 and AW-193.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1984.
    Rehearing Denied Oct. 17, 1984.

      Jean Laramore and Alfred W. Clark, of Laramore & Clark, P.A., Tallahassee, for appellants.
    James M. Barclay, Dept, of Health and Rehabilitative Services, Tallahassee, for ap-pellees.
   WIGGINTON, Judge.

By this consolidated appeal, Health Care and Retirement Corporation of America (HCR) and Whitehall Boca (Whitehall) seek review of final agency action taken by the Department of Health and Rehabilitative Services (HRS) and the Department of Administrative Hearings (DOAH) pursuant to section 120.54(3) and (4)(a), Florida Statutes. Specifically, they challenge HRS’s denial of HCR’s and Whitehall’s petitions for separate 120.57 hearings, and DOAH’s conclusion that the proposed amendment to rule 10-5.11, Florida Administrative Code, is a valid exercise of delegated legislative authority. We affirm. •

The Florida Health Facilities and Health Services Planning Act, section 381.493 et seq., requires all health care related projects to file applications for certificates of need. Sections 381.494(1) and 381.-495(2), Fla.Stat. (1983). The Department of Health and Rehabilitative Services, charged with the authority to issue licenses to health care facilities and health service providers, section 381.495(1), and to issue, revoke, or deny certificates of need, section 381.494(8)(a), promulgated rule 10-5.11 listing twelve general criteria against which applications for certificates of need were to be evaluated. In particular, subsection (3) of that rule allowed HRS to consider “[t]he need that the population served or to be served has for such proposed health hospice services.” However, in Farmworker Rights Organization, Inc. v. State, Department of Health and Rehabilitative Services, 430 So.2d 1 (Fla. 1st DCA 1983),' this Court held rule 10-5.11 to be an invalid exercise of delegated legislative authority. Although we noted therein that subsection (3) dealt with “access,” we held it was not broad enough to include criteria mandated by applicable federal statutes and regulations concerned with access of low income and minority groups to health care facilities. Id., at 7. Accordingly, HRS caused to be published notice of a proposed amendment to rule 10-5.11, seeking to amend the rule to read as follows:

(3)(a) The need that the population served or to be served has for the health or hospice services proposed to be offered or changed, and the extent to which all residents of the district, and in particular low income persons, racial and ethnic minorities, women, handicapped persons, other underserved groups and the elderly, are likely to have access to those services.
(b) The extent to which that need will be met adequately under a proposed reduction, elimination or relocation of a service, under a proposed substantial change in admissions policies or practices, or by alternative arrangements, and the effect of the proposed change on the ability of members of medically un-derserved groups which have traditionally experienced difficulties in obtaining equal access to health services to obtain needed health care.
(c) The contribution of the proposed service in meeting the health needs of members of such medically underserved groups, particularly those needs identified in the applicable district plan and State health plan as deserving of priority-
(d) In determining the extent to which a proposed service will be accessible, the following will be considered:
1. The extent to which medically under-served individuals currently use the applicant’s services, as a proportion of the medically underserved population in the applicant’s proposed service area(s), and the extent to which medically under-served individuals are expected to use the proposed services, if approved;
2. The performance of the applicant in meeting any applicable Federal regulations requiring uncompensated care, community service, or access by minorities and handicapped persons to programs receiving Federal financial assistance, including the existence of any civil rights access complaints against the applicant;
3. The extent to which Medicare, Medicaid and medically indigent patients are served by the applicant; and
4. The extent to which the applicant offers a range of means by which a person will have access to its services.
(e) In any case where it is determined that an approved project does not satisfy the criteria specified in subparagraph (3)(a) through (d), the Department may, if it approves the application, impose the condition that the applicant must take affirmative steps to meet those criteria.
(f) In evaluating the accessibility of a proposed project, the accessibility of the current facility as a whole must be taken into consideration. If the proposed project is disapproved because it fails to meet the need and access criteria specified herein, the Department will so state in its written findings. In any case where a project does not satisfy the criteria specified in subparagraph (3)(a) through (d) above, the Department shall so notify in writing the applicant and the appropriate Regional Office of the United States Department of Health and Human Services.

HCR is a corporation which owns and operates nursing homes in several states, taking both private-pay patients and patients paying through Medicare and Medicaid, and has pending several applications for certificates of need to establish nursing homes in Florida. Whitehall operates a nursing home located in Boca Raton, Flori-da. Those residing there are entirely private-pay patients, as Whitehall’s concept is to provide elite nursing home services to persons in the upper income bracket. The home is presently licensed for sixty-nine beds, but Whitehall desires to expand that number.

Pursuant to section 120.54(3), both HCR and Whitehall requested a public hearing on the proposed rule. At the same time, both parties filed petitions seeking an administrative determination of the validity of the proposed rule as provided in section 120.54(4)(a).

At the informal public hearing, HCR and Whitehall, each represented by counsel, and members of the public were given the opportunity to comment on the proposed rule amendments. At the outset of the hearing, though, the administrative hearing officer advised the parties that they could present evidence and argument, provide any written information or material, and direct specific questions to department personnel at the conclusion of the hearing, or alternatively, into the record, but that he and his staff would not conduct a “question and answer session,” as it was the department’s primary duty at a 120.54(3) informal hearing “to listen rather than to speak.” In response to HCR’s inquiry as to whether HRS would make any presentation regarding the rule, the hearing officer stated that questions would be commented on by department personnel but not resolved.

Following a presentation of written public comments entered into the record, several persons made oral presentations. Counsel for Whitehall raised the amendment’s constitutional implications and argued that it was in excess of legislative authority and not in compliance with federal guidelines. Counsel for HCR commented on perceived procedural defects in the rule-adoption process and on the impact of the proposed rule on the nursing home industry. Further comment was made on the absence of definitions in the rule, and the suggestion was again made that the rule exceeded statutory authority and was not in compliance with federal requirements for the certificate of need program. HCR then posed a series of questions concerning mainly the mechanics of the proposed rule, how it would be administered, and to whom it would apply. However, neither HCR nor Whitehall sought to call witnesses, present issues or evidence, or propose any suggestions regarding the rule.

The department refused to answer any of the questions presented by HCR and Whitehall. Consequently, both requested, pursuant to section 120.54(16), that the informal proceeding be terminated and that a formal 120.57 proceeding be initiated. That request was denied orally at the hearing, and later by final written order.

A hearing was subsequently held before the DOAH on the rule challenge petitions. Following witness testimony and presentation of exhibits, the hearing officer entered a final order holding the proposed amendment to rule 10-5.11(3) to constitute a valid exercise of delegated legislative authority.

On appeal, HCR and Whitehall raise four points to challenge the orders entered by HRS and DOAH. Preliminarily, they argue that HRS abused its discretion in its failing to convene a separate hearing pursuant to section 120.54(16). Relying on our decision in Balino v. Department of Health and Rehabilitative Services, 362 So.2d 21 (Fla. 1st DCA 1978), HCR and Whitehall argue that they were denied any meaningful dialogue with HRS regarding the proposed rule amendment, and were thereby effectively prohibited from analyzing or commenting upon HRS rationale in developing the rule. HCR and Whitehall maintain that in order to obtain “good faith participation” by HRS in the rulemaking proceedings, a hearing is required pursuant to 120.54(16), and HRS’s failure to convene that hearing constituted material error under Balino. We disagree.

Section 120.54(16) accords an agency the discretion to convene a separate 120.57 hearing only upon its determining that the informal rulemaking hearing is inadequate to protect a party’s substantial interests. The purpose of the informal hearing attended by HCR and Whitehall, as stated in section 120.54(3), was to accord them the opportunity “to present evidence and argument ... appropriate to inform” HRS of their contentions. However, as HRS aptly argues, neither HCR nor Whitehall indicated at the hearing that they had witnesses to testify or exhibits to present which would justify the trial-type presentation contemplated by 120.54(16) and Bali-no. Although reacting perhaps too abruptly, the department hearing officer was nonetheless eminently correct in refusing to respond to the barrage of questions fired at him by counsel for HCR, as the hearing was not convened for that purpose. Appellants have failed to show manifest error amounting to an abuse of discretion on the part of HRS, and accordingly, that the 120.54(3) hearing was inadequate to protect their interests.

Similarly, appellants have failed to demonstrate error arising from the rule challenge proceeding. The remaining three points raised by them are devoted to the issues argued before the DOAH hearing officer. Principally, HCR and Whitehall contend that the proposed amendment violates the United States and Florida constitutions as impermissibly mandating the use of private property for a public purpose; that it is an invalid exercise of delegated legislative authority; and, finally, that it fails to comply with the pertinent state and federal statutes.

Appellants' first contention can be easily dismissed as premature, as was similarly concluded by the hearing officer. Rule 10-5.11(3), as proposed, does not on its face mandate the taking of private property for public use. Although in application the rule could conceivably result in the denial of an application for a certificate of need in some instances, the constitutionality of that action will be an issue reserved for the happening of that event.

Appellants’ remaining contentions mainly revolve around the fact that the proposed amendment appears to quote verbatim the federal regulation to which it must conform. In that regard, we agree with the hearing officer’s well-reasoned conclusions of law and adopt them as our own:

The accessibility criterion, both geographic and economic, is clearly embraced within the general statutory criteria set forth in Section 381.494(6)(c)l, 2, and 5, Florida Statutes. In addition, Section 381.494(8)(a), Florida Statutes, requires HRS to review certificate of need applications in accordance with present and future federal statutes. As clearly pointed out in the Farmworker case, supra, the federal statutes require the States to consider the extent to which the proposed service will be accessible to all residents of the service area, 42 U.S.C. Section 300n-l(c)(6)(E), and to administer the certificate of need program in a manner consistent with standards established by federal regulations, 42 U.S.C. Section 300m-2(a)(4)(B). The federal regulations contain the exact criteria as that set forth in the proposed rule with regard to both the evaluation of the accessibility of services for low income persons, racial and ethnic minorities, women, handicapped persons and other underserved groups and the requirements for written findings. 42 C.F.R. Sections 123.412(a)(5) and (6) and 123.-413(a). Thus, it cannot be said that the proposed rules exceed either the statutory authority delegated to HRS by the Florida legislature or the federal regulations established by the Secretary of the United States Department of Health and Human Services. The fact that the respondent utilized in its proposed rule as its specific criteria relating to access to the medically underserved the identical “general” considerations set forth in the federal regulations does not violate or exceed its statutory authority or the requirements of federal law.

We would expand on the hearing officer’s conclusion in her final sentence as above quoted to observe that the “parroting” of the federal regulation by HRS is not prohibited by our decision in Farmworker Rights Organization, 430 So.2d at 6. Until HRS is able to acquire superior knowledge of economic and minority access needs in particular regions of this state, which obviously can only come about on a case-by-case basis, the proposed rule is sufficiently specific. We fail to see how the department could have honed the federal regulations to any greater degree of specificity. Certainly neither HCR nor Whitehall offered any suggestions toward that end. Accordingly, we affirm the hearing officer’s final order.

AFFIRMED.

SMITH and WENTWORTH, JJ., concur.

      . In order to be a valid exercise of delegated legislative authority under section 381.494(8)(a), the HRS rules must be in accordance with federal statutes. Farmworker Rights Organization, 430 So.2d at 4.

      . 120.54(3) provides in part:
      If the intended action concerns any rule other than one relating exclusively to organization, procedure, or practice, the agency shall, on the request of any affected person received within 14 days after the date of publication of the notice, give affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform it of their contentions.

      . 120.54(4)(a) provides:
      Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority.

      . The Vice President of the Public Health Trust of Dade County regretted the necessity of having the rule but felt it was necessary. A member of the Health Planning Council of Dade and Monroe Counties was present to support what it viewed as further clarification of the existing rule. The Vice President for Government Relations for the Florida Hospital Association presented seven technical comments directed to the rule. An associate counsel for a corporation involved in nursing homes in Florida and Indiana commented about the advisability of amending a portion of Rule 10-5.11, and commented about evaluating access to nursing home care for the chronically ill under age 65. Counsel for the Florida League of Hospitals commented about the general policy statements included in the rule and discussed implementation of the rule.

      . 120.54(16) provides:
      Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that his substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect thosé interests. If the agency determines that the rulemaking proceeding is not adequate to protect his interests, it shall suspend the rulemaking proceeding and convene a separate proceeding under the provisions of s. 120.57. Similarly situated persons may be requested to join and participate in the separate proceeding. Upon conclusion of the separate proceeding, the rulemaking proceeding shall be resumed.

      . As noted in Farmworker Rights Organization, rule 10-5.11 was to conform to 42 U.S.C. § 300m-2(a)(4)(B), providing that state agencies shall administer a certificate of need program which "is consistent with the standards established by the Secretary by regulation.” 42 C.F.R. §§ 123.412 and 123.413 are the pertinent federal regulations. For their text see Farm-worker, 430 So.2d at 5-7, fn. 5 & 6.

      . Of course, parties affected by this rule have the mechanism provided by section 120.54(5) to petition HRS to adopt, amend, or repeal a rule.


text:
    Perry T. LaPUMA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2594.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.
    Rehearing Denied Oct. 22, 1984.

      Carlton & Carlton, Lakeland, and Thomas A. Wills, Miami, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The defendant appeals his conviction of first degree murder and kidnapping. We affirm.

The primary contention of the defendant is that the trial court erred in failing to conduct a mid-trial hearing regarding his competence to stand trial. It is undisputed that prior to trial, the court properly determined that the defendant was competent to stand trial pursuant to the examinations and hearings prescribed by Florida Rules of Criminal Procedure 3.210-.212 and sections 916.11-12, Florida Statutes (1981). The defendant argues, however, that his conduct during the course of the trial mandated a further competency determination.

Whether an additional competency hearing should be held following a prior determination of competency is within the sound judicial discretion of the trial court. The Florida supreme court has held that:

[I]t is not an abuse of discretion for the trial court to refuse to order further psychiatric examinations after the accused has been determined to be competent. [citations omitted]

Ross v. State, 386 So.2d 1191, 1195 (Fla.1980). Accord Brown v. State, 245 So.2d 68 (Fla.1971), vacated in part, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972) (only vacating the imposition of the death penalty); Olsen v. State, 338 So.2d 225 (Fla. 3d DCA 1976). Where a prior determination of competency has been made and the defendant’s counsel fails to identify any particular circumstances that have caused the mental condition of the defendant to change since the prior examination, it is not an abuse of discretion for the trial court to decline further psychiatric evaluation. Thompson v. State, 389 So.2d 197 (Fla.1980).

At the competency hearing, the psychiatrists’ reports were reviewed and they indicated that the defendant was competent to stand trial. The reports also stated that the defendant appeared to be malingering or consciously attempting to convince the doctors that he was incompetent. The trial court could properly have concluded that the defendant’s behavior during the trial was a continuation of this malingering. See Williams v. State, 396 So.2d 267 (Fla. 3d DCA), review denied, 407 So.2d 1107 (Fla.1981). Furthermore, the defendant’s failure to communicate with his counsel was a matter of his own choosing. See Olsen.

We additionally find that the trial court’s request that one of the doctors update his report did not require the court to hold another competency hearing pursuant to the rules and the statutes. The updated report confirmed the trial court’s conclusion that the defendant was malingering. Under the circumstances of this case, the request for an updated report from one of the doctors without ordering another competency hearing was not per se error, and no prejudice is shown. Cf. Chapman v. State, 391 So.2d 744 (Fla. 5th DCA 1980) (appointment of an additional doctor beyond that called for in the rules is not per se error); and cf. United States v. Metcalfe, 698 F.2d 877 (7th Cir.) and cases discussed therein (the majority rule in'the federal courts is that upon a motion for an initial competency hearing, the trial judge may take evidentiary materials and make any relevant inquiries that shed light on whether reasonable cause exists for such a hearing), cert. denied, — U.S. —, 103 S.Ct. 1886, 76 L.Ed.2d 814 (1983).

We have considered all other alleged errors raised by the defendant and find them either to be without merit or harmless. Accordingly, we affirm the judgment and conviction.


text:
    LENNAR CORPORATION, Appellant, v. DYNAMIC CABLEVISION OF FLORIDA, INC., Mark H. Ellis, Ernesto Rodriguez and Jesus R. Checa, Appellees.
    No. 83-2769.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.
    Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and Alan T. Dimond and Lawrence S. Gordon, Miami, for appellant.
    Paige & Catlin and H. James Catlin, Jr., Miami, Dow, Lohnes & Albertson and Michael A. Pace and J. Christopher Redding and Paul R. Lang, Washington, D.C., for appellees.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

In Storer Cable T.V. of Florida, Inc. v. Summerwinds Apartments Associates Ltd., 451 So.2d 1034 (Fla. 3d DCA 1984), this court concluded that Section 83.-66, Florida Statutes (Supp.1982), is unconstitutional as permitting a taking of property without compensation. In so concluding, we necessarily considered and rejected the possibility that the statute’s constitutionality could be saved by severing the offending provision (“... nor shall such ... cable television service be required to pay anything of value in order to ... provide such service”) and judicially mandating that compensation be paid to the property owner. Accordingly, the judgment under review which permanently enjoined the property owner, Lennar Corporation, from denying Dynamic Cablevision of Florida, Inc. access to Lennar’s property for the purpose of installing cables and equipment to deliver cable television service to Len-nar’s tenants conditioned upon the payment of full compensation to Lennar is reversed on the authority of Storer Cable T.V. of Florida Inc. v. Summerwinds Apartments Associates, Ltd., 451 So.2d 1034.

Reversed with directions to enter judgment for the appellant.

      . In Storer, the statute is erroneously cited as Section 83.66, Florida Statutes (Supp.I9S4).


text:
    STATE of Florida, Appellant, v. Michael Lee DORMAN, Timothy Allen Bruno and Alice Marie Laturell, Appellees.
    No. 83-2280.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1984.
    Rehearing Denied Nov. 1, 1984.
    Jim Smith, Atty. Gen., Tallahassee and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee Dorman.
    John P. Shevock of Gillespie, McCormick, McFall, Gilbert & McGee, Fort Lauderdale for appellees Bruno and Laturell.
   PER CURIAM.

We reverse on the authority of State v. Stella, 454 So.2d 780 (Fla. 4th DCA, 1984).

DOWNEY, GLICKSTEIN and DELL, JJ., concur.


author: RYDER, Chief Judge.

text:
    HOSPITAL BOARD OF DIRECTORS OF LEE COUNTY, d/b/a Lee Memorial Hospital, Appellants, v. Jackie McCRAY, individually and as guardian and natural parent of the minor, Tory McCray, Appellees.
    No. 83-2375.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1984.
    Rehearing Denied Oct. 10, 1984.

      Robert C. McCurdy, Ft. Myers, for appellants.
    Robert L. Donald and William H. Shields of Pavese, Shields, Garner, Haverfield, Dalton & Harrison, Ft. Myers, for appellees.
    William A. Bell, Tallahassee, amicus curiae by Florida Hosp. Ass’n, for appellants.
    Robert A. Ginsburg, County Atty., Eric K. Gressman and Robert L. Blake, Asst. County Attys., Miami, amicus curiae by the Public Health Trust of Dade County and Metropolitan Dade County, for appellants.
    Larry Klein, West Palm Beach, amicus curiae by Academy of Florida Trial Lawyers, for appellees..
   RYDER, Chief Judge.

In this appeal, we are asked to determine the constitutionality of Chapter 78-552, Laws of Florida, a special act statutorily creating liens upon, inter alia, claims, judgments, and settlements in favor of Lee Memorial Hospital.

Appellees, Jackie McCray and her minor son, Tory McCray, suffered personal injuries in an automobile accident for which they were treated at Lee Memorial Hospital. Following their discharge, the Hospital filed claims of lien pursuant to Chapter 78-552. In order to obtain insurance proceeds to pay the medical bills, the McCrays found it necessary to engage an attorney and file a lawsuit. Count I of the complaint claimed breach of contract by the insurance company, and Count II claimed that Lee Memorial Hospital’s lien perfected under Chapter 78-552 was inferior to ap-pellees’ attorney’s claim for his fee earned by obtaining the insurance proceeds. The Hospital counterclaimed for enforcement of its lien as to the unpaid portion of appel-lees’ medical bills.

The trial court dismissed the Hospital’s counterclaim with prejudice, finding that Chapter 78-552 is an unconstitutional special law under article III, section 11(a)(9) of the Florida Constitution (1968). The Hospital appeals from that order.

As a starting point, we are mindful of our obligation to sustain legislative enactments when possible. State v. Williams. 343 So.2d 35 (Fla.1977); North Port Bank v. State Department of Revenue, 313 So.2d 683 (Fla.1975); State v. Aiuppa, 298 So.2d 391 (Fla.1974). Article III, section 11(a)(9) prohibits those special laws which create liens based on private contracts, not all special laws which create liens as appellee argues. Chapter 78-552 is a lien created by a statute rather than by a private contract, therefore, it does not violate the constitution.

By the enactment of Chapter 78-552, the legislature afforded Lee Memorial Hospital, the only public hospital in Lee County, a solution to the problem of payment for medical services furnished to insolvent patients. Chapter 78-552 is a manifestation of the legislature’s concern for the public welfare in that the Hospital is assured of compensation and should not be reluctant to treat indigents. We believe the public welfare outweighs private considerations.

A similar hospital lien act withstood a constitutional attack and was approved by the supreme court in State Farm Mutual Automobile Insurance Co. v. Palm Springs General Hospital, Inc. of Hialeah, 232 So.2d 737 (Fla.1970). As our sister district noted in Fernandez v. South Carolina Insurance Co., 408 So.2d 753 (Fla. 3d DCA 1982), the validity and priority of hospital liens have been firmly established.

Appellees argue that their attorney’s claim for his fees takes priority over the Hospital’s statutory lien. This position has been consistently rejected. A hospital’s statutory lien may not be impaired or diminished by the amount of attorney’s fees which may be due thé patient’s counsel. Crowder v. Dade County, 415 So.2d 732 (Fla. 3d DCA 1982); Public Health Trust of Dade County v. O’Neal, 348 So.2d 377 (Fla. 3d DCA 1977).

We hold that Chapter 78-552 is constitutional and does not violate article III, section 11(a)(9) of the Florida Constitution. Accordingly, we reverse the trial court’s judgment, reinstate appellant’s counterclaim, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

SCHOONOVER and LEHAN, JJ., concur.

      . Chapter 78-552, Laws of Florida states:
      An act relating to Hospital Board of Directors of Lee County; providing for liens in favor of the hospital, upon causes of action, suits, claims, counterclaims, and demands, accruing to patients therein, or their legal representatives, and upon judgments, settlements, and settlement agreements, on account of illness or injuries of such patients, for all reasonable charges for hospital care, treatments, and maintenance necessitated by such illness or injuries; providing for method of perfecting and enforcing such liens, and recovery of costs, attorney's fees, and expenses, and recovery of damages for hospital care, treatment, and maintenance, unless claimant therefor has paid costs thereof except in certain cases; providing for intervention by lienholder and verdict and judgment in favor of lienholder in certain cases; requiring claims for lien to be recorded and fees for recording; providing that no release or satisfaction shall be valid as against lien unless lienholder joins therein or executes release; providing that acceptance of release or satisfaction of any cause of action, suit, claim, counterclaim, demand, or judgment and any settlement in absence of release or satisfaction of lien shall prima facie constitute impairment of such lien, and giving lien-holder right of action at law for damages on account of such impairment, and providing for recovery from one accepting release or satisfaction or making settlement; exempting from provisions of this act matters within purview of the workmen's compensation law of this state; providing an effective date.
      Be It Enacted by the Legislature of the State of Florida:
      Section 1. Hospital Board of Directors of Lee County, operating as Lee Memorial Hospital, a public hospital created under chapter 63-1552, Laws of Florida, located in Lee County, shall be entitled to a lien for all reasonable charges for hospital care, treatment, and maintenance of ill or injured persons upon any and all causes of action, suits, claims, counterclaims, and demands accruing to the legal representatives of such persons, and upon all judgments, settlements, and settlement agreements rendered or entered into by virtue thereof, on account of illness or injuries giving rise to such causes of action, suits, claims, counterclaims, demands, judgment, settlements or settlement agreements and which necessitate or shall have necessitated such hospital care, treatment, and maintenance.
      Section 2. In order to perfect such a lien, the executive officer or agent of Hospital Board of Directors of Lee County, before, or within ten (10) days after, any such person shall have been discharged from said hospital, shall file in the office of the clerk of the circuit court of Lee County, a verified claim in writing setting forth the name and address of such patient, as it shall appear on the records of said hospital, the name and location of said hospital, and the name and address of the executive officer or agent of said hospital, the dates of admission to and discharge of such patient therefrom, the amount claimed to be due for such hospital care, treatment, and maintenance, and, to the best knowledge of the person signing such claim, the names and addresses of all persons, firms or corporations who may be claimed by such ill or injured person or by the legal representative of such person, to be liable on account of such illness or injuries. At the same time that such claim is filed with the Clerk of the Circuit Court, a copy thereof shall be mailed by the Hospital Board of Directors of Lee County to the ill or injured person, his attorney, if known, and to all persons, firms or corporations named in such claim. The filing and mailing of such chaim in accordance with this section shall be notice thereof to all persons, firms, or corporations who may be liable on account of such illness or injuries, whether or not they are named in such claim or lien, and whether or not a copy of such claim shall have been received by them.
      Section 3. The Clerk of the Circuit Court of Lee County shall endorse on such claim the date and hour of filing and shall record such claim in the Official Records of Lee County. He shall be paid by the claimant as his fee for such filing and recording of each claim the same fee as provided for filing and recording other instruments under the recording laws.
      Section 4. No release or satisfaction of any action, suit, claim, counterclaim, demand, judgment, settlement or settlement agreement or of any of them, shall be valid or effectual as against such lien unless such lienholder shall join therein or execute a release of such lien. Any acceptance of a release or satisfaction of any such cause of action, suit, claim, counterclaim, demand, or judgment and any settlement of any of the foregoing in the absence of a release or satisfaction of the lien referred to in this act shall prima facie constitute an impairment of such lien and the lien-holder shall be entitled to an action at law for damages on account of such impairment, and in such action may recover from the one accepting such release or satisfaction or making such settlement the reasonable cost of such hospital care, treatment, and maintenance. Satisfaction of any judgment rendered in favor of the lienholder in any such action shall operate as a satisfaction of the lien. Any action by the lienholder shall be brought in the court having jurisdiction of the amount of the lienholder's claim and may be brought and maintained in the county wherein the lienholder has his, or its, or their residence or place of business. If the lienholder shall be entitled to recover from the defendant, in addition to costs otherwise allowed by law, all reasonable attorney’s fees and expenses incident to the matter.
      Section 5. No person shall be entitled to recover or receive damages on account of hospital care, treatment, and maintenance, provided by Lee Memorial Hospital, unless he shall affirmatively show that he has paid the cost thereof; provided, however, that in any action, suit, or counterclaim brought on account of illness or injury, the plaintiff or counterclaimant may include as an item of damages the cost of such hospital care, treatment, and maintenance, if prior to the trial of the action he shall have notified the lienholder referred to in this act of the pendency of such action or counterclaim; whereupon such lienholder shall have the right, without leave of court, to intervene in the case and prove the reasonable cost of such hospital care, treatment, and maintenance. Any verdict that may be rendered in favor of the plaintiff or counterclaimant shall set forth the amount the jury finds to be due the lienholder for such hospital care, treatment, and maintenance and the name of such lienholder. Any judgment rendered in the case in favor of the plaintiff or counterclaimant shall also be in favor of the lienholder in the amount set forth by the jury’s verdict.
      Section 6. The provisions of ss. 1-5 shall not be applicable to accidents or injuries within the purview of the workmen’s compensation laws of this state.
      Section 7. This act shall take effect July 1, 1978.

      . Article III, section 11(a)(9), Florida Constitution provides:
      Section 11. Prohibited special laws.—
      (a) There shall be no special law or general law of local application pertaining to:
      (9) creation, enforement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts.


text:
    Glenn R. JOHNSTON, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. AX-322.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1984.
    Rehearing Denied Oct. 12, 1984.

      Paul Watson Lambert, of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellant.
    William M. Furlow, Dept, of Professional Regulation, Tallahassee, for appellee.
   WIGGINTON, Judge.

Appellant, Dr. Johnston, appeals a final order of the Board of Medical Examiners (Board) which rejected the hearing officer’s recommendation that charges against appellant of violation of sections 458.331(l)(q) and (t), Florida Statutes, be dismissed. Appellant was charged by administrative complaint with thirteen counts of violations of section 458.331(1), Florida Statutes, concerning the inappropriate prescribing of controlled substances to four patients. At the hearing, eight of the thirteen counts were dismissed, leaving five counts to be prosecuted as to violations of section 458.-331(l)(q) and (t). We reverse and remand for entry of an order dismissing the administrative complaint with prejudice.

Dr. Johnston is a board certified family practice physician with over fourteen years experience. He served four years as Chief of the Family Practice Department at the Naval Regional Medical Center in Orlando. He is now engaged in private practice. He never before had been the subject of an investigation by the Department of Professional Regulation (Department) until the filing of the charges in this case.

Section 458.331(l)(q), Florida Statutes, provides for the taking of disciplinary action against a physician for:

Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician’s professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician’s professional practice, without regard to his intent.

Section 458.331(l)(t) provides for disciplinary action to be taken against a physician for:

Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.

At the hearing, the evidence showed that between the dates of approximately July 1, 1980, and November, 1981, appellant prescribed large doses of Dilaudid (a schedule II controlled substance) to four patients, all of whom have serious medical problems and suffer chronic severe pain, for which Dilaudid provides the only substantial relief. The department presented the testimony of only one witness, a general practitioner who is not board certified. The witness was of the opinion that Dr. Johnston’s prescribing of Dilaudid in the quantities alleged to each of the four patients was not medically justifiable and that the quantities were excessive. However, he neither saw nor examined the patients and was not able to tell from reviewing their records how much pain any of the four patients was experiencing. He conceded that a medically justifiable purpose in treating a patient is achieved by a treatment that enhances the well-being of the patient and enhances the quality of the patient’s life. He felt that Dr. Johnston’s prescription of the quantities of Dilaudid in question to a patient with any history other than terminal cancer was a gross departure from acceptable medical practice and that three months is the maximum length of time Dilaudid should be prescribed to a patient. However, he could testify as to no physical harm to any of the four patients resulting from appellant’s treatment and could not testify that appellant prescribed Dilaudid other than in the course of his medical practice.

Dr. Johnston presented the testimony of three expert medical witnesses, all of whom are board certified in family practice. Except for the agreement of all four testifying doctors that the four patients suffered no physical harm from their treatment by Dr. Johnston and that Dr. Johnston prescribed the drug to the four patients in the course of his medical practice, the testimony of Dr. Johnston’s three witnesses contradicted the testimony of the department's witness in that those three doctors felt that Dr. Johnston acted reasonably in his treatment of the four patients. The evidence also showed that the Physician’s Desk Reference (PDR) does not place a cap on the quantity of Dilaudid to be prescribed for a patient in chronic moderate to severe pain. The amounts of Dilau-did prescribed for each of the four patients did not exceed the PDR recommendations. The evidence also indicated that at least some of the four patients were possibly already habituated or tolerant to the drug Dilaudid at the time Dr. Johnston prescribed it for them.

Relying upon the testimony of the three board certified family practice physicians, the testimony of Dr. Johnston and the PDR, the hearing officer found that prescribing Dilaudid to a patient who is already habituated or tolerant to the drug and who has chronic moderate to severe pain can be medically justifiable since the patient should be given relief from pain. He determined that appellant’s prescriptions of the quantities of Dilaudid for the four patients during the time period alleged in the complaint were neither excessive nor inappropriate, especially considering the severe conditions of each of the patients. He concluded that the evidence presented by the department was not substantially sufficient to establish violations of section 458.-331(l)(q) or (t), especially in light of Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). He found that appellant's treatment of the four patients was reasonable under the circumstances.

Upon consideration by the board, the members, with one dissent, voted to reject the hearing officer’s findings of fact and conclusions of law and to adopt the allegations of the administrative complaint as the statements of fact in this case. However, in its final written order, the board stated that with two exceptions it approved and adopted the hearing officer’s findings. The first exception was the finding that appellant’s prescriptions of Dilaudid to the four patients in the quantities alleged were appropriate and not excessive and did not constitute the failure to practice medicine with the level of care, skill and treatment which is recognized by a reasonable and prudent physician as being acceptable. The board also rejected the hearing officer’s finding that to treat with Dilaudid a patient who suffers chronic moderate to severe pain and who is already habituated to the drug is medically proper. The board based its rejection of the above findings on the board’s special knowledge and expertise in the practice of medicine, in reliance on the recognition in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), that an agency may interpose its own special expertise in an area to override a hearing officer. The board then made its own findings that: to continue to treat a non-terminally ill patient for chronic moderate to severe pain by prescribing dosages of narcotics in the quantities and over the time periods alleged was not medically justifiable in this case; to prescribe narcotics in the quantities and over the time periods involved here merely for the treatment of pain was improper; and the prescriptions were inappropriate and “constituted the failure to practice medicine with the level of care, skill and treatment which is recognized by a reasonable and prudent physician as being acceptable.” The board accepted the expert testimony of the department’s witness as an accurate statement of the proper policy in prescribing narcotics to non-terminal patients. Thereupon, the board concluded that appellant had violated sections 458.-331(l)(q) and (t), Florida Statutes, and placed appellant on probation for a period of one year, a condition of which appellant is required to make semiannual appearances before the board.

In our view, the circumstances of this case do not present a unique question that is not susceptible to ordinary methods of proof, resolution of which falls within the special expertise of the board to the point that the board may overturn the findings of the hearing officer when those findings are based upon competent substantial evidence in the record. In the absence of a special expertise situation, the board is bound by the findings of fact of a hearing officer as long as competent substantial evidence supports those findings. See Dade County Police Benevolent Association v. City of Homestead, 444 So.2d 465 (Fla. 3d DCA 1984). We find that competent substantial evidence supports the hearing officer’s findings in this case.

Even when an agency is justified in substituting its own findings of fact for that of the hearing officer in cases where the expertise of the agency is a valid factor, in reviewing such a decision, this Court must consider the substantiality of the evidence supporting the agency’s substituted findings. Westchester General Hospital v. Dept, of Health, 419 So.2d 705 (Fla. 1st DCA 1982). According to this Court’s decision in Bowling v. Department of Insurance, 394 So.2d 165 (Fla. ist DCA 1981), in a license discipline proceeding, “the term ‘substantial competent evidence’ takes on vigorous implications that are not so clearly present on other occasions for agency action under chapter 120.” The court declared:

[W]e differentiate between evidence which “substantially” supports conventional forms of regulatory action and evidence which is required to support “substantially” a retrospective characterization of conduct requiring suspension or revocation of the actor’s license. At 171.

The court went on to hold:

[W]e glean a requirement for more substantial evidence from the very nature of licensee discipline proceedings: when the standards of conduct to be enforced are not explicitly fixed by statute or by rule, but depend on such debatable expressions as “in the applicable regular course of business”; when the conduct to be assessed is past, beyond the actor’s power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as “substantial” as the consequences. At 172.

Even if the board were within an area of its special expertise, the evidence in support of the board’s action does not meet that substantiality requirement. Compare Robinson v. Florida Bd. of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984). Neither the transcript of the board meeting nor the written final order of the board sets forth a reasonable basis in the form of articulation of the underlying medical reasons for invocation of the board’s special insight and expertise, leaving this Court no avenue for review of the propriety of the board’s rejection of the otherwise competent substantial evidence supporting the hearing officer’s recommendation. That form of discipline affords licensees inadequate forewarning of proscribed priorities and subjects them to the possibility of an arbitrary judgment that chapter 120, Florida Statutes, was designed and enacted to prevent. We reverse the board’s final order and remand for entry of an order dismissing with prejudice the administrative complaint against Dr. Johnston.

Dr. Johnston has petitioned this Court for an award of attorney’s fees and costs pursuant to section 120.57(l)(b)9, Florida Statutes, which provides, in pertinent part:

In the event a court reverses the order of an agency, the court in its discretion may award attorney’s fees and costs to the aggrieved prevailing party.

In his petition, Dr. Johnston charges that the department and the board have relentlessly prosecuted him in an egregious manner thereby causing him to incur total attorney’s fees, expenses and costs in the amount of $39,825.41. The board, having made no presentation whatsoever in this appeal, has not responded to the motion for attorney’s fees and costs. The department has neither filed a response or objection thereto nor did the attorney for the department, upon direct questioning at oral argument, raise any objection to the request. The record reveals that this case has been brought before a hearing officer on two different occasions and that on each the hearing officer recommended dismissal of the charges. Additionally, in light of the overwhelming evidence in favor of Dr. Johnston which the board callously overlooked behind its veil of “special insight,” we find that application of section 120.-57(l)(b)9 is appropriate in this case and that Dr. Johnston is entitled to an award of attorney’s fees for all proceedings including this appeal and costs to be taxed against appellees pursuant to that statute. Therefore, we further remand this aspect of the case to the DOAH hearing officer to hold a fact finding hearing and to make recommendations to this Court as to the amount of awardable costs and attorney’s fees for appellant at the hearing level and on this appeal. The hearing officer shall promptly consider this matter and file his report with this Court. We will then enter a separate order taxing the amount of costs and attorney’s fees.

REVERSED AND REMANDED.

SMITH, and WENTWORTH, JJ., concur.

      . In his recommended order, the hearing officer set forth in detail the circumstances surrounding the prescription of the drug Dilaudid for each of the four patients. For example, as to one of the patients, he found as follows:
      10. The Respondent prescribed Dilaudid to patient ... for severe chronic pain associated with multiple medical problems, primarily related to his severe degenerative rheumatoid arthritis. [The patient] 49 years of age, had a long history of multiple joint pains, degeneration of his normal joints, chronic pain in his joints, swelling and abnormal laboratory tests. He had been diagnosed as having rheumatoid arthritis since 1976 by a neurosurgeon, confirmed by blood tests and x-rays. He was classified as 100 percent disabled in 1977 by the Veterans Administration because of the chronic joint pains of rheumatoid arthritis. He had been seen by numerous doctors and treated with various pain medications including Dilaudid, which was the only drug that allowed him to function. The pains, discomfort and disability that [the patient] suffered were located in most of the joints of his body, especially in his lumbo-sacral spine, with involvement in the left hip, shoulder areas, both knees and elbows, with swelling and deformity in the hands. Practically every joint in his body was involved. [The patient] frequently used a cane for walking, and occasionally used crutches. He had difficulty in standing from a sitting position and on occasion he used a wheelchair. The Respondent tried several different medications to treat his rheumatoid arthritis, in addition to physical therapy, and used various pain medications, but Dilaudid proved to be the best when used in conjunction with treatment medications that would allow [the patient] sufficient relief to work and function in a reasonably normal life-style. The Respondent prescribed 4 mg. Dilaudid tablets to [the patient] to be taken in doses within the limits recommended by the Physician’s Desk Reference (PDR) in that the overall quantity prescribed for him did not exceed the maximum limit recommended by the PDR. [The patient] also had other medical problems appropriately treated by the Respondent, such as subdeltoid bursitis, lateral ankylosing spon-dylitis, spondylolisthesis, Reiter’s Syndrome, cervical spondylosis and diabetes.

      . The Physician's Desk Reference (1982) sets forth the following instructions relative to the use of Dilaudid:
      The oral route of administration is effective for the treatment of moderate to severe pain. The usual oral dose is two milligrams every four to six hours as necessary. The dose must be individually adjusted according to severity of pain, patient response, and patient size. More severe pain may require three to four milligrams every four to six hours. If the pain increases in severity or relief is not adequate or a tolerance occurs, a gradual increase in dosage may be required. (At 1009).


author: ERVIN, Chief Judge.

text:
    CITY OF DELRAY BEACH, Appellant, v. DEPARTMENT OF TRANSPORTATION and Palm Beach County, Appellees.
    No. AS-41.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1984.

      See also, Fla.App., 444 So.2d 506.
    Herbert W.A. Thiele, City Atty. and Richard W. Carlson, Jr., Asst. City Atty. for City of Delray Beach, Delray Beach, for appellant.
    H. Reynolds Sampson, Dept, of Transp., Tallahassee, and Rickey L. Farrell, Asst. County Atty. for Palm Beach County, West Palm Beach, for appellees.
   ERVIN, Chief Judge.

Appellant, City of Delray Beach (the city), challenges a final order of the Florida Department of Transportation (DOT), upholding the functional classification and jurisdictional assignment of a roadway. We reverse and remand to the agency for further explication of its action.

In 1977 the legislature mandated DOT to classify all roads according to functional use and to assign them to city, county, state or state park jurisdiction. § 335.-01(2), .04, Fla.Stat. (1977). Under this plan, roads were to be assigned to categories of use according to the character of service which they provided in relation to the total road network. § 334.03(14). The various categories, defined by the characteristics of traffic volume, average trip length, operating speed and mobility, included in pertinent part:

“Collector road.” — A route providing service which is of relatively moderate average traffic volume, moderately average trip length, and moderately average operating speed. These routes also collect and distribute traffic between local roads or arterial roads and serve as a linkage between land access and mobility needs.
“Urban minor arterial roads.” — Routes which generally interconnect with, and augment, urban principal arterial routes and provide service to trips of shorter length and a lower level of travel mobility. Minor arterial routes include all arte-rials not classified as principal and contain facilities that place more emphasis on land access than the higher system.

§ 334.03(16), (21). DOT adopted no rules or regulations establishing objective criteria by which these definitions could be applied or their application reviewed. The classification process was, therefore, based upon subjective judgment.

The subject road, N.E. 8th Street, is a roadway bridging the Intercoastal Waterway and the road itself — although not all of its right of way — is located within the municipality. Formerly assigned to the jurisdiction of Palm Beach County (the county), the road was classified by DOT as a collector. The city contends that it is properly classified as an urban minor arterial road. All collectors not penetrated by unincorporated parcels of land are assigned to city jurisdiction, while urban minor arterials are assigned to county jurisdiction regardless of penetration. § 334.-03(23), (24), Fla.Stat. (1977). As a result of classification as a collector, DOT directed that the road be transferred from county to city'jurisdiction, with the city thereafter assuming all obligation for repair and maintenance of the road and its drawbridge.

The city petitioned for a hearing pursuant to Section 120.57, Florida Statutes. At the hearing, the city presented data on the subject road’s characteristics as to the classification criteria and comparable data for other area roads crossing the Intercoastal Waterway which had been classified as urban minor arterials. Moreover, the city argued that even if the road were properly classified' as a collector, it is assignable to county jurisdiction due to the fact that unincorporated parcels penetrate the road’s right-of-way. This latter position was supported by a DOT memorandum suggesting that consideration of penetration of the right-of-way was a proper interpretation of DOT’s jurisdictional policy.

In his recommended order the hearing officer found the statutory criteria for a collector road were satisfied and concluded that the road was properly assigned to city jurisdiction. The city filed lengthy objections to the recommended order detailing conflicting evidence which the recommended order failed to address and objecting to the absence of explanation of the basis for the hearing officer’s conclusions. Without further explication DOT upheld the recommended order in its final order from which this appeal is taken.

The focus of this appeal is the sufficiency of the recommended order and final order to explicate and sustain incipient agency policy adequately as to its functional and jurisdictional classification of the road in question. Such explication is required by our ruling in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977) and progeny. In this line of cases we have articulated the rule that, while agencies are free to develop policy without resort to formal rulemak-ing procedures, they must be prepared to defend such policy against challenge in section 120.57 hearings and that the agencies .are required therein to fully and skillfully expound such policy by conventional proof methods. McDonald, 346 So.2d at 583; ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981). Further, it is required that the agency’s final and recommended orders have in all respects a predicate in the record, namely a short and plain statement of the matters asserted by the agency and by all parties, the evidence, the argument, the proposed findings of fact and orders and the exceptions thereto. McDonald, 346 So.2d at 582.

DOT’s order in the instant case falls far short of this standard. It fails to find a predicate in the record in that it does not adequately address the evidence presented to explicate its decision. Where, as here, an agency elects to proceed through non-rule policy it assumes the burden of articulating the rule applicable in the case with the same specificity as if it were an adopted rule. At the hearing and in resultant orders, DOT articulated no coherent reviewable policy regarding the application of functional classification that even approached the specificity of a rule. Nor did DOT sustain its burden of explicating a rule-like policy by which its jurisdictional decision was sustainable. We are compelled, therefore, to reverse the final order and remand this cause for further explication, if any be available, of DOT’s decision affecting the functional and jurisdictional classification of this roadway.

BOOTH and WENTWORTH, JJ., concur.


text:
    Douglas Levonne WEST, Appellant, v. STATE of Florida, Appellee.
    No. AT-158.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1984.

      Michael E. Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gregory G. Cos-tas, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ERVIN, Chief Judge.

West appeals from a conviction for possession of a controlled substance. The only issue raised that merits discussion is whether the trial court erred in denying West’s motion, made after the state’s opening argument, for the state to elect which of two controlled substances it would rely upon for a conviction. We find no error and affirm.

The amended information charged West with possession of a controlled substance, “to wit: four (4) aluminum foil packets containing a white powder mixture of Heroin, Cocaine, or a combination thereof, in violation of Section 893.13(l)(e), Florida Statutes.” West’s argument that the amended information failed to give notice of the specific offense charged is unpersuasive. Florida Rule of Criminal Procedure 3.140(k)(5) states the following:

Alternative or Disjunctive Allegations. For an offense which may be committed by doing of one or more of several acts, or by one or more of several means, or with one or more of several intents or results, it is permissible to allege in the disjunctive or alternative such two or more acts, means, intents or results.

The offense described in Section 893.-13(l)(e), Florida Statutes, can be committed by doing one or more of several acts, including the act of possession of heroin or the act of possession of cocaine. Under rule 3.140(k)(5), then, an information may allege in the disjunctive or alternative such two or more acts. The instant amended information states in the disjunctive the controlled substance allegedly in West’s possession. It charges one defendant with one offense — unlawful possession of one controlled substance — arising out of one criminal episode. Whatever the controlled substance, the crime and the punishment are the same. The amended information therefore placed West on sufficient notice of the charged offense.

The instant case is distinguishable from those cases in which the state charged a single act in one count, but adduced proof of several acts. For example, in Adjmi v. State, 154 So.2d 812 (Fla.1963), the information contained one count charging one act of grand larceny by false pretenses. At trial, the state proved fourteen separate transactions, each suggesting grand larceny by false pretenses. Id. at 813-814. The supreme court held that the trial court’s denial of defendant’s motion to elect was reversible error. Id. at 817. In Adjmi, a single act was charged in a single count, but the state later proved several different incidents or transactions upon which it relied for conviction. In the instant case, however, the state alleged one offense and proved one offense, a single incident of possession of a controlled substance. AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.


text:
    James MOYE and Betty Moye, his wife, and Florida Machinery Corporation, Appellants, v. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, LTD., a foreign corporation, Appellee.
    Nos. 83-2432, 83-2460.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Rehearing Denied Oct. 30, 1984.
    Horton, Perse & Ginsberg and Mark Marks and Edward Perse, Peters, Pickle, Flynn, Niemoeller & Downs and Donna S. Catoe, Miami, for appellants.
    Gerald E. Rosser, Miami, for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

The Petition for Declaratory Relief in this case raised a single issue of insurance coverage. We affirm the Final Declaratory Summary Judgment insofar as it finds that the insurance policy issued by General Accident Fire & Life Assurance Corporation, Ltd. to Florida Machinery Corporation does not provide coverage to any of the named defendants in a separate personal injury action.

We reverse the findings and conclusion on the issue of liability. The question of liability on the part of defendant Florida Machinery Corporation was not before the trial court, and even if it had been, the record reveals that genuine issues of material fact existed so as to preclude summary judgment.

Affirmed in part, reversed in part and remanded.


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Raymond VAN-NOSTRAND, Appellee.
    No. 83-2972.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Rehearing Denied Oct. 22, 1984.
    Jim Smith, Atty. Gen., and Richard D. Doran, Asst. Atty. Gen., for appellant.
    Kogen & Kogen and Lauren Kogen, Miami, for appellee.

      Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

This is an appeal by the state from an order suppressing a gun, an ammunition clip, and drugs found in Van-Nostrand’s automobile. We reverse.

Van-Nostrand drove into the driveway of a home under police surveillance. A police officer asked for identification, advised Van-Nostrand that the house was under surveillance, and asked him to step out of his car. As Van-Nostrand stepped out of the automobile, the officer looked through the window and noticed a clip from an automatic pistol protruding from the opening of a purse. When the officer asked Van-Nostrand if he had a gun, Van-Nost-rand stated that he had a gun in his boot. The police then arrested Van-Nostrand, searched his car, and seized the items suppressed by the court.

We find that the initial stop by police was reasonable and the request for identification appropriate. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Marrero v. State, 375 So.2d 612 (Fla. 3d DCA 1979). After Van-Nostrand admitted that he had a concealed firearm on his person, the officer had probable cause to arrest him and to conduct a lawful search incident to that arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). We therefore reverse the trial court’s erroneous suppression of the items seized during the search and remand for further proceedings.

Reversed and remanded.