Title: Opinion File 73-13 thru 73-27
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Permanent Link: http://ufdc.ufl.edu/WL00003340/00001
 Material Information
Title: Opinion File 73-13 thru 73-27
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 73-13 thru 73-27
General Note: Box 14, Folder 3 ( Opinions 1972 - 1973 - 1972 - 1973 ), Item 25
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003340
Volume ID: VID00001
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Full Text




13
KEY WORDS --

October 10, 1973 1~~n -7


TO: LMB
FR: TEC
RE: SWFWMD (R) Dispute with Pinellas County


1. What is the proper venue for an action brought by the
SWFWMD (R) against the County Commissioners of Pinellas County
for enforcement of its order regulating the water resources
in a well field operated by Pinellas County?

Facts: (1) Official residence of Pinellas County Commissioners
is in Pinellas County.
(2) Official residence of SWFWMD (R) is in Hernando
County.
(3) Well field is located in and affects the water
resources of Hillsborough, Pinellas, and Pasco
Counties.

Conclusion: There is a strong tendency in Florida, despite
the general venue statute, to require suits against public
officials to be brought only in the county of their official
residence. There is little authority for lodging venue in
Hernando County. Venue may be appropriately located in
Hillsborough County if Court feels that location of the realty
in dispute outweigh the importance of having the suit brought
in the county of the Official Residence of the Pinellas Commis-
sioners. The Environmental Protection Act of 1971, if applicable,
permits venue to be found in the county wherein the cause of
action occurred.

Reasoning: I could find no case or statutory law in which
suits against county commissioners contained discussions of
venue. Florida does not have a specific venue statute for
public officials, as do some other states.

The General Venue provision in thb statutes is Section 47.011
F.S. (1971) which states in part:
"Actions whall be brought only in the county ... where
defendant resides, or where the cause of action accrued,
or where the property in litigation is located."

[A] This statute has been held to be not applicable in suits







7 3-14




against municipalities. For municipalities, the common law
rule that they must be sued in their own counties, is still
in effect in Florida.
Williams vs. City of Lake City (1953)
62 So. 2d' .732.

Indeed, a suit against the City of St. Petersburg for an
injunction controlling its well fields located in Hillsborough
County could not be brought in Hillsborough County but had to
be maintained in Pinellas County.
City of St. Petersburg vs. Earle (App. 19591
109 So. 2d 388.

[B] A similar rule has evolved in the cases dealing with
suits against state agencies.
East Coast Grocery Co. vs. Collins (1957)
96 So. 2d 793.
Larson vs. R. K. Cooper, Inc. (1954)
75 So. 2d 757
Amelia Island Mosquito Control Dist. vs. Tyson
(1963) 150 So. 2d 246 (copy attached)

It appears, however, that when the state or a state agency acts
beyond the county of its official residence, suit objecting
to such actions may properly be brought in the county where the
action impinges.
Dept. of Rev. vs. First Federal Savings & Loan Assoc.
of Fort Myers (1971), 256 So. 2d. 524.(copy attached)
Dowdy vs. Lawton (1954)
72 So. 2d 50.

The foregoing cases dealing with state agencies may be analogized
to a certain extent with the proposed suit against a county,
for counties in Florida are political subdivisions of the state.
(Section 1 (A) of Article VIII, Fla. Const.) Thus it is
arguable that because the actions or inactions of the Pinellas
County Commissioners-are having an adverse effect on Hillsborough
residents, venue may be properly laid in Hillsborough County.
It appears unlikely that this reasoning would extend to justify
venue in Hernando County because there are no actions impinging
on that county's residents.

[C] The Environmental Protection Act of 1971" provides that
venue shall lie in the county or counties wherein the cause of
action occurred in actions arising under it. Section 403.412 (6)









* r

F.S. (1971) (copy attached). This would indicate that the
proposed suit could be brought in Hillsborough County.
However, access to the provisions of that act is restricted
to the Department of Legal Affairs, any political subdivision
or municipalities ... or a citizen of the state. (Section
403.412 (2) (A) F.S. (1971)) It seems unlikely that the SWFWMD (R)
qualifies in any of the foregoing categories.






256 SOUTHERN RE TER, 2d SERIES (. -1b


Here, however, the person awarded custody
is not a grandparent, as in Eades v. Dorio,
Fla.App.1959, 113 So.2d 232, nor an uncle
or aunt, as in Grant v. Corbitt, Fla.1957,
95 So.2d 25. Respondent here is the chil-
drens' stepmother, who had been their step-
mother for only six months. In comparison
with persons awarded custody in the cases
referred to above, respondent may be char-
acterized as a virtual stranger. The only
instances in which Florida courts have
granted stepparents custody as opposed to
natural parents are those in which the
natural parent has been found to have aban-
doned the child. See Browning v. Favreau,
Fla.1952, 60 So.2d 186, in which custody
was granted to a stepfather of four years
duration. Steets v. Gammarino, Fla.1952,
59 So.2d 520.

Much is made of the fact that the child-
ren expressed a desire to remain with the
stepmother. While the desires of the chil-
dren, especially older children as here, are
to be considered by the chancellor, such a
factor is not controlling. E. g., In re Ver-
mculen's Petition, Fla.App.1959, 114 So.2d
192, 196. The rights of a parent cannot be
disregarded in order to gratify the mere
wishes of a child, when the parent is a
proper person to be intrusted with the cus-
tody. Foster v. Sharpe, Fla.App.1959, 114
So.2d 373.

In Foster v. Sharpe, supra, arising on
very similar facts, the court, while recog-
nizing the broad area accorded the trial
court in child custody and the heavy burden
of an appellant seeking to have the trial
court's determinations reversed, neverthe-
less found an abuse of discretion in award-
ing custody to the uncle and aunt of the
child, where the mother was a fit person.
The court stated:
"Inasmuch as it conclusively appears
that Elaine's [the minor child's] mother
is a fit and proper person to have the
custody of her child and that such custody
is consistent with the welfare of the
child, it is necessary to reverse the order
awarding custody of the child to the re-
spondents. In this connection it should


be noted that a finding by the trial judge
that 'it is in the best interest' of the child
that she remain with her aunt and uncle
is not equivalent to a finding that the ul-
timate welfare of the child requires that
she be with the aunt and uncle. It is
often true that parents may not be able
to provide for their children as fully and
completely as another may be able to
provide. However, no parent could agree
with a law which would demand that a
parent must relinquish his or her right
of custody to another person on the basis
of superior material advantages."

The trial court's finding in the instant
case concerning the "best interests of the
children" is virtually identical with that
of the trial court in Foster v. Sharpe, su-
pra, at 375. I would therefore reverse the
judgment and remand with directions to
award custody to the natural mother of the
children.


KEYNMBER SYSTEM
W


DEPARTMENT OF REVENUE, State of
Florida and Dawson McDaniel, as Tax
Collector of Lee County, Florida, Appel-
lants,
v.
FIRST FEDERAL SAVINGS & LOAN AS-
SOCIATION OF FORT MYERS,
Florida, Appellee.
No. 71-395.
District-Court of Appeal of Florida,
Second District.
Dec. 1, 1971.


Action seeking to enjoin Department
of Revenue and tax collector from collect-
ing certain intangible taxes assessed
against plaintiff. The Circuit Court for
Lee County, Lynn Gerald, J., denied de-
fendant's motion for change of venue, and
interlocutory appeal was taken. The Dis-


i_


(-NN24 Fla.














DEPARTMENT OF REVENUE v. FIRST FED. SAV. & L. ASS'N
Cite as, Fla., 256 So.2d 524


trict Court of Appeal, McNulty, J., held
that where only action taken by Depart-
ment of Revenue as regards collection of
taxes was sending of "formal notice as-
sessment and demand" for delinquent tax-
es, specifying amount and date due and no-
tice advising that tax should be paid to
avoid service of tax warrant to effect
collection, venue of taxpayer's action to
enjoin collection would not lie in county
other than county in which Department of
Revenue maintained its official headquar-
ters, since the "notice" constituted a mere
naked demand rather than official action
Sand the "threat" was contingent rather
than real and anticipatory rather than im-
minent.


Reversed.


I. States 2=200


Venue =29


Absent a waiver, the state or any of
its agencies may be sued in a county other
than that which is the situs of its official
headquarters only when the official action
complained of has in fact been or is being
S performed in the county wherein the suit is
filed, or when the threat of such action in
said county is both real and imminent.

2. Venue s=29
Where only action taken by Depart-
ment of Revenue as regards collection of
intangible taxes was sending of "formal
notice assessment and demand" for delin-
quent taxes, specifying amount and date
due and notice advising that tax should be
paid to avoid service of tax warrant to ef-
fect collection, venue of taxpayer's action
to enjoin collection would not lie in county
other than county in which Department of
Revenue maintained its official headquar-
S ters, since the "notice" constituted a mere
naked demand rather than official action
and the "threat" was contingent rather
* than real and anticipatory rather than im-
minent.


3. States S=200
Venue =29
Question to be answered in determin-
ing whether the state or any of its agen-
cies may be sued in a county other than
that which is the situs of its official head-
quarters is whether the state is the initial
sword wielder in the matter and whether
the plaintiff's action is in the nature of a
shield against the state's thrust; if so, suit
may be maintained in the county wherein
the blow has been or is immediately about
to be laid, while, on the other hand, if
plaintiff is the prime mover against a pas-
sive or dormant state or state agency then
venue lies properly in the county wherein
the state or the agency maintains its offi-
cial headquarters.



Robert L. Shevin, Atty. Gen., and Win-
ifred L. Wentworth, Asst. Atty. Gen., Tal-
lahassee, for appellants.

Julian D. Clarkson, of* Henderson,
Franklin, Starnes & Holt, Fort Myers, for
appellee.


McNULTY, Judge.

This interlocutory appeal asks us to de-
cide a question of venue.
First Federal Savings and Loan Associa-
tion of Fort Myers sued appellants in Lee
County seeking to enjoin them from col-
lecting certain intangible taxes. The ap-
pellant tax collector was joined as the col-
lecting agent of the appellant Department
of Revenue and is, accordingly, a nominal
party only. The Department of Revenue
filed a plea of privilege seeking a change
of venue to Leon County where it "re-
sides" and maintains its official headquar-
ters. Change of venue was denied and this
appeal ensued. We reverse.

[1] We understand Florida law to be
that absent a waiver, the state or any of
its agencies may be sued in a county other
than that which is the situs of its official


Fla. 525


A


F-"







52( \la. 256 SOUTHERN RI

headquarters only when the official action
complained of has in fact been or is being
performed in the county wherein the suit is
filed, or when the threat of such action in
said county is both real and imminent.1
We are called upon to decide, therefore,
whether in this case the Department of
Revenue either had indeed taken official
action to collect the intangible taxes in-
volved herein or whether the threat of
such action was both real and imminent.


[2] It undisputedly appears that the
only action taken by the Department of
Revenue was to send a "formal notice as-
sessment and demand" for delinquent in-
tangible taxes, specifying the amount and
date due. The notice further advised that
the tax should be paid "to avoid the serv-
ice of a tax warrant to effect collection.
S. ." We think this "notice" was a
mere naked demand, and we perceive a
material distinction between such a demand
and affirmative action to enforce that de-
mand. There was, in our view, no "offi-
cial action" within the contemplation of
the aforementioned rule upon which venue
in Lee County could be predicated.

Now arguendo, there may have been a
threat to enforce the aforesaid demand by
tax warrant. But there was no assertion
that a warrant would certainly be sought
nor was a deadline given therefore. We
construe the "threat," therefore, as contin-
gent rather than real and anticipatory
rather than imminent. In fact, it is hardly
more than a recitation of a possible legal
remedy available for enforcement of the
demand.

[3] The question to be answered in
these cases may be said to be whether the
state is the initial sword-wielder in the
matter and whether the plaintiff's action is
in the nature of a shield against the state's
thrust. If so, then the suit may be main-
tained in the county wherein the blow has

I. See, e. g., Dowdy et al. v. Lawton et al.
(Fla.1954), 72 So.2d 50; Henderson v.
Gay (Fla.1950), 49 So.2d 325; Morris


PORT 2d SERIES


been or is imminently about to be laid on.
On the other hand if plaintiff is the prime
mover in the premises against a passive or
dormant state or state agency then venue
lies properly in the county wherein the
state or the agency maintains its official
headquarters. Appellant's plea of privilege
herein should have been honored.

Accordingly, the order appealed from is
hereby reversed and the cause is remanded
with directions either to abate the action
or transfer the cause pursuant to Rule
1.060(b), R.C.P., 30 F.S.A.

Reversed.


PIERCE, C. J., and MANN, J., concur.


E KEY NUMBER SYSTEM


Eddie LEWIS, Appellant,


The STATE of Florida, Appellee.
No. 71-401.

District Court of Appeal of Florida,
Third District.
Jan. 4, 1972.


The Dade County Circuit Court, David
Popper, J., found defendant guilty of the
first-degree murder of his wife, and he ap-
pealed. The District Court of Appeal,
Pearson, J., held that in-court identifica-
tion testimony of two eyewitnesses was ad-
missible despite fact that defendant, with-
out being advised of his right to counsel at
a lineup, was placed in a lineup which was
viewed by the identification witnesses, as
the record revealed that defendant was
given the Miranda warnings when he was
arrested and said he had an attorney but

v. Williams (Fla.App.1967), 199 So.2d
747; and Green v. Bob Lourie Films,
Inc. (Fla.App.1961), 133 So.2d 431.


7 3-18








150 SOUTHERN REPORT d SERIES


AMELIA ISLAND MOSQUITO CONTROL
DISTRICT, Nassau County,
Florida, Appellant,
V.

Margaret W. TYSON and George E. Tyson,
her husband, and Murray Richard
Eisner, Appellees.
No. D-488.

District Court of Appeal of Florida.
First District.
Feb. 28, 1963.


Automobile collision case. The defend-
ant's motion for leave to bring in a cross-
defendant, a mosquito control district in
Nassau county, was granted. The Circuit
Court for Duval County, William L. Dur-
den, J., denied the district's motion to dis-
miss the amended counterclaim, and the
district appealed. The District Court of Ap-
peal, Carroll, Donald K., C. J., held that
where district had not waived its privilege
to be sued in Nassau county, the district
could not be sued in Duval county as cross-
defendant in counterclaim filed against dis-
trict by defendant in original action prop-
erly filed in Duval county.
Reversed and remanded with direc-
tions.

1. Venue eII
Where mosquito control district in
Nassau county had not waived its privilege
to be sued in Nassau county, district could
not be sued in Duval county as cross-de-
fendant in counterclaim filed against dis-
trict by defendant in automobile collision
case properly filed in Duval county. F.S.A.
46.01, 46.02; 30 F.S.A. Rules of Civil
Procedure, rule 1.13(1, 4, 8).
2. Courts <85(3)
The paragraph of the civil procedure
rule dealing with counterclaim against state
must be read in pari material with the para-
graphs dealing with compulsory counter-
claim and with the bringing in of additional
parties. 30 F.S.A. Rules of Civil Proce-
dure, rule 1.13(1, 4, 8).


3. Venue ll
The general rule is that a governmental
agency should ordinarily be sued in its own
county.


Albin C. Thompson, Fernandina Beach,
Boyd, Jenerette & Leemis, and Rogers,
Towers, Bailey, Jones & Gay, Jacksonville,
for appellant.
Searcy & Sulik, and Cox, Grissett, Mac-
Lean & Webb, Jacksonville, for appellees.

CARROLL, DONALD, K., Chief Judge.
The cross-defendant in an automobile col-
lision case has appealed from an order en-
tered by the Circuit Court for Duval County
denying its motion to dismiss a counter-
claim on the ground of improper venue.
The appellant is a governmental agency
designated and known as the Amelia Island
Mosquito Control District, Nassau County,
Florida, and will be referred to in this opin-
ion simply as the District.

[1] The appellant and the appellee Mur-
ray Richard Eisner agree in their briefs
that the only proper venue for an original
action against the District is in Nassau
County; but the said appellee contends,
and the Circuit Court held in effect, that the
District nevertheless may be sued in Duval
County as a cross-defendant in a counter-
claim filed against the District by the de-
fendant in the original action properly filed
in Duval County.
This question arose out of the following
situation:
The appellees Margaret W. Tyson and
George E. Tyson, her husband, filed their
complaint in the Duval County Circuit
Court against the appellee Eisner, alleging
that the latter is a non-resident of Florida.
Their action was based upon an automobile
accident that occurred in Nassau County.
The court granted Eisner's motion for leave
to bring in the District as a cross-defendant.
After certain intermediate pleadings had
been disposed of, Eisner filed an amended,


246 Fla.


7S-lj)















AMELIA ISLAND MOSQUITO CONTROL DIST. v. TYSON Fla. 247
Cite as, Fla., 150 So.2d 246


counterclaim, to which the District filed a
motion to dismiss upon several grounds,
including that of improper venue. The
court denied this motion in the order ap-
pealed from herein, the court finding that
the bringing in of the District as a third
party "* is not only proper but nec-
essary to a complete determination of the
issues. *"

The appellee Eisner concedes in his brief
[ that, if either the plaintiffs or the defend-
rit had originally, elected to sue the Dis-
trict solely, or, if the plaintiffs had elected
to join both the defendant and the District
as the original co-defendants, the action
would have had to have been filed in Nassau
County, unless the District waived its privi-
lege of asserting venue in that county, but
does not concede that such privilege of
Avenue extends to a party not an original
defendant in the litigation. In support of
his contention that this exception to the
venue rule should be recognized under the
present circumstances, the said appellee
cites and relies upon statements from legal
encyclopedias as well as several decisions
in other jurisdictions. He also relies upon
paragraphs (1) and (8) of Rule 1.13 of the
Florida Rules of Civil Procedure, 30 F.S.A.,
which paragraphs read as follows :

"(1) Compulsory Counterclaim. The
defendant, at the time of the filing of
his answer, shall state as a counter-
claim, any claim, whether the subject
of a pending action or not, which he
has against the plaintiff, arising out of
the transaction or occurrence that is
the subject matter of the action and
does not require for its adjudication
the presence of third parties of whom
the court cannot acquire jurisdiction.
*
"(8) Additional Parties May Be
Brought In. When the presence of
parties other than those to the original
action is required for the granting of
complete relief in the determination
of a counterclaim or cross-claim, the
court shall order them to be brought


in as defendants if jurisdiction of them
can be obtained, and their joinder will
not deprive the court of jurisdiction
of the action."

[2] In response to this argument the
District invokes the provisions of para-
graph (4) of the said Rule, which para-
graph, in our opinion, must be read "in pari
material" with paragraphs (1) and (8) quot-
ed above. Paragraph (4) provides:
"(4) Counterclaim against the State.
This rule shall not be construed to en-
large beyond the limits fixed by law the
right to assert counterclaims or to claim
credits against the State of Florida or
any of its subdivisions or other govern-
mental organization thereof subject to
suit, or upon a municipal corporation,
or upon an officer, agency, or adminis-
trative board of the State of Florida."

[3] While the general rule that a gov-
ernmental agency should ordinarily, at least,
be sued in its own county, is not in dispute
on this appeal, we deem it appropriate to
discuss here the basis and the reason for
this general rule. The Florida decision usu-
ally relied on for this proposition, as is done
in the briefs on this appeal, is Williams v.
City of Lake City, Fla., 62 So.2d 732 (1953),
which involved venue for a municipal cor-
poration. In that case the Supreme Court
of Florida said:
"Under the common law no action
could be brought against a municipal
corporation outside the county where it
was situated, unless an express statute
authorized it to be sued elsewhere.
Marshall v. Kansas City, 95 Kan. 548,
148 P. 637, L.R.A.1915F, 1025; City
of Jackson v. Wallace, 189 Miss. 252,
196 So. 223; 38 Am.Jur. 420, Par. 716.
The appellant contends, however, that
Sections 46.01 and 46.02, F.S.A., which
read as follows:
"'46.01 Where suits may be begun.
Suits shall be begun only in the county
(or if the suit is in the justice of the
peace court in the justice's district)


!ii: .

ii4i
i i i

I j *' i
Si;



t
i ) '

J


ii





I I











i. ii


Siii







r
248 Fla. 150 spUTHERN R1

where the defendant resides, or where
the cause of action accrued, or where
the property in litigation is located.
"' If brought in any county or justice
district where the defendant does not
reside, the plaintiff, or some person in
his behalf, shall make and file with the
praecipe or bill in chancery, an affidavit
that the suit is brought in good faith,
and with no intention to annoy the de-
fendant. This section shall not apply
to suits against nonresidents.
"'46.02 Suits against defendants re-
siding in different counties or districts.
Suits against two or more defendants
residing in different counties (or jus-
tices' districts) may be brought in any
county or district in which any defend-
ant resides.'

are inconsistent with the common law
on the subject under the facts in this
case, and that she is authorized to
maintain this action in Duval County.
We are not impressed by this argument.
The majority of the courts have held
that actions against municipal corpora-
tions are inherently local and that they
must be sued in the county in which
they are located. While we recognize
that there are authorities to the con-
trary, we believe this rule is based on
logic and reason and is the better
rule."

The Supreme Court further said in the
Williams case:
"While not directly on the subject
with which we are dealing, the policy
of this State has been to require that
its State officials and the boards be sued
in Leon County, the county of their
official residence, unless such privilege
is waived."
The rationale of this general rule of
venue as to governmental agencies has
been variously stated by the courts dealing
with this question, but one of the best ex-
planations of the reason for the rule is set
forth in the following language from 38


EPORTL 2d SERIES


Am.Jur., Municipal Corporations, Section
716, which the Supreme Court quoted with
express approval in the Williams case:
"Several reasons have been advanced
in support of the prevailing view. It
has been remarked that municipalities.
cannot change their situs or their place
of abode. They cannot remove from
one place to another, and sojourn for
a time at this point or that. They re-
main stationary; hence, they must be
sued where they are found. The courts
have also constantly pointed out that
it is of the greatest importance to the
welfare of municipal bodies and of the
citizens whom they serve that their of-
ficers should be permitted to remain at
home and discharge their public duties,.
instead of being called hither and thi-
ther over different parts of the state
to attend to litigation. The magnitude
and importance of the functions of
municipal government are constantly
increasing with the growth of popula-
tion and of the various and complex
agencies employed in municipalities in
the public service, and these functions.
require the constant presence and
watchfulness of those charged with
their direction and management. To
permit these great public duties to be
hindered or delayed in their perform-
ance, in order that individuals or pri-
vate corporations might more conven-
iently collect their private debts, would
be to pervert the great object of the
creation of municipal corporations.
The courts in some jurisdictions have
stated that, under the common-law rule,.
as applied therein, municipalities can-
not be sued outside their own territorial
limits upon transitory causes of action."

In view of the conflicting authorities ini
other jurisdictions and the lack of any di-
rect authority in this state, we can under-
stand how the Circuit Court concluded as
it did, but we think that the general rule
recognized in the Williams case and the
reasoning underlying that rule, especially
in view of the provisions of paragraph (4))


7 s-21
















COCHRAN v. STATE
Cite as, Fla., 150 So.2d 249


Fla. 249


of Rule 1.13, quoted above, impel us to the
conclusion that the only proper venue for
an action against the District, whether it
be a defendant or co-defendant in an orig-
inal action or a cross-defendant to a coun-
terclaim, lies in Nassau County, unless the
District should be held to have waived its
privilege to be sued in Nassau County. We
find no such waiver here.
We, therefore, reverse the order appealed
from and remand the cause with directions
to grant the District's motion to dismiss the
-counterclaim on the ground of improper ven-
ue.
Reversed and remanded with directions.

STURGIS and RAWLS, JJ., concur.



E KEY NUMBER SYSTEM





Reginald COCHRAN, Appellant,
v.
STATE of Florida, Appellee.
No. D-330.
District Court of Appeal of Florida.
First District.
Feb. 19, 1963.
Rehearing Denied March 18, 1963.


Defendant was convicted of grand
larceny. The Criminal Court of Record
for Duval County, A. Lloyd Layton, J.,
entered judgment, and the defendant ap-
pealed. The District Court of Appeal,
Wigginton, J., held that evidence sustain-
ed the conviction and that the requested
instruction of the defendant concerning
the testimony of alleged accomplice who
testified for the prosecution was too broad
and was properly denied as an expression
of opinion by the court as to the weight
or lack of weight which the jury should
give to the testimony of the witness.
Judgment affirmed.
150 So.2d-16V


I. Larceny =65
Evidence sustained grand larceny con-
viction.

2. Criminal Law =780(1)
Where alleged accomplice testified as
witness for prosecution, defendant was en-
titled to charge that jury should receive
testimony of accomplice with great cau-
tion.

3. Criminal Law =757(4)
Defendant's requested instruction con-
cerning testimony of alleged accomplice
was too broad and was properly refused
as expression of opinion as to weight or
lack of weight which jury should give to
testimony of witness.



Frank T. Cannon, Jacksonville, and D.
C. Laird, Lakeland, for appellant.

Richard W. Ervin, Atty. Gen., and
George R. Georgieff, Asst. Atty. Gen., for
appellee.


WIGGINTON, Judge.

Appellant, together with five other de-
fendants, were jointly charged with the
offense of grand larceny. One of the de-
fendants was never apprehended and the
case proceeded to trial against the remain-
ing five defendants. After the trial com-
menced, three of the defendants entered a
plea of nolo contender. The trial pro-
ceeded against appellant and one Wood-
row "Red" Grisette, which culminated in
a jury verdict of guilty as charged. From
a judgment and sentence based upon a jury
verdict, defendant Cochran has appealed.

[1] The principal point urged for re-
versal is that the evidence is insufficient to
establish appellants' guilt as required by
law. We have carefully reviewed the rec-
ord and find sufficient competent evidence
from which the jury could have reached
the verdict here assaulted. The judgment
is not vulnerable to attack on this ground.


7 q-22






n 7 I 3-23
403:412 PUBLIC HEALTH Title 27

403.412 Environmental protection act
(1) This section shall be known and may be cited as the "En-
vironmental Protection Act of 1971."
(2) (a) The department of legal affairs, any political subdivi-
sion or municipality of the state, or a citizen of the state may
maintain an action for injunctive relief against:
1. Any governmental agency or authority charged by law
with the duty of enforcing laws, rules, and regulations for the
protection of the air, water, and other natural resources of the
state to compel such governmental authority to enforce such
laws, rules, and regulations;
2. Any person, natural or corporate, governmental agency or
authority to enjoin such persons, agencies, or authorities from
violating any laws, rules or regulations for the protection of the
air, water, and other natural resources of the state.
(b) In any suit under paragraph (a), the department of legal
affairs may intervene to represent the interests of the state.
(c) As a condition precedent to the institution of an action
pursuant to paragraph (a), the complaining party shall first file
with the governmental agencies or authorities charged by law
with the duty of regulating or prohibiting the act or conduct
complained of a verified complaint setting forth the facts upon
which the complaint is based and the manner in which the com-
plaining party is affected. Upon receipt of a complaint, the
governmental agency or authority shall forthwith transmit, by
registered or certified mail, a copy of such complaint to those
parties charged with violating the laws, rules, and regulations
for the protection of the air, water and other natural resources
of the state. The agency receiving such complaint shall have
thirty days after the receipt thereof within which to take appro-
priate action. If such action is not taken within the time pre-
scribed, the complaining party may institute the judicial pro-
ceedings authorized in paragraph (a). However, failure to com- ,
ply.with this subsection shall not bar an action for a temporary
restraining order to prevent immediate and irreparable harm
from the conduct or activity complained of.
(d) In any action instituted pursuant to paragraph (a), the
court, in the interest of justice, may add as party defendant any
governmental agency or authority charged with the duty of en-
forcing the applicable laws, rules, and regulations for the protec-
tion of the air, water and other natural resources of the state.
68






73-24

Ch. 403 ENVIRONMENTAL CONTROL 403.412
(e) No action pursuant to this section may be maintained if
Sthe person (natural or corporate) or governmental agency or au-
thority charged with pollution, impairment, or destruction of the
air, water, or other natural resources of the state is acting or
conducting operations pursuant to currently valid permit or cer-
tificate covering such operations, issued by the appropriate gov-
ernmental authorities or agencies, and is complying with the re-
quirements of said permits or certificates.
(f) In any action instituted pursuant to this section, the pre-
vailing party or parties shall be entitled to costs and attorney
fees. If the court has reasonable ground to doubt the solvency
of the plaintiff or the plaintiff's ability to pay any cost or judg-
ment which might be rendered against him in an action brought
under this section, the court may order the plaintiff to post a
good and sufficient surety bond or cash.
(3) The court may grant injunctive relief and impose condi-
tions on the defendant which are consistent with and in accord-
ance with law and any rules or regulations adopted by any state
or local governmental agency which is charged to protect the air,
water, and other natural resources of the state from pollution,
impairment, or destruction.
(4) The doctrines of res judicata and collateral estoppel shall
apply. The court shall make such orders as necessary to avoid
multiplicity of actions.
(5) In any administrative, licensing, or other proceedings au-
thorized by law for the protection of the air, water, or other nat-
ural resources of the state from pollution, impairment, or de-
struction, the department of legal affairs, a political subdivision
or municipality of the state, or a citizen of the state shall have
standing to intervene as a party on the filing of a verified plead-
ing asserting that the activity, conduct, or product to be licensed
or permitted has or will have the effect of impairing, polluting,
or otherwise injuring the air, water, or other natural resources
of the state.
(6) Venue of any causes brought under this law shall lie in
the county or counties wherein the cause of action is alleged to
have occurred.

Historical Note
Derivation:
Laws 1971, c. 71-343, 1 to 6.

69



s -" 1Li




r


73-


MORRIS v. WILLIAMS
Cite as, Pla., 199 So.2d 747


Ren MORRIS, as Director of the State Bev-
erage Department, Irene B. Klpatrick, as
Tax Collector for Hernando County, Flor-
ida, and C. Hale Daniel and Audrey M.
Daniel, husband and wife, d/b/a Hale's
Sundries, Appellants,
v.

Earlene V. WILLIAMS, formerly Earlene G.
Varn, and Fred T. Williams, husband and
wife, d/b/a Snooks Hilltop Restaurant and
Lounge, Appellees.

I No. 67-24.


District Court of Appeal of Florida.


Second District.

June 9, 1967.


Amended complaint in nature of peti-
tion for declaratory decree and judgment
that statute under which liquor license was
4 issued was unconstitutional so that license
was void and sale of liquors thereunder il-
legal. The Circuit Court, Hernando Coun-
ty, W. Troy Hall, Jr., J., denied motions to
dismiss, and certain defendants appealed.
The District Court of Appeal, Overstreet,
Murray W., Associate Justice, held that
statute providing right for one to seek in
county of his residence declaratory judg-
ment as to validity, meaning or application
of any rule of state agency did not give
plaintiffs right to bring suit in county in
which they resided since action did not in-
volve rule of a state agency but the inter-
pretation and construction of a statute af-
fecting statutory duty of Director of State
Beverage Department whose official resi-
dence was in another county. The Court
further held that plaintiffs who alleged they
were citizens and residents of certain coun-
ty and patrons or parents of a child or chil-
dren enrolled in or regularly attending pub-
lic school did not show an invasion of their
constitutional or personal rights or an at-
tempt to seize their property so that court in
county in which they resided had no juris-
diction over defendant Director of State


Beverage Department whose official resi-
dence was in another county.
Order reversed and cause remanded
with directions.


I. Venue ~= 1
Statute providing right for one to seek
in county of his residence declaratory judg-
ment as to validity, meaning or application
of any rule of state agency did not give
plaintiffs right to bring suit in county in
which they resided alleging that statute
under which liquor license was issued was
unconstitutional so that license was void
and sales under such license illegal since
action did not involve rule of a state agency
but the interpretation and construction of a
statute affecting statutory duty of Director
of State Beverage Department whose of-
ficial residence was in another county.
F.S.A. 120.30(1).

2. Venue =l I
Plaintiffs who alleged they were
citizens and residents of certain county
and patrons or parents of a child or children
enrolled in or regularly attending public
school did not show an invasion of their
constitutional or personal rights or an
attempt to seize their property so that court
in county in which they resided had no
jurisdiction over defendant Director of
State Beverage Department whose official
residence was in another county. F.S.A.
561.20; Laws 1965, c. 65-1125; F.S.A.
Const. art. 3, 21.


----


E. S. MacKenzie, Richard E. McGee, Sr.,
Brooksville, and Thomas F. Woods,
Tallahassee, for appellants.
Frank McClung, Brooksville, for appel-
lees.

OVERSTREET, MURRAY W., As-
sociate Judge.
In the lower Court, Appellants were de-
fendants and Appellees were Plaintiffs.


Fla. 747












&1


'I


P


748 Fla. 199 SOUTHERN RE

The Plaintiffs filed an amended Complaint
in the nature of a petition for declaratory
decree and judgment, and alleged that they
were citizens and residents of Brooksville,
Hernando County, Florida, and patrons, or
parents, of a child, or children enrolled in
or regularly attending a public school in
Brooksville. The Complaint shows that Ren
Morris, as Beverage Director of the State
of Florida, and the County Commissioners
of Hernando County, Florida, granted a
license to sell intoxicating liquors in Her-
nando County to defendants C. Hale Daniel
and Audrey M. Daniel, husband and wife,
d/b/a Hale's Sundries under Section 561.20
F.S.A., and Chapter 65-1125, Laws of
Florida, which was a population act that
applied to Hernando County.

Plaintiffs averred that Chapter 65-1125
was unconstitutional and void because it
was in violation of Article III, Section 21
of the Constitution of Florida, F.S.A., that
the liquor license issued to the Daniels was
therefore void, and that the sale of liquors
by the Daniels under said license was con-
sequently illegal. By their prayer, the plain-
tiffs asked the Court to determine and
adjudicate the constitutionality or uncon-
stitutionality of Chapter 65-1125, and
whether the Daniels were illegally selling
intoxicating liquors and if so, that the
Daniels be enjoined from further sale of
same.

Motions to dismiss the amended complaint
were filed by all defendants. In their
motions, defendants Morris, as Beverage
Director, and Oldham, as State Attorney,
set forth the ground of improper venue,
claiming that the Beverage Director has a
right to be sued in Leon County where he
resides. The grounds of the motions of the
other defendants are not material here and
will not be discussed. The lower Court
denied the motions to dismiss anditjs from
said Order that certain of the defendants
have taken this appeal.
In his findings the trial Court Judge
stated that in their amended complaint the
plaintiffs had alleged that the statute was


ORTER, 2d SERIES

a direct infringementi-o m eir personal
rights, and that under the provisions of
Section 120.30(1) F.S.A. they had a right
to maintain their suit in Hernando County,
the County in which they resided.

[1] We cannot agree. Section 120.30
(1) provides the right to seek declaratory
judgment as to the validity, meaning or
application of any rule of a state agency.
Here we are not dealing with a rule of a
State agency but with the interpretation
and construction of a statute which will
affect a statutory duty and act of the
Director of the State Beverage Department,
whose official residence is in Leon. County.

The law on this point is stated in 34
Florida Jurisprudence in Section 29 on
Venue as follows:

"Where the purpose of a proceeding is to
challenge a state officer in the exercise
of his statutory duties to be performed
by him at his official residence, the Court
of a County other than the one in which
his office is located is without juris-
diction in the matter, and where there is
no attempt to seize the complainant's
property and no constitutional impedi- '
ment is raised, an administrative officer
of the state may invoke the right to be
sued in the County of his residence."

This statement is supported by State ex
rel. Ayala v. Knott, 148 Fla. 43, 3 So.2d 522;
McCarty v. Lichtenberg, Fla., 67 So2d 655;
Gaulden v. Gay, Fla., 47 So.2d 580; Dowdy
v. Lawton, Fla., 72 So.2d 50, and other cases.
4.
[2] Moreover, we have examined Ihc
amended complaint carefully and we do not
find any allegation or showing of a direct
infringement of the constitutional rights of
plaintiffs. Consequently, plaintiffs have
not brought themselves within the excep-
tion to the general rule on venue as it
pertains to state agencies and officers such
as where there has been or is threatened an
invasion of plaintiffs' constitutional or
personal rights or an attempt to seize plain-
tiffs' property.















FURCHGOTT'S, INC. v. JACOBS
Cite as, Fla., 199 So.2d 749


Accordingly, the order of the lower court
is reversed, and the cause is remanded to
the lower court with directions to vacate
said order and to enter an order transferring
the cause to the Circuit Court of Leon
County, Florida.


LILES,
concur.


Acting C. J., and PIERCE, J.,


o !m unmm


FURCHGOTT'S, INC., a corporation,
Appellant,


Robert H. JACOBS, Appellee.
No. 1-218.

District Court of Appeal of Florida.
First District.
June 8, 1967.


Action for declaratory decree constru-
ing rights under shopping center lease.
The Circuit Court, Duval County, W. A.
Stanly, J., entered decree adverse to les-
see, and lessee appealed. The District
Court of Appeal held that under shopping
center lease for operation of department
store, landlord was permitted to cancel
another lease with a different tenant in
shopping center and re-lease such tenant's
space to a new tenant for operation of an-
other department store which would com-
pete with lessee's operation of a similar
facility.


Affirmed.


- I. Landlord and Tenant =24(1)
S A restrictive covenant as to property
retained by a lessor must be evidenced
by a clearly and positively expressed inten-
tion.


2. Landlord and Tenant e=44(I)
Under shopping center lease for op-
eration of department store, landlord was
permitted to cancel another lease with a
different tenant in shopping center and
re-lease such tenant's space to a new ten-
ant for operation of another department
store which would compete with lessee's
operation of a similar facility.

------0

C. D. Towers, Sr., and Guy Marvin, of
Rogers, Towers, Bailey, Jones & Gay, Jack-
sonville, for appellant.

Mathews, Osborne & Ehrlich, Jackson-
ville, for appellee.


PER CURIAM.

Appellant seeks review of an adverse
declaratory decree construing its rights un-
der a shopping center lease. The specific
question involved is whether the lease pro-
visions permit the landlord to cancel another
lease with a different tenant in the shop-
ping center and re-lease the latter ten-
ant's space to a new tenant for the oper-
ation of another department store which
will compete with appellant's operation of
a similar facility.

In ruling that the landlord was not pro-
hibited by the terms of its lease with ap-
pellant from doing so, the chancellor re-
jected appellant's contention that the lease
provisions gave it an exclusive on the
operation of a department store in the cen-
ter.

[1,2] We approve the chancellor's
statement of the controlling law of this case
found in his well reasoned opinion which
states:
"The law of Florida is well settled that
a restrictive covenant as to property re-
tained by a lessor must be evidenced by
a clearly and positively expressed inten-
tion. Norwood Shopping Center, Inc. v.
M. K. R. Corporation (3 D.C.A.1961)
135 So2d 448; Parkleigh House, Inc. v.


Fe


Fa. 749


-.. I


A




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