Lewis v. Florida State Board of Health

143 So. 2d 867
CourtDistrict Court of Appeal of Florida
DecidedJune 21, 1962
DocketD-56
StatusPublished
Cited by41 cases

This text of 143 So. 2d 867 (Lewis v. Florida State Board of Health) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Florida State Board of Health, 143 So. 2d 867 (Fla. Ct. App. 1962).

Opinion

143 So.2d 867 (1962)

Richard L. LEWIS, Individually and As President of the Florida Pest Control Association, a Florida Corporation, Appellant,
v.
FLORIDA STATE BOARD OF HEALTH, a Body Politic and Agency Existing under the Laws of the State of Florida, Appellee.

No. D-56.

District Court of Appeal of Florida. First District.

June 21, 1962.
Rehearing Denied September 18, 1962.

*868 Herbert D. Sikes and James H. Dixon, Jr., Jacksonville, for appellant.

Carlton Maddox and Bjarne B. Anderson, Jr., Jacksonville, for appellee.

RAWLS, Judge.

On June 19, 1960, the State Board of Health adopted regulations governing commercial spraying of lawns and ornamental shrubbery in residential areas with highly toxic pesticides. Plaintiff in the instant cause filed a second amended complaint praying for an injunction on the grounds that said regulations are invalid and unconstitutional as an unlawful attempt to regulate under the police power of the state, and on the further ground that said regulations are invalid as being vague, indefinite, unreasonable, arbitrary, capricious, and in violation of the due process clause of the federal and state constitutions.

From a decree entered by the Chancellor dismissing the complaint and finding that said regulations were lawfully promulgated *869 within the powers delegated to the State Board of Health and that same are not unreasonable and arbitrary, plaintiff has entered this appeal.

The first requirement is to examine the authority that has been asserted by the State Board of Health as a basis for enacting the rules and regulations being considered. Seemingly, the State Board of Health and the Chancellor were greatly impressed by the constitutional provision providing for the State Board of Health, viz.:[1]

"That the State Board of Health shall have supervision of all matters relating to public health, as may be prescribed by law." [Emphasis supplied.]

It is elementary that a constitutional provision may be self-executing which requires no legislative action to put its terms into operation, or it may not be self-executing in which case legislative action is required to make it operative.[2] The phrase "provided by law" means a legislative enactment upon the specific subject matter — not a self-endowed rule legislated by the enforcement agency. However, assuming that such constitutional provision provides some basis for supporting the State Board of Health's arrogation of legislative powers, such assumption should be examined in light of the Supreme Court's enunciation in Barrow v. Holland.[3] That case dealt with the Game and Fresh Water Fish Commission's attempt to reach out and regulate traveling shows, zoos, or wild life exhibits. Bear in mind that this is the most powerful administrative agency in the State of Florida possessing constitutional authority[4] to enact its own laws (which power is glaringly absent in the above provision pertaining to the State Board of Health) and for enforcement of same. In holding that the regulation of such exhibits through rules promulgated by the Game and Fresh Water Fish Commission was beyond its power, Mr. Justice Thornal stated on page 752:

"An agency of government having the power to regulate is not permitted to arrogate to itself or to delegate to its employees the arbitrary power to determine private rights with an unbridled discretion. North Bay Village v. Blackwell, Fla. 1956, 88 So.2d 524; Mayer v. Dade County, Fla. 1955, 82 So.2d 513; Drexel et al. v. City of Miami Beach, Fla. 1953, 64 So.2d 317; Robbins v. Webb's Cut Rate Drug Co., 1944, 153 Fla. 822, 16 So.2d 121; Florida Power Corp. v. Pinellas Utility Board, Fla. 1949, 40 So.2d 350."

It is elementary that the constitutional provision mentioning the State Board of Health is not self-executing, and does not bestow upon the State Board of Health any powers until and unless the Legislature of Florida decides that this field is one needing regulation. This premise is especially true in following the established rule of constitutional construction that all of the provisions of the constitution bearing upon a particular subject matter must be construed in pari materia, and in such construction reference is made to Article III, Section 1, of the Constitution of Florida which provides: "The Legislative authority of this State shall be vested in a Senate and a House of Representatives, which shall be designated. The Legislature of the State of Florida * * *."

We now analyze the Board's assertion and the Chancellor's finding that the legislature has spoken upon this subject matter in Section 381.031, Florida Statutes, F.S.A. *870 This section provides for the duties and powers of the Board beginning with subsection (g) as follows:

"(1) It shall be the duty of the board to: * * *
"(g) Adopt, promulgate, repeal and amend rules and regulations consistent with law regulating;
"1. Control of communicable diseases;
"2. Prevention and control of * * nuisances;
"3. Sanitary practices * * *
"4. Control of arthropods * * *
"5. Prescribe qualifications of operators of milk plants * * *
"6. Segregation, quarantine * * of all animals * * *
"7. The pollution of the air * * *
"8. Nursing Homes;
"9. Practice of midwifery;
"10. Bedding inspection;
"11. Disposal of dead bodies;
"12. Execution of any other purpose or intent of the laws enacted for the protection of the public health of Florida." [Emphasis supplied.]

A reading of the foregoing excerpts of the statute relied upon as authority for the action of the State Board of Health readily reveals eleven specific enumerated subject matters dealing with the health of this state, the regulation of which is vested in the Board. It is the twelfth item upon which the Board and the Chancellor rely upon as a legislative grant of authority for the Board to regulate this new field of operation. To give such a broad meaning to this subsection could open the door for the State Board of Health to enact rules and regulations on every aspect of the life and property of private citizens under the guise "for the protection of the public health of Florida." Our sentiments are those stated in State v. Stein[5] wherein Chief Justice Waite of the Supreme Court of the United States is quoted:

"This power of regulation is a power of government continuing in its nature, and that if it can be bartered away at all, it can only be by words of positive grant, or something which is in law equivalent."

Next it is necessary to examine the regulations which encompass some nine pages of single spaced printed matter. It would be easier to comprehend the extent of this legislative enactment by the Florida State Board of Health if the regulations were set out in full. However, for the sake of brevity, an analysis of the regulations is set out.

The title of the document is: "Regulations Governing Commercial Spraying of Lawns and Ornamental Shrubbery in Residential Areas with Highly Toxic Pesticides."

093.1 Short Title

093.2 Authority and Purpose — These regulations are promulgated by the Board under the authority of 381.031(1) (g) (12), Florida Statutes.

093.3 Definitions

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Bluebook (online)
143 So. 2d 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-florida-state-board-of-health-fladistctapp-1962.