Department of Business Regulation v. Vandervoort

273 So. 2d 66 (1972)

DEPARTMENT OF BUSINESS REGULATION et al., Appellants, v. Henry Carl VANDERVOORT, Jr., Individually and As President of the Florida Division of the Horseman's Benevolent & Protective Association, a Non-Profit Corporation, and All Other Licensed Thoroughbred Owners Similarly Situated, Appellees.

No. 40275.

Supreme Court of Florida.

December 20, 1972.

Rehearing Denied March 7, 1973.

*67 Robert L. Shevin, Atty. Gen. and Bruce L. Scheiner, Asst. Atty. Gen., and Herbert M. Klein, Gen. Counsel, Dept. of Business Regulation, Miami, for appellants.

Dan Chappell and Richard M. Gale, Miami, for appellees.

PER CURIAM.

The Department of Business Regulation has appealed from a decision of the Dade County Circuit Court that Rule 305 A-1.23 (17) promulgated by the Division of Pari-Mutuel Wagering is unconstitutional. We have jurisdiction because of the Court's construction of controlling provisions of the Constitutions of Florida and the United States. Article V, § 4(2), Florida Constitution, F.S.A.

Rule 305 A-1.23(17) of the Rules of the Division of Pari-Mutuel Wagering set forth a minimum jockey fee schedule for payment of jockeys in absence of contract. In a declaratory judgment proceeding initiated by Vandervoort and other licensed thoroughbred horse owners, the Division defended the Rule on the two-fold theory that: (1) the State's inherent police power appropriately embraced the profession of jockeying; (2) the Division was authorized to exercise that power in the manner under contest by Fla. Stat. §§ 550.01(1) and 550.02(4), F.S.A.

We agree with the trial court and the plaintiff horseowners below that the Legislature has not specifically authorized the setting of fees, and this is too broad a power to be derived from the general statutes cited. The Due Process Clauses of Article I, Section 9 of the Florida Constitution, F.S.A. and the 14th Amendment of the United States Constitution preclude the prescribing of minimum wages without specific legislative authorization.

On this ground, the decision under appeal is affirmed.

It is so ordered.

ROBERTS, C.J., and CARLTON, ADKINS and McCAIN, JJ., and SPECTOR, District Court Judge, concur.

ERVIN and DEKLE, JJ., dissent.