Hoffkins v. City of Miami, 75--722

• Decision Date: 01 December 1976
• Docket Number: No. 75--722,75--722
• Parties: Lawrence HOFFKINS, Appellant, v. The CITY OF MIAMI, a Municipal Corporation, et al., Appellee.
• Court: Florida District Court of Appeals

Page 1145

339 So.2d 1145

Lawrence HOFFKINS, Appellant, v. The CITY OF MIAMI, a Municipal Corporation, et al., Appellee.

No. 75--722.

District Court of Appeal of Florida, Third District.

Dec. 1, 1976.

Rehearing Denied Dec. 21, 1976.

Nachwalter, Christie & Falk and Steven P. Kronenberg, Miami, for appellant.

George F. Knox, Jr., City Atty., and Margaret A. Benton, Asst. City Atty., for appellee.

Before PEARSON, HENDRY and HAVERFIELD, JJ.

PEARSON, Judge.

Lawrence Hoffkins is a retired police officer of the City of Miami. He is receiving a disability pension under the City of Miami retirement system. He is also receiving $66.00 per week workmen's compensation benefits. Both payments arise out of an injury incurred in the course of Officer Hoffkins's employment as a police officer. The City of Miami under the claimed authority of City of Miami Ordinance 41-- 406(15) has deducted the amount of $66.00 workmen's compensation benefit from the pension check. Hoffkins claims that the deduction is illegal and that he is entitled to his pension payment in full. In order to secure a judicial determination of his rights, he brought an action against the City of Miami for a declaratory judgment. In his complaint, Hoffkins asserted the invalidity of the City of Miami ordinance which authorized the deduction. ¹ The trial court dismissed the complaint and this appeal is from that judgment.

Ordinarily, a complaint for a declaratory judgment which states a genuine doubt as to the rights of the plaintiff will not be dismissed without a declaration of plaintiff's rights. Cf. Safer v. City of Jacksonville, 212 So.2d 785 (Fla.1st DCA 1968). In the present case, the court did, in fact, enter such a declaratory judgment because its order and opinion held the ordinance to be valid and to authorize the deduction. ² Appellant's brief does not challenge the judgment appealed on any grounds other than the claimed invalidity of the ordinance. The points presented are: (1) The ordinance is violative of the Florida Workmen's Compensation Act, and of the prevailing law and public policy. (2) The ordinance violates the due process clauses of the United States and Florida Constitutions.

Under his first point, plaintiff argues that the ordinance in effect forces a police officer who is on pension and is a workmen's compensation claimant involuntarily to waive his rights to the workmen's compensation law in contravention of Section 440.21(2), Florida Statutes, which provides: '(2) No agreement by an employee to waive his right to compensation under this chapter shall be valid.' The trial court reasoned that if the former state statute (Section 440.09(4) Laws of Florida 1953, repealed effective July 1, 1973) was valid before repeal (see City of Miami v. Graham, 138 So.2d 751 (Fla.1962), then a City ordinance providing for the same deduction was also valid. We think that the court's reasoning is correct. This especially true in the present instance where, under the Municipal Home Rule Powers Act, Chapter 73--129, Laws of Florida 1973 (Chapter 166, Florida Statutes), municipalities are granted all powers exercisable by the state with the exception of areas expressly forbidden or preempted by the constitution, general law, county charter or certain special laws of the state.

The City of Miami offset does not go beyond its own contributions to the pension fund, and the offset is equivalent to the amount of the workmen's compensation benefit which is totally financed by the City of Miami.

Appellant's second point does not present error because appellant is not treated different from other workmen's compensation claimants. He receives the compensation payment but the payment is offset under the...