
    Shirlee Ann NICHOLS, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION, Florida Department of Commerce, Division of Employment Security and American Greetings, Respondents. STATE of Florida DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Petitioner, v. Angel PORRATA and Industrial Relations Commission, Respondents. STATE of Florida DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Petitioner, v. Jose HUERTAS and Industrial Relations Commission, Respondents.
    Nos. DD-289, GG-297 and GG-365.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.
    Rehearing Denied Dec. 20, 1978.
    
      Brian S. Duffy of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, John D. Rawls of Foerster & Hodge, Jacksonville, for petitioner in No. DD-289.
    Alex D. Littlefield and Kenneth H. Hart, Jr., Tallahassee, for respondents in No. DD-289.
    Kenneth H. Hart, Jr., and Alex D. Little-field, Tallahassee, for petitioner in Nos. GG-297 and GG-365.
    Joel V. Lumer of Heimberg & Lumer, Coral Gables, for respondents in Nos. GG-297 and GG-365.
   MILLS, Judge.

Does Section 443.16(2), Florida Statutes (1977), authorize the Industrial Relations Commission to order the payment of fees to attorneys representing unemployment compensation claimants before the Commission from the employment security administration fund?

In the Nichols case, the Commission concluded it did not have authority. In the Porrata and Huertas cases, the Commission reached the opposite conclusion, holding it had authority. We have consolidated the three cases for our review because the same issue is raised in each case.

Section 443.16(2) provides:

(2) FEES.—
(a) No individual claiming benefits shall be charged fees of any kind in any proceeding under this chapter by the commission or division or their representatives, or by any court or any officer thereof, except as hereinafter provided. Any individual claiming benefits in any proceeding before the commission or division, or representatives of either, or a court may be represented by counsel or duly authorized agent, but no such counsel or agent shall either charge or receive for such services more than an amount approved by the commission or division or by the court.
(b) An attorney at law representing a claimant for benefits in any district court of appeal of this state or in the supreme court of Florida shall be entitled to counsel fees payable by the [division] as fixed by the court in either of the following cases:
1. Where petition for review or appeal is initiated by any party to such proceeding other than the claimant, or
2. Where such petition for review or appeal is initiated by the claimant and results in a decision awarding more benefits than did the decision under review or from which appeal was taken.
(c) Attorneys’ fees awarded under this section shall be paid by the division out of employment security administration funds as a part of the costs of administration of this chapter and may be paid directly to the attorney for the claimant in a lump sum.
(d) Any person, firm or corporation who or which seeks or receives any remuneration or gratuity for any services rendered on behalf of a claimant, except as allowed by this section and in an amount approved by the commission or by a court, shall be guilty of a misdemeanor. Any person, firm or corporation who or which shall solicit the business of appearing on behalf of a claimant, or shall make it a business to solicit employment for another in connection with any claim for benefits under this chapter, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.-082 or s. 775.083.

Paragraph (a) of Section 443.16(2) limits the fee an attorney may charge or receive for representing a claimant before the Commission or a court to an amount approved by the Commission or the court.

Paragraph (b) authorizes a district court of appeal or the Supreme Court to fix a fee for counsel representing a claimant before it and to require the Division of Employment Security to pay the fee. Subpara-graphs 1 and 2 limit this authority to cases where review or appeal is initiated by a party other than the claimant or to cases where review or appeal is initiated by the claimant and results in a decision awarding more benefits than the decision reviewed or appealed.

Paragraph (c) directs that attorneys’ fees awarded under this section shall be paid by the division out of employment security administration funds as a part of the costs of administration of this chapter.

Paragraph (b) is the only provision in Section 443.16(2) that provides for an award of attorneys’ fees and provides that the fees shall be paid by the division. This is limited to only two types of cases. Paragraph (a) is restricted to fees charged a claimant by an attorney. It makes no reference to an award of attorneys’ fees. Thus, paragraph (c) which directs that attorneys’ fees awarded under this Section be paid out of the employment security administration fund can only refer to or be applicable to paragraph (b). Therefore, Section 443.16(2) does not authorize the Commission to award attorneys’ fees to attorneys representing unemployment compensation claimants before it to be paid out of employment security administration funds.

Claimants argue that paragraph (c) is ambiguous and unclear, and that we should resolve the ambiguity and lack of clarity in favor of claimants. We do not agree that the provisions of paragraph (c) are ambiguous and unclear. When all of the provisions of Section 443.16(2) are read together, they are unambiguous and clear. If the legislature had intended to provide for the award of fees to attorneys representing claimants before the Commission and to provide for their payment out of the employment security administration fund, it would have used terms like it used in paragraph (b). It would have referred to the award of attorneys’ fees in paragraph (a) rather than to the charges of attorneys, and it would have required the division to pay the fees rather than merely requiring the approval of the charges by the Commission. It would have limited the award of fees to those types of cases set forth in subparagraph (1) and (2) of paragraph (b).

To construe Section 443.16(2) as claimants would have us do would soon bankrupt the employment security administration fund because every attorney representing a claimant before the Commission would be entitled to a fee to be paid from the fund, win, lose or draw. We cannot conceive that the legislature intended this result.

We concede that the purpose of the unemployment compensation act is to lighten the burden which falls upon the unemployed worker and his family. We agree that the legislature has recognized that the unemployment compensation claimant has the need of assistance of attorneys. We acknowledge that many attorneys will be unwilling to accept employment in such cases unless there is a reasonable possibility they will receive a reasonable fee. Nevertheless, we have no authority to legislate. That is the sole authority of the legislature and we should not encroach upon it. This is a matter for the legislature’s consideration.

We deny certiorari in the Nichols case. We grant certiorari in the Porrata and Huertas cases and remand them to the Commission for the entry of orders denying the awards of attorneys’ fees to claimants’ attorneys. We deny attorneys’ fees to all attorneys representing claimants in these three cases before us.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

It is important to note the exact issue, as phrased in the majority opinion: Does F.S. 443.16(2) authorize the Industrial Relations Commission to order the payment of fees to attorneys representing unemployment compensation claimants before the Commission from the Employment Security Administration Fund? The issue is not whether such fees are “required” but only whether authorized. Accordingly, the arguments set forth by the majority that such construction “would soon bankrupt the Employment Security Administration Fund because every attorney representing a claimant before the Commission would be entitled[] to a fee to be paid from the fund, win, lose or draw” is, in my view, without merit.

Paragraph (a) limits the fee an attorney may charge or receive for representing a claimant before the Commission or a court to an amount approved by the Commission or the court.

Paragraph (b) authorizes a district court of appeal or the Supreme Court to fix an attorney’s fee for the representation of a claimant before it and to require the Division of Employment Security to pay the fee. Subparagraphs 1 and 2 limit such authority to cases where review or appeal is initiated by a party other than the claimant or to cases where review or appeal is initiated by the claimant and results in a decision awarding more benefits than did the decision reviewed or appealed.

Paragraph (c) directs that attorneys’ fees awarded be paid by the division out of Employment Security Administration funds as a part of the costs of administration.

Paragraphs (a) and (d), it will be noted, use the word “approved”. Paragraph (b) uses the word “fixed” and paragraph (c) “awarded”.

The division takes the position that paragraph (a) is restricted to fees charged by a claimant by an attorney and has no relation to the “award” of a fee; that paragraph (b) is the only provision providing for the fixing of a fee and that it is effective only as to cases (1) where the petition for review or appeal is initiated by a party other than the claimant or (2) where initiated by the claimant and results in a decision awarding more benefits than did the decision reviewed or appealed, reasoning that paragraph (c) which directs that attorney’s fees “awarded under this section” be paid out of the Employment Security Administration fund, refers only to paragraph (b). It therefore concludes that F.S. 443.16(2) does not authorize the commission to award attorney’s fees to attorneys representing unemployment claimants before it to be paid out of Employment Security Administration funds.

The claimants urge that paragraph (c) is ambiguous and unclear, and that we should resolve the ambiguity and lack of clarity in their favor.

They further argue that the purpose of the Unemployment Compensation Act is to lighten the burden which falls upon the unemployed worker and his family; that the legislature has recognized that the unemployment compensation claimant has the need of assistance of attorneys, and that many attorneys will be unwilling to accept employment in such cases unless there is a reasonable possibility that they will receive a reasonable fee.

Certainly I agree that this court is without authority to legislate. However, where confusion exists it is not only our prerogative but our duty to construe acts passed by our legislature, our responsibility being to attempt to determine the legislative intent.

The use of the word “section” in F.S. 443.16(2)(c) refers to the entire statute. (See Escambia Mid-County Development Corp. v. State Dept. of Commerce, etc., 356 So.2d 855 (Fla. 1st DCA 1978)) The crucial word is, of course, “awarded”. In common parlance, when referring to attorney’s fees, the words “award”, “fix”, “allow”, “set” and “approve”, are used interchangeably. It is not unusual for a lawyer or a judge to refer to “awarding” attorney’s fees in domestic relations cases, probate cases, eminent domain cases, mortgage foreclosure cases,, actions on promissory notes, etc. when technically he or she means “allowing” or “approving”.

F.S. 443.16(2)(a) does not prohibit an agreement between a claimant and an attorney as to attorney’s fees but it does prohibit any agreement for any fee in excess of an amount approved by the commission, division or court. Under such circumstances we know that the customary contract between the claimant and the attorney will be that the attorney will agree to accept such sum as is “set” by the appropriate body. The “setting” of a fee is tantamount to “awarding” a fee. The legislature, when it used “approved” in paragraph (a) and when it used “awarded” in paragraph (c) intended, I believe, the latter to include the former.

It is not urged by the claimants, nor would I contend, that a fee of such magnitude as to “bankrupt the Employment Security Administration Fund” would be authorized, awarded, fixed, allowed, set, or approved in every case. I would anticipate, on the contrary, that such fees would be restricted by those principles applicable to other types of litigation in which courts become involved with attorney’s fees.

As conceded by the majority, the very purpose of the Unemployment Compensation Act is to lighten the burden which falls upon the unemployed worker and his family. The construction placed by the majority upon the statute is not, in my view, in keeping with that purpose.

I would grant certiorari in the Porrata and Huertas cases and deny in the Nichols case. I would also grant the claimants timely filed motion for attorney’s fees incident to review in this court pursuant to F.S. 443.16(2). 
      
      . Emphasis added.
     
      
      . Complexity of issues, success, amount in controversy, etc.
     