#### BROWARD COUNTY HEALTH DEPARTMENT, Appellant, v. Kathleen MARTIN and John Martin, her husband, Appellees.

No. 73-860.

District Court of Appeal of Florida, Fourth District.

Jan. 10, 1975.

Rehearing Denied Feb. 20, 1975.

John U. Lloyd, County Atty., and Betty Lynn Lee, Asst. County Atty., Fort Lau-derdale, for appellant.

Gerald M. Walsh and David L. Kahn, Fort Lauderdale, for appellees.

DOWNEY, Judge.

Appellees sued the Broward County Health Department and several individuals *221for malpractice arising out of the prescription of certain medication.

By motion the defendants contended that the State of Florida, Department of Health and Rehabilitative Services, Division of Health, was a necessary party and that service of process upon the chairman of the Board of County Commissioners of Broward County was insufficient to obtain jurisdiction over the Broward County Health Department. The denial of said motions presents the appellate question.

We find no authority, statutory or otherwise, mandating the joinder of the State of Florida, Department of Health and Rehabilitative Services, Division of Health. Thus, we affirm on that point.

Service of process upon the Bro-ward County Health Department is controlled by § 48.111(2), F.S., which provides for service of process upon the chief executive officer of the department. In the scheme of things provided for a county health department by Chapter 154, F.S. 1971, the director is the chief executive officer and the appropriate person upon whom process should be served to bind the county health department. See § 154.04, F.S.1971. Service of process upon the chairman of the board of county commissioners would be proper if Broward County was a defendant, but it is not.

Accordingly, the order denying the motion to dismiss for failure to join an indispensable party is affirmed, and the order denying the motion to dismiss for insufficiency of service of process is reversed.

WALDEN, J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge

(dissenting in part, concurring in part) :

I concur with my brethren that the Division of Health, State of Florida, Department of Health and Rehabilitative Services is not an indispensable party to a cause of action against the Broward County Health Department.

I must respectfully dissent to any determination that there was an insufficiency of service of process on the Broward County Health Department by serving the Chairman of the Board of County Commissioners of Broward County.

The Board of County Commissioners of Broward County is the governing commission of the Broward County Health Department. The commissioners employ the personnel of the Broward County Health Department, § 154.04, F.S.A., establish the fee schedule. Section 154.06, F.S.A., control the funding and provide the facilities, prosecute and defend legal causes of action, § 125.01, F.S.A.

The controlling statute for service on public agencies and officers is § 48.111, F.S.A.

Section 48.111(1) (a), F.S.A., reads as follows:

> “(1) *Process against any*municipal corporation, agency, board or commission, *department*or subdivision *of*the state or *any county which has a governing*board, council or *commission*or which is a body corporate *shall he served:*

> “(a) *On the*president, mayor, *chairman*or other head thereof; and in his absence; .

Section 48.111(2), F.S.A. provides:

> “(2) *Process against any*public agency, board, commission or *department not*a body corporate or *having a governing*board or *commission shall be served on*the public officer being sued or *the chief executive officer of the*agency, board, commission or *department.”*

It is obvious that § 48.111(1) (a) provides a proper manner of effectuating service upon a department of any county which *has*a governing commission by serving the chairman.

*222Section 48.111(2) would be applicable only if the Broward County Health Department did not have a governing commission; thus, the majority reliance on § 48.111(2) is misplaced.

It is my view that service of process upon the chairman of the Board of County Commissioners of Broward County was proper and effective to make the Broward County Health Department a party defendant.