author: SMITH, Judge.

text:
    Harry L. COE, Jr., etc., Appellant. v. ITT COMMUNITY DEVELOPMENT CORP., etc., et al., Appellees. John SEAY, as Property Appraiser for Flagler County, et al., Appellants, v. ITT COMMUNITY DEVELOPMENT CORP., etc., et al., Appellees.
    Nos. FF-398, FF-449.
    District Court of Appeal of Florida, First District.
    July 29, 1977.
    Rehearing Denied Sept. 29, 1977.

      Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., Tallahassee, for appellant in Case No. FF-398.
    Kate L. Walton and William L. Townsend, Jr., of Walton & Townsend, Palatka, for appellants in Case No. FF-449.
    Janet Reno of Steel, Hector & Davis, Miami, for appellees.
   SMITH, Judge.

On February 2, 1977 appellee ITT Community Development Corporation filed its complaint seeking equitable relief from allegedly illegal ?.d valorem real property tax assessments on Flagler County’s 1976 tax roll. The appellant taxing authorities here complain, by interlocutory appeal, of the circuit court’s denial of their motions to dismiss and for summary judgment on the ground the complaint was not filed within 60 days from the date the assessment was certified for collection.

Section 194.171, Florida Statutes (1975) provides in part:

“(2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection . . ..”

All appellants filed motions to dismiss, in lieu of answers, asserting lack of jurisdiction and the complaint’s failure to state a cause of action. The motion of the Flagler County appellants for summary judgment and accompanying affidavit showed the Flagler County tax roll was certified for collection on December 3, 1976. It appears, therefore, that the complaint was not filed within the 60-day period prescribed by Section 194.171(2).

ITT urges the circuit court properly denied the defensive motions of the taxing authorities because Section 194.171(2) is an affirmative defense which must be pleaded, and to which an appropriate reply may be interposed, and further that the assessment was wholly void, not merely voidable, and so was susceptible to attack notwithstanding ITT’s noncompliance with the 60-day limitation on suits.

Less than a year ago, in a case directly raising the question, this court held that a suit contesting a tax assessment was within the circuit court’s jurisdiction notwithstanding it was begun beyond the 60-day limitation period. Bailey v. Plaza Hotel Corp., 335 So.2d 16, 17 (Pla. 1st DCA 1976), cert. den., 341 So.2d 1079 (Fla.1977):

“We also find that the trial court had subject matter jurisdiction. (See Maccabee Investments, Inc. v. Markham, Fla. App. 4th, 1975, 311 So.2d 718).”

Maccabee squarely held that former Section 194.151, now insubstantially changed in Section 194.171, is a “statute of limitation which must be pled as an affirmative defense and which can be waived; the failure to comply with the statute does not affect the trial court’s jurisdiction over the subject matter.” 311 So.2d at 726 (emphasis in original). See also Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1, 4 (Fla.1972) (dictum). Notwithstanding weighty arguments by the taxing authorities that these decisions disturb the finality of county tax rolls, with detrimental effect on county financial planning, we are not inclined to recede from a decision so recently made. Any resulting conflict with decisions of the Supreme Court and other district courts of appeal may be remedied in the Supreme Court.

The untimeliness of ITT’s complaint was not jurisdictional, did not appear from the allegations of the complaint itself, and was a matter of affirmative defense. The defense, absent a pleading of it, could not be raised by motion for summary judgment and the accompanying affidavit of Flagler’s property appraiser. Meigs v. Lear, 191 So.2d 286 (Fla. 1st DCA 1966).

The trial court was correct, therefore, in denying appellants’ motions to dismiss and for summary judgment. We intimate no view of whether ITT may sufficiently plead an avoidance to the anticipated answer and affirmative defense, but we do hold that question will be dispositive of ITT’s complaint as presently drawn. ITT does not sufficiently allege circumstances which would render the assessment void and for that reason subject to attack beyond the 60-day period for suit prescribed by Section 194.151.

The Supreme Court described the difference between void and voidable tax assessments in Hackney v. McKenny, 113 Fla. 176, 186-87, 151 So. 524, 528 (1933):

“Where tax assessments are unauthorized and void, they may be enjoined at any time. As where national banks and their stock shares are assessed in violation of the Acts of Congress permitting national banks and their stock shares to be taxed upon prescribed conditions . or where a tax levy as made is not authorized by a valid law; or where, though a tax levy be duly authorized by law, the illegality of the tax roll because of affirmative wrongdoing by the taxing officials, and not mere incorrectness or specific instances of unfairness in the assessment as made, is duly shown. .
“But where a tax assessment is voidable and not per se void as where it is made in good faith but is irregular or unfair, the taxpayer must move in due time and must make a full and clear showing of right to appropriate relief.”

Florida courts have held tax assessments void because based in part on improvements which were not subject to assessment, Lake Worth Towers, Inc. v. Gerstung, supra; when the assessment increased the prior year’s assessment without notice, Florida East Coast Ry. Co. v. Reid, 281 So.2d 77 (Fla. 4th DCA 1973); when the assessed personal property was not in the county on January 1, Overstreet v. Ty-Tan, 48 So.2d 158 (Fla.1950) and St. Joe Paper Co. v. Ray, 172 So.2d 646 (Fla. 1st DCA 1965); when the assessment attempted to tax imports contrary to the United States Constitution, Hansen v. Port Everglades Steel Corp., 155 So.2d 387 (Fla. 2d DCA 1963) and Wright v. Reynolds Fasteners, Inc., 184 So.2d 699 (Fla. 3d DCA 1966), modified, 197 So.2d 295 (Fla.1967); and when the assessment included exempt property, Walden v. University of Tampa, Inc., 304 So.2d 134 (Fla.2d DCA 1974), cert. den., 315 So.2d 476 (Fla. 1975).

We do not conceive that ITT’s complaint shows “(1) the assessment is not authorized by law; (2) the property is not subject to taxation, or (3) the tax roll is illegal.” Florida East Coast Ry. Co., supra, 281 So.2d at 79. ITT’s complaint was that the property appraiser failed to apply statutory standards affecting the amount of the assessment, improperly took into consideration “agreements for deed which provide for future development,” improperly failed to classify the lands as agricultural, employed other improper assessment techniques, “treated property which was not developed as though it was developed,” and failed to take into consideration economic conditions and environmental factors which would properly tend to reduce the assessment; that the Department of Revenue and its executive director “failed to follow the statutes, the regulations and procedures of the Department of Revenue in reviewing the assessment” and permitted ITT’s property to be assessed grossly in excess of assessments on similar property in Florida; and that the Board of Tax Adjustment improperly failed to reduce ITT’s assessments. The complaint as drawn does not allege these assorted irregularities extended the assessment to exempt property, constituted a purposefully discriminatory assessment, or omitted any formal and necessary step in the assessment process. Although the alleged irregularities may have resulted in an excessive assessment, the assessment would not thereby be rendered void. Hackney v. McKenny, supra; Lake Worth Towers, supra. To so characterize the assessment because of asserted irregularities of this character would entirely nullify the 60-day limitation period and throw the county tax rolls into virtually interminable jeopardy.

The interlocutory appeal is DISMISSED. Fla.App.R. 4.2c.

McCORD, C. J., and RAWLS, J., concur.

      . See Rudisiil v. City of Tampa, 151 Fla. 284, 9 So.2d 380 (1942); Biake v. R.M.S. Holding Corp., 341 So.2d 795 (Fla.3d DCA 1977); Chatios v. Overstreet, 124 So.2d 1 (Fla. 1960); City of Naples v. Conboy, 182 So.2d 412 (Fla.1965); Henry v. County of Dade, 149 So.2d 89 (Fla.3d DCA 1963), cert. den., 155 So.2d 549 (Fla.1963); Harvey W. Seeds Post No. 29, etc. v. Dade County, 230 So.2d 696 (Fla.3d DCA 1970), cert. den., 238 So.2d 420 (Fla.1970); Chaves Constr. Co. & Subsid. v. Metropolitan Dade County, 256 So.2d 545 (Fla.3d DCA 1972).

      . This conclusory allegation does not bring the case within Lake Worth Towers, supra, in which nonassessable property was assessed.

      . The referenced allegation is not equivalent to an allegation that the agency wholly failed to “determine if the rolls meet all the appropriate requirements . . . relating to form and just value.” Sec. 193.114(5).


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    ABC LIQUORS, INC. and Liquor World, Inc., Appellants, v. SKAGGS-ALBERTSON’S, Appellee.
    No. 76-1383.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1977.
    Rehearing Denied Sept. 22, 1977.

      J. Sam Owens, Jr. of Fishback, Davis, Dominick & Simonet, Orlando, for appellant-ABC Liquors, Inc.
    William L. Eagan of Arnold, Matheny & Eagan, P. A., Orlando, for appellant-Liquor World, Inc.
    James A. Urban and James E. Slater of Maguire, Voorhis & Wells, P. A., Orlando, for appellee.
   DAUKSCH, Judge.

On appeal is a decision of the Circuit Court quashing the decision of the Orange County Board of County Commissioners in a zoning case. We reverse.

ABC owns a liquor store which is located as shown below. Skaggs owns a grocery store and a liquor store. The liquor store is in the same building as the grocery store but has its own entrance and no access to the liquor store is made through the grocery store.

The Orange County Zoning Code provides no liquor store may be licensed to operate within 5000 feet of an established liquor store. Section 15, Article XXV, Zoning Resolution of Orange County. Section 4 of the zoning code provides the method by which the measurement of the 5000 feet is made.

“This distances (sic) provided in this Resolution shall be measured by following the shortest route of ordinary pedestrian travel along the public thoroughfare from the proposed main entrance of a vendor who proposes to operate his place of business and is licensed under Chapter 561, Florida Statutes, to the main entrance of any other vendor who is operating such a business.”

We must decide whose interpretation of Section 4 is correct; the County Commission or the trial court.

Here is a drawing of the location of the properties and the lines drawn by the court and the Commission.

To the immediate north and west of the building on the Skaggs property is a sidewalk and a lined and laned parking lot. Beyond the lot are the public thoroughfares: Kirkman Road and West Colonial Drive.

The zoning code says the distance is measured by the “shortest route of ordinary pedestrian travel along the public thoroughfare.” The trial judge reasoned that the distance must be measured by proceeding from the main entrance of Skaggs’ liquor store to the nearest public thoroughfare and then along the public thoroughfare to the main entrance of ABC. We cannot agree with that interpretation. To require the pedestrian to go first westerly to get east when he can go northerly and easterly to east is making him walk too far. The trial judge applied a literal interpretation of the zoning ordinance while disregarding the logical. The distance from the main entrance of Skaggs to Kirkman is 200 feet while the distance from that entrance to Colonial (as drawn) is over 300 feet. That is what he founded his interpretation of the ordinance upon; he said:

“Uniformity can be achieved by always moving the ‘ordinary pedestrian’ in every case from entrance to entrance by means of the nearest public thoroughfare and not open that interpretation up to a per-ceivers conception of what route an ‘ordinary pedestrian’ would take.”

In applying what we feel to be the better rule we considered State Beverage Department v. Brentwood Assembly of God Church, 149 So.2d 871 (Fla. 1st DCA 1963) which displays a diagram and prohibits the pedestrian from crossing private property and has him travel a public thoroughfare to the main entrance of a church. A careful reading of that opinion may lead one to think a conflict exists when the line called “C-D” is considered with this opinion. A more careful reading reveals no conflict because in each case the pedestrian follows public thoroughfares all the way to the shortest route from the public thoroughfare to the main entrance. We also considered Albrecht v. City of Hollywood, 157 So.2d 839 (Fla. 2d DCA 1963) which is most persuasive of our point of view. Finally, Jax Liquors, Inc. v. City of Jacksonville, 295 So.2d 331 (Fla. 1st DCA 1974) reaches a similar conclusion and speaks of not requiring a walk-a-thon when logic would be the better rule.

Skaggs has raised the question of standing. We find the case of Renard v. Dade County, 261 So.2d 832 (Fla. 1972) to be on point: “. . . persons having a legally recognizable interest, which is adversely affected by the proposed zoning action, have standing to sue.” We can think of no one more interested in the establishment of a liquor store than another liquor store nearby. The effect to the established liquor store is certainly an economic one; to increase competition is to reduce income, usually. Also, ABC would not have a “liquor store row” established in the neighborhood depreciating all properties generally. See also Keating v. State, 173 So.2d 673 (Fla. 1965) where standing is affirmed.

The Order of the trial court reversing (quashing) the decision of the Board of County Commissioners of Orange County is REVERSED.

ALDERMAN and ANSTEAD, JJ., concur.


text:
    David L. REID, Property Appraiser of Palm Beach County, Allen C. Clark, Tax Collector of Palm Beach County, J. Ed Straughn, Executive Director, Florida Department of Revenue, Palm Beach County Board of Tax Adjustment, Appellants, v. Virginia LUCOM, Appellee.
    No. 76-2205.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1977.
    Rehearing Denied Sept. 21, 1977.
    Robert Lee Shapiro of Levy, Plisco, Perry & Shapiro, Palm Beach, for appellant-David L. Reid.
    Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., Tallahassee, for appellant-J. Ed Straughn.
    H. Michael Easley of Cone, Owen, Wagner, Nugent, Johnson & McKeown, and Larry Klein, West Palm Beach, for appellant-Allen C. Clark.
    R. William Rutter, Jr., County Atty., and Charles P. Vitunac, Asst. County Atty., West Palm Beach, for appellant-Palm Beach County Board of Tax Adjustment.
    Andrew I. Friedrich, West Palm Beach, and Paul J. Foley, Washington, D. C., for appellee.
   DAUKSCH, Judge.

For our determination in this Interlocutory Appeal is an Order of the trial court denying the dismissal of a Complaint for equitable relief. Specifically the Plaintiff/Appellee seeks to have an assessment declared void alleging that the Property Appraiser, the Appellant here, arbitrarily discriminated against her in his assessment of her real property for the year 1974. Our jurisdiction is thru Fla.App. Rule 4.2 as this matter is one formerly cognizable in equity. Dade County Land Development Corp. v. Dade County, 157 So.2d 142 (Fla. 3d DCA 1963); Section 196.01, Florida Statutes (1967).

The Order denying the dismissal of the Complaint properly sets out that there are factual issues to be decided regarding the alleged improper assessment but as a part of the pleadings it is obvious that the Plaintiff failed to comply with Section 194.171(3) and (4), Florida Statutes (1975) in that she failed to tender to the Tax Collector the amount she admitted in good faith to be owing prior to instituting the lawsuit and before the payment of the taxes became delinquent. Therefore the court should have granted the Motion of the Tax Assessor to dismiss the Complaint. It was alleged that the Appellee tendered to the Appellant the amount she in good faith admitted owing on April 14, 1975. Under Section 197.016, Florida Statutes (1975) these taxes became delinquent on April 1, 1975. Section 194.171(3) and (4), Florida Statutes (1975) says that before an actión to contest a tax assessment may be brought the taxpayer must pay to the collector the amount the taxpayer admits in good, faith to be owing. The Tax Collector must issue a receipt for the payment and the taxpayer must file the receipt with his Complaint. The tender müst be made before the taxes become delinquent. Adler-Built Industries, Inc. v. Metropolitan Dade Co., 231 So.2d 197, 199 (Fla.1970); Blake v. R. M. S. Holding Corp., 341 So.2d 795 (Fla. 3d DCA 1977); Millstream Corp. v. Dade County, 340 So.2d 1276 (Fla. 3d DCA 1977); Brooks v. Interlachen Lakes Estates, Inc., 332 So.2d 681 (Fla. 1st DCA 1976).

Therefore the Order denying the dismissal of the Complaint is reversed and this cause is remanded with directions to dismiss the Complaint.

REVERSED and REMANDED with direction.

MAGER, C. J., and ALDERMAN, J., concur.


author: PER CURIAM.

text:
    Dixie Belle BILES, a/k/a Dixie Belle Baker, Appellant, v. STATE of Florida, Appellee.
    No. 76-2466.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1977.
    Rehearing Denied Sept. 22, 1977.
    Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Dixie Belle Biles, claims error by the trial court in invoking the provisions of Section 775.087(2), Florida Statutes, following her conviction for manslaughter. Manslaughter is clearly not one of the crimes listed in Section 775.087(2) involving a mandatory three year sentence upon conviction of certain offenses when a firearm is used.

Accordingly, the provisions of the sentence requiring a minimum sentence of three years during which Dixie Belle Biles would not be eligible for parole are hereby stricken; and the judgment and sentence of the trial court are affirmed in all other respects.

ANSTEAD, DAUKSCH, and LETTS, JJ., concur.


author: ANSTEAD, Judge. MAGER, Judge,

text:
    In re ESTATE of Glen A. HOPKINS, Deceased.
    No. 76-940.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 21, 1977.
    Martin J. Sperry of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Fort Lauderdale, for appellant Glen H. Hopkins.
    Donald Gorenberg and Robert L. Beals of Byrd & Ferrell, Ft. Lauderdale, for appellee Helena F. Hopkins.
   ANSTEAD, Judge.

The main issue in this appeal is the construction of a provision in the will of Glen A. Hopkins that his wife, Helena F. Hopkins, the appellee herein, receive “one-third (Vs) of my adjusted gross estate. . . . ” The trial court ruled that this phrase meant “adjusted gross estate for Federal Estate Tax Purposes” thus including non-probate assets in computing the amount of the devise. By this construction, no funds would be available for a residual trust set up in a subsequent provision of the same will for the benefit of Glen Hopkins, Jr., the appellant.

Glen Sr. made a will in 1965 which provided in paragraph V:

In the event that my wife, HELENA F. HOPKINS, shall survive me, then I hereby give, devise and bequeath thirty-three and one-third (33Vs%) percent, or one-third (Vs) of my adjusted gross estate unto my beloved wife, Helena F. Hopkins, and I direct that the legacy provided for her in Paragraph II of this Will and Testament shall be calculated as part of said one-third (Vs) interest.

Paragraph II left Helena any automobile owned by Glen Sr. at the time of his death.

Provision is made in the first paragraph of the will that all expenses of any kind, including the cost of administration and taxes, shall be paid from the residue of the estate. Provision is made for the payment out of the residue, of any charges imposed against property “included in my gross estate for tax purposes.”

Paragraph VII of the will created a testamentary trust for Glen Jr. consisting of the estate residue. The trust provisions take up two pages of the will and provide for monthly payments to Glen Jr. of $250.00 until the body of the trust becomes less than $5,000.00 in which case the entire amount shall be distributed to Glen Jr. The trust also provides that the trust shall operate for the benefit of Glen Jr.’s children should Glen Jr. predecease Glen Sr. or die before the entire trust is distributed. Several other pages of the will detail the power and obligations of the trustee.

Paragraph X of the will provides that Helena’s interest in the estate shall terminate if she predeceases Glen Sr., and her interest shall be added to the gross estate and distributed under “the other provisions of this Will and the trust created hereunder.” In 1971 Glen Sr. added a codicil to his will which gave $3,600.00 to his grandson, Michael Hopkins.

Glen Sr. died in 1975 leaving a probate estate of $21,037.01 and an estate for estate tax purposes of $103,639.44. Helena then filed a motion with the trial court seeking a construction of paragraph V of the will resulting in the ruling now being reviewed.

The paramount rule of construction is that the intent of the testator must be determined and carried out as nearly as possible. Here, the trial court simply had the facts set out above from which to determine intent. No additional testimony or evidence was presented at the hearing on Helena’s petition.

A will is an instrument by which a testator distributes those assets owned by him at the time of his death. Accordingly, unless an intention is expressly made to the contrary, a testator’s reference to his estate will normally be limited to his probate estate. In other words, since his probate estate consists of assets he owned at the time of his death, it will usually be assumed that it is those assets which are the subject of the plan of distribution set out in his will. Whether the testator uses the words “estate,” “gross estate,” “adjusted gross estate,” “net estate,” “distributable estate,” or whatever, the “estate” referred to is the “probate estate,” unless there is a specific provision or showing of intent to the contrary.

In this case no specific provision to the contrary is present. However, by virtue of the use of the words “gross estate for tax purposes” in paragraph I and the absence of such words in paragraph V we can at least infer the testator knew such words were available to use if he so desired, and he did not do so.

In addition, the construction approved by the trial court would actually conflict with the other will provisions providing for the trust to the son and the bequest to the grandchild. Why would the testator devote the major portion of his will to an unfunded trust and make provision for other bequests, when there are not even sufficient funds in the estate to fund paragraph V. The answer to this question, absent any evidence in the record showing a specific intent to the contrary, leads to the logical conclusion that the testator did not intend that the bequest made in paragraph V be calculated on the basis of his estate “for Federal Estate Tax purposes.” The order of the trial court is hereby reversed with directions for the entry of an order in accordance with this opinion.

ALDERMAN, C. J., concurs.

MAGER, J., dissents, with opinion.

MAGER, Judge,

dissenting:

Based upon the reasoning and rationale expressed in In re Estate of Gutwirth, 53 Misc.2d 699, 279 N.Y.S.2d 899 (Surrogate’s Ct.1967), I would affirm the determination made by the trial court that the phrase “Adjusted Gross Estate” means “Adjusted Gross Estate for Federal Estate Tax Purposes”, as was similarly held in the Gut-wirth case.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Leon Johnson BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 76-2008.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 22, 1977.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ALDERMAN, C. J. and LETTS, J., concur.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I must respectfully dissent because I do not feel the judge who took the Defendant’s plea even attempted to comply with the dictates of State v. Lyles, 316 So.2d 277 (Fla.1975). At best the factual basis for the plea shows the Defendant may have committed a trespass after he had been drinking and had an accident. It should have been obvious to the trial judge the Defendant was attempting to “excuse” his conduct by alleging his intoxication at the time he was found in the building. Further, there was no showing the Defendant “entered without breaking with the intent to commit a misdemeanor”; there was only a showing that the Defendant was found in a building. Additionally, there should have been a determination whether the Defendant had discussed the intoxication defense with his court appointed attorney. Entering without breaking is an intent crime and intent can be vitiated by voluntary intoxication. Cirack v. State, 201 So.2d 706 (Fla.1967).

I feel this case is squarely within the Lyles, supra, rule and the matter should at least be remanded as happened in Lyles, supra.

I do not suggest any error arose thru Judge Sample since he only sentenced the Appellant and did not take the plea.


author: PER CURIAM. MAGER, Judge,

text:
    Barry P. RIFKIN and Flag Realty, Inc., Petitioners, v. The FLORIDA REAL ESTATE COMMISSION and Ronald L. Myers, Respondents.
    No. 76-2713.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 20, 1977.

      Barry D. Schreiber, North Miami Beach, for petitioners.
    Howard Hadley and Vaughan David Hulse, Winter Park, for respondent, The Florida Real Estate Commission.
   PER CURIAM.

The Petition for Writ of Certiorari is DENIED.

ALDERMAN, C. J., and DAUKSCH, J., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge,

dissenting.

In my opinion certiorari should be granted and the final order of the Florida Real Estate Commission quashed on the basis that neither the facts nor the law would support the suspension of petitioner’s real estate broker’s registration. The Supreme Court of Florida in Pauline v. Borer, 274 So.2d 1 (Fla.1973), pointed out that the penalty of suspension of a real estate license should be sparingly and cautiously used and directed at the dishonest and unscrupulous broker, i. e., one who cheats, swindles or defrauds the general public. There is nothing in the recommended order of the hearing examiner or in the final order of the respondent suggesting that petitioner was “dishonest and unscrupulous.”

It should also be pointed out that while both the hearing examiner and the respondent found that petitioner had acted contrary to section 475.25(l)(a), Florida Statutes, the hearing examiner expressly found that the petitioner’s license should not be suspended. Although the respondent accepted the hearing examiner’s findings of fact it chose to reject the recommended penalty and, instead, sought to impose a greater penalty, i. e., suspension without affirmatively indicating the existence of anything in the record that would justify such increased penalty. See Section 120.-57(l)(b)9, Florida Statutes. Accordingly, I would grant the writ.


text:
    PAN AMERICAN FIRE AND CASUALTY COMPANY and Airport Rent-A-Car, Inc., Appellants, v. HOME INDEMNITY COMPANY and Reserve Insurance Company, Appellees.
    No. 75-1708.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 13, 1977.
    Preddy, Haddad, Kutner, Hardy & Josephs, Miami, and Stephen G. Hertz, Miami Beach, for appellees.
    Sam Daniels, Jack E. Thompson, Miami, for appellants.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Reversed. See Insurance Co. of North America v. Avis Rent-A-Car System, Inc., Fla., 348 So.2d 1149, filed on May 12, 1977.


text:
    William RUTHERFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 76-960.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 13, 1977.
    Bennett H. Brummer, Public Defender, and Karen Gottlieb, Asst. Public Defender, and Richard Levitt, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., and Paul Mendelson, and Jose R. Rodriguez, Legal Interns, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See Parkin v. State, 238 So.2d 817 (Fla.1970); Greenfield v. State, 337 So.2d 1021 (Fla.2d DCA 1976), and Johnson v. State, 338 So.2d 556 (Fla.Sd DCA 1976).


author: HAVERFIELD, Judge.

text:
    MOVIEMATIC INDUSTRIES CORP., a Florida Corporation, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF METROPOLITAN DADE COUNTY and Metropolitan Dade County, a political subdivision of the State of Florida, Appellees.
    No. 76-983.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 14, 1977.

      Williams, Salomon, Kanner & Damian and Gary S. Brooks, Miami, for appellant.
    Stuart L. Simon, County Atty., and Stanley B. Price and Robert A. Ginsburg, Asst. County Attys., for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   HAVERFIELD, Judge.

Appellant seeks review of an order denying its petition for writ of certiorari, and upholding the validity of Dade County resolution Z-115-75 rezoning petitioner’s property from IU-2 to GU.

Over ten years ago Moviematic Industries Corporation purchased 1,200 acres of undeveloped real property located in a remote area of unincorporated west Dade County zoned for heavy industrial use (IU-2) with a special exception for business airport uses. The property overlies the Biscayne Aquifer which serves as a major source of the drinking water in the county. On March 19,1974 the county commission imposed a building moratorium on an area consisting of approximately 323 square miles of west Dade County, including petitioner’s property, for the express purpose of conducting and preparing a comprehensive study directed to the protection of the fresh water supply and the natural ecosystems which function in this part of the county. Following the study, on April 23,1975 the county building and zoning department and the planning department jointly recommended to the commission that (1) petitioner’s property be rezoned from IU-2 to GU (interim classification which permits single family residential use on minimum five acre lots), and (2) the previously approved special permit for business airport uses be terminated. At a public hearing on this matter, the commission heard expert testimony in support of the recommended GU zoning classification and petitioner’s evidence in opposition thereto. At the conclusion of the hearing, the commissioners adopted resolution Z-115-75 which rezoned the subject property from IU-2 to GU and terminated the special permit for business airport uses. Petitioner by way of certiorari sought review of the zoning resolution in the circuit court and after a hearing, the court entered its order of denial.

Appellant basically argues that zoning resolution Z-115-75 is invalid because it bears no reasonable relationship to the public health, safety, morals and welfare-and constitutes such an unreasonable restriction on petitioner’s right to the beneficial use of its property that the resolution amounts to a taking of real property without compensation in violation of the United States and Florida Constitutions. We cannot agree.

A threshold question to a consideration of this appeal is whether preservation of an adequate drinking water supply and ecological system in a particular area are legitimate objectives of zoning resolutions and ordinances.

Zoning regulations which are reasonably related to the adequacy of governmental services fall within the established purpose of the public health, safety and welfare; water supply relates clearly to the public health. Therefore, zoning ordinances have been sustained because of their tendency to insure that such essential governmental services as water supply will be provided. See Anderson, R.M., American Law of Zoning § 7.26 (2d ed 1968). It is clear that the county commission is empowered under Article 1, Section 1.01(A)(9) and (12) of the Home Rule Charter of Metropolitan Dade County to enact zoning ordinances and resolutions to assure an adequate water supply for the protection of the public. See also Section 2-116.3 et seq. Code of Metropolitan Dade County, Section 23A-1, Code of Metropolitan Dade County.

With respect to the objective of preserving the ecological systems, zoning regulations which tend to preserve the residential or historical character of a neighborhood and/to enhance the aesthetic appeal of a community are considered valid exercises of the public power as relating to the general welfare of the community. See City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941); Merritt v. Peters, 65 So.2d 861 (Fla.1953); Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla. 1960); William Murray, Inc. v. Jacksonville, 254 So.2d 364 (Fla. 1st DCA 1971); City of Boca Raton v. Tradewind Hills, Inc., 216 So.2d 460 (Fla. 4th DCA 1968); County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th DCA 1969); Watson v. Mayflower Property, Inc., 223 So.2d 368 (Fla 4th DCA 1969); City of Coral Gables v. Wood, 305 So.2d 261 (Fla. 3d DCA 1974) and E. B. Elliot Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970); Stone v. City of Maitland, 446 F.2d 83 (5th Cir. 1971); Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975). The above being legitimate concerns within the category of the general welfare, then certainly the irreversible effect on the area’s ecological balance as the result of urban development can be and should be considered and reflected in zoning codes. We find the iii-clusion of ecological considerations as a legitimate objective of zoning ordinances and resolutions is long overdue and hold that preservation of the ecological balance of a particular area is a valid exercise of the police power as it relates to the general welfare. We are not alone in this determination as courts in other jurisdictions have recognized the importance of considering the ecological objectives in zoning matters. See Nattin Realty, Inc. v. Ludewig, 67 Misc.2d 828, 324 N.Y.S.2d 668 (Sup.Ct.1971) and Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 956 (1st Cir. 1972). In Nattin Realty, Inc., supra, 67 Misc.2d 828, 324 N.Y.S.2d at 672, the court summarized this issue most appropriately as follows:

“Respecting ecology as a new factor, it appears that the time has come — if, indeed, it has not already irretrievably passed — for the courts, as it were, to take ‘ecological notice’ in zoning matters.
“[5] . . . the municipality has here presented sufficient evidence to warrant the rezoning of the petitioner’s property, for it was prompted to do so by ecological considerations based not upon whim or fancy but upon scientific findings. The' definition of ‘public health, safety and welfare’ surely must now be broadened to include and to provide for these belatedly recognized threats and hazards to the public weal. The Town’s decision to forego what, undoubtedly, would be substantial additional tax revenue would appear to constitute a recognition that it as well as an owner must subordinate immediate to long-term interests.
“The Court is not unmindful that zoning changes prompted by such environmental considerations may appreciably limit the uses and profitability of land; yet if both factors were to be placed upon the scales, the pro bono publico considerations must prevail. If there is substantial evidence sustaining the municipality’s determination to rezone because of ecology, the court should not void such legislative determination.”

In view of our determination that ecological considerations are legitimate objectives of a zoning ordinance or resolution, the following summation of evidence presented to the commission substantiates the county’s position that resolution Z-115-75 is reasonably related to the public health and welfare and will confer a public benefit upon the citizens of the county:

“The subject property area overlies one of the most permeable aquifers in the world, the Biscayne Aquifer. This aquifer serves as the source of virtually all drinking water in Dade County and must be protected from contamination. Due to the unique area hydrology and geology, the Biscayne Aquifer, the inland drainage canals, and the conservation area in West Dade County are all directly interconnected. As a result of this interconnection, the bodies must be considered as component parts of the same water supply system.
“The composition of the Biscayne Aquifer is mostly limestone and sand. The generally high porosity of the sand and the many passages through the limestone offer very little resistance to flow. The result is that the aquifer responds quickly co slight differences in the water table, with the following consequences:
“1. The water table is relatively flat.
“2. The yields of wells are large.
“3. The ground and surface water regimens have an uncommonly high interrelationship.
“4. The water table reacts quickly to rainfall. There is a high rate of rainfall penetration and surface water infiltration and, although annual rainfall is high, there is relatively little runoff as compared with other localities.
“5. The coastal areas, which are exposed to Biscayne Bay and the Atlantic Ocean, are highly susceptible to saltwater intrusion.
“The property in question contains a blue-green algae mat or periphyton which filters .out many pollutants from the ground water. The process, which is referred to as ‘biological assimilation’, is important in protecting the ground and surface water quality.
“Before it may be developed or improved, the subject property must be filled by a minimum of three' feet of earth or other suitable fill material to comply with federal flood control criteria. Thus, the natural state of the property would have to be substantially altered before any meaningful development thereon could occur.
“Any excavation of the Petitioner’s property would remove the natural peri-phyton ‘filtering mat’ and would expose the aquifer, from which the drinking water supplies of Dade County are drawn, to a whole range of pollutants. The algae mat involves biological, chemical and physical processes which maintain the area’s water quality.
“Rainfall, which varies between 40 and 85 inches per year and averages about 59 inches per year, provides the major water resource of Dade County. Approximately 80% of the annual rainfall occurs during the six-month ‘rainy season’ from May through October. The sensitivity of the area is unchallenged.”

Finally, we now confront the difficult issue presented, whether the application of the GU classification so substantially impairs petitioner’s use of his property that it cannot be put to any reasonable use and, therefore, amounts to a constructive taking without compensation. In determining the above issue, we are guided by the following controlling principles of law: A zoning ordinance is confiscatory if it deprives an owner of the beneficial use of his property by precluding all uses to which the property might be put or the only use to which it is reasonably adaptable. Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642 (1941); County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th DCA 1969), supra. Nevertheless, it is not necessary to the constitutional validity of an ordinance that it permit the highest and best use of a particular piece of property. City of Miami v. Zorovich, 195 So.2d 31 (Fla. 3d DCA 1967), cert. den., 201 So.2d 554 (Fla.1967) for as this court reasoned in City of Miami v. Zorovich, supra, at 36:

“A zoning ordinance is not invalid merely because it prevents the owner from using the property in the manner which is economically most advantageous. If the rule were otherwise, no zoning could ever stand.”

Our Supreme Court in City of St. Petersburg v. Aikin, 217 So.2d 315, 317 (Fla.1968) further expounded:

“The determination that ‘plaintiff’ desired use of the land would not be an unreasonable ‘use’ is in our opinion irrelevant, as is the reference to the question of whether ‘the use sought is consistent and compatible with the health, safety, morals and welfare of the general public.’ The recited evidence, confirmed by our study of the record, clearly shows that the plaintiffs in this case failed in proof of the primary point in issue, i. e. that the existing ordinance was confiscatory in effect.”

Finally, government through the exercise of its police power may impose reasonable restrictions upon the use of property in the interests of the public health, morals, safety and public welfare. City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941); Sarasota County v. Barg, 302 So.2d 737 (Fla.1974).

After having examined the record with these principles of law in mind, we cannot say that at the present time the challenged resolution has so restricted petitioner’s use of his property as to render it valueless. First, under the GU classification petitioner may develop its property in accordance with the uses permitted in an EU-2 district (single family residential on five acre minimum lots). See Sections 33-196 and 33-234, Code of Metropolitan Dade County. The EU-2 classification also permits all uses in the EU-1 classification, and several other possible alternative uses of the property were suggested by the planning department in its recommendation to the county commission in support of the GU zoning classification. In contrast, petitioner has failed to present sufficient evidence demonstrating that the subject property’ cannot be put to any reasonable use compatible with the GU classification. The property has been zoned IU-2 since 1958, and petitioner itself has owned the property for over the past ten years; nevertheless, petitioner has failed to take any concrete steps toward the development thereof for industrial purposes, nor has it ever filed an application with the county with respect thereto. Petitioner merely offered evidence as to the current $175,000 mortgage on the property and some vague plans for eventual development of an industrial park at some indefinite future time. At most, petitioner has only succeeded in showing that the change from industrial to low density residential has resulted in a reduction of the property’s market value which we conclude is not sufficient to constitute a taking. See HFH, Ltd. v. Superior Court of Los Angeles County, 15 Cal.3d 508, 125 Cal.Rptr. 365, 542 P.2d 237 (1975) and Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975), supra. See also City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132, 138 footnote 8 (1976).

We conclude that the restrictions imposed by resolution Z-115-75 are reasonable in light of the legislative intent to preserve as nearly as possible an adequate water supply and the ecological balance in the area. However, that is not to say petitioner would be precluded from compensation under the Constitution if at some future date, upon taking positive steps to develop its property, petitioner proves it has been so restricted in its development efforts by the County that it is being deprived of the beneficial use of the property for the purpose of conferring a public benefit.

Affirmed.

      . Commonly referred to as the East Everglades Moratorium.

      . No trend of development having been established in the vicinity of petitioner’s property.


text:
    In re ESTATE of Blanche BARTLETT, Deceased. Rose CORREALE, Appellant, v. Aurel PARMELEE, Glenna Feldstead and Doris Fisher, Appellees.
    No. 76-1118.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 21, 1977.
    Horton, Perse & Ginsberg, Miami, Sylvester P. Adair, Homestead, for appellant.
    Aronovitz, Silver & Booth, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Kuebler v. Kuebler, 131 So.2d 211, 215 (Fla.2d DCA 1961).


text:
    Violet JANES, as the personal representative and Administratrix of the Estate of Julia McFarland, Deceased, Appellant, v. BAPTIST HOSPITAL OF MIAMI, INC., and Travelers Insurance Company, Appellees.
    No. 76-1563.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 13, 1977.

      Mark J. Feldman, Miami, for appellant.
    Adams, George, Schulte & Ward and Amy Shields Levine, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This an appeal by the plaintiff, Violet Janes, as personal representative and ad-ministratrix of the estate of Julia McFarland, deceased, from an order denying motion for new trial, in an action for negligence against Baptist Hospital of Miami, Inc., and Travelers Insurance Company, its insurer. A jury trial was held. The jury rendered a verdict in favor of the plaintiff in the amount of $1,500.00, judgment was entered thereon, plaintiff’s motion for new trial was denied and this appeal ensued. Plaintiff contends that the trial court erred in refusing to admit into evidence certain hospital and doctor bills for services rendered to the deceased, for the reason that they had been paid, in substantial portion, by the deceased’s Medicare. We agree and reverse.

Florida follows the collateral source rule which stands for the proposition that total or partial compensation received by the injured party from a collateral source wholly independent of the wrongdoer will not operate to lessen the damages recoverable from the person causing the injury. See Finley P. Smith, Inc. v. Schectman, 132 So.2d 460 (Fla.2d DCA 1961); Paradis v. Thomas, 150 So.2d 457 (Fla.2d DCA 1963); Greyhound Corporation v. Ford, 157 So.2d 427 (Fla.2d DCA 1963); Walker v. Hilliard, 329 So.2d 44 (Fla.1st DCA 1976).

As stated in Walker v. Hilliard, supra, it is well settled that recovery of damages from a tort feasor may not be reduced by the amount of insurance proceeds received by the injured party from his insurance company; a wrongdoer should not be permitted to benefit from a policy of insurance where there is no privity between him and the plaintiff’s insurer, and the policy was written for the benefit of the insured and not the wrongdoer; if there must be a windfall, it is more just that the injured party profit, rather than the wrongdoer be relieved of full responsibility for his wrongdoing. The value of services rendered the injured party are a proper element of damages even though they were paid for by a collateral source. Paradis v. Thomas, supra.

Based on the foregoing, we hold that the court erred in refusing to admit the bills into evidence so that the jury could take them into consideration in making a determination of plaintiff’s damages. This does not, in any way, affect the entitlement of the collateral source, in this case Medicare, to recover such sums paid to, or on behalf of the plaintiff either by way of lien, intervention or otherwise.

In light of the reversal on the foregoing point, the other point on appeal will not be discussed in this opinion.

Reversed and remanded for a new trial.


author:
HAVERFIELD, Judge.
      HUBBART, Judge

text:
    Willie Charles BRANT, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1582.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 14, 1977.
    Max P. Engel and Steven Rosenthal, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Gregg Spieler, Legal Intern, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HAVERFIELD, Judge.

Willie Charles Brant seeks reversal of his convictions for carrying a concealed firearm and possession of heroin, and first contends the trial court erred in denying his motion to suppress the evidence on the ground that the evidence seized was the result of an illegal search and seizure. Hereunder he argues that the arresting officers, without any probable cause, went to a place where they did not have a right to be and, therefore, any knowledge thereby obtained was tainted. We cannot agree.

The arresting officers, Buhrmaster and Pierce, received a tip regarding a possible narcotics transaction involving an individual named “Inky” who resided in either room 306 or 310 of the Mary Elizabeth Hotel. The officers went to the hotel and remained in a vacant room adjacent to that of the defendant. Upon hearing a noise, Officer Buhrmaster peered out his door and observed the defendant and several other individuals walking down the hallway. He then saw the defendant pull a gun from beneath his shirt just prior to unlocking his door and as defendant opened the door, Officer Buhrmaster ordered him to drop the gun. Defendant dropped the gun on his bed and Officer Buhrmaster placed him under arrest. Officer Buhrmaster then proceeded to search him and a cigarette package containing heroin was found on the defendant. Following a non-jury trial, defendant was found guilty of carrying a concealed weapon and possession of heroin, and received sentences of five years on each charge to be served concurrently.

There is no question that a hotel or motel room is a private dwelling of the occupant so long as he (or she) is legally there. Sheff v. State, 301 So.2d 13 (Fla.1st DCA 1974). However, areas which are outside of a hotel room, such as hallways, which are open to use by others may not be reasonably considered as private. See Fletcher v. State, 168 So.2d 162 (Fla.3d DCA 1964); State v. Clarke, 242 So.2d 791 (Fla.4th DCA 1970). A search is generally accepted to be an inspection or examination of places closed from public or general view and requires some measure of force or intrusion, however slight; nevertheless, it is not a search to observe and to seize what is so placed where it may be seen by an officer who is where he has a legal right to be. State v. Parnell, 221 So.2d 129 (Fla.1969); State v. Ashby, 245 So.2d 225 (Fla.1971); State v. Clarke supra; Boim v. State, 194 So.2d 313 (Fla.3d DCA 1967). A hallway is in the nature of a public, not a private area, and, thus, the officers had a right to be there. Further there was no intrusion upon the defendant’s privacy and Officer Buhr-master’s observation of the defendant pulling a gun from under his shirt in the hallway in no way constituted a search. Cf. State v. Clarke, supra. As the court stated in State v. Coyle, 181 So.2d 671, 675 (Fla.2d DCA 1966), “In electing to commit a crime at a place where others may see him, one must assume the hazard that he will be seen”.

In addition, we cannot accept defendant’s contention that by occupying the adjacent vacant room, the officers invaded his privacy because the guarantee against unreasonable searches and seizures is personal and accrues only to the person who has the lawful right of occupation or possession of the premises searched. Moore v. Wainwright, 248 So.2d 262 (Fla.1st DCA 1971). Obviously, defendant had no right of possession or occupation in this adjacent room and, thus, we find no need of either a search or arrest warrant because defendant pulled the gun from under his shirt in plain view of Officer Buhrmaster. See State v. Parnell, 221 So.2d 129 (Fla.1969), supra, and Section 901.15, Florida Statutes (1975). Likewise, the subsequent seizure of the heroin did not require the issuance of a warrant as the personal search of the defendant was made pursuant to his lawful arrest. See State v. Gustafson, 258 So.2d 1 (Fla. 1972) and Section 901.21, Florida Statutes (1975).

Defendant for his second and final point on appeal argues that the court erred in denying his motion for judgment of acquittal as to the charge of carrying a concealed weapon because he was within the exception of Section 790.25, Florida Statutes (1975) allowing persons to carry a firearm in their home or apartment [See Section 790.25(3)(n), Florida Statutes (1975)].

The record reflects that the prosecution made out a prima facie case as to this charge as Officer Buhrmaster testified that defendant was in a public hallway when he observed the defendant withdraw his gun from underneath his shirt. Thus, defendant does not fall within the above exception. See Facion v. State, 290 So.2d 75 (Fla.2d DCA 1974).

Affirmed.

HUBBART, Judge

(concurring).

I concur in the court’s opinion and judgment and would add that the police seizure of the gun from the defendant was a reasonable plain sight seizure of evidence within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12, of the Florida Constitution. (1) Officer Buhr-master saw the gun in plain sight in the defendant’s possession without benefit of a search; (2) Officer Buhrmaster had a right to be in the vacant hotel room and to observe from that location what the defendant was doing in the quasi-public hotel hallway outside the defendant’s room; (3) Officer Buhrmaster had probable cause to believe that the gun was contraband or evidence of crime because it had been concealed on the defendant’s person. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Sheff v. State, 329 So.2d 270 (Fla.1976); Spinkellink v. State, 313 So.2d 666 (Fla.1975); State v. Ashby, 245 So.2d 225 (Fla.1971); State v. Parneli, 221 So.2d 129 (Fla.1969).

The valid seizure of the gun gave the police probable cause to arrest the defendant for carrying a concealed firearm. The police were thereafter authorized to conduct a search of the defendant’s person which revealed heroin. Such a search was reasonable under the above federal and state constitutional provisions because it was made incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Gustafson, 258 So.2d 1 (Fla.1972).


text:
    George DAVID and Lili David, Appellants, v. B & J HOLDING CORPORATION, a Florida Corporation, Appellee.
    No. 75-1118.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Rehearing Denied Sept. 14, 1977.

      Zinn & Reinhard, Miami, for appellants.
    L. J. Cushman, Miami, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   REVISED OPINION

HAVERFIELD, Judge.

Plaintiffs seek review of that portion of a final judgment finding they failed to prove the material allegations seeking damages for breach of implied warranty for the defendant’s failure to construct their condominium unit in accordance with the building plans.

Plaintiff-appellants, George and Lili David, purchased from the defendant developer-builder, B & J Holding Corporation, appellee herein, unit # 7-B in the Stuart House Condominium located in the Town of Bay Harbor Islands. After taking occupancy of their unit, plaintiffs discovered several defects, including the failure of the defendant to include proper sound proofing and insulation in the party walls according to the building plans recorded and approved with the Town of Bay Harbor Islands. Plaintiffs pursuant to the receipt, acceptance and warranty agreement made timely written complaints to the defendant concerning the defects and after the adjoining units became occupied informed the defendant of the fact that either so little or no wall insulation was used that they could literally hear every word spoken and sound made by their neighbors in the adjacent units. Defendant failed to remedy these defects and plaintiffs filed the instant suit for damages alleging, inter alia, a breach of implied warranty for the failure to construct the party walls as specified in the building plans recorded with and approved by the municipal building and zoning department. After a non-jury trial, the judge found that the purchase agreement not being a contract for the construction of the Stuart House Condominium, but rather a contract for purchase of a condominium unit, and defendant not having entered into an agreement to build plaintiffs a unit in the Stuart House in accordance with the plans approved by the building department — no implied warranty of fitness or merchantability obligated defendant to construct the building in accordance with these plans or any specific plans. Thereupon, the court held plaintiffs were not entitled to any relief sought with respect to this issue.

Plaintiffs contend that the trial court erred in failing to grant them damages for breach of implied warranty when the evidence clearly established that their condominium unit was not built in accordance with the plans and specifications as filed with and approved by the Town of Bay Harbor Islands. We agree.

The modern rule which has developed over the past decade is that implied warranties of fitness and merchantability do extend to the purchasers of new homes and new condominium units and likewise liability has been predicated upon the breach of the building contract in the form of deviation from specifications, such deviation resulting in a defective condition. See Annot., 50 A.L.R.3d 1071 (1973). Being a progressive state particularly in the area of condominium law with respect to protection of purchasers of such units, Florida as with the sale of other commodities has adopted the rule of law that implied warranties of fitness and merchantability extend to the purchase of new condominium units from builder-developers. Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), cert. discharged, 264 So.2d 418 (Fla.1972); Burger v. Hector, 278 So.2d 636 (Fla. 1st DCA 1973); Forte Towers South, Inc. v. Hill York Sales Corp., 312 So.2d 512 (Fla. 3d DCA 1975). As the court explained in Gable, supra, at 17 in support of adoption of this rule:

“Although the theory of implied warranty should not drastically affect the position of the legitimate builder-vendor, the doctrine could be very effective in reducing the number of those undesirables within the industry who have no intention of standing behind the quality of their work. ... It should also be noted that the legitimate builder-vendor is much more capable of distributing the cost of his mistakes than is the innocent home buyer.
“Undoubtedly, the law regarding the liability of a builder-vendor of new houses is changing. The above cases indicate a growing trend away from caveat emptor and toward the theory of implied warranty. The movement brings the law much closer to the realities of the market for new homes than does the anachronistic maxim of caveat emptor. ‘The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times. Ancient distinctions which make no sense in today’s society and tend to discredit the law should be readily rejected.’ ”

An implied warranty aries by operation of law and exists regardless of any intention of the vendor to create it; such warranty springs from the vendor’s breach of some duty which amounts, to taking advantage of the purchaser by reason of some superior knowledge in the vendor or the reliance by the purchaser on the vendor’s representation or judgment. See 28 Fla. Jur. Sales § 134 (1968).

Reviewing the case at bar in light of the above principles of law and reasoning, we conclude that defendant developer-builder impliedly warranted to the plaintiff condominium purchasers that their unit would be constructed in accordance with the specifications contained in the building plans filed with and approved by the appropriate governmental authority, the Town of Bay Harbor Islands. The evidence is undisputed that defendant builder failed to construct the party walls of plaintiff’s unit in accordance with those specifications filed with the Town of Bay Harbor Islands as a matter of public record and, therefore, having departed from those specifications, is liable to plaintiffs for breach of implied warranties of fitness and merchantability. See Franzen v. Dunbar Builders Corp., 132 Ill.App.2d 701, 270 N.E.2d 118 (1971) and Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So.2d 463 (Fla. 4th DCA 1975).

Defendant developer argues that under the terms of the sales contract, it reserved the right to make changes in the specifications. Nevertheless, those specifications being filed as of public record and approved by the Town of Bay Harbor Islands, defendant was under a duty to file the modified specifications with the Town for its approval and to make the new specifications a matter of public record.

Accordingly, we hereby reverse that part of the final judgment denying plaintiffs relief on those counts of their complaint alleging implied breach of warranty and remand the cause for further proceedings not inconsistent herewith.

Reversed and remanded.

      . Wherein the court held that a complaint for breach of implied warranty of fitness and merchantability alleging construction of the condominium contrary to the plans, specifications and representations made by the developer stated a cause of action.


text:
    Stephen HARRIS and Mike Dale Headley, Appellants, v. STATE of Florida, Appellee.
    No. 76-2570.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Alan H. Schreiber, Public Defender, 17th Judicial Circuit, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

MAGER and LETTS, JJ., concur.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge,

concurring specially:

I concur but feel something should be said. Appellants were charged with possession of drugs after a search around a vehicle they occupied revealed the drugs. They filed a Motion to Dismiss under Rule 3.190, Fla.R.Crim.P., asserting the automobile in which they were riding was forced off the road by the deputies and that they didn’t know “of the presence of these suspected drugs found by the police in the vicinity of the car they had been passengers in. Neither possessed the suspect PCP or suspect marijuana while passengers in the Mustang.”

The State traversed the Motion by specifically denying that the deputies forced the car off the road and specifically denying the Defendants didn’t know of the presence of the drugs and further specifically denying that the Defendants did not possess the drugs in the vehicle. A hearing on the Motion to Dismiss was held and the court denied the Motion. The denial was proper because the Rule provides the Motion “shall be denied if the State files a traverse which denies under oath a material fact alleged in the motion to dismiss.” The Appellants would have us hold that the State must, in its traverse, set out affirmatively that the Defendants did know of the presence of and did possess the drugs. Further, they assert the State must set out, under oath, facts to support the traverse. This is not what the Rule requires and if we were to try to make such a requirement we would, in effect, provide two trials for every defendant. One by affidavits in a motion to dismiss and traverse and the other in the classic manner with a judge or jury, trying the facts under the law.

      . There is no denial of possession while not in the Mustang and no denial of knowledge of the drugs other than within the vicinity of the car. Was that an artfully,drawn limited denial or an inartfully drawn full denial?


text:
    FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. Carl SHEFFIELD d/b/a S & S Transport, Appellee.
    No. CC-490.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1977.
    Rehearing Denied Sept. 12, 1977.
    James F. Moseley, of Toole, Taylor, Moseley & Milton, Jacksonville, for appellant.
    0. C. Beakes and Lindner Smith, Jr., Jacksonville, for appellee.
   SMITH, Judge.

Florida East Coast Railway Co. (FEC) appeals from a circuit court judgment for Sheffield on Sheffield’s counterclaim for damages resulting from FEC’s failure to perform an oral agreement to transport Sheffield’s intrastate molasses shipments according to a schedule entitling Sheffield to an approved discount, based on quantity shipments during a year, from ordinary tariff rates approved by the Public Service Commission (PSC). ' FEC urges that the alleged oral agreement has the unlawful effect of nullifying rates prescribed in the public interest by the PSC; that the trial court improperly gave the oral agreement an effect that modifies contract documents; and that the damages awarded included improper elements. We affirm.

The PSC-approved tariff generally authorized and required a charge of $.43 per hundred pounds of blackstrap molasses shipped from the molasses exchange at Belle Glade, Florida, to Jacksonville, where Sheffield received it at a leased siding; but a tariff supplement authorized a charge of $.27 per hundred pounds if shipments exceeded 12,000 tons in a year. Between May 26,1973 and May 25,1974, Sheffield shipped only 8,611.56 tons of molasses via FEC. Applying the greater rate retrospectively, the trial court granted FEC a summary judgment for the balance due after credit for amounts remitted during the year at the lower rate. On a jury verdict the court then entered judgment for Sheffield in effect finding that the parties orally agreed to a car-handling schedule that would permit Sheffield to ship in excess of 12,000 tons, that FEC failed to perform according to its undertaking and that Sheffield’s recoverable damages were the amount of the greater tariff rates previously adjudged as owing to FEC and Sheffield’s extra costs in supplementing molasses supplies at Jacksonville by truck during the year, amounting to $8,800. The jury rejected Sheffield’s claim for profits on the sale of additional molasses which, he asserted, he would have sold but for the inadequacy of FEC’s rail service. FEC appeals from the net judgment against it in the amount of $8,800.

The gist of the disputed oral agreement was that, in consideration of Sheffield’s transport business between Belle Glade and Jacksonville, FEC would handle three tank cars, to be leased by Sheffield from another, with such dispatch as to provide Sheffield one loaded tank car on his Jacksonville siding at all times. The parties contemplated, so Sheffield contends, that such service would enable Sheffield to ship more than 12,000 tons each year. FEC’s appeal makes no point of the sufficiency of the evidence to support a jury finding of such an oral agreement, nor of the certainty of such an agreement or its enforceability despite the Statute of Frauds.

FEC rightly urges that regulated transport carriers are not at liberty to charge more or less than authorized tariff rates established for the protection of the industry and the public. Sections 350.07, .08, .12, Florida Statutes (1975). See also Pittsburgh, Cincinnati, Chi. & St. L. Ry. Co. v. Fink, 250 U.S. 577, 40 S.Ct. 27, 63 L.Ed. 1151 (1919); Moore Meats, Inc. v. Alterman Transport, Inc., 301 So.2d 143 (Fla. 3d DCA 1974); Louisville & Nashville R. Co. v. Speed-Parker, Inc., 103 Fla. 439, 137 So. 724 (1931). Yet the lower tariff rate for quantity shipments was fully authorized by the PSC in certain circumstances, and we know of no principle that would prohibit a carrier from contracting, insofar as the enabling circumstances are within its control, to bring them about for the mutual benefit of itself and its shipper. The carrier’s failure to perform as agreed does not itself nullify the greater tariff rates payable under law by the shipper when conditions for the lower rate are not met, but the tariff does not preclude assessment of damages against the carrier for the shipper’s consequent loss, including the greater rates payable.

Enforcement of FEC’s oral agreement is not precluded as modifying, by pa-rol, the written contract documents executed by FEC and Sheffield. FEC’s undertaking, proved to the satisfaction of a jury, is not inconsistent with the terms of the written tariff or the numerous individual bills of lading which pertained to particular molasses shipments, not to the manner of handling filled and empty tank cars in a year-long series. The agreement relied on by Sheffield was collateral to the contract documents and did not vary their effect. See Atlantic Coast Line R. Co. v. Cowart, 140 Fla. 596, 190 So. 546 (1939); Schwartz v. Zaconick, 68 So.2d 173 (Fla.1953); Graham v. Commonwealth Life Ins. Co., 114 Fla. 585, 154 So. 335 (1934).

The jury could reasonably have concluded from the evidence that the parties contemplated Sheffield would be required to supplement its molasses supply, should FEC fail in its undertaking, and would incur extra transportation costs in doing so. Damages for the loss were properly awarded. Atlanta & St. Andrews Bay Ry. Co. v. Thomas, 60 Fla. 412, 53 So. 510 (1910); Evenson v. Miami Medical Center, Inc., 128 So.2d 626 (Fla. 3d DCA 1961).

AFFIRMED.

RAWLS, Acting C. J., and ERVIN, J., concur.


text:
    William V. CHESTER, Petitioner/Appellant, v. DUVAL COUNTY SCHOOL BOARD, Respondent/Appellee.
    Nos. DD-169 and EE-12.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1977.
    William H. Maness, Jacksonville, for petitioner/appellant.
    Dawson A. McQuaig, Gen. Counsel, and William Lee Allen and William L. Coalson, Asst. Counsel, Jacksonville, for respondent/appellee.
   PER CURIAM.

The judgment of the circuit court is AFFIRMED. The petition for review is DISMISSED for lack of jurisdiction, without prejudice to proceedings in the Circuit Court of Duval County. Alford v. Duval Co. School Board, 324 So.2d 174 (Fla. 1st DCA 1975).

RAWLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


text:
    Warren F. JOHNSTON, Appellant, v. Dorothy M. JOHNSTON, Appellee.
    No. 75-1971.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Robert G. Petree, Bornstein, Petree & Shader, Orlando, for appellant.
    John M. Cain, Orlando, for appellee.
   PER CURIAM.

The evidence presented to the trial court having been reviewed in light of the guidelines established by Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), Gordon v. Gordon, 335 So.2d 321 (Fla. 4th DCA 1976) and McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), and we having concluded that the awards made to the appel-lee-wife may exceed those that we would have found appropriate had we presided at the trial, but that they do not represent an abuse of judicial discretion or appear patently erroneous, we do affirm.

AFFIRMED.

MAGER and DOWNEY, JJ., and STEWART, JAMES R., Jr., Associate Judge, concur.


author: CROSS, Judge. DOWNEY, Judge,

text:
    The VILLAGE OF NORTH PALM BEACH, a Florida Municipal Corporation, Appellant, v. The SCHOOL BOARD OF PALM BEACH COUNTY, a corporation, and Walter E. Wadsworth d/b/a Wadsworth and Sabrice Construction, Appellees.
    No. 76-1078.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Herbert L. Gildan, Nason, Gildan & Yeager, West Palm Beach, for appellant.
    Phillip C. Asher, Jackson & Jackson, Palm Beach, for appellees.
   CROSS, Judge.

Appellant-plaintiff, The Village of North Palm Beach, a Florida municipal corporation, seeks review by interlocutory appeal of an order denying a temporary injunction entered in favor of appellees-defendants, The School Board of Palm Beach County, et al., in an action to enjoin construction of a library building. We reverse.

This action was initiated by The Village of North Palm Beach seeking to temporarily and permanently enjoin The School Board from constructing a library building on an existing school site, the construction of which allegedly would violate the setback requirements of the village zoning ordinance. After a hearing, the trial court declined to enter a temporary injunction prohibiting the erection of the library building. This appeal then followed.

In cases of governmental disputes as to whether zoning requirements of one governmental body applies to another governmental body when seeking to use land contrary to applicable zoning regulations, the balancing-of-public-interests test (sometimes referred to as the balancing-of-competing-public-interests test), in the absence of statutory authority, allows for the greatest flexibility and fairness in determining the issue. Therefore, we adopt the balancing-of-public-interests test for resolving zoning conflicts between different governmental bodies, and reject the rigid governmental function versus proprietary function test. Orange County v. City of Apopka, 299 So.2d 652 (Fla. 4th DCA 1974).

Since we do so, the order of the trial court is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

MAGER, J., concurs.

DOWNEY, J., concurs specially.

DOWNEY, Judge,

specially concurring.

A governmental agency is immune from municipal zoning only if a statute immunizes the agency from such zoning. City of Temple Terrace v. Hillsborough Ass’n, etc., 322 So.2d 571 (Fla.2d DCA 1975), affirmed Hillsborough Ass’n, etc. v. City of Temple Terrace, 332 So.2d 610 (Fla.1976); Rutgers State University v. Piluso, 60 N.J. 142, 286 A.2d 697 (1972).

In the present case no statute immunizes the appellee School Board, a governmental agency, from the application of municipal zoning ordinances. Under such circumstances, as the majority opinion points out, the trial court should apply a balancing of the interests test in deciding whether the appellant Village’s zoning ordinances apply to the appellee Board. See cases cited above.

For the foregoing reasons I concur in the decision to reverse the order under review and remand the cause for further proceedings.


author: CROSS, Judge.

text:
    Richard B. REED, Selma Reed, his wife, Hanover Insurance Company, Appellants, v. William SAMPSON, Elnora German, Reserve Insurance Company, a Foreign Corporation, Seventh Day Adventist Church, Appellees.
    No. 76-1087.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.

      Louisa Smith-Adam of Montgomery, Ly-tal Reiter Denney & Searcy, West Palm Beach, for appellants-Reed and Hanover.
    Marjorie D. Gadarian of Jones Paine & Foster, West Palm Beach, for appellee-Sev-enth Day Adventist Church.
   CROSS, Judge.

This is an appeal from a final judgment entered pursuant to an order dismissing with prejudice a third party complaint in an action seeking indemnification and contribution. We reverse.

The genesis of this action arose when William Sampson initiated suit to recover damages for the wrongful death of his son James, who was fatally injured when he was struck by an automobile while crossing a highway during an outing sponsored by the Seventh Day Adventist Church and held at the home of defendants, Richard and Thelma Reed. During the course of pleadings, the Reeds and the insurance company, Hanover, moved to join the Seventh Day Adventist Church as a party defendant. The motion was granted, and the complaint was subsequently amended, adding the church as a party defendant. Plaintiff then settled with the church for seven hundred fifty dollars, and a final judgment was entered for the church based upon a written release executed by plaintiff. The defendants Reeds and Hanover then moved for leave to file a third party complaint against the church seeking contribution from the church and its insurer. The motion was granted and eventually the Reeds and Hanover filed a third party complaint (second amended) against the church and its insurer. The third party complaint alleged that the church had a duty to supervise and had failed to supervise the children attending the activity at the Reeds’ home, and as a result, James Sampson was fatally injured. The church then moved to strike and to dismiss the third party complaint based upon a release earlier granted to the church by Sampson. The motion to dismiss was granted, and final judgment for the church was entered. This appeal by the defendants, Reed and Hanover, then followed.

The function of a motion to dismiss a complaint is to raise a question of law as to the sufficiency of the facts alleged to state a cause of action. It is axiomatic that a court may not properly go beyond the four corners of the complaint in testing the legal sufficiency of the allegations set forth therein. Geer v. Bennett, 237 So.2d 311 (Fla.4th DCA 1970). Where a motion to dismiss a complaint rests on facts outside the scope of the allegations contained in the complaint, the trial court commits reversible error in dismissing the complaint based on those extraneous matters. Tiseo v. Arnold, 237 So.2d 21 (Fla.2d DCA 1970).

In the instant case, the third party defendants moved to dismiss the third party complaint upon the grounds that the third party defendant had received a general release from the plaintiff which purported to relieve third party defendants of all future liability. This general release was attached to third party defendant’s motion to dismiss as exhibit “A”. Thus, the error. The trial court improperly went beyond the four corners of the complaint in testing the legal sufficiency of the complaint to state a cause of action.

Accordingly, the final judgment is vacated and set aside, and the order dismissing the third party complaint with prejudice is reversed and the cause remanded with directions to reinstate the third party complaint and for further proceedings.

Reversed and remanded, with directions.

MAGER, J., and KOVACHEVICH, ELIZABETH A., Associate Judge, concur.


text:
    EVENLINE CONSTRUCTION CORPORATION, Appellant, v. MILLER’S PLANTATION DEVELOPMENT COMPANY and Jimmie B. Gregory, as Executrix of John B. Gregory, Jr., Deceased, Appellees.
    No. 76-1222.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Rehearing Denied Sept. 27, 1977.
    Barry A. Mandelkorn and Terence J. Russell of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for appellant.
    0. Edgar Williams, Jr. of BerryhiL, Avery, Schwenke, Williams & Scott, P.A., Fort Lauderdale, for appellee-Miller’s Plantation Development Co.
   DAUKSCH, Judge.

This is an appeal from a Summary Final Judgment in a suit to specifically enforce a real property purchase and sale contract. Appellee is the seller and Appellant is the buyer.

The primary issue in this matter is a contract provision which provides:

“3. SELLER’S REPRESENTATIONS:
(h) At the time of settlement and passing of title, the premises shall be zoned by the City of Sunrise to a (sic) R-4 zoning classification which will permit construction of multi-unit residential buildings either for rental purposes or for sale as condominium units up to Twenty Five (25) units per gross acre.”

This contract provision is clear and unambiguous in saying that up to twenty-five condominium units per acre may be built on the land at the time of passing of title. After the contract was executed the City of Sunrise passed an ordinance changing the density limitations in R-4 zoning classification to a maximum of fifteen dwelling units per acre. The ordinance reads:

“BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SUNRISE, FLORIDA:
Section 1. That the Code of the City of Sunrise, Florida, is hereby amended by adding a section to be numbered 19-1(b)(1), which said section reads as follows:
Sec. 19-l(b)(l). The term ‘density’ as used herein shall be defined as the number of dwelling units permitted to be constructed per acre of land, exclusive of roads, rights-of-way and other portions of said lands dedicated to public use. The term ‘gross acre’ as used herein shall mean a plot of land having a minimum of 43,560 square feet. The term ‘gross area’ as used herein shall mean all of the contiguous territory included in the site development plan to which title is held by the developer. No zone shall be developed to a density exceeding the following maximum limit:
Section 2. It is hereby determined by the City Council that the passage of this Ordinance setting forth density limitations is an emergency measure, due to the rapid growth and development of lands located within the City, and any requirement for the reading of this Ordinance on two separate days be and the same is hereby waived.

Section 8. This Ordinance shall take effect immediately upon its passage.” There is no provision in this ordinance to except the land to be deeded to Appellant by Appellee. However when the parties became aware of this change affecting their contract they visited the City and obtained a letter from its Mayor giving an opinion that the new ordinance does not affect the land to be purchased by Appellant from Appellee. This letter is no more than an opinion of the Mayor and as yet has no binding effect on the City. However, relying on this letter the Appellee urges the effect of the ordinance does not apply to the particular land to be sold by it to Appellant. The letter from the Mayor was dated August 9 and was a result of a meeting on July 9. The closing was to be had on August 15. Both before and after the scheduled closing date the buyer made frequent demands for the return of his deposit because the above stated provision of the contract could not be met by the Appellee. On September 17 the City of Sunrise passed another ordinance which stated:

“BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SUNRISE, FLORIDA:
Section 1. That Ordinance No. 57-1 dated and passed on February 4, 1974, which Ordinance changed the Density Limitations for zoning classifications in the City of Sunrise, shall be amended so as to add the following paragraph to the end of Section 1, of said Ordinance:
‘This Ordinance shall not have a retroactive effect, thereby not disturbing Density Limitations prior to the effective date of this Ordinance.’
Section 2. This Ordinance shall take effect immediately upon its passage.”

Altho not stated on its face it is alleged this ordinance was passed for the benefit of these parties.

The question here is whether or not at the time of closing the contract was enforceable by the seller since the density had been changed. We hold that the reclassification materially and adversely affected the contract as it pertains to the buyer and therefore was voidable by him. We do not have the situation as appeared in J. C. Penney Company, Inc. v. Koff, 345 So.2d 732 (Fla. 4th DCA, opinion filed March 18, 1977), where the contract did not have any reference to the number of units but only as to the zoning category.

It may be that the City of Sunrise would be estopped from enforcing the lower density provision in the above set out ordinance because of the letter from the Mayor and the subsequent attempt to define the ordinance. But as was said in Westerlind v. Dehon, 326 So.2d 24 (Fla.4th DCA 1976).

“A purchaser can not be made to accept the property when he may have to litigate to obtain that property in the condition for which he contracted.”

The question as to whether or not the City of Sunrise could enforce its ordinance is not at issue here and no one has challenged its validity and it should be taken as valid on its face and enforceable.

Judgment for the Appellee is reversed with directions to enter judgment for the Appellant.

REVERSED and REMANDED with direction.

MAGER, J., and KANEY, FRANK N., Associate Judge, concur.


text:
    Alphonso ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 76-2236.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Alphonso Alvarez, in pro per.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the. authority of Harper v. State, 306 So.2d 141 (Fla. 4th DCA 1975); Holley v. State, 306 So.2d 561 (Fla. 4th DCA 1975), and Battle v. State, 338 So.2d 1107 (Fla.3d DCA 1976).

The following determinative question passed on in this case, as indicated in the special concurrence, is certified to the Supreme Court of Florida.as being of great public interest:

IS A SENTENCE OF IMPRISONMENT FOR A TERM OF YEARS GREATER THAN THE LIFE EXPECTANCY OF THE SENTENCED PERSON LAWFUL UNDER SECTION 813.011, FLORIDA STATUTES (1973) AND SECTION 812.13, FLORIDA STATUTES (1975)?

AFFIRMED.

ALDERMAN, C. J., and MAGER, J., concur.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge,

concurring specially:

In Harper v. State, 306 So.2d 141 (Fla. 4th DCA 1975), and Holley v. State, 306 So.2d 561 (Fla. 4th DCA 1975), this court in per curiam affirmances, Judge Owen dissenting, held that sentences for a term of years greater than any present living man’s life expectancy are lawful. In Battle v. State, 338 So.2d 1107 (Fla. 3rd DCA 1976), the Third District Court of Appeal followed the decisions of this court. In Harper, supra, the term was 130 years. In Holley, supra, 150 years. In Battle, supra, 150 years.

In Byrd v. State, 281 So.2d 22 (Fla.1974), the defendant was sentenced to 150 years for the crime of rape. At the time he was sentenced the death penalty for rape had not yet been declared unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Because the only case which our Supreme Court has upheld imprisonment for a term longer than the defendant’s life expectancy was a case in which the maximum sentence was death I believe it is time our Supreme Court looks at this problem again. I believe it to be of great public interest since many persons have been and most likely will be sentenced under robbery convictions to a term of years greater than life.

In the case now before us Mr. Alvarez was sentenced to 125 years imprisonment for the crime of robbery. The Statute now says that robbery is “punishable by imprisonment for a term of years not exceeding life imprisonment.” Section 812.13, Florida Statutes (1975). The Statute under which Mr. Alvarez was convicted was a bit different in that it said robbery was “punishable by imprisonment in the state prison for life or for any lesser term of years.” Section 813.011, Florida Statutes (1973).

Under both definitions the punishment “for a term of years not exceeding life” and “for life or for any lesser term of years”; it is obvious that the legislature meant the imprisonment to be no longer than the natural life of the convict.

There are a number of tables, including those contained within Florida Statutes, which set out the life expectancy of persons of various ages. Of course those tables are not tailored to accurately predict the life expectancy of any individual but we do not need the tables to know that a man 20 years of age will not have the life expectancy of 150 years. Our common sense tells us so. He won’t live another 135 years. It is possible, but unlikely he will live another 100 years. It is likely he will live 50 years. I am not attempting to set guidelines nor do I believe any sentencing judge can determine life expectancy or the date of death of a person when he attempts to sentence a man to a maximum term of years instead of life imprisonment.

The Statute gives the sentencing judge two alternatives: He may sentence for life or for a term of years not exceeding life. If the sentencing judge wants to give the maximum sentence then that sentence is life. It is obvious the sentencing judges intend to try to invade the province of the executive authority of our State and their parole habits in order to have a defendant incarcerated for as long as possible. There have been tables made available to sentencing judges, and others, indicating how long a prisoner serves before parole is usually granted. Accordingly, sentences in excess of life are supposed to keep prisoners longer than life sentences. If the legislature wants to change the Statute to permit sentencing judges or juries, like Texas, to sentence prisoners to any number of years then it may do so. I do not by this statement recommend for or against what is solely the province of the legislature.

Under the cases above cited the sentence of Mr. Alvarez was within the discretion of the court and the trial judge was proper in thinking he had the authority to enter the 125 year sentence. However, I believe that sentence exceeds the lawful authority under Section 813.011, Florida Statutes (1973).

I would reverse the Sentence and remand to the trial court for resentencing to a term of years not exceeding life, or life imprisonment, but as the case law is established against my opinion I choose to follow stare decisis and specially concur in the result and especially concur in the certification.


author: DOWNEY, Judge.

text:
    Glenn Richard SHIPP, Appellant, v. STATE of Florida, Appellee.
    No. 76-2366.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    James K. Kreeland, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty.- Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

We have reviewed the record and briefs in this case and we find the judgment and sentence appealed from must be reversed.

The search giving rise to the incriminating evidence upon which appellant was convicted was an unlawful search and thus the trial court should have granted appellant’s motion to suppress said evidence. We note in passing that we have recently affirmed a revocation of appellant’s probation based upon the very evidence we now hold must be suppressed. Lest we be charged with inconsistency, we point out that the tainted evidence is not subject to the rule of exclusion in probation revocation proceedings. Thus, that evidence could be considered by the trial judge in that administrative proceeding, but not in a criminal prosecution for the new offense. Croteau v. State, 334 So.2d 577 (Fla.1976).

Accordingly, the judgment and sentence appealed from is reversed and the cause is remanded to the trial court with directions to grant the appellant’s motion to suppress and for appropriate further proceedings.

REVERSED AND REMANDED, with directions.

MAGER and CROSS, JJ., concur.


author: PER CURIAM. CROSS, Judge,

text:
    Sandra KOCHA, Appellant, v. Stuart Edwin KOCHA, Appellee.
    No. 76-2486.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.

      Eleanor Levingston Schockett, Miami, for appellant.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee.
   PER CURIAM.

Upon consideration of the record and briefs, we determine that the trial court erred in summarily dismissing appellant’s petition for modification of child support without an evidentiary hearing. We further determine that the trial court abused its discretion in entering a protective order prohibiting appellant’s discovery of her former husband’s financial status.

In reference to alimony, however, appellant in her amendment to reply brief says:

The Wife will concede, for the purposes of the continuing action between the parties, that the Property Settlement Agreement entered into between the parties, as it related to the award of alimony only, is not subject to modification.

The trial court’s dismissal of the petition for modification of alimony is affirmed.

REVERSED in part, AFFIRMED in part, and REMANDED.

ALDERMAN, C. J., and MAGER, J., concur.

CROSS, J., concurs in part and dissents in part, with opinion.

CROSS, Judge,

concurring in part and dissenting in part:

Except that part of the opinion affirming dismissal of the petition for modification of alimony, I concur.

I dissent as to affirmance of dismissal of the petition for modification of alimony based on counsel’s concession, and would reverse and remand for an evidentiary hearing on the petition for modification of alimony.


author: LETTS, Judge.

text:
    Curtis David JONES, a minor, by David Jones, his Guardian ad litem, Appellants, v. Rose LUCKS, an Individual, Appellee.
    No. 77-301.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.

      Stanley Epstein of Mamber, Gopman, Epstein & Foosaner, North Miami Beach, for appellants.
    Neil Karadbil of Laswell & Taylor, Fort Lauderdale, for appellee.
   LETTS, Judge.

This interlocutory appeal comes to us from an order denying the appellant’s motion to dismiss the complaint, predicated on an insufficiency of process under Fla.R. Civ.P. Rule 1.140(b). We reverse.

This case involves service of process on a minor pursuant to Section 48.041(1). The pertinent language of that statute is as follows:

Process against a minor who has never been married . . . shall be served: (1) By READING the process to the minor . . . to be served (Emphasis supplied).

The record reflects that the deputy sheriff who effected service handed over the papers and said only, “These are papers of someone suing you.” From this statement the trial judge concluded “that the reading requirement of Section 48.041 Florida Statutes ha(d) been satisfied.”

So far as we can determine no appellate court has been called upon to define what constitutes substantial compliance with the phrase “reading the process to the minor,” although the question was partially addressed in Drake v. Wimbourne, 112 So.2d 27 (Fla. 2nd DCA 1959). However, it seems to us that it is clear and must mean that the deputy should read the contents of the process out loud to the minor. Said process contains within it the important admonition that the incompetent served must answer the pleading within 20 days or face the prospect of default. Such an admonition is not substantially complied with by the mere statement that someone is suing.

Any doubt that the process server is required to actually read the contents of the process is dispelled when one refers to the adjoining section on service of process generally. This latter section simply provides that service can be made “by delivering a copy of” it. Section 48.031 Florida Statutes (1975). In consequence the term read the process, as distinct from deliver it must mean something extra, intended by the legislature. That intention is obvious. It is a further safeguard designed to improve the level of awareness so that an incompetent will better understand what is happening.

Statutes relating to service of process should be strictly complied with. Drake v. Wimbourne, supra. Thus, notwithstanding the other requirements of the same section, which admittedly would appear to us to provide ample safeguard to the minor being sued, we are compelled by the legislative act to the conclusion that the service of process was insufficient in this case.

Reversed and remanded.

CROSS and MAGER, JJ., concur.


author: ANSTEAD, Judge. CROSS, Judge,

text:
    In re the ADOPTION OF Leonard David COLEMAN.
    No. 77-341.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Legal Aid Society, Palm Beach County, Inc. and Larry A. Klein, West Palm Beach, for petitioners Albert Coleman and Ossie Lee Coleman.
   ANSTEAD, Judge.

The only point raised on appeal is the right of the appellants, Albert Coleman and Ossie Lee Coleman, to have a hearing on their petition to adopt their grandson who has lived with them since birth. The trial court refused the petitioners a hearing and summarily denied the petition. Notwithstanding any testimony being taken or evidence received, the trial court concluded:

The petitioners are prima facie ineligible to adopt a child under these facts. If they want custody of the child (which they have) they should look to the parents for support.
This Court will not be a party to a scheme whereby a citizen is allowed to use the Courts for free, be provided a lawyer for free and have the Government of the United States support a child for free, as long as his mother and father are able to provide such support. To do so would prostitute the laws of Florida and add an unnecessary burden to the taxpayers of this country.

Since there was no hearing, this court is not in a position to evaluate these conclusions. However, the petitioners are entitled to a hearing on their petition and a decision on the merits. See McMillan v. Findley, 135 So.2d 873 (Fla. 3d DCA 1961). Accordingly, this cause is reversed and remanded for proceedings consistent with this opinion.

MAGER, J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

The record is insufficient for lack of a transcript to determine whether the trial court refused petitioners a hearing and summarily denied their petition for adoption. It is the responsibility and duty of an appellant to provide the reviewing court with a record sufficient to review matters assigned as error. Johnson v. Town of Eatonville, 203 So.2d 664 (Fla. 4th DCA 1967). In the instant case, the appellant has failed to provide a sufficient record. Accordingly, I would affirm.


text:
    Walter J. PHILLIPS, Petitioner, v. Richard P. WILLE, Sheriff of Palm Beach County, Florida, Respondent.
    No. 77-1523.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.

      Richard W. Springer, Kohl, Springer & Springer, Palm Springs, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

On July 15,1977, Walter J. Phillips filed a Petition for Writ of Habeas Corpus asking this court to order his release from confinement or set a reasonable bail pending further extradition proceedings in Circuit Court Case No. 77-1323 CF.

On July 18, 1977, this court issued a Rule to Show Cause why the relief prayed for should not be granted as prayed.

The Attorney General, on behalf of the respondent Sheriff of Palm Beach County, filed a response to that Rule on July 25, 1977. That response does not show any reason why we should not grant the relief prayed.

We, therefore, grant the Petition for Writ of Habeas Corpus and direct the Cir-, cuit Court to set reasonable bail pending further proceedings in Circuit Court Case No. 77-1323 CF.

CROSS, DOWNEY and ANSTEAD, JJ., concur.