author: ERVIN, Judge.

text:
    Leon Kirkley CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. JJ-113.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1978.
    Rehearing Denied Jan. 18, 1979.

      Raymond E. Makowski of Makowski & Davis, Jacksonville, for Appellant.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove and Carolyn M. Snurkowski, Asst. Attys. Gen., for Appellee.
   ERVIN, Judge.

Campbell appeals his conviction for sale of heroin, contending, among other things, the court erred in refusing to grant his motion to suppress as it related to testimony by an undercover officer concerning Campbell’s participation in a drug transaction.

On June 24, 1977, three undercover officers in the Duval County Sheriff’s Department went to a local bar in an attempt to purchase certain controlled substances. One of the officers was equipped with a small electronic transmitter designed to enable the other officers, seated in an unmarked car, to hear and record the conversations over their receiver and recording device. Officer Herron met a person at the bar, co-defendant Presha, who told Herron he could help him buy heroin. The men went into a restroom at the bar and there, Herron stated, he met Campbell who sold him three packets of heroin. Appellant at trial denied selling heroin to Herron and denied speaking to him.

Campbell argues that the trial court erred in refusing to grant in its entirety his motion to suppress all statements allegedly made by him to the undercover officers. During the hearing on the motion to suppress the statements, it was established that the surveilling officers, although they electronically monitored the conversation between Campbell and Herron, failed to place recording tapes in their receiver because of the poor reception which they had previously encountered in the area. The court granted the motion to suppress the statements as it applied to communications heard by the officers outside the bar, but denied the motion as to the conversation overheard by Herron. Appellant argues that the failure to record the conversation deprived him of the opportunity to corroborate his testimony that he did not sell heroin to Officer Herron.

Campbell argues further that Herron’s testimony should have been suppressed since § 934.09(7)(a) requires that once an interception is made, the contents shall, if possible, be recorded and kept in such a way as to protect the recording from editing or other alterations, the statute can only be logically interpreted as requiring any intercepted communication which is not preserved be suppressed. We disagree. Section 934.09 pertains to the procedure for interception of wire or oral communications after an order is issued authorizing such interceptions. Upon the expiration of the period specified in the order, the recording is made available to the court which issued the order and is then sealed under its directions. The statute requires only that the contents of the recorded conversation be preserved for the benefit of the court. The conversations which were intercepted here were not authorized by court order nor were they required by law to be; therefore, the provisions of § 934.09 have no application to the conversation intercepted by Officer Herron. Section 934.03(2)(c) permits a law enforcement officer or person acting under his direction to intercept a communication when either is a party to the communication or one of the parties to the communication has given prior consent to such interception, and the purpose for the interception is to obtain evidence of a criminal act.

The Florida Security of Communications Act was patterned after the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. The federal counterpart to § 934.03(2)(c) is § 2511(2)(c) which permits a person “under color of law to intercept a ... communication where such person is a party to the communication . . . .” While there are differences between the applicable provisions of the state and federal acts, the distinctions are not relevant to the facts here. Section 2511(2)(c) has been interpreted as permitting an interception without prior court order. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); United States v. Harpel, 493 F.2d 346 (10th Cir. 1974); Stamatiou v. United States Gypsum Co., 400 F.Supp. 431 (N.D. Ill.1974), aff'd, 534 F.2d 330 (7th Cir. 1976).

We conclude there is nothing in the Florida Security of Communications Act which requires an intercepted communication be suppressed when the officer is a party to the communication and intercepted it for the purpose of obtaining evidence of a crime, even though tapes of the communication, for whatever reason, are not available to the defendant.

Campbell relies additionally upon Sobel v. State, 349 So.2d 747 (Fla. 3d DCA 1977) and Mitchell v. State, 358 So.2d 238 (Fla. 2d DCA 1978), as requiring suppression of the conversation. Neither of the two cases addressed any provision of Chapter 934. Both cases are distinguishable from the present since they involved circumstances in which the tapes were recorded, unlike the situation here, and were later lost or destroyed by the authorities. Moreover, the efficacy of the two opinions has been eroded by the Supreme Court’s recent decision in State v. Sobel, 363 So.2d 324 (Fla., 1978), which reversed the Third District’s decision in Sobel and held there must be a showing of prejudice to a defendant before the contents of the communication, later lost or destroyed, will be suppressed. Obviously if no prejudice was demonstrated by Sobel when the officers both intercepted and recorded the communication, which later disappeared while in their possession, we are unable to see how Campbell has demonstrated prejudice when the officers failed to record the communication.

We have examined the remaining points relied upon by appellant and find them without merit.

AFFIRMED.

SMITH, Acting C. J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.

      . Section 934.06 prohibits the reception at trial of any evidence which was obtained in violation of Ch. 934.

      . Which provides:
      The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire or oral communication under this subsection shall be kept in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for 10 years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of s. 934.08(1) and (2) for investigations.

      . The distinctions were thoroughly analyzed by Judge Grimes in State v. News-Press Pub. Co., 338 So.2d 1313, 1315-1316 (Fla. 2d DCA 1976).


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    PETER MARICH & ASSOCIATES, INC., Appellant, v. Louis F. POWELL et al., Appellees.
    No. 77-1948.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.
    As Modified On Denial of Rehearing Dec. 27, 1978.

      Howard C. Batt of Robinson, Macpher-son, Harper & Kynes, Clearwater, for appellant.
    James A. Martin, Jr. and Harry S. Cline of McMullen, Everett, Logan, Marquardt & Cline, Clearwater, for appellees.
   SCHEB, Judge.

Appellant Peter Marich & Associates, Inc., an architectural firm, successfully foreclosed a mechanic’s lien against appel-lees’ property. Appellant contends the trial court erred in refusing to allow it prejudgment interest, costs, and a reasonable attorney’s fee. We find merit in appellant’s contentions as to its claim for interest and an attorney’s fee and reverse on these points, but we affirm the trial court’s denial of costs. By cross-appeal, appellees challenge the trial court’s failure to grant them a setoff for appellant’s alleged failure to include soundproofing in the construction plans, as well as the court’s dismissal of the malpractice count of their counterclaim. As to these issues we affirm.

In March 1974 appellant contracted with appellees to perform architectural services in connection with construction of a medical office building in Clearwater. The contract provided that appellant’s fee would be based on a percentage of the construction costs for basic services, with an hourly rate for additional services; but, the contract was silent as to the size or projected cost of the building.

Construction finally commenced in January 1976. By this time relations between appellant and appellees had grown strained, and during construction appellees consulted directly with the builder rather than appellant. Appellees refused to make the payments to appellant as called for in the contract, and in March 1976 appellant filed a mechanic’s lien against their property.

After the building was completed appellant brought suit seeking $70,000 in architectural fees, interest, attorney’s fees, and costs. Appellees counterclaimed, contending appellant had breached the contract and had committed architectural malpractice.

Upon conclusion of appellees’ evidence at the nonjury trial the court dismissed the malpractice count of appellees’ counterclaim.

Section 713.29, Fla.Stat. (1975) provides that a prevailing party in a mechanic’s lien foreclosure “shall be entitled to recover a reasonable fee for the services of his attorney . . . which shall be taxed as part of his costs.” This court has held this language to be mandatory, i. e., if the prevailing party seeks an attorney’s fee the court is obligated to grant it. Peacock Construction Co. v. Gould, 351 So.2d 394 (Fla.2d DCA 1977); Emery v. International Glass & Mfg., Inc., 249 So.2d 496 (Fla.2d DCA 1971). The trial court recognized this statutory mandate, but concluded that appellant was not a “prevailing party” because it had failed to prove its entire claim. In so concluding we think the court erred.

A prevailing party is one in whose favor an affirmative judgment is rendered. This is true despite the fact that the judgment is for less than initially sought in the complaint. R. F. Driggers Construction Co. v. Bagli, 313 So.2d 450 (Fla.2d DCA 1975); Foxbilt Electric, Inc. v. Belefant, 280 So.2d 28 (Fla.4th DCA 1973); Sharpe v. Ceco Corp., 242 So.2d 464 (Fla.3d DCA 1970). Therefore, appellant was entitled to a reasonable attorney’s fee even though it did not recover the entire amount sought in its complaint.

Though there was a bona fide question as to how much appellant was owed under the contract, once this issue was determined by the court appellant was due interest from the date of entitlement. As was said by the supreme court in Parker v. Brinson Construction Co., 78 So.2d 873, 874 (Fla.1975):

This Court has long recognized that in actions ex contractu it is proper to allow interest at the legal rate from the date the debt was due. The fact that there is an honest and bona-fide dispute as to whether the debt is actually due has no bearing on the question. The rule is that if it is finally determined that the debt was due, the person to whom it was due ís entitled not only to payment of the principal of the debt but to interest at the lawful rate from the due date thereof. (Citations omitted.)

See also Vacation Prizes, Inc. v. City National Bank, 227 So.2d 352 (Fla.2d DCA 1969).

Appellees contend that appellant was not entitled to prejudgment interest because this was an equitable suit to foreclose a mechanic’s lien rather than a legal action to enforce a contract. They rely upon Edwards v. John O. Evans Construction Co., 155 Fla. 263, 19 So.2d 799 (1944); Horne v. C & R Building Materials, Inc., 321 So.2d 617 (Fla.3d DCA 1975); Sharpe v. Ceco Corp., supra; and, Gerber Groves, Inc. v. Belle Glade Agricultural Contractors, Inc., 212 So.2d 669 (Fla.2d DCA 1968). The Edwards case was decided before the Parker v. Brinson Construction Co. case in which the rule of law quoted above was announced. Therefore, we deem Parker controlling. We do not find the other cases persuasive, because in each there was no privity of contract (as here) between the person asserting the lien and the owner of the property against which the lien was sought. We hold that when a foreclosure suit is based upon a breach of contract, the party to whom the debt is owed is entitled to interest from the date the debt is due. See generally Sharpe v. Herman A. Thomas, Inc., 294 So.2d 14 (Fla.3d DCA 1974); 53 Am.Jur.2d Mechanics’ Liens § 246 (1970). Therefore, the trial court erred in failing to award appellant prejudgment interest in this case.

Appellant also urges that it was entitled to recover costs. However, in a foreclosure action the trial court has the discretion to grant or deny costs. R. F. Driggers Construction Co. v. Bagli, supra; Flagala Corp. v. Hamm, 302 So.2d 195 (Fla.lst DCA 1974). Under the circumstances here we cannot say the trial court abused its discretion in denying appellant costs.

As to appellees’ cross-appeal on the question of soundproofing, we find there was conflicting evidence from which the trial judge could have found, as he did, against appellees. Therefore, we must affirm on this point. Liberty Mutual Insurance Co. v. Furman, 341 So.2d 1056 (Fla.3d DCA 1977). On the allegation of malpractice, there was no evidence of any injury suffered by appellees as there must be to authorize recovery of damages. Innkeepers International, Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla.4th DCA 1975). Since appellees did not present sufficient evidence to support their counterclaim, the trial court properly granted appellant’s motion for involuntary dismissal. Fla.R.Civ.P. 1.420; see Curls v. Tew, 346 So.2d 1242 (Fla.lst DCA 1977); 10 Fla.Jur. Dismissal, Etc. § 12 (1973).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.

      . Appellees point out that they tendered an offer of judgment before trial pursuant to Fla. R.Civ.P. 1.442. Therefore, they contend, appellant was not a “prevailing party” in this litigation. While the trial court should take the offer of judgment into consideration when determining attorney’s fees upon remand, Hernandez v. Travelers Insurance Co., 331 So.2d 329 (Fla.3d DCA 1976), we cannot accept ap-pellees’ argument that the offer of judgment should have been considered by the trial court in determining who was the “prevailing party” under § 713.29.


author: OTT, Judge.

text:
    John W. MIKOS, Property Appraiser of Sarasota County, Florida, Appellant, v. PROPERTY APPRAISAL ADJUSTMENT BOARD OF SARASOTA COUNTY, Florida, Appellee.
    Nos. 78-41, 78-1116.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.
    Rehearings Denied Dec. 26, 1978.

      John C. Dent, Jr. of Dent & Pflugner, Sarasota, for appellant.
    Robert L. Hesse of Nelson, Hesse, Cyril, Weber & Sparrow, Sarasota, for appellee.
    Robert L. Shevin, Atty. Gen. and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for amicus curiae Dept, of Revenue.
    John Michael Hartenstine and Charles D. Bailey, Jr. of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for intervenors’ Gulsby, et al.
    Granville H. Crabtree, Jr. of Crabtree, Butler, Syprett & Meshad, Sarasota, for intervenors’ Bixler, et al.
    Bernt Meyer of Lee, Surfus & Martin, Sarasota, for intervenor Ringling Redskins, Inc.
    H. Lee Dehner of Trawick & Griffis, Sarasota, for intervenor Betty L. Koch.
   OTT, Judge.

The lower court entered final orders or judgments of dismissal of the Property Appraiser’s (appellant) court challenge of certain assessment decisions of the Property Appraisal Adjustment Board (appellee). We reverse.

Pursuant to the provisions of Section 194.032(6)(a)(3), Florida Statutes (1977) the appellant notified the Department of Revenue [DOR] that he believed there was a consistent and continuous violation of law or administrative rules by appellee in its decisions on property assessments of various taxpayers.

The DOR secured the questioned written decisions of the appellee. Pursuant to Section 194.032(3), the DOR requested the written transcript of the hearings conducted by the appellee on those assessment decisions. The transcript of the hearings was delayed (apparently justifiably so) and did not reach the DOR for some three months or so.

After review of the record of the hearings and the decisions of the Property Appraisal Adjustment Board the DOR agreed with the Property Appraiser. The Property Appraiser thereupon instituted the instant actions challenging the Property Appraisal Adjustment Board decisions.

The lower court held that the action of the DOR in agreeing with the Property Appraiser was a “decision” constituting “final agency action” within the meaning of Chapter 120, Florida Statutes (The Administrative Procedure Act) and that, as such, there must be full compliance with Chapter 120 including notice and opportunity to be heard accorded to the Property Appraisal Adjustment Board and/or the taxpayers.

We are not presented with and therefore do not decide the question of whether or not a “decision” of the DOR that the Property Appraiser was in error in asserting a consistent and continuous violation of law or administrative rule would preclude a court challenge of Property Appraisal Adjustment Board decisions by the Property Appraiser.

We point out, however, that prior to the 1976 amendment of Section 194.032(6) (Ch. 76-234, Laws of Florida) there was no right of the Property Appraiser to appeal adverse decisions of the Property Appraisal Adjustment Board. One of the primary purposes of the 1976 amendment was, therefore, to provide for the methods and conditions of appeals by the Property Appraiser.

The current version of Section 194.-032(6)(a)(3), Florida Statutes provides for the Property Appraiser to request a review by the DOR of his own conclusion of a law or rule violation. We hold this review is not an administrative proceeding governed by Chapter 120.

The “decision” of the DOR concurring with the conclusion of the Property Appraiser does not adversely determine the rights of the taxpayers nor can it in any way change, modify, overturn or otherwise adversely affect the decisions of the Property Appraisal Adjustment Board. It is, in this sense, a true probable cause determination. See, e. g., Property Appraisal Adjustment Board of Sarasota County v. Florida Department of Revenue, 349 So.2d 804 (Fla.2d DCA 1977). Based solely upon the record of Property Appraisal Adjustment Board proceedings the DOR determines whether there is good cause for the conclusion of the Property Appraiser that the Property Appraisal Adjustment Board has consistently and continuously violated a law or rule — one of the grounds for appeal now extended to the Property Appraiser.

Upon the Property Appraiser thereafter going forward with the contemplated and DOR sanctioned court challenge it is expressly provided that such “court proceedings shall be de novo.” Section 194.-032(6)(c), Florida Statutes (1977). The Property Appraiser is saddled with the burden of proving that the challenged assessment determination of the Property Appraisal Adjustment Board is in violation of applicable law or rules. Section 194.-032(6)(c), Florida Statutes (1977). The decision of the Property Appraisal Adjustment Board is in no way adversely affected by the DOR’s sanction of judicial challenge thereof by the Property Appraiser.

The rights of the adversely affected taxpayer not made a party to the court action are fully preserved in providing for his independent challenge of such adverse judicial determination. Section 194.032(6)(a)(3), Florida Statutes (1977). In the instant actions certain taxpayers (not made parties) who may be adversely affected by the court action have been granted the right to intervene and join in the defense of the Property Appraisal Adjustment Board decision as to their assessments.

The orders or judgments of dismissal are reversed and these cases are remanded for further proceedings consistent herewith.

GRIMES, C.J., and DANAHY, J., concur.


author: BOYER, Judge. PER CURIAM. McCORD, Chief Judge,

text:
    AGRICO CHEMICAL COMPANY et al., Petitioners, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION and Sarasota County, Florida, Respondents. AGRICO CHEMICAL COMPANY, Borden, Inc., Brewster Phosphates, Farmland Industries, Inc., Gardinier, Inc., International Minerals & Chemical Corporation, Mobil Chemical Company, Occidental Chemical Company, Swift Agricultural Chemicals, USS Agri-Chemicals (a Division of United States Steel Corporation), and W. R. Grace & Co., Appellants, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, and State of Florida Environmental Regulation Commission, Appellees, and Sarasota County, Florida, Intervenor/Appellee. AGRICO CHEMICAL COMPANY, Borden, Inc., Brewster Phosphates, Farmland Industries, Inc., Gardinier, Inc., International Minerals & Chemical Corporation, Mobil Chemical Company, Occidental Chemical Company, Swift Agricultural Chemicals Corporation, USS Agri-Chemicals (a Division of United States Steel Corporation), and W. R. Grace & Co., Petitioners, v. Reubin O’D. ASKEW, Governor, Bruce A. Smathers, Secretary of State, Robert L. Shevin, Attorney General, Gerald A. Lewis, Comptroller, Bill Gunter, Treasurer and Insurance Commissioner, Ralph D. Turlington, Commissioner of Education, and Doyle Conner, Commissioner of Agriculture, as the Governor and Cabinet of the State of Florida, and State of Florida Department of Environmental Regulation, Respondents.
    Nos. FF-95, FF-340 and GG-448.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1978.
    Dissenting Opinion On Denial of Rehearing Jan. 16, 1979.

      Robert L. Rhodes, Jr., Chesterfield Smith, Lakeland, and W. Daniel Stephens of Holland & Knight, Tampa, for petitioners.
    Robert L. Shevin, Atty. Gen., J. Kendrick Tucker, Asst. Atty. Gen., R. L. Caleen, Jr., Tallahassee, Richard L. Smith of Nelson, Hesse, Cyril & Weber, Sarasota, for respondents.
   BOYER, Judge.

The central issue in each of the three cases which have been consolidated for consideration by this court relates to the validity (or invalidity) of proposed rules of the Department of Environmental Regulation (Department) which concern effluent standards for phosphate mining and processing operations. The petitioners-appellants are all engaged in the phosphate industry in Florida and will be referred to as the Industry. Since the issues presented by the three cases are closely related and the cases have all been consolidated, we will address only those procedural issues raised by the parties, making no attempt to resolve any apparent problem regarding what constitutes final agency action when both F.S. 120.54(4) and F.S. 403.804 are involved. Nor do we find it necessary, for the same reasons, to address here the issues discussed in Carroll-wood State Bank v. Lewis, 362 So.2d 110 (Fla. 1st DCA 1978), and cases therein referred to.

In November, 1976, the Department published a notice in the Florida Administrative Weekly of its intent to adopt a proposed rule entitled “Effluent Guidelines and Standards for Mineral Mining and Processing — Subpart R Phosphate Rock Subcategory.” Adoption was scheduled to take place at a public hearing before the State of Florida Environmental Regulation Commission (Commission) which is the environmental standard-setting body of the Department, on December 1, 1976. The Industry filed a timely “Petition for Administrative Determination of A Proposed Rule” with the Division of Administrative Hearings pursuant to F.S. 120.54(4). Notwithstanding the pendency of that petition, which was duly assigned to a hearing officer, the Commission held its scheduled public hearing on December 1 and 2, 1976, and “approved” the proposed rule over the Industry’s objection. The Industry objected to the proceedings before the Commission on the ground that the action was prohibited by F.S. 120.54(4)(c).

On December 27, 1976, Sarasota County (Sarasota) was permitted to intervene.

On December 29 and 30, 1976, and January 4, 1977, a hearing was held before the hearing officer who rendered a final order on January 31, 1977, implicitly upholding the validity of the proposed rule. That order, declared to be “final agency action” by F.S. 120.54(4)(d) resulted in the filing of a petition for review in this court, which was assigned Case No. FF — 95. In the challenged order, the hearing officer found, inter alia, that the subject rule is more stringent than current federal guidelines under the jurisdiction of the Environmental Protection Agency.

The final order, further recited:

“* * * und.er a claim that a proposed rule is arbitrary, unreasonable or factually unsound, the Petitioners must demonstrate that the rule is so totally unfounded as to be completely beyond reason. Under the evidence submitted in this case, this burden has not been met.”

That holding is the nucleus of the Industry’s first point.

In Conner v. Cone, 235 So.2d 492 (Fla. 1970) the Supreme Court of Florida had occasion to consider a statute regulating dairy products and their substitutes. The Court there said:

“* * * we recognized in the Setzer case, supra, [Setzer v. Mayo, 150 Fla. 734, 9 So.2d 280 (1942)] that the Legislature had the power to prescribe a standard for dairy products in the interest of public health and the general welfare and that filled milk was generally considered to be injurious to health. We also recognized, however, that the Legislature’s power in this regard was not absolute. Any prohibition under the police power must have some relation to the protection of the health, morals, safety or welfare of the public, and if no relation can be shown which is reasonable, then such prohibition must be taken as arbitrary and capricious, the effect of which is to deprive one of property without due process, or to deprive one of equal protection under law.” (Emphasis added: 235 So.2d at page 494)

Given a proposed rule within the general area of regulation delegated by the legislature to an agency, the test of arbitrariness is the same for the proposed rule as it would be for a statute having the same effect. Fla. Citrus Comm’n v. Owens, 239 So.2d 840, 848 (Fla. 4th DCA 1969), cert. denied, 242 So.2d 873 (Fla.1971).

Rulemaking by an agency is quasi-legislative action and must be considered with deference to that function. In Florida Beverage Corporation v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975), this Court said:

“Where the empowering provision of a statute states simply that an agency may ‘make such rules and regulations as may be necessary to carry out the provisions of this Act’, the validity of regulations promulgated thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or capricious.”

Similarly, the United States Supreme Court in Thompson v. Consolidated Gas Corp., 300 U.S. 55, 57 S.Ct. 364, 81 L.Ed. 510 (1937), in reviewing administrative regulations relating to the production of gas by landowners, found that the test for validity was whether the regulations are found to have a reasonable relationship either to the prevention of waste or the protection of correlative rights, or whether they are arbitrary.

F.S. 120.54(4), is the statute under which a hearing officer initially determines the validity or invalidity of a proposed agency rule. It provides that any substantially affected person may seek an administrative determination of invalidity on the ground that the proposed rule is “an invalid exercise of delegated legislative authority.” The challenge under F.S. 120.54(4) is a two-step process: The challenge is first heard before an administrative hearing officer whose order “shall be final agency action.” That final agency action is subject to judicial review. Both the hearing officer (acting in a detached quasi-judicial capacity) and this Court should determine from the evidence presented whether or not there is competent, substantial evidence to support the validity of the rule.

Thus, in a 120.54 hearing, the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule is encompassed within that grant. The burden is upon one who attacks the proposed rule to show that the agency, if it adopts the rule, would exceed its authority; that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious.

A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.

The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one indeed. However, the degree of such required proof is by a preponderance of the evidence which is substantially different from that imposed by the hearing officer, viz: “So totally unfounded so as to be completely beyond reason.”

We conclude, therefore, that in considering the evidence adduced before him and in rendering the order of January 31,1977, the hearing officer applied a more onerous burden on the Industry than that required by law. In view of the conflicting evidence, the multiplicity of issues and the complexity of the facts, it would be presumptuous on our part to attempt to determine from the voluminous record before us whether the application of a different burden of proof, viz, by a preponderance of the evidence, would have resulted in different conclusions by the hearing officer. We accordingly reverse and remand for that determination.

To facilitate disposition on remand, we further hold that the hearing officer correctly ruled that the economic and environmental impact statements prepared in compliance with F.S. 403.804(2) satisfies the requirements of that law and that the economic impact statement sufficiently satisfies the requirements of F.S. 120.54(2). Neither did the hearing officer err by refusing to hear proffered evidence relating to the procedures used, and conclusions of, the United States Environmental Protection Agency in developing effluent limitations guidelines for the phosphate rock mining industry under regulations similar to those of the Department.

Neither do we find that the hearing officer violated F.S. 120.57(l)(b)(4) nor F.S. 120.59(2) nor the principles announced in Stuckey’s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976). As we stated in Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978):

“Pursuant to F.S. 120.57, a party has the right to raise pertinent factual issues for administrative determination, to submit proposed findings on those issues and to receive a ruling on each pertinent proposed finding. * * * However, in so holding we stress that an agency head is not required to make explicit rulings on subordinate, cumulative, immaterial or unnecessary proposed facts. Those proposed findings which fall in such a category may be rejected by a simple statement that they are immaterial or irrelevant. * * *”

The other points raised in Case No. FF— 95 may be affected by our above holding regarding the required degree of proof, therefore, they need not be addressed here.

F.S. 403.804(2) provides that when any-proposed standard that would be stricter or more stringent than one which has been set by federal agencies pursuant to federal law or regulation, the Environmental- Regulation Commission- (Commission) shall direct the department to have a study conducted of the economic and environmental impact which sets forth the benefits and costs to the public, which studies shall be submitted to the Governor and Cabinet. The statute further provides that final action shall be by the Governor and Cabinet “who shall accept, reject, modify, or remand for further proceedings the standard within 60 days from the submission.” Such reviews, the statute provides, shall be appellate in nature and the hearings shall be in accordance with the provisions of the Administrative Procedures Act.

At a meeting held on June 7, 1977, the Governor and Cabinet approved the challenged rule subject to the requirement that it be modified to reflect an effective date of October 1, 1977. The rule was filed with the Department of State on June 27, 1977. The Industry filed in this court a timely petition for review which was assigned Case No. GG-448.

Inasmuch as the Commission “approved” the rule on December 2, 1976 prior to the entry of the hearing officer’s order on January 31, 1977, the Industry urges that the Commission’s action was a nullity and that the rule was not therefore properly before the Governor and Cabinet for final action in accordance with F.S. 403.-804(2). The basis of such contention is found in F.S. 120.54(4)(c) which states that “No rule shall be adopted until 21 days after the notice required by subsection (1) or until the hearing officer has rendered his decision, as the case may be.” The controversy revolves around a construction of the word “adopted” as used in F.S. 120.54(l)(c) and as used in F.S. 403.804(2) which statutes must, in this type of case, be construed so as to harmonize.

A reading of the language in F.S. 120.54, and related sections, reveals that rule “adoption” is a process. The process of adoption outlined in the Florida Administrative Procedure Act (APA) includes the publication and delivery of requisite notice, (F.S. 120.54(1)) the development of an economic impact statement (F.S. 120.54(2)), the consideration (under certain circumstances) of evidence and arguments presented at a public hearing (F.S. 120.54(3)), the filing of the proposed rule with the legislative Administrative Procedures Committee (F.S. 120.54(ll)(a)) and the filing of the proposed rule with the Department of State (F.S. 120.54(1l)(b)).

A unique additional step in the adoption process applicable to the Department and Commission arises when (as in the instant case) a proposed environmental standard is more stringent than a federal standard. In such a case, the Commission initially adopts a rule subject to final action by the Governor and Cabinet. (F.S. 403.804(2)).

Finally, F.S. 120.54(12), states that a proposed rule “shall be adopted on being filed with the Department of State and become effective twenty days after being filed, on a later date specified in the rule, or on a date required by statute.” (emphasis added) The latter statute provides a definite benchmark for the completion of the adoption process.

The Industry contends that it is the Commission’s “approval” portion of the rule-making process which is the “adoption” prohibited by F.S. 120.54(4)(c) until after the hearing officer has rendered his decision. We agree.

This court has recognized that the Legislature intended that the use of the term “adoption” may refer to an act of “approval”. In Riley-Field Co. v. Askew, 336 So.2d 383 (Fla. 1st DCA 1976), we discussed timing requirements for perfecting appellate review of agency rulemaking. In summarizing the facts, we stated:

“* * * [Petitioners seek review of [a rule] which the Administration Commission of the Department of Administration adopted March 9, 1976 and filed in the office of the Secretary of State on March 10, designating much of Monroe County as an area of critical state concern * * Because the petitions for certiorari were not filed within thirty (30) days after the rule’s adoption and filing, respondents moved to dismiss the petitions as untimely filed * * *” (336 So.2d at page 384) (Emphasis added)

By that language we implicitly recognized that “adoption” under the APA may refer to an agency’s action in “approving” a rule.

The Industries statutory interpretation is consistent with other provisions of the APA. Normally, the rule adoption process consists of a series of inexorable, nondiscre-tionary activities within specific time frames. Notice of proposed rulemaking must be published prior to the intended action. (F.S. 120.54(1)) The filing of the Proposed Rule completes the adoption process. (F.S. 120.54(12))

The completion of a rulemaking public hearing held by the Commission would thus normally set into motion the statutory timetable. No later than forty-five days after the notice of proposed rulemaking, or no later than ten days after the public hearing (if the hearing extends beyond the 45-day period), the proposed rule must be filed with the Secretary of State. The proposed rule is then finally adopted. F.S. 120.-54(4)(c), however, prohibits the adoption of a proposed rule until after the hearing officer renders his decision on the validity of the proposed rule. The hearing officer’s ruling may not be available for as long as approximately eighty-four days from the date of the notice of intent to adopt a rule. (The petition for administrative determination must be filed within 14 days of the notice. F.S. 120.54(4)(b). A hearing officer must be assigned within 10 days after the receipt of a well pleaded petition. F.S. 120.54(4)(c). A hearing must be held within 30 days from the date the hearing officer is assigned. Id. The hearing officer must render his decision within 30 days after the conclusion of the hearing. Id.)

The Industries’ interpretation of the law also provides a logical solution to the tension between the mandatory filing requirements of F.S. 120.54(ll)(b) and the prohibition against premature adoption set forth F.S. 120.54(4)(c). Once the public hearing is “stayed” pending the outcome of the hearing before the hearing officer the time limits in F.S. 120.54(ll)(b) are likewise held in abeyance. The statute clearly contemplates that a public hearing may extend beyond forty-five days from the date of notice of proposed rulemaking. If the hearing officer rules in favor of the validity of the proposed rule, then the public hearing would be held and the adoption process could continue on to its ultimate conclusion.

F.S. 403.804(2) provides that the Commission must require the Department to prepare an economic and environmental impact analysis prior to the adoption of rules that are more stringent than existing federal standards. The statute further states:

“Such studies as are provided for in this paragraph shall be submitted to the Commission, who shall initially adopt the standards. Final action shall be by the Governor and Cabinet, who shall accept, reject, modify, or remand for further proceedings this standard within sixty (60) days from the submission. Such review shall be appellate in nature. Hearings shall be in accordance with the provision of Chapter 120.”

In that provision, the Legislature clearly used the term “adopt” in a manner that refers to the “approval” of a rule by the Commission. This is particularly significant since the environmental rulemaking legislation was passed after the passage of the general rulemaking procedures set forth in Section 120.54, Florida Statutes. (Compare ch. 75-22, § 6, Laws of Florida with ch. 74-310, § 1, Laws of Florida.) Indeed, the quoted statute explicitly cross references the APA. Where two statutes deal with a similar subject matter, the court must make every effort to find a harmonious construction of both statutes. (Mann v. Goodyear Tire & Rubber Co., 300 So.2d 666 (Fla.1974)) The Industries correctly contend that F.S. 403.804(2) can only be read harmoniously with F.S. 120.54(4)(c) if the word “adopted” in the latter statute is construed to refer to the process of “approving” a proposed rule.

Our interpretation will also most certainly lead to a more rational expenditure of public and private resources. Under the contrary analysis, two extensive public hearings (one before the Commission and one before the hearing officer) on a proposed rule would be held in which both proponents and opponents of a proposed rule would expend time and monies presenting their positions. That is precisely what occurred sub judice. Since the hearing officer’s ruling must be made within a definite time span, it makes more sense to stay any Commission public hearing procedures and any “approval” action pending that ruling. To force the expenditure of public and private resources in the face of a challenge to the basic validity of an exercise of delegated legislative authority is unreasonable. Where legislative language is susceptible to more than one interpretation, the interpretation which avoids an unreasonable result should be preferred. (See Foley v. State, 50 So.2d 179 (Fla.1951); Grade v. Deming, 213 So.2d 294 (Fla. 2nd DCA 1965))

In summary, F.S. 120.54(4)(c), expressly prohibited the Commission from holding a public hearing and adopting the Proposed Rule until after the hearing officer rendered his ruling on the validity of the Proposed Rule. Such interpretation of the law leads to consistency among various provisions of the APA and between the APA and other related statutes. Since the Commission had never validly adopted the proposed rule (standard) as required by F.S. 403.-804(2) it was prematurely considered by the Governor and Cabinet.

Our holding on this issue likewise renders premature any further consideration by us of the other points raised in case No. GG-448.

Finally, by case No. FF-340, the Industry seeks reversal of a summary judgment entered by the Circuit Court of Leon County in a proceeding wherein the Industry sought to have that court declare that the Commission’s action in “approving” the proposed rule was contrary to the requirements of F.S. 120.54(4)(e) and to have the Department enjoined from presenting the proposed rule to the Governor and Cabinet for final action. The learned Circuit Judge denied relief. Our disposition of the identical point in case No. GG-448, already covered in this opinion, renders further consideration unnecessary: It also renders that proceeding moot.

Accordingly, in case No. FF-340 we reverse. In case No. FF-95 and case No. GG-448 we grant the Petitions for Review and reverse and remand for further proceedings in accordance with Chapter 120, Florida Statutes, and Chapter 403, Florida Statutes, as herein construed.

IT IS SO ORDERED.

McCORD, C. J., and MELVIN, J., concur.

ON MOTIONS FOR REHEARING

PER CURIAM.

Rehearing Denied.

BOYER and MELVIN, JJ., concur.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissenting.

I would grant the motions for rehearing to the extent of providing that the previous adoption of the proposed rule by the Environmental Regulation Commission and the Governor be held in a suspense status pending remand to the hearing officer for reevaluation of the evidence using proper standards; that should the hearing officer then rule the proposed rule to be valid, and if that ruling should become final, at such time the proposed rule would then become effective as a rule without further proceedings unless the Environmental. Commission or the Governor should direct that there be de novo proceedings before them.


author: BOYER, Acting Chief Judge. BOYER, Acting Chief Judge.

text:
    BAY COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Teamsters Local # 991, Appellees.
    No. JJ-417.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1978.
    Rehearing Denied Jan. 3, 1979.
    Les W. Burke, Panama City, Robert L. Norton and Donald H. Wilson, Jr. of Hogg, Allen, Ryce & Norton, P.A., Coral Gables, for appellant.
    Edward S. Stafman, Quincy and Ben R. Patterson, III, Susan E. Koch, Tallahassee, for appellees.
   BOYER, Acting Chief Judge.

Appellant-Bay County Board of County Commissioners (County) appeals an order rendered by appellee-Florida Public Employees Relations Commission (PERC) certifying appellee-Teamsters Local # 991 (Teamsters) as the exclusive collective bargaining agent for a designated group of county employees.

In 1975, Teamsters filed a representation petition with PERC. An election was held and Teamsters received a majority of the votes. After several proceedings, PERC found that the Teamsters engaged in campaign misconduct which warranted setting aside the election. A new election was ordered. On the day that PERC issued its notice of election, the County filed a motion to dismiss along with several other motions. The motion to dismiss petition alleged that Teamsters had failed to file the required annual financial report with PERC. PERC did not act upon that motion nor the others and three weeks later a second election was held. Again, Teamsters received a majority of the votes. The County raised several objections to the election which were overruled. The County’s pending motions, including the motion to dismiss, were also denied.

Although Teamsters was properly registered before the first election, during the time between the two elections, the registration of Teamsters lapsed. Consequently, although the County’s objections to the election were overruled, Teamsters was denied certification until it was properly registered. When Teamsters updated its registration, PERC entered the order here appealed finding that Teamsters was in compliance with the registration statute and certifying Teamsters as the exclusive bargaining representative for the group of County employees.

The County urges that PERC erred in overruling its objections to the election and in failing to set aside the election.

The primary thrust of the County’s argument relates to PERC’s failure to require Teamsters, as a condition precedent to holding the election, to comply with F.S. 447.305(1), (2) which states in pertinent part:

“447.305 Registration of employee organization. — (1) Every employee organization, prior to requesting recognition by a public employer for purposes of collective bargaining, or prior to submitting a petition to the commission for purposes of requesting a representation election, shall adopt a constitution and bylaws and shall register with the commission by filing a copy thereof, together with a report in a form prescribed by the commission, and an amended report whenever changes are made, which shall include:
“(d) The current annual financial statement of the organization.
“(2) Every employee organization shall file annually with the commission a financial report, signed by its president and treasurer or corresponding principal officers, containing the following information in such detail as may be necessary accurately to disclose its financial condition and operations for its preceding fiscal year and in such categories as the commission may prescribe:
“(c) Salary, allowances, and other direct or indirect disbursements, including reimbursed expenses, to each officer and also to each employee who, during such fiscal year, received more than $10,000 in the aggregate from such employee organization and any other employee organization affiliated with it or with which it is affiliated or which is affiliated with the same national or international employee organization;”

Further, subsection (6) of that statute provides:

“(6) An employee organization which is not registered as provided in this section is prohibited from requesting recognition by a public employer or submitting a petition requesting a representation election. This prohibition shall be enforced by injunction upon petition of the commission to the appropriate circuit court.”

Teamsters and PERC urge that F.S. 447.-305(6) only requires registration as a condition precedent to requesting recognition by a public employer or submitting a petition requesting a representation election. However, we construe the statute in its entirety and more broadly. The first five subsections of F.S. 447.305 contain numerous requirements. Subsection (6) does not stand alone but specifically refers to the other subsections by the use of the words “as provided in this section”. It is obvious that the legislature intended the information required of employee organizations under the statute to be available to interested parties during and preceding the election.

This case ■ is a good example of an instance where information concerning the financial records of a union needed to be available to the public employees before those employees could make an informed free choice in the election. Several affidavits in the record indicate that the employees sought information concerning union dues and salaries and expenses paid to the union business agent. That information was not available because Teamsters had failed to file its annual financial report. Contrarily, the amount of money spent by the County in its anti-organization campaign was fully available to the employees. In fact, the County alleges that its expenditures for labor relations was a primary campaign issue. We find that the financial information improperly withheld by virtue of Teamsters’ failure to file was relevant, under the facts of this case, to the election. Further, Teamsters’ failure to file was timely raised by the County and was not something brought up after the election was over as a technicality.

PERC and Teamsters rely on Laborers International Union of North America v. Public Employees Relations Commission, 336 So.2d 450 (Fla. 1st DCA 1976). However, that case is distinguishable. There, PERC refused to allow the Laborers International Union of North America and several local unions to intervene in a proceeding before PERC because one of the locals had not filed an annual financial report and therefore was not a properly registered employee organization. However, in that case the union’s failure to do so was due to the fact that its financial records were in the custody of a Federal Grand Jury and were not available to the union for preparation of the financial report. This court considered that reason good cause for the union’s failure to file and held that under those circumstances the petitioner should have been given a reasonable time to comply with the financial statement requirements. An additional factor in that case is that at the time of PERC’s meeting at which it considered the unions’ intervention, they were in compliance with the financial statement requirement.

It is PERC’s position that the County’s motion to dismiss was not a sufficient pleading to invoke the remedy of postponement of the election. We disagree. Clearly the motion brought to PERC’s attention Teamsters’ dereliction. It was then incumbent upon PERC to take some action to remedy the situation before the election was held. That PERC did not do. In its final order, PERC acknowledged that the better course of action would have been to postpone the election until Teamsters filed its annual financial statement. Because PERC did not take that course of action, we deem it necessary under the circumstances of this case to set aside the election.

Finally, we are constrained to comment that PERC appears to take the position in its brief and more emphatically during oral argument that it owes a duty only to employees under its jurisdiction. We observe that just as a prosecuting attorney has the duty and obligation of accomplishing fairness to the citizens he prosecutes as well as to those citizens whose rights he vindicates, so does PERC have the obligation in its functions and orders of being fair not only to employees and employee organizations but also to the public employer. The public employer, as a public entity, represents the citizens and taxpayers of Florida. Their rights are worthy of protection as well.

Because we have resolved the dispute as above recited, we deem it unnecessary to address the other points raised by the County-

Accordingly, we order the election set aside. PERC’s order certifying the union as the exclusive bargaining representative for the county employees is reversed.

IT IS SO ORDERED.

MILLS and BOOTH, JJ., concur.

ON PETITION FOR REHEARING

BOYER, Acting Chief Judge.

The Florida Public Employees Relations Commission has filed a Motion for Clarification and Teamsters Local # 991 has filed a Petition for Rehearing and a Motion for Clarification. By the Motion for Clarification it is called to our attention that one of the issues which was not specifically addressed in our opinion relates to the appropriateness of the composition of the bargaining unit. The record reveals however that the County originally stipulated to the appropriateness of the unit and may not therefore now be heard to complain in that regard. (See City of Punta Gorda v. Public Employees Relations Commission, 358 So.2d 81 (Fla. 1st DCA 1978)) Further, appellant’s attorney stated during oral argument before this Court that were the Court to set aside the election the County would waive any objections to the appropriateness of the unit. Accordingly, without deciding whether or not those employees included in the bargaining unit would under other circumstances constitute an appropriate unit, we hold that under the circumstances of this case the Bay County Board of County Commissioners may not challenge the appropriateness of the particular unit involved in this controversy.

Our opinion being so clarified, the Petition for Rehearing is denied.

MILLS and BOOTH, JJ., concur.


text:
    Robert GOLDBERG et al., etc., and L. & N. Properties, Ltd., a limited partnership d/b/a Lancelot Manor Apartments, Appellants, v. Karl GRASER, Appellee.
    No. II-48.
    District Court of Appeal of Florida, First District.
    Dec. 7, 1978.
    Rehearing Denied Jan. 18, 1979.

      Jeffery B. Morris and C. Wayne Alford of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for appellants.
    Jere D. McWinn, Jacksonville, for appel-lee.
   ERVIN, Judge.

Goldberg and L. & N. Properties, Ltd., appeal a final judgment entered after trial by jury finding that appellants had violated the Fair Labor Standards Act of 1938, as amended, by failing to pay their employee, Graser, overtime pay and minimum wages. Graser cross-appeals from the trial court’s denial of his petition for liquidated damages following the entry of the verdict in his favor.

Graser was hired by L. & N. as a maintenance man for an apartment complex in Jacksonville, Florida, known as Lancelot Manor Apartments. His employment commenced on March 8, 1974, and continued until October 27, 1976. He was instructed to work 40 hours per week, five days a week, from 9 a. m. to 5 p.m.; however, he was aware that his duties would require him to be on call at all hours of the night. He testified his overtime work consisted of repairing the apartments, maintaining the swimming pool and closing the apartment clubhouse at night. Neither Graser nor L. & N. kept records as to the number of hours of Graser’s employment. Graser estimated that he worked approximately 55 hours per week from the middle of June, 1974 until the termination of his employment in 1976.

L. & N. argues first that the trial court erred in finding the Lancelot Manor Apartments was an enterprise which was subject to the requirements of the Act. An enterprise is defined by 29 U.S.C. § 203(s), as amended effective May 1, 1974, as follows:

“Enterprise engaged in commerce or in the production of goods for commerce” means an enterprise which has employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person .

The enterprise must also have an annual gross volume of sales of not less than $250,-000. Title 29 U.S.C. § 203(s)(l). There was no controversy that the business’s gross volume of sales exceeded $250,000. Additionally, there was no evidence showing that Graser was engaged in commerce or in the production of goods for commerce. The only issue is whether the apartment complex was an enterprise engaged in commerce or in the production of goods for commerce.

L. & N. concedes that two or more of its employees handled goods and materials which were originally manufactured at locations outside of Florida and were purchased by L. & N. within the state. It argues, however, it is not subject to the Act because § 203(i) excludes from coverage “goods after their delivery into the actual physical possession of the ultimate consumer . . other than a producer, manufacturer, or processor thereof.” L. & N. argues that it was the ultimate consumer of the goods which were handled by its employees, and that they were used by L. & N. in the normal maintenance of the apartment complex. L. & N. notes that § 203(i) also defines goods as including “articles or subjects of commerce of any character .therefore, the definition encompasses the word “materials” as used in § 203(s), defining enterprise, so that the words “goods” and “materials” are synonymous. Such being the case, it concludes, its operations are not subject to coverage under the Act.

Since we are asked to interpret a federal statute, we turn to expressions of congressional intent and federal cases interpreting the statute as an aid to seeking a solution to the question whether the apartment’s activities are subject to the Act’s requirement. The Senate Report of the Fair Labor Standards Amendments of 1974, Sen.Rep.No.93— 690, 93rd Cong., 2nd Sess., explains why § 203(s) was amended by, adding the word “materials”:

The bill also adds the words “or materials” after the word “goods” to make clear the Congressional intent to include within this additional basis of coverage the handling of goods consumed in the employer’s business, as e. g., the soap used by a laundry. The “handling” language was added based on a retrospective view of the effect of substandard wage conditions, (e.s.)

The amendment and the interpretative language in the Senate Report were extensively considered in Brennan v. Jaffey, 380 F.Supp. 373 (D.Del.1974). The federal district court was asked to decide whether an apartment complex’s activities made it an enterprise so that coverage would be extended to the apartment’s employees who handled supplies which were ultimately consumed there. The court, after comparing the language of the amendment with that of the Senate Report, concluded:

The 1974 Report, . . ., is of considerable significance in ascertaining what was intended when the amendment became effective May 1, 1974, by inserting the word “materials” in § 203(s). It clearly discloses a legislative purpose to make the minimum wage, overtime and record keeping provisions of the Act applicable to employers, such as the defendant, after its effective date. Id. at 379.

The rationale of Brennan v. Jaffey, supra, was recently followed in Marshall v. Whitehead, No. 75-6 Cir.Ft.My. (M.D.Fla., May 19,1978), where it was stated:

It appears clear to the Court that, regardless of the conflict which has arisen among the courts on the question of enterprise coverage, prior to the 1974 amendments to the Act, based solely upon the handling by employees of articles used in an employer’s own business which have traveled interstate, there almost certainly can be no question as to the intended scope of Section 3(s) so as to include such employees after the passage of the said amendments. (Footnotes omitted.)

We conclude that L. & N.’s apartment activities were covered by Section 203(s), as amended.

Finally, L. & N. relies upon a per curiam affirmance decision of this court in Jacqueline Graser v. Goldberg, No. GG-430 (Fla. 1st DCA, May 19, 1978), which affirmed a directed verdict entered in favor of defendant Robert Goldberg, doing business as L. & N. Property Associates. Jacqueline Graser, as her husband, Karl Graser here, sought compensation for overtime employment at the same apartment complex where Graser claimed additional compensation. L. & N.’s reliance upon a per curiam decision has no precedential value in another case. A per curiam af-firmance without opinion does not bind the appellate court in another case to accept the conclusion of law on which the decision of the lower court was based. State Dep’t of Public Welfare v. Melser, 69 So.2d 347 (Fla.1954).

We have, nevertheless, examined appellant’s appendix of the record in the Jacqueline Graser case and find the lower court granted Goldberg’s motion for directed verdict on the theory that the apartment complex was not an enterprise as defined by the Act. The arguments both for and against the motion for directed verdict did not cite any opinions interpreting the effect of 29 U.S.C. § 203(s) subsequent to its amendment on May 1, 1974. It is conceivable that if the lower court had been cited the same cases now relied upon by Graser, it would not have reached the same conclusion. At any event, the lower court’s decision in the other case and our later per curiam affirmance of it does not now resolve the issues before us. We are therefore not bound by that decision.

Finally L. & N. argues that the trial court erred in finding Graser met his burden of proof that he had performed work justifying the amount of overtime pay which he alleged he was entitled. The only evidence supporting Graser’s contention that he worked more than 40 hours per week was the testimony of Graser and his wife. The Act does not require that an employee keep records of his hours of employment. Section 211(c), however, mandates the employer to do so. L. & N.’s argument that the employee’s testimony lacks a competent and substantial foundation is without merit. It has been repeatedly held that when an employer fails to maintain employment records, testimony by the employee as to the amount of overtime is appropriate. Shultz v. Hinojosa, 432 F.2d 259 (5th Cir. 1970); Wirtz v. McClure, 333 F.2d 45 (10th Cir. 1964); Mumbower v. Callicott, 526 F.2d 1183 (8th Cir. 1975). We find no error in that regard.

We also conclude the trial court did not err in denying the employee’s petition for liquidated damages. Section 16(b) of the Act (29 U.S.C. § 216(b)) provides that employers who violate the Act shall be liable to the employee for the amount of “unpaid overtime compensation, . . . and an additional equal amount as liquidated damages.” An employer, however, may be excused from the payment of liquidated damages if he shows “that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages . . Section 11 of the Portal-To-Portal Act (29 U.S.C. § 260). However, the latter statute has been interpreted as requiring, before the court’s discretion may be invoked, the employer to sustain the burden of persuading the court by proof that his failure to obey the statute was both in good faith and based upon such reasonable grounds that would make it unfair to impose upon him more than a compensatory verdict. McGlanahan v. Mathews, 440 F.2d 320 (6th Cir. 1971); Rothman v. Publicker Industries, Inc., 201 F.2d 618 (3d Cir. 1953); Wright v. Carrigg, 275 F.2d 448 (4th Cir. 1960).

We conclude that L. & N. sustained its burden. The employer testified it would have paid Graser overtime if he had brought to its attention the fact that he was working in excess of 40 hours a week. The first time, however, that L. & N. was informed that Graser was claiming overtime pay was when the complaint was filed.

Moreover, it appears that reasonable grounds existed for the employer’s belief it was not violating the Act. At the time Graser was employed by L. & N., the law was unclear as to the applicability of the Fair Labor Standards Act of 1938, as amended, to apartment complexes. The uncertainty in the law prior to the amendment was well reflected by the Senate report on the Fair Labor Standard Amendments of 1974, in which it listed a large number of conflicting decisions as to whether coverage extended to the handling of goods consumed in an employer’s business. The amendment went into effect on May 1, 1974, after the commencement of Graser’s employment with L. & N., and thereafter applied to Graser’s employment until his termination on October 27,1976. Nevertheless, the paucity of decisions later interpreting the amendment mitigates the employer’s liability.

W e agree with the lower court, in view of the uncertainty of the law and the employee’s tardy request for overtime compensation, that liquidated damages are not merited because the employer’s non-compliance was both reasonable and in good faith. To the same effect, generally, see Kelly v. Ballard, 298 F.Supp. 1301 (S.D.Cal.1969). Therefore the discretion of the trial court was appropriately invoked. Cf. McClanahan v. Mathews, supra.

Graser’s motion for attorney fees for defense of the appeal is granted and the cause-remanded to the trial court for the-entry of an appropriate award. His'request for fees in his cross appeal is"'denied.

AFFIRMED.

MILLS, Acting C. J., and MASON, ERNEST E., Associate Judge, concur.

      . Either state or federal courts have jurisdiction to consider violations of the minimum wage and maximum hours sections of the Act. See § 16(b) (29 U.S.C. § 216(b)).


author: PER CURIAM. MILLS, Judge,

text:
    Ron Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. JJ-405.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1978.
    Rehearing Denied Jan. 22, 1979.

      Terry P. Lewis, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Jones appeals his conviction under Section 812.031, Fla.Stat. (1977) for receiving, retaining, disposing of or aiding in the concealment of stolen property, claiming that the evidence at his trial showed that if he was guilty of anything, it was larceny rather than the crime charged. It is true that the evidence indicates Jones and a co-defendant had stolen the property in question. However, the evidence also shows that Jones aided in the concealment of that same property. We hold that since the section is disjunctive, i. e., prohibits the intentional receiving, retaining, disposing of, or aiding in the concealment of stolen property, Jones could be found guilty of that crime as well as larceny. The judgment and - sentence are therefore AFFIRMED.

BOYER, Acting C. J., and BOOTH, J., concur.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. A long line of Florida Supreme Court and District Court of Appeal decisions establishes that despite the disjunctive character of the statute, the offenses of larceny and receiving stolen goods are separate and distinct. Where, as here, the same property, the same larceny and the same persons as principal are involved, they are legally inconsistent. A thief cannot be convicted of receiving, retaining, disposing of or aiding in the concealment of the same property stolen by him. Adams v. State, 60 Fla. 1, 53 So. 451 (1910); Bargesser v. State, 95 Fla. 404, 116 So. 12 (1928); Brizzie v. State, 120 So.2d 27 (Fla. 2d DCA 1960); Ketelsen v. State, 211 So.2d 853 (Fla. 3d DCA 1968); Thomas v. State, 216 So.2d 25 (Fla. 3d DCA 1968); Johnson v. State, 226 So.2d 884 (Fla. 2d DCA 1969); McWhirter v. State, 325 So.2d 463 (Fla. 1st DCA 1976); and State v. Brooks, 348 So.2d 417 (Fla. 1st DCA 1977). I would reverse appellant’s conviction under Section 812.031.


author: KEHOE, Judge. PEARSON, Judge

text:
    Mark SUBLETTE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-795, 77-1739.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.
    Rehearing Denied Jan. 17, 1979.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   KEHOE, Judge.

In this appeal, appellant, defendant below, raises several points urging error in his conviction and ensuing sentence for first degree murder, robbery, burglary, and petty larceny. Of the points raised, two warrant discussion and require reversal. The other points raised on appeal are without merit and will not be discussed.

Appellant contends that the trial court erred in denying his motion to suppress certain statements obtained from him by custodial interrogation while he was a juvenile, at the time of his arrest, when the interrogating officers were aware of this fact and failed, pursuant to his request, to notify his parents prior to interrogating him.

At the hearing on appellant’s motion to suppress, the following pertinent facts were established: Appellant was driving an automobile, occupied by his co-defendant at trial, which was stopped by police officers. Two of the officers approached the car and requested appellant to produce a driving license. When he responded that he did not have one, he was asked to exit the car. At this point, one of the officers asked appellant his name and age. Appellant responded and told the officer that he was seventeen. The officer then told appellant that he was investigating a burglary and homicide, and asked appellant “if he knew anything or had any knowledge” of the incident. Appellant replied that “All four of us went into the house.” The officer then advised appellant of his constitutional rights. Appellant responded that his father was a police officer and that he understood his rights. Appellant then requested that the officers contact his father. The officers told appellant that they would contact his father when they arrived at the officers’ office. Appellant continued to request that the officers contact his father. Appellant was transported to the Public Safety Department homicide office and, after being photographed and fingerprinted, was then taken to Youth Hall. Appellant was arrested at approximately 1:30 a.m.; he and the officers arrived at Youth Hall at approximately 3:45 a.m. At that time, one of the officers contacted an assistant state attorney who directed the officer to notify the appellant’s parents. Thereafter, appellant’s father was contacted and he came to Youth Hall. However, prior to notifying appellant’s father and his arrival at Youth Hall, a narrative statement was obtained from appellant concerning the incident which led to the charges in this case. After the father arrived at Youth Hall, the officers sought to obtain a formal statement. Shortly after the statement commenced, appellant’s father informed the officers that he wanted the questioning to stop and that he was going to retain counsel. At that point, the interrogation ceased. Appellant moved to suppress the statements which he made to the officers prior to his father’s arrival. This motion, and like motions during trial, were denied by the trial court. It is to these denials which appellant assigns the error set forth above.

In our opinion, the trial court erred in denying appellant’s motion to suppress. Under the facts of this case, appellant’s request for his father to be contacted constituted a continuous assertion of his privilege against self-incrimination and the statements given by him, prior to the arrival of his father at Youth Hall, were inadmissible. Section 39.03(3)(a), Florida Statutes (1975), establishes the following procedure to be followed by law enforcement officers when taking a child into custody:

“If the person taking the child into custody determines, pursuant to paragraph (c), that the child should be detained or placed in shelter care, he shall immediately notify the parents or legal custodians of the child and shall, without unreasonable delay, deliver the child to the appropriate intake officer . . .” (Emphasis added.)

Where an officer who arrests a child fails to comply with this procedure, particularly, as in this case, after being specifically requested to do so, and interrogates a child, any statements obtained from him are inadmissible. See Dowst v. State, 336 So.2d 375 (Fla.1st DCA 1976); and § 39.03(3)(a), Fla. Stat.(1975). But cf. Doerr v. State, 348 So.2d 938 (Fla.2d DCA 1977) (no request by child to speak to parents). See also Weatherspoon v. State, 328 So.2d 875 (Fla.lst DCA 1976).

In another point, appellant contends that the trial court erred in denying his notions for a mistrial because counsel for the codefendant and the prosecutor clearly and unequivocally stated to the jury in closing argument that he had not testified in his own behalf. Appellant urges that these comments were a violation of his right to remain silent as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of The Constitution of the State of Florida.

In a criminal prosecution, comment upon the exercise by a defendant of the right to remain silent is forbidden. See, e. g., Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968); Shannon v. State, 335 So.2d 5 (Fla.1976); Diecidue v. State, 131 So.2d 7 (Fla.1961); Gordon v. State, 104 So.2d 524 (Fla.1958); Singleton v. State, 183 So.2d 245 (Fla.2d DCA 1966); and Fla.R.Crim.P. 3.250. It has been held that not only is the accused protected by the Fifth Amendment from comments on the exercise of the right to remain silent by the trial judge or the prosecutor, “. an accused has a constitutionally guaranteed right of silence free from prejudicial comments, even when they come only from a co-defendant’s attorney.” DeLuna v. United States, 308 F.2d 140, 141 (5th Cir. 1962).

The landmark decision in DeLuna announced the principle that an accused is entitled to a new trial where counsel for a co-defendant brings to the attention of the jury the fact that the accused did not testify. Apparently, the DeLuna principle has been accepted by all of the courts which have had occasion to consider the issue. See, e. g., United States v. Pinto, 438 F.2d 814 (3d Cir. 1971); Coleman v. United States, 137 U.S.App.D.C. 48, 420 F.2d 616 (1969); United States v. McKinney, 379 F.2d 259 (6th Cir. 1967); United States v. Echeles, 352 F.2d 892 (7th Cir. 1965), and Hayes v. United States, 329 F.2d 209 (8th Cir. 1964).

The rationale for the principle set forth in DeLuna is as follows:

“If comment on an accused’s silence is improper for judge and prosecutor, it is because of the effect on the jury, not just because the comment comes from representatives of the State. Indeed, the effect on the jury of comment by a co-defendant’s attorney might be more harmful than if it comes from judge or prosecutor. A judge, in keeping with his high degree of responsibility to conduct a fair trial, would be expected to give a balanced, moderate explanation of the inferences to be drawn from silence. Similarly, but to a lesser degree, a prosecutor would be expected to recognize his responsibility for fair comment. But much less restraint can be expected from an attorney to whom no little latitude is allowed when zeal, emotion, eloquence and the advocate’s afflatus take hold of a jury argument.” 308 F.2d at 152.

Thus it is the fact of comment rather than the source of comment that effects denial of the right to remain silent.

In this case, the record shows that both counsel for co-defendant and the prosecutor violated this rule by clearly informing the jury that appellant had not testified. In our opinion this was a violation of appellant’s constitutional right to remain silent and constituted reversible error. Such error could not be cured by any curative instructions to the jury.

We recognize the efficacy to be served by trying defendants together in criminal trials; however, any hardship imposed to that end by the principle set forth above may be mitigated by determining as early as possible in the prosecutorial procession the existence of a potential problem and, accordingly, severing the defendants for trial. We note that in the instant case appellant both during pre-trial proceedings and during the trial requested such severance. Obviously, efficacy in cases such as these will be best served when such motions for severance are granted.

We have carefully considered the other points raised by appellant on appeal and find them to be without merit.

For the reasons set forth above, the judgment and sentence appealed must be reversed and the cause remanded for a new trial.

Reversed and remanded.

PEARSON, Judge

(dissenting in part).

While I concur in the decision to reverse because of the prejudicial comments concerning defendant’s failure to testify, I dissent from the holding which would reverse this cause on the basis that the defendant’s conviction was invalidated by the State’s failure to contact the defendant’s parents until after the defendant had been taken to the police station. In Doerr v. State, 348 So.2d 938 (Fla.2d DCA 1977), the Court of Appeal for the Second District held:

“We do not believe that the mere fact the Supreme Court chose to interpret the stricter language of another portion of the predecessor of Section 39.03(3)(a) as invalidating a confession means that court would interpret the language of the section concerning the notification of parents to mean that any confession given prior to the notification must automatically be suppressed.” 348 So.2d at 941.

Also, I am impressed with the fact that the defendant immediately confessed upon being asked by the officer “. . . if he knew anything or had any knowledge . . ” of the incident.

      . This issue has been certified to the Florida Supreme Court in Doerr v. State, Case No. 52,275.


author: McCORD, Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellee.
    No. FF-131.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1978.
    Rehearing Denied Jan. 18, 1979.

      Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellee.
   McCORD, Chief Judge.

Appellant, State Farm Mutual Automobile Insurance Company, hereafter referred to as State Farm, brought an action for declaratory judgment in the trial court to determine its rights under a policy of insurance it had issued to Thomas E. Witmyer providing insurance for Witmyer’s automobile. Witmyer’s vehicle subsequently became inoperative, and while repairs were being made to it, he was furnished a temporary substitute vehicle by Wayne Gowin Dodge, Inc. Witmyer’s State Farm policy covered the temporary substitute vehicle. The substitute vehicle was also covered by a policy of insurance issued to Wayne Gowin Dodge by Universal Underwriters Insurance Company, hereinafter referred to as Universal. On December 17,1974 (both the State Farm and Universal policies being in effect at that time), Witmyer, driving the temporary vehicle, struck a vehicle in which Juanita Evans was riding as a passenger. As a result of the accident, Evans was injured and filed suit for damages against Wayne Gowin Dodge, Witmyer, and Universal.

The declaratory judgment action instituted by State Farm sought determination of its liability, if any, to Evans under the policy it had issued to Witmyer. That policy provided bodily injury liability up to $10,000 per person. The Universal policy issued to Wayne Gowin Dodge had bodily injury liability limits of $100,000 per person but such limits were only applicable to any partner, paid employee, director, or stockholder of the named insured and certain others under certain conditions not applicable here. As to other persons using the automobile, the bodily injury liability limits were reduced to the minimum limit of liability specified in the Financial Responsibility Law of the state in which the accident occurred. Thus, the Universal policy limit applicable to Evans was in the same amount of that applicable under the State Farm policy — $10,000.

The policy of each insurer contains mutually repugnant escape clauses. The trial court ruled and the parties agree that because the escape clauses are mutually repugnant, they are not applicable. See World Rent-A-Car, Inc. v. Stauffer, 306 So.2d 131 (Fla. 2 DCA 1974). The trial court ruled that the two insurance companies would share liability equally up to the $20,000 total coverage of the two policies. By so ruling, the court necessarily ruled that the coverage of Evans under the Universal policy was limited to $10,000. Appellant contends the limitation is invalid but we agree with the trial court’s imposition of that limitation. See Insurance Company of North America v. Avis Rent-A-Car, 348 So.2d 1149 (Fla.1977), and Diversified Services, Inc. v. Jackson, 348 So.2d 1155 (Fla. 1977).

We disagree with the trial court’s ruling that the two insurance companies should share the damages equally. Where there is double or overlapping insurance coverage, the owner’s insurer is primarily liable for damages to a third party injured as a result of negligence of the driver of the insured vehicle. Here State Farm is liable for damages awarded to Evans only when the coverage of Universal’s policy has been exhausted. See Roth v. Old Republic Insurance Company, 269 So.2d 3 (Fla.1972), and Rouse v. Greyhound Rent-A-Car, Inc., 506 F.2d 410 (5th Cir. 1975).

Affirmed in part and reversed in part.

BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


author: POULTON, TIMOTHY P., Associate Judge.

text:
    EAGLE STAR INSURANCE COMPANY, Appellant, v. Nannette PARKER and Melvin Parker, Appellees.
    No. 77-73.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.
    Rehearing Denied Jan. 23, 1979.
    Amy Shield Levine of Adams, George, Lee, Schulte & Ward, P. A., Miami, for appellant.
    Maurice Fixel of Meyer, Leben, Fixel & Cantor, P. A., Hollywood, and Greene & Cooper, P. A., Miami, for appellees.
   POULTON, TIMOTHY P., Associate Judge.

At first blush, this is an innocuous little case. However, it becomes complicated as one tries to analyze it. Here is the history of the damages awarded and claimed:

Arbitration Award:
Compensatory Derivative
Wife $17,000 $ 3,000
Husband 5,000 1,000
Final Judgment:
Wife (Total Judgment: $10,000)
Husband (Total Judgment: 8,000)
Result sought by appellant insurance company on this appeal:
Wife $10,000 -0-
Husband 5,000 -0-
Result sought by appellee/plaintiff on this appeal:
Wife $17,000 $ 3,000
Husband 5,000 1,000
Result which we reach:
Wife $10,000 $ 3,000
Husband 5,000 -0-

The appellants purchased an uninsured motorist policy in New York. They were involved in an accident in Florida with an uninsured motorist and so made claim on the policy. The matter went to arbitration and then to final judgment based thereupon, with the results as indicated above.

The first issue for consideration is whether New York or Florida law applies. The plaintiffs urge that Florida law should apply so that “stacking” may come into play. On the authority of State-Wide Insurance Company v. Flaks, 233 So.2d 400 (Fla. 3d DCA 1970), the law of New York must apply.

The next issue for consideration is whether New York law allows derivative claims in a third-party action. We determine that it does. Richter v. Vitale, 59 Misc.2d 374, 299 N.Y.S.2d 293 (1969); Mill-ington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897, 36 A.L.R.3d 891 (1968).

Having decided that New York law governs and that derivative claims do exist in New York, the next question is whether the policy in question covers a derivative claim and, if so, what the limits of liability should be in this case.

There is one New York case cited in the briefs which is dead on point, and that is the Richter case, supra. The uninsured motorist provision in Richter is identical with the provisions in the policy in this case. In Richter, the court states:

Kathy’s personal judgment of $9,000 should be paid. Ronald’s derivative judgment for medical specials and loss of services of $2,500, concerning Kathy, as wife, should be reduced to $1,000, then paid. These two claims total $10,000, the maximum payable for Kathy’s claims. Ronald’s personal judgment of $6,000 should be paid. (Id. at 299 N.Y.S.2d 297)

That brief statement makes it clear that in determining whether to place the $10,000 limit upon the recipient of dollars or upon the source of the injury creating the claim, New York follows the “source” theory. Thus it is that Richter is authority not only for the proposition that there is uninsured motorist coverage for such a derivative claim but also how to apply the policy limits. Applying the theory to the case at hand, we should award the wife $10,000 for her compensatory damages. In addition, she may recover on her $3,000 derivative claim because her husband’s injuries were the source oí that damage. The husband may recover his $5,000 compensatory damages. He may not recover on his $1,000 derivative claim, because the source of that claim has already exhausted the policy limit of $10,000.

The appellant has also argued that a New York statute requires a construction of the policy in question which would prohibit coverage for a derivative claim. We have examined article 7, section 167(2-a) and are of the view that the language therein would not bar a derivative claim. Concerning subsection three thereof, we agree with appel-lee’s argument that the intent of that section was to guard against inter-spousal tort claims. Thus it would not apply to a typical third-party type derivative claim.

There is a separate issue raised upon appeal: whether one may recover the arbitration costs. There appear to be three Florida cases: Rutkin v. State Farm Mutual Automobile Insurance Co., 195 So.2d 221 (Fla. 3d DCA 1967), aff’d 199 So.2d 705 (1967); American Service Mutual Insurance Co. v. Wilson, 323 So.2d 645 (Fla. 3d DCA 1975); and McNair v. Continental Insurance Co., 245 So.2d 634 (Fla. 1st DCA 1971). Rutkin and McNair hold that the arbitration costs may be recovered. American Service Mutual Insurance Co. holds to the contrary. It seems to us that reasoning of Rutkin and McNair is the more persuasive, and we so hold.

For the reasons previously stated, the cause is remanded to the trial court for the entry of an amended final judgment consistent with this opinion.

We cannot help but note — despite all of this — the total dollars awarded remain the same. Only the allocation has been changed.

ANSTEAD and LETTS, JJ., concur.

      . At page 7 of its reply brief, the appellant urges that the Richter policy and the policy in question provide uninsured motorist coverage for accidents occurring within New York; that the Richter accident happened in New York; that the accident in question occurred in Florida; that Richter is therefore distinguishable. We find that argument to be without merit.


author: PER CURIAM.

text:
    Willie Fred HOWARD, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1582.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Willie Fred Howard, in pro. per.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before HENDRY and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is not entitled to relief, the denial of his motion is affirmed.

Affirmed.


author: PEARSON, Judge.

text:
    Rogelio MEDEL, Appellant, v. REPUBLIC NATIONAL BANK OF MIAMI, a national banking corporation, Robert Paul, Burton A. Landy, Stanley Arthur Beiley and James E. Yacos, d/b/a Paul, Landy, Beiley & Yacos, a partnership, and Michael Striar, Appellees.
    Nos. 77-2546, 77-2591, 77-2592 and 77-2593.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Rehearing Denied Jan. 17, 1979.

      Stabinski, Funt, Levine & Vega, Jepe-way, August, Gassen & Pohlig and Louis M. Jepeway, Miami, for appellant.
    Knight, Peters, Pickle, Niemoeller & Flynn and Jackson L. Peters, Jeanne Hey-ward, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PEARSON, Judge.

The appellant, Rogelio Medel, filed suit for compensatory and punitive damages for the intentional infliction of emotional distress and conversion against the Republic National Bank of Miami, the law firm of Paul, Landy, Beiley & Yacos, and Michael Striar, an attorney employed by that law firm. It is apparent from all the allegations in the complaint that it is Attorney Striar’s actions which are the basis of the claim for damages and that the claimed liability of the Republic National Bank and the law firm is through the application of the rule that a principal is liable for the acts of an agent.

Plaintiff Medel has brought these consolidated appeals which present a single point for our determination:

“Whether an attorney representing a judgment creditor, as well as his employer and principal, is liable for punitive damages where he does not utilize the prescribed methods to collect on the judgment, and instead by deceit and subterfuge gains entry and obtains the judgment debtor’s personal property causing a breach of the peace?”

The defendants have restated the point so that it urges “undisputed evidence” that the attorney acted under “a bona fide and reasonable belief” that self-help was sanctioned under Florida law. But in either case, the question is whether the trial judge correctly determined that punitive damages were not allowable in this case.

These appeals arise from several orders in the same cause, all of which had the same effect insofar as the law of the case is concerned. The operative orders were (1) an order striking a claim for punitive damages and (2) an order granting defendants a partial summary judgment on the issue of punitive damages. Although there are some factual issues, which will be discussed later, the evidentiary matters before the trial judge at the time of the entry of the partial summary judgment present a fairly clear picture of Mr. Striar’s activity on behalf of the law firm and the firm’s client, the Republic National Bank.

Republic lent money to San Martin, Inc. The principal, Mario Perez, signed a collateral installment note and he and plaintiff Medel also signed guarantees. After the loan became delinquent, the matter was turned over to Paul, Landy, Beiley & Yacos (the Bank’s law firm) for collection. The correspondence advised the attorneys that Medel was a good customer of the Bank and instructed them to contact him prior to taking any action.

Thereafter, the Bank, through its counsel, Paul, Landy, Beiley & Yacos, filed suit against San Martin, Inc., Mario Perez and Medel. Default judgment was entered against these defendants and a final judgment was entered in favor of the Bank in the sum of $11,530.17.

The lawyer who handled the suit on behalf of the Bank against defendants turned the file over to Michael Striar sometime in December, 1975. Subsequently, Striar talked with the lawyer approximately three times regarding the use of self-help to obtain satisfaction of the judgment. Striar was advised that the replevin statute and the Uniform Commercial Code allowed for self-help and that self-help had been used by a number of the firm’s clients on several occasions under the applicable replevin statute to repossess items that were security for a debt.

Paul, Landy, Beiley & Yacos also represented Florida Lumber Company in a suit against Roda Enterprises, Inc. Medel was president and resident agent for Roda. Me-del was noticed for a deposition in that case. A new date was arranged for Medel’s deposition. Striar testified that it was his understanding that Medel’s attorney agreed to the rescheduling of Medel’s deposition for Thursday, April 22, 1976. He arranged for a court reporter and an interpreter.

When Striar arrived at Medel’s office at approximately 12:25 p.m. on April 22, 1976, the interpreter was waiting for him. Medel came out of his office and Striar, Medel and the interpreter waited in Medel’s office for the court reporter. Striar, as he had previously planned to do, admired Medel’s watch and asked to see it; Medel complied. Striar then admired Medel’s ring and asked to see it; again Medel complied. In a similar manner, Medel also gave Striar his bracelet.

At this point, the court reporter arrived at the office and Striar advised Medel that he also represented the Republic National Bank of Miami who had a judgment against him (Medel) for $11,530.00, dated August 17, 1975. Striar told Medel that he was going to keep the items of jewelry and turn them over to the Bank. Medel was very upset and told Striar he could not leave with his jewelry. Thereafter, Striar took Medel’s deposition. When they finished the deposition, Striar attempted to leave, but the doors were locked.

Medel then telephoned Sastre, president of the Bank, and yelled in Spanish to him. Sastre then talked with Striar, but there is conflict with regard to what was said, although Sastre testified that he told Striar to give the jewelry back. When the police arrived, one officer thought that Striar should return the jewelry. Striar told the officer he would not return it and asked him to call his legal advisor to confirm the fact that he had the right to retain the jewelry. SHar explained to the police that it was the law of the State of Florida that judgment creditors could resort to self-help to collect on a judgment if it did not involve breach of the peace.

The police gave him a choice; Striar could either return the jewelry and leave the building or the police would call their legal advisor, and if the legal advisor said that Striar was not authorized to keep the jewelry, the police would arrest him. Striar told them to go ahead and call their legal advisor.

After talking with the legal advisor, the police were informed that a judgment creditor could, in fact, resort to self-help if he did not commit a breach of the peace. At that point, Mr. Stabinski, Medel’s lawyer, who had subsequently arrived at Medel’s office, became extremely upset. The officers proceeded to leave and Striar got right in the middle of them and went out the door with them. Subsequently, the trial judge, in the case where judgment had been entered, held that Striar had no right to retain the jewelry and required Striar to return it to Medel. Medel then filed the present suit for compensatory and punitive damages.

Both parties agree that the leading case that we must consider is Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). The appellant cites this case for the proposition that punitive damages may be awarded where torts are committed with fraud, actual malice, or deliberate violence or oppression, or when the defendant acts willfully or with such gross negligence so as to indicate a wanton disregard for the rights of others. The appellees cite the case for the proposition that a tort committed by mistake in the bona fide assertion of a supposed right will not warrant the giving of punitive damages where all the elements of aggravation are authorized to be included in the compensation award. Appellees also rely on General Finance Corporation of Jacksonville, Inc. v. Sexton, 155 So.2d 159 (Fla.1st DCA 1963); and Brock v. Maine, 293 So.2d 375 (Fla.4th DCA 1974).

There are numerous conflicts in the deposition testimony and there is some disputed correspondence between the parties concerning events in the record from which the trier of fact could have drawn certain inferences. We think that Striar and those for whom he acted cannot be absolutely protected from punitive damages by way of summary judgment because of the fact that Striar was acting as a lawyer under a misapprehension of the law. The fact that he represented himself as an officer of the court exercising a legal right to convert the property of another is a factor to be considered by the trier of fact.

Whether this case presents facts which bring Striar’s actions within the rule that punitive damages will not be awarded where a person in good faith claims a legal right without a breach of peace is an issue for trial. See Buie v. Barnett First National Bank of Jacksonville, 266 So.2d 657 (Fla. 1972).

The orders appealed are reversed and the cause remanded for further proceedings not in conflict with the views herein expressed.

Reversed and remanded.