text:
    RINKER MATERIALS CORP. et al., Petitioners, v. The PALMER FIRST NATIONAL BANK AND TRUST COMPANY OF SARASOTA, etc., Respondent.
    No. 52472.
    Supreme Court of Florida.
    July 20, 1978.

      Henry J. Whelchel of Steel, Hector & Davis, Miami, for petitioners.
    Daryl J. Brown of Rosin, Abel, Band, Rosin & Brown, Sarasota, for respondent.
   HATCHETT, Justice.

In this case, we must decide whether or not a party may be granted relief under the theory of equitable estoppel without proof of fraud or misrepresentation on the part of the party against whom estoppel is sought. The Third District Court of Appeal answered this question in the negative, Palmer First National Bank v. Rinker Materials Corp., 348 So.2d 1234 (Fla. 3d DCA 1977), creating direct conflict with Gulf Shore Dredging Co. v. Ingram, 193 So.2d 232 (Fla. 4th DCA 1966). Jurisdiction vests pursuant to Article V, Section 3(b)(3), Florida Constitution. The decision of the Third District Court is approved.

Petitioners are subcontractors who furnished labor and materials to a construction project owned by FINCO, and respondent is the mortgagee of the construction loan. At one time or another, respondent assured all petitioners that there were sufficient funds in the loan account to complete the project; that they should continue to furnish labor and materials; that there was no need to file mechanics’ liens; and that the bank would do everything it could to see that the subcontractors were paid, including the issuance of joint checks to the contractor and subcontractors if necessary. In reliance on the bank’s statements, petitioners continued to furnish labor and materials. When petitioners were not paid, they filed liens and instituted foreclosure. In response, First National asserted the priority of its recorded mortgage.

Finding that petitioners had relied on the bank’s statements and were induced to continue furnishing labor and materials, the trial court held that respondent was equitably estopped from asserting the priority of its mortgage over petitioners’ liens. The district court reversed, reasoning that since the bank made no statements which were fraudulent, untrue, or misrepresentative, the bank could not be held to have waived its priority. We agree.

In 28 Am.Jur.2d, Estoppel and Waiver, Section 35, equitable estoppel is defined as follows:

Broadly speaking, the essential elements of an equitable estoppel or estop-pel in pais, as related to the party to be estopped, are: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert;- (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. And, broadly speaking, as related to the party claiming the estop-pel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice, (footnotes omitted)

Relying on Gulf Shore Dredging Co. v. Ingram, supra, petitioners argue that the doctrine of equitable estoppel is based on general considerations of right and justice as they apply to the relationship of the parties and the circumstances surrounding their dealings in a particular case, and does not require proof of fraud and misrepresentation. In Gulf Shore, the Second District Court of Appeal stated:

Equitable liens necessarily involve the doctrine of estoppel; however, they are based chiefly upon the fundamental maxim of equity that no one shall be unjustly enriched at the expense of another. Phelps v. T. O. Mahaffey, Inc., Fla.App. 1963, 156 So.2d 900. Consequently, while affirmative misrepresentation or other wrongdoing may supply additional ground or reason for imposing an equitable lien or charge, a showing of wrongdoing is not an essential prerequisite to such relief. Oates v. Prudential Insurance Co. of America, 1932, 107 Fla. 224, 144 So. 418. At 234. (footnotes omitted)

Petitioner also cites the following language from North v. Culmer, 193 So.2d 701 (Fla. 4th DCA 1967):

actual fraud in the technical sense, bad faith, or an intent to mislead or deceive is not essential to create such an estoppel.
It is enough if the conduct claimed as a basis for the estoppel is done with actual or virtual intent that the other party should act upon it. At 704.

The overwhelming weight of authority in Florida, however, is contra. In Merritt v. Unkefer, 223 So.2d 723 (Fla.1969), this court clearly stated:

Our study of the cases indicates that the award of an equitable lien based on unjust enrichment or “general consideration of right and justice” has in each instance been predicated on factors such as mistake or material misrepresentation beyond the circumstances described by the complaint in the present case. At 724. (footnotes omitted) (emphasis added)

In Jennings v. Connecticut General Life Insurance Co., 177 So.2d 66, 68 (Fla. 2nd DCA 1965), the Second District Court held that “there must be circumstances such as fraud or misrepresentation of essential facts upon which the lender or contractor relied in good faith . . . .”

In Gancedo Lumber Co., Inc. v. Flagship First National Bank of Miami Beach, 340 So.2d 486, 487 (Fla. 3d DCA 1976), it was held that there must be “some material misrepresentation, fraud, mistake or some factual circumstance tending to show that the bank (the lender) exercised ‘affirmative deception’ on the subcontractor in order to keep it on the job.”

In J. G. Plumbing Service, Inc. v. Coastal Mortgage Co., 329 So.2d 393 (Fla. 2nd DCA 1976), the Second District Court held:

. we readily agree that a construction lender should not be permitted to affirmatively mislead subcontractors and materialmen so as to induce them to continue to work upon and supply materials to the job to their detriment. A construction lender who falsely advises a ma-terialman or subcontractor that the mortgage is not in default must suffer the consequences if further work and materials are incorporated into the project in reliance thereon. Such action would be equivalent to the fraud and misrepresentation which the courts have traditionally sought to remedy where possible through the imposition of an equitable lien. At 396. (Emphasis added)

This principle was most recently discussed in Indiana Mortgage and Realty Investors v. Peacock Construction Co., 348 So.2d 59 (Fla. 2nd DCA 1977). In that case, Peacock, a plumbing contractor, furnished materials and services to a construction project of which Indiana Mortgage and Realty Investors was the mortgagee of the construction loan. Indiana instituted foreclosure, and Peacock sought to establish an equitable lien superior to Indiana’s mortgage. Peacock’s lien was predicated upon a telephone conversation between its president and Indiana’s loan disbursement representative, wherein Peacock’s president was told that there were sufficient funds in the construction loan account to cover Peacock’s services. In fact, there were not sufficient funds. The Second District Court held that without proof of “affirmative deception, equivalent to fraud and misrepresentation,” Indiana would not be estopped from asserting the priority of its mortgage.

In the words of J. G. Plumbing Service, Inc. the only duty flowing from the mortgagee in this posture was not to “affirmatively deceive ” the contractor to his detriment. The mistaken observation that there seemed to be enough money left in undisbursed loan funds to complete the project falls short of what we contemplated as “affirmative deception” equivalent to fraud and misrepresentation which would justify the imposition of an equitable lien. At 60. (emphasis added)

The trial court in this case found that the bank’s statements were neither fraudulent nor untrue. Therefore, the Third District Court of Appeal correctly reversed the trial court’s order granting equitable relief to the petitioners. We hold that a party may successfully maintain a suit under the theory of equitable estoppel only where there is proof of fraud, misrepresentation, or other affirmative deception. To hold otherwise would inject an unnecessary amount of uncertainty into the construction loan industry.

To the extent that Gulf Shore and North v. Culmer, supra, held otherwise, those decisions are overruled.

Accordingly, the decision of the Third District Court of Appeal is approved.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

       Other cases cited by petitioner are distinguishable. In Hall’s Miscellaneous Ironworks, Inc. v. All Southern Inv. Co., 283 So.2d 372 (Fla. 1st DCA 1973), the owner/mortgagor induced a subcontractor to refrain from filing a mechanics lien until further financing for the construction project was obtained. The owner then executed a mortgage on the property (to a corporation in which he held stock) for the purpose of defrauding the subcontractor of the benefit of his materials and labor. The court there held that the subcontractor was not entitled to an equitable lien superior to the mortgagee’s interests, because the evidence was insufficient to charge the bank with having participated in the fraud perpetrated by the owner, or, with having committed any other acts which would subordinate the mortgage. In Architectonics, Inc. v. Salem-American Ventures, 350 So.2d 581 (Fla. 2nd DCA 1977), the owner induced the subcontractor to delay filing his mechanics lien and falsely promised to guarantee payment and subject the property to any claim or lien later filed. When the job was completed, the owner refused to pay. The subcontractor then sought an equitable lien, attempting to establish priority over the construction lender’s mortgage. The court denied relief specifically finding that there was no course of dealings between the lender and the subcontractor which would entitle the subcontractor to such a lien. In Blanchard v. Continental Mortgage Investors, 217 So.2d 586 (Fla. 1st DCA 1969), the subcontractor and mortgagee were in privity. In fact, the mortgagee expressly (and impliedly) contracted with the subcontractor to pay. In the present case, petitioners were not in privity with the mortgagee and there was no agreement to pay or to underwrite the contractor’s obligation under the construction loan.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Roger L. DAVIS, Respondent.
    No. 52894.
    Supreme Court of Florida.
    July 20, 1978.

      John Hume, Bar Counsel, Ft. Lauderdale, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for complainant.
    Roger L. Davis, in pro per.
   PER CURIAM.

Respondent, Roger L. Davis, is a member of The Florida Bar and subject to the disciplinary measures of this court. Article V, Section 15, Florida Constitution. Based upon the findings of the Referee, we suspend Mr. Davis from the practice of law for a period of twelve months.

Respondent was charged with the following:

COUNT Í

Conduct involving dishonesty, fraud, deceit, or misrepresentation (CPR, DR 1-102(A)(4)), contrary to justice and good morals (Fla. Bar Integr. Rule, art. XI, Rule 11.02(3)(a)), and other conduct adversely reflecting on his fitness to practice law (CPR, DR 1-102(A)(6)). Mr. Davis deposited a check for $700 in his bank account in La-Bell, Florida, drawn on a bank in Ft. Laud-erdale with knowledge that there were insufficient funds to cover the check. The bank obtained a default judgment which has not been satisfied.

COUNT II

Illegal conduct involving moral turpitude (CPR, DR 1-102(A)(3)). Conduct involving dishonesty, fraud, deceit, or misrepresentation (CPR, DR 1-102(A)(4)), contrary to justice and good morals (Fla. Bar Integr. Rule, art. XI, Rule 11.02(3)(a)). Other conduct adversely reflecting on respondent’s fitness to practice law (CPR, DR 1-102(A)(6)). Respondent employed Helen Bauer as a legal stenographer and issued three worthless checks as payment of salary. The first check was drawn on respondent’s business account. The second was drawn on an account entitled Roger L. Davis, Attorney at Law, Trust Account. The third was drawn on an account entitled Roger L. Davis, Trust Account. When advised that the checks were being returned unpaid, respondent issued Mrs. Bauer a promissory note, payable on demand. The note was not paid and a judgment was entered against the respor. 'nt in the amount of $650. That judgment has not been satisfied.

COUNT III

Depositing personal funds in a “Trust Account” (CPR, DR 9-102(A)), use of an attorney’s trust account for personal expenditures (Fla. Bar Integr. Rule, art. XI, Rule 11.02(4)), and other conduct adversely reflecting on respondent’s fitness to practice law (CPR, DR 1-102(A)(6)). The facts are the same as those stated in Count II.

COUNT IV

Illegal conduct involving moral turpitude (CPR, DR 1-102(A)(3)). Conduct involving dishonesty, fraud, deceit, or misrepresentation (CPR, DR 1-102(A)(4)), contrary to justice and good morals (Fla. Bar Integr. Rule, art. XI, Rule 11.02(3)(a)). Other conduct adversely reflecting on respondent’s fitness to practice law (CPR, DR 1-102(A)(6)). Respondent was convicted of the misdemeanor of uttering a worthless check.

COUNT V

Conduct involving dishonesty, fraud, deceit, or misrepresentation (CPR, DR 1-102(A)(4)), contrary to justice and good morals (Fla. Bar Integr. Rule, art. XI, Rule 11.02(3)(a)), and other conduct adversely reflecting on respondent’s fitness to practice law (CPR, DR 1-102(A)(6)). Respondent borrowed $1,000 from Grace Harter, a client, without insuring that the loan was secured. The loan was due April 15, 1974. Respondent has made no attempt to repay Mrs. Harter.

The referee found respondent guilty on all counts except those involving personal expenditures from his attorney trust account, and recommended that he be suspended for a period of 12 months with proof of rehabilitation. The referee also recommended that respondent make restitution to Mrs. Bauer, Mrs. Harter, and to the bank, and pay all costs of these proceedings.

In its petition for review, the Florida Bar urges this court to approve the findings of fact by the Referee, find respondent guilty of those violations alleged in Count III, and increase the recommended discipline to disbarment.

Our review of the record discloses clear and convincing evidence to support the findings of the Referee, Florida Bar v. Wagner, 212 So.2d 770 (Fla.1968), except as to Counts II and IV, which charge illegal conduct involving moral turpitude. The record reveals that respondent did in fact issue four worthless checks with knowledge that there were insufficient funds on deposit with the bank to pay the checks on presentation. Such conduct is proscribed under Section 832.05(2)(a), Florida Statutes (1975). The question we must decide is whether or not this conduct involves moral turpitude, thereby subjecting respondent to Bar discipline under DR 1-102(A)(3).

Moral turpitude is discussed in 9 Fla. Jur., Criminal Law Sec. 8 as follows:

A crime involves moral turpitude if it is an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general. Unless the offense is one which by its very commission implies a base and depraved nature, the question of moral turpitude depends not only on the nature of the offense, but also on the attendant circumstances .

Specific crimes that have resulted in disciplinary proceedings include forgery, use of the mails to defraud, violation of a liquor law, larceny, petit larceny, and acceptance of stolen property. 7 Am.Jur.2d, Attorney at Law, § 50. It does not appear to us that writing a check with knowledge of insufficient funds constitutes, in all circumstances, a vile and depraved act. Certainly, such conduct is violative of the law and is contrary to honesty, justice and good morals. But where there is no intent to defraud, as is the case here, the act itself is not so base as to fall into the category of illegal conduct involving moral turpitude. Thus, the attendant circumstances must be considered. While respondent admits that he wrote the dishonored checks, he argues as a mitigating factor, his lack of intent to defraud either the bank or the individual payee. Respondent testified before the Referee that at the time he wrote the checks he intended to make sufficient deposits to cover his withdrawals; that he was keeping track of his accounts in his head and became confused as to the balance. Respondent also points out that three of the checks involved were issued to Mrs. Bauer, an employee, and did not involve an attorney-client relationship.

This court has, in several instances, disciplined attorneys for the uttering of worthless checks. In re Gorman, 299 So.2d 24 (Fla.1974); In re Hill, 298 So.2d 161 (Fla.1974); The Florida Bar v. Thomson, 271 So.2d 758 (Fla.1972); The Florida Bar v. Kelly, 269 So.2d 362 (Fla.1972); The Florida Bar v. Hill, 265 So.2d 698 (Fla.1972); The Florida Bar v. Parsons, 238 So.2d 644 (Fla.1970); The Florida Bar v. Dingle, 235 So.2d 479 (Fla.1970); The Florida Bar v. Budzinki, 217 So.2d 108 (Fla.1968); The Florida Bar v. Charles, 201 So.2d 713 (Fla.1967); The Florida Bar v. Baxter, 178 So.2d 699 (Fla.1965); and The Florida Bar v. Hill, 132 So.2d 170 (Fla.1961). The only case to specifically discuss moral turpitude in connection with this illegal conduct held that no moral turpitude was involved. In re Hill, supra.

While we find respondent’s conduct inexcusable, we cannot say that such conduct involves moral turpitude. The circumstances surrounding respondent’s actions do not indicate otherwise. Therefore, we approve the Referee’s findings as to Count I, III, and V, and find respondent guilty under Counts II and IV of violating Florida Bar Integration Rule 11.02(3)(a), DR 1-102(A)(4), and DR 1-102(A)(6), but not DR 1-102(A)(3).

We also approve the Referee’s recommendation of 12 months suspension with proof of rehabilitation. In re LaMotte, 341 So.2d 513 (Fla.1977), we stated:

Lawyers are disbarred only in cases where they commit extreme violations involving moral turpitude, corruption, defalcations, theft, larceny or other serious or reprehensible offenses. At 517.

Disbarment is an extreme penalty and should only be imposed in those rare cases where rehabilitation is highly improbable. In only three cases where attorneys were disciplined for passing worthless checks were the attorneys disbarred: In re Gorman, supra; The Florida Bar v. Kelly, supra; The Florida Bar v. Charles, supra; and in all three, the attorneys were involved in additional unethical conduct. In In re Gorman, the respondent was found guilty of uttering worthless checks, neglecting his duty to his clients, and forging a client’s name in order to obtain money. In Kelly, respondent was found guilty of uttering worthless checks, neglecting his legal duties, and converting clients’ funds. In Charles, respondent was found guilty of uttering worthless checks and converting $20,000 of his client’s money to his personal use. In those cases where an attorney was disciplined for the writing of worthless checks only, the attorney was either suspended or reprimanded. In re Hill, supra; The Florida Bar v. Hill, 265 So.2d 698 (Fla.1972); and The Florida Bar v. Baxter, supra.

We now hold that the issuance of a worthless check by an attorney constitutes unethical conduct and subjects the attorney to professional discipline by The Florida Bar. Whether such conduct also involves moral turpitude depends upon the circumstances surrounding the case.

With such a clear rule, members of the Bar need not fear selective prosecution.

Accordingly, respondent is suspended from the practice of law for 12 months with proof of rehabilitation. The suspension shall be effective on August 21,1978, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. In addition, respondent shall make restitution to Mrs. Bauer, Mrs. Harter, and to the bank, and pay all costs of these proceedings, including those costs incurred by the Bar at the Grievance Committee level in the amount of $829.00.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

       DR 1-102(A)(3) provides:
      (A) A lawyer shall not:
      (3) Engage in illegal conduct involving moral turpitude.


text:
    THE FLORIDA BAR, Complainant, v. Remus C. E. ALLEN, Respondent.
    No. 54179.
    Supreme Court of Florida.
    July 20, 1978.
    L. Ralph Smith, Jr., Bar Counsel, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for complainant.
   PER CURIAM.

This disciplinary matter against Remus C. E. Allen, a member of The Florida Bar, is before us on complaints of The Florida Bar and report of the referee. No petition for review has been filed.

After hearing and consideration of the pleadings and evidence, the referee found:

“1. Following the death of her grandmother in May 1975, Edna Randolph Washington and Carolyn Washington received notice of an estate proceeding from an attorney.

“2. With her sister, Alie Joyce Washington and mother, the Washingtons, hired the respondent to represent them in the pending estate proceedings. .

“3. The sisters had been left several acres of land in Wakulla County, Florida by their grandmother.

“4. Respondent was also given directions and authority to do what was necessary to sell the land for the sisters who signed whatever papers were necessary. .

“5. There was no communication between respondent and his clients for over a year despite several attempts to reach him including telephone calls and unannounced office visits. .

“6. In August 1976, the clients finally located respondent at his apartment and requested he return their papers which he promised to do. .

“7. The Washington sisters and their mother understand they could not sell the land without the papers they had signed and given respondent. .

“8. September 29, 1976, Respondent Allen sent Carolyn Washington a letter forwarding a copy of a petition in the estate case, a signed motion to withdraw in the same case and a copy of a letter addressed to Buddy Commander of St. Marks Realty, which he stated was handling the property. . Respondent’s letter stated he could find no other papers and denied he had been retained to handle the property sale.

“9. No other papers were never [sic] returned to the clients by either respondent or the realtor and the land remained unsold.

“10. The Washingtons had no further contact with respondent whose fee for his services was to come from the proceeds of the land sale. .

“1. Valerie Frazier retained respondent to assist her in handling problems arising out of an automobile accident in July 1975. After pleading guilty in court on the traffic case, Mrs. Frazier went to respondent to have him work out a settlement with the injured parties regarding their medical bill so that she could avoid having her driver’s license suspended. .

“2. Two people on a motorcycle were injured and Mr. [sic] Frazier did not have the requisite automobile insurance.

“3. Respondent was to work out a plan where she could pay the injured parties on an installment basis and secure a release so she could regain her driver’s license which was suspended in October 1975. .

“4. Respondent advised her on several occasions he was working on the case. He requested and received $200 from Mr. Frazier purported as a down payment in January 1976. . . . The money was borrowed from Avco Financing and taken to respondent by Willie Frazier, then Mrs. Frazier’s husband. .

“5. Thereafter Ms. Frazier was unable to contact respondent regarding her case except for an encounter at the Tallahassee Mall where he promised to return her file. . Her husband’s efforts to secure their file, including one demand in June 1976, by certified mail which respondent received were equally futile .

“6. No action has been taken by respondent on Mrs. Frazier’s case since January 1976 and he has failed to return any of her file. “7. Her driver’s licence [sic] remained suspended as of the day of this hearing although she had been recently advised that due to lapse of time she could get it reinstated upon proving she had obtained the necessary insurance coverage. .

“1. In February 1973, Mrs. Pollie T. Elmore retained respondent and paid him $250 to secure title for her to some land in Wakulla County, Florida, left to her by her mother.

“2. She had to borrow the money . . . which he promised to return if he could get title and a deed to the property for N” Mrs. Elmore understood $250 was the toual cost of her case. . . . She also gave him an undated list of heirs or people involved necessary to handle the matter. .

“3. Over the next three years Mrs. Elmore found it difficult to contact respondent about her case and in early 1976, he closed his office without notifying her. .

“4. When she was able to locate the respondent he would promise he was working on her ease and would get her deed soon. .

“5. Notwithstanding his promises, respondent did not complete the case and her last contact with him was in February 1976.

“6. After Mrs. Elmore contacted The Florida Bar in July 1976, respondent returned some papers to her and advised her he was keeping the entire $250 to pay the costs he had incurred despite his prior promises. His August 1, 1976, letter to her stated he had made five trips to Wakulla County and one to South Florida. ... He also stated in the letter she had accompanied him twice to Wakulla County which Mrs. Elmore denied, stating it was only once.

“7. The letter was the only accounting ever furnished by respondent to Mrs. Elmore.

“1. Although no witness appeared on behalf of The Florida Bar, counsel pointed out that respondent failed to file any response to'the request for admissions filed on May 2,1977. Under Fla.R.Civ.P. 1.370, which rules are applicable in these proceedings pursuant to Fla.Bar Integr.Rule, art. XI, Rule 11.06(3), failure to respond timely deems the matters sought to be admitted conclusively established.

“2. I find the foregoing is applicable to this count and supersedes the general denial in the answer filed by respondent on May 21, 1977. Such answer was addressed to the complaint only and a response is not mandatory under Fla.Bar Integr.Rule, art. XI, Rule 11.06(5)(b). However a response is required to a properly filed request for admissions if the party wishes to avoid having requested information deemed conclusively established.

“3. Respondent was retained in March 1975 by Mr. J. T. Gregory and paid $125 to handle a dissolution of marriage and a partial fee for a traffic case. Mr. Gregory also loaned respondent $100 which has not been repaid.

“4. Mr. Gregory subsequently has been unable to locate the respondent to complete the dissolution of marriage case or to pay the balance he owes on the traffic case.

“5. Mr. Gregory has also been unable to recover his income tax files from the respondent which he needs to respond to an IRS inquiry regarding his 1974 return. .

“1. Respondent represented Mr. Robert Love in various matters in 1975 and 1976. Mr. Love gave him $1,000 in trust on September 30, 1975, to be paid to the Florida Public Service Commission to cover a $500 application fee and $500 certification fee for a" commercial vehicle certificate. .

“2. Respondent never applied for the certificate despite advising Mr. Love on several occasions over the next several months that he was working on it and would get him a duplicate or temporary certificate to enable him to operate his vehicle. .

“3. During those months Mr. Love’s vehicle was inoperative commercially for lack of a certificate. .

“4. Mr. Love testified that many occasions he went from Quincy to Tallahassee attempting to locate respondent well into 1976 without apparent success.

“5. When he discovered respondent had never filed an application with the Public Service Commission, Mr. Love confronted him. He was advised by respondent that he was in financial trouble, did not have have the money and had spent it for his own personal use. He did promise to repay it.

“6. Only after Mr. Love filed his complaint with The Florida Bar in December 1976, and subsequent to the finding of probable cause by the Second Judicial Circuit Grievance Committee, respondent finally repaid Mr. Love the $1,000 involved in this count in May 1977. .

“1. In [sic] July 20, 1976, Mr. Love gave respondent at his request $1,500 in cash to represent him in a personal injury action in Georgia arising out of an accident involving 0ne his trucks. Seven hundred dollars was cover any expenses and $800 was for jjjs fee

“2. The primary defense in the case was being handled by Georgia counsel for Mr. Love’s insurance carrier as required by the contract. Respondent was assisting. .

“3. Respondent had first met with the Georgia counsel and Mr. Love in Tallahassee in November 1975. He later accompanied Mr. Love to a deposition taken in Moultrie by the Georgia lawyer, Mr. Young.

“4. On a visit with his clients to Mr. Young’s Valdosta office on July 5, 1976, respondent discussed in private the manner of expenses with Mr. Young who specifically asvised [sic] him the insurance policy required they defend their client and pay all expenses incident to the litigation. .

“5. Notwithstanding this conversation, respondent requested and received $700 from Mr. Love for expenses relative to this case referred to in paragraph one on July 29, 1976.

“6. Subsequent to this meeting both Mr. Young and Mr. Love had very little contact with Mr. Allen. .

“7. Mr. Love later was able to contact respondent and requested full return of the $1,500 from the accident case due to respondent’s lack of action. .

“8. Respondent then sent Mr. Love an October 4, 1976, letter covering the cases in both counts of this complaint and advised him an additional $1,000 was owed, which was not true. .

“9. After Mr. Love filed his complaint with The Florida Bar, Respondent gave his new attorney a check for $2,500 on the day of the greivance [sic] committee hearing in 1977 which found probable cause, covering both cases, which check was returned for insufficient funds. . . . Mr. Love then filed a complaint with the state attorney. Ultimately the money was repaid by respondent to Mr. Love. . . . ”

The referee recommends that respondent be found guilty of violating Disciplinary Rules 1-102(A)(4), 2-106(A), 2-106(B), 6-101(A)(3), 7-101(A)(2), 7-101(A)(3), 9-102(A), 9-102(B)(4), Code of Professional Responsibility, and Rules 11.02(3)(a) and 11.02(4) of the Integration Rule of The Florida Bar.

In evaluating respondent’s past disciplinary record, the referee considered Florida Bar v. Allen, 355 So.2d 778 (Fla.1978), wherein this Court suspended Allen for one year and thereafter until he proves rehabilitation. The referee presently recommends that respondent be disbarred from the practice of law in Florida.

We agree with the findings and recommendations of the referee.

Accordingly, respondent, Remus C. E. Allen, is hereby disbarred, effective immediately. Execution is hereby directed to issue for the costs of these proceedings against respondent in the amount of $638.80.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.


author: KEHOE, Judge.

text:
    Rodney WOOTEN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-21.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 21, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender and Rory Stein, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from his jury conviction for resisting an officer with violence and possession with intent to sell a controlled substance, i.e., cocaine. Appellant was sentenced to 1 year and 5 years respectively.

Appellant’s basic contention on appeal is that the evidence was insufficient to show any intent to sell.

It is a well established rule that an appellate court should not disturb a verdict under review where there is sufficient competent evidence to sustain it. Also, on appeal, conflicts in the evidence and the reasonable inferences therefrom should be resolved in favor of the verdict. See, e.g., Alvord v. State, 322 So.2d 533 (Fla.1975); and Spinkellink v. State, 313 So.2d 666 (Fla.1975). In the instant case, even after applying these rules, we must agree with appellant’s contention that the record does not reveal sufficient competent evidence from which the jury could have found appellant guilty of an intent to sell. However, the record does reveal sufficient competent evidence to support the other findings of the jury verdict. Therefore, the conviction is reversed to the extent that it found appellant guilty of an intent to sell cocaine and affirmed in all other aspects. Accordingly, the cause is remanded for a readjudication and resentencing not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded.


text:
    Ida COHEN, etc., Appellant, v. HERITAGE HOUSE CONVALARIUM, a Florida Corporation and American Medical Affiliates, a Foreign Corporation, Appellees.
    No. 78-19.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Kurzban & Kurzban, Miami, for appellant.
    Rentz, McClellan & Haggard, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

This interlocutory appeal by plaintiff is from an order granting defendant’s motion to dismiss her complaint for lack of jurisdiction over the subject matter.

Appellees having confessed error and joined with appellant in urging reversal of the order appealed, we reverse and remand the cause for further proceedings.

Reversed and remanded.


author: PER CURIAM. KEHOE, Judge

text:
    Richard E. COX, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1426.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied May 5, 1978.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before KEHOE, J., and BOYD, JOSEPH A., Jr., and CHARLES CARROLL (Ret.), Associate Judges.
   PER CURIAM.

The appellant was convicted after a jury trial on the charges of robbery and unlawful possession of a firearm while engaged in a criminal offense. He had previously entered a guilty plea to the charge of unlawful possession of a firearm by a convicted felon. He was sentenced to a term of 75 years imprisonment on the robbery count, followed by a 5 year term for unlawful possession of a firearm while engaged in a criminal offense. A concurrent term of 5 years was imposed for unlawful possession of a firearm by a convicted felon. On appeal, the 5 year term for possession of a firearm while engaged in a criminal offense was eliminated. In all other respects, his conviction was affirmed. Cox v. State, 300 So.2d 64 (Fla. 3d DCA 1974).

In his first appeal, he attacked only the validity of his sentence. He now requests, and was granted, a belated appeal of his conviction pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969).

The appellant contends that he was deprived of his constitutional right against self-incrimination when the State was permitted to elicit testimony at trial from the arresting officers concerning his silence while in custody. We agree and reverse on the authority of Bennett v. State, 316 So.2d 41 (Fla.1975).

In light of our decision to reverse, we need not consider or rule upon the appellant’s other point on appeal.

Reversed.

KEHOE, Judge

(dissenting).

I would affirm in the instant appeal for the reasons set forth in Judge Grimes’ majority opinion in Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976).


text:
    Omar RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1732.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Albert L. Carnearte, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.


text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Andres SANTIAGO, Appellee.
    No. 77-842.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Rehearing Denied May 24, 1978.
    Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellant.
    Horton, Perse & Ginsberg, Ratiner & Glinn, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Arrieta v. Volkswagen Insurance Company, 343 So.2d 918 (Fla. 3d DCA 1977).

Affirmed.


text:
    Anthony PANI, Appellant, v. The STATE of Florida, Appellee.
    No. 77-885.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied Aug. 25, 1978.
    Martin Lemlich, Miami, for appellant.

      Robert L. Shevin, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

The appellant, Anthony Pani, was found guilty by a jury of the crime of resisting an officer with violence to his person in violation of Section 843.01, Florida Statutes (1975). He was adjudged guilty and sentenced to five years in the state prison. On this appeal, he presents two points. The first claims error for the denial of a jury instruction. The second claims error for failure to give him credit for the time he served in the county jail prior to sentencing.

Appellant’s theory of the case was that he was not guilty because he only used sufficient force to repel the officer who assaulted him first. There was some testimony supporting this position. The court charged:

“We find that 843.01 of the Florida Statutes reads as follows:
“Whoever knowingly and willfully resists, obstructs or opposes any Sheriff, Deputy Sheriff, Officer of the Florida Highway Patrol, Municipal Police Officer, Beverage Enforcement Agent, officer of the Game and Freshwater Fish Commission, officer of the Department of Natural Resources, any member of the Florida Parole and Probation Commission or any administrative aide or supervisor employed by said Commission, any County Probation Officer or any personnel or representative of the Department of Law Enforcement or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person shall be guilty of a felony of the third degree.
“Further the law in 776.05:
“Resisting [sic][] a law enforcement officer, or any person who[m] he has summoned, [or] directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest or when necessarily committed in retaking felons who have escaped or when necessarily committed in arresting felons fleeing from justice.
“776.05[1]:
“A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known or reasonably appears to be a law enforcement officer.”

Appellant requested, but did not receive, an instruction whereby the court would read to the jury verbatim Section 776.051(2), Florida Statutes (1975), which is:

“(2) A law enforcement officer, or any person whom he has summoned or directed to assist him, is not justified in the use of force if the arrest is unlawful and known by him to be unlawful.”

Under this point, appellant presents decisions from other jurisdictions holding that in the case of excessive force by a police officer, the right of self-defense is still retained by the person arrested. See People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 (1969). We need not decide this issue because the point presented does not raise the issue. In addition, the record does not show the presentation to the trial judge of a requested instruction in accord with defendant’s asserted theory. See Fla.R. Crim.P. 3.390.

We hold that the request for an instruction to read Section 776.051(2) was not a proper request and the failure to read that section to the jury was not reversible error in this case.

Appellant’s second point claims error for the failure of the trial court at sentencing to give credit for the time appellant served in the county jail prior to sentencing. See Section 921.161, Florida Statutes (1975). We are unable to determine from the record before us the number of days defendant served in the county jail, but the possibility of error appears. Therefore, in the interests. of justice, we remand the cause to the trial court for a reconsideration of the sentence in the light of appellant’s contention.

The judgment is affirmed; the cause is remanded for a reconsideration of the sentence in the light of the contention that the trial court failed to grant credit for time appellant served in the county jail prior to sentencing.

Judgment affirmed; remanded for reconsideration of sentence.

      . The word “Resisting” does not appear in the statute, which begins with the words “A law enforcement officer, or any person whom he has summoned or directed to assist him . . ”


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

text:
    COUCH CONSTRUCTION COMPANY, INC., Petitioner, v. DEPARTMENT OF TRANSPORTATION, State of Florida, Respondent, and White Construction Company, Inc., Intervenor.
    No. II-314.
    District Court of Appeal of Florida, First District.
    June 16, 1978.
    As Amended on Denial of Rehearing June 26, 1978.

      Robert R. Feagin, III, F. Alan Cummings and John Radey of Holland & Knight, Tallahassee, for petitioner.
    H. Reynolds Sampson, Tallahassee, for respondent.
    John S. Rawls and Elaine N. Duggar, Tallahassee, for intervenor.
   SMITH, Judge.

Couch Construction Company, Inc., petitions for review of a final order entered by the Department of Transportation in a proceeding determining the substantial interests of Couch and respondent White Construction Company, Inc. Sections 120.-57(1), .68, Florida Statutes (1977). The order concerns the award of a contract for paving, in Gadsden County, the last uncompleted link of Interstate Highway 10 between Jacksonville and the Alabama line beyond Pensacola.

The agency’s order, entered April 25, 1978, adopted without elaboration the recommended order of a hearing officer of the Division of Administrative Hearings (DOAH) and thereby finally rejected all bids submitted by contractors on December 21, 1977, including the apparent low bid of petitioner Couch. In January 1978, while Couch contested the Department’s preliminary decision to reject all December bids, the Department readvertised for and received new bids. On rebidding White was the apparent low bidder and the Department preliminarily determined to contract with White. Today’s decision in a companion case, Fla.App., 361 So.2d 184 No. KK-100, disposes of the issues arising as a result of the rebidding process. Both the rebidding process and our decision in the companion case are predicated on the assumption that the Department’s order rejecting all bids was not arbitrary and was entered in accordance with Chapter 120.

On November 24, 1977, the Department published its advertisement for bids on the Gadsden paving work, stating in part:

NOTE: A PRE-BID CONFERENCE ON THIS PROJECT WILL BE HELD ON WEDNESDAY, DECEMBER 14, 1977, AT 10:00 A. M. IN ROOM 301 OF THE HAYDON BURNS BUILDING, 605 SUWANEE STREET, TALLAHASSEE, FLORIDA. ALL POTENTIAL BIDDERS WILL BE REQUIRED TO ATTEND.

White attended the pre-bid conference and, on December 21, submitted a sealed bid of slightly more than $1.5 million. Couch neglected to attend the pre-bid conference but submitted a bid of slightly more than $1.4 million. A third contractor submitted the highest bid after also failing to attend the pre-bid conference.

When White and another bidder protested Couch’s apparent low bid on the ground that Couch had not attended the required pre-bid conference, the Department officials informally designated the “awards committee” considered alternative recommendations to Secretary Webb, the Department head. Section 20.23(1), Florida Statutes (1977). Their deliberations are described in the findings of fact later made by the DOAH hearing officer, as incorporated in the Department’s final order entered April 25, 1978:

Awards Committee members Brown, Bill Ekey, Peter J. White and Willis Armstrong met on December 21 and 22,1977. In reaching a determination as to their recommendation to the Secretary, the committee members considered three alternatives — awarding the contract to Couch as the apparent low bidder, awarding the contract to White as the next lowest bidder and as the only bidder who attended the pre-bid conference or rejecting all bids received and readvertising for new bids. Each alternative was considered a viable one by the committee members. Although the members felt that the requirement of attendance at a prebid conference was a reasonable requirement due to the uniqueness of the project, no inquiry was made as to what actually transpired at the conference. Nor was any inquiry made as to a reason for petitioner’s [Couch’s] nonattendance.
It was the unanimous decision of those Committee members present that it would best serve the interests of the State to reject all bids and proceed to readvertise. This decision to recommend rejection and readvertisement was based upon several reasons. The prime consideration was that this project involved the last remaining unopen link in Interstate Highway 10 and time was of the essence. It was felt that if the contract were awarded to Couch or to White, there would be litigation causing delay to the completion of Interstate 10. The Committee members were also concerned with the significant amount of difference between the bids of Couch and White. Rejecting all bids appeared to the Committee members to be the “cleaner” way to go. Mr. Brown testified that the D.O.T. does not generally accept the bid where only one bid is received. Here the apparent low bidder and the highest bidder were considered irregular for failure to attend the prebid conference. Thus, the Department was left with only one bid.
Through Mr. Brown, Secretary Thomas Webb, Jr., was telephonically notified of the recommendation of the Awards Committee. Mr. Webb concurred with the Committee’s recommendation because he was concerned with a possible delay to the project due to litigation were the bid to be awarded to either Couch or to White.

The Department’s determination to reject all bids was communicated to those affected. Rightly considering that its substantial interests were affected by the determination, Couch regularly filed an administrative complaint with the Department, requesting Section 120.57 proceedings on the issue of whether the Department should take final action rejecting all the December bids. The Secretary, doubtlessly considering that request as initiating the litigation which the Department sought to avoid by the action challenged, denied Couch’s request for a hearing. Couch petitioned for review of that denial, and on February 24, 1978, we ordered that the Department provide the hearing which it had improperly denied. Those proceedings led eventually to the Department’s final order of April 25, 1978.

We affirm that the Department has wide discretion to reject all bids and to call for new bids for public contracts. Section 337.11(3), Florida Statutes (1977); Willis v. Hathaway, 95 Fla. 608, 117 So. 89 (Fla.1928); Berry v. Okaloosa County, 334 So.2d 349 (Fla. 1st DCA 1976); Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978). In making such a determination, the Department cannot act arbitrarily. The Administrative Procedure Act requires that the Department’s decision be by a final order that takes account of countervailing evidence and argument. When as here there are no rules which define the circumstances in which the Department will reject all bids and readvertise, the Department’s order in Section 120.57 proceedings must provide visible proof that the Department is proceeding rationally within the bounds of its discretion and not arbitrarily. In McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), we pointed to the legislative history:

“Three due process checks to prevent arbitrary agency action are the requirements that reasons be stated for all action taken or omitted, that reasons be supported by ‘the record’, and that specific judicial review procedures allow the courts to remedy defects of substance.” [346 So.2d at 584.]

And we held:

Failure by the agency to expose and elucidate its reasons for discretionary action will, on judicial review, result in the relief authorized by Section 120.68(13): an order requiring or setting aside agency action, remanding the case for further proceedings or deciding the case, otherwise redressing the effects of official action wrongfully taken or withheld, or providing interlocutory relief. [346 So.2d at 584.]

The recommended order of the DOAH hearing officer, dated April 24, 1978, and the Department’s final order adopting it April 25, 1978, are inadequate by Chapter 120 standards. Neither order takes account of significant changes in circumstances since the Department’s preliminary decision to reject all bids. In December the Department thought to avoid controversy and delay by rejecting all bids. Appeasement and expediency are rarely fruitful as government policies, and they were not in this case; the Department obviously and erroneously assumed that the bids could be rejected without accountability under Chapter 120. So, acting without affording Couch at least an immediate Section 120.57(2) hearing, and consequently without an order expounding the agency’s exercise of discretion in the light of events as then understood by the agency, the Department created an opportunity for subsequent events to reveal the folly of rejecting all bids to avoid controversy and litigation.

A final agency order in proceedings which are concerned principally with agency policy must explain the reasons for exercising agency discretion in the chosen way. The order must take account of countervailing evidence and argument. As we said in McDonald, APA hearing requirements are designed to give affected parties an opportunity to change the agency’s mind. That being so, the agency’s final order must defend its decision on the basis of what it knows at the time the order is entered.

In this case the Department knew, on April 25, 1978, that in January the Department had discontinued all mandatory pre-bid conferences. The Department knew that its failure to provide Couch at least a prompt Section 120.57(2) hearing in December had resulted in the very litigation and delay which its preliminary decision sought to avoid. These and other factors not known to, or considered by the Department Head, at the time he rejected all bids, came to light afterwards, such as the apparent lack of substance to the December conference and the facts as to how the mandatory attendance requirement came to be included in the advertisement for bids in the first place. In the light of these circumstances the mandatory conference was re-evaluated and discarded on the rebidding of this project. The rejection of all bids, however, on the grounds of failure of the low bidder to attend that conference was not re-evaluated in light of the same circumstances. The final order conspicuously fails to evaluate the Department’s December rejection of bids in light of the facts shown at the Section 120.57 hearing. Both the hearing officer and the Department fell into the error of trying to justify the decision on the basis of what was known, thought, and believed by Department officials in December. Such an effort is not in accord with Section 120.57 procedures as we described them in McDonald, 346 So.2d at 584:

“Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily.”

We stop short of holding that the Department may not now rationally reject all December bids. If the Department still considers that to be the proper action, notwithstanding all it has learned since December, the Department may enter a new final order which explains and defends its decision.

The April 25, 1978 order must be and is REVERSED and the cause REMANDED for entry of an order consistent with Section 337.11 and this opinion.

BOOTH, J., concurs.

BOYER, Acting C. J., dissents.

BOYER, Acting Chief Judge,

dissenting.

I disagree. The majority substitute their interpretation of the Administrative Procedure Act for the facts of this case and the applicable law.

By Petition for Review petitioner, Couch Construction Company, Inc., (Couch) seeks a determination that the Department of Transportation of the State of Florida (DOT) abused its discretion or acted in bad faith, arbitrarily, capriciously, or under a misconception of law in rejecting all bids received on a certain highway construction project upon which Couch was one of the bidders, and further that the decision by DOT to reject all bids was made in violation of Florida’s Government in the Sunshine Law, Florida Statute 286.011.

The bids on the subject project were opened and read on December 21, 1977. Only three bids were submitted. Couch was the low bidder. Intervenor, White Construction Company, Inc. (White) was the second low bidder. The third and highest bid was submitted by Contee Sand and Gravel Company, Inc. (Contee). Of the three bidders, only White had attended a pre-bid conference required by the “Notice to Contractors” by which bids were invited. On the recommendation of DOT’s Awards Committee it, acting through its secretary, decided to reject all bids and to readvertise for new bids to be received on January 12, 1978. Upon being so notified by telegram, Couch, on December 29, 1977, filed a complaint with DOT requesting a hearing pursuant to F.S. 120.57. DOT took the position that there were no material issues of disputed fact and therefore denied Couch a hearing. Couch thereupon filed its petition for review on January 6, 1978.

The readvertised bids on the subject project were accepted on January 12, 1978. Only two were submitted: Couch submitted the identical bid which it had first submitted but White submitted a lower bid by approximately $46,000.00. After hearing the bids read Couch filed in this court a motion for stay, which motion we granted by order dated January 13, 1978. By that order we stayed the awarding of any contract based upon the bids received on January 12. Over the objection of Couch, White was thereafter permitted to intervene. Following a hearing we, on February 24, 1978, relinquished jurisdiction for the conducting of 'a-F.S. 120.57 hearing. The record was, indeed, at that time insufficient as to the “sunshine” issue.

Following an administrative hearing held before a DOAH hearing officer, which hearing was attended by attorneys for Couch, DOT and White, the hearing officer entered a recommended order which order was adopted and entered by DOT on April 25, 1978. Since the material facts are succinctly stated in that order, I quote the relevant portions as follows:

“ISSUES

“The issues presented for determination at the hearing are as follows: [footnote omitted]

“(1) Whether respondent Department of Transportation (D.O.T.) abused its discretion or acted in bad faith, arbitrarily, capriciously, or under a misconception of law in rejecting all bids received on the subject project on December 21, 1977.

“(2) Whether the decision of the respondent D.O.T. to reject all bids was made in violation of Florida’s Government in the Sunshine Law, F.S. § 286.011.

“FINDINGS OF FACT

“Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: “(1) By a ‘notice to contractors’ dated November 24, 1977, the respondent D.O.T. advertised that it would receive bids on December 21, 1977, from qualified contractors for various construction and maintenance programs. The project which is the subject of this proceeding was contained in this notice, identified as ‘Gadsden County: Federal Aid Project No. I-10-3 (31) 157 Contract II (Job No. 50001-3423) SR 8 (1-10).’ This project involved the paving of a certain stretch of Interstate 10 in Gadsden County, which stretch was the last remaining unopen portion of I — 10. In addition to a short summary of the contents of the project the notice on this project contained the following language which was underlined and capitalized in the notice:

“NOTE: A PRE-BID CONFERENCE ON THIS PROJECT WILL BE HELD ON WEDNESDAY. DECEMBER 14. 1977. AT 10:00 A.M. IN ROOM 301 OF THE HAYDON BURNS BUILDING. 605 SUWAN-NEE STREET. TALLAHASSEE. FLORIDA. ALL POTENTIAL BIDDERS WILL BE REQUIRED TO ATTEND. NOTE: ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT.

“2. Mr. Henry Eugene Cowger, deputy state construction engineer for the D.O.T., made the initial decision to require attendance at a prebid conference for this project, although he himself did not draft the language used in the notice. Cowger felt that a prebid conference would be valuable to bidders and the Department due to the uniqueness of this particular project with regard to the requirements concerning maintenance of traffic and work progress. More specifically, the contract called for a close working relationship and cooperation with the first stage contractor on this stretch of road. The first stage contractor is respondent/intervenor White. Also, it was anticipated that the project would be opened in sections with unusual traffic requirements so that the entire project could be utilized in a limited fashion.

“3. Mr. Cowger instructed William F. Ray, the Department’s area construction engineer, to arrange for and conduct the prebid conference. No specific instructions were given to Mr. Ray as to which provisions of the contract were to be discussed at the conference. Cowger felt that Ray was knowledgeable with the project and therefore that he needed no instructions.

“4. The prebid conference was held as scheduled on December 14, 1977. Representatives of six different construction companies attended, including a representative from respondent White Construction Company. Through neglect or oversight, petitioner Couch did not attend the conference. A memorandum to the file from Mr. Ray indicates that the following occurred at the conference:

“A statement was made at the beginning of the meeting by W. F. Ray that nothing said by any person at the meeting would change or modify any part of the contract documents.
“Certain portions of the Special Provisions pertaining to maintenance of traffic and limitations of work areas were read and discussed.
“It was agreed by those present that the intent of these Specials Provisions was clear and understandable.
“Mr. McRae of H. D. W. stated that the unknown delay times built into this project would result in much higher than normal bids and his company would probably not enter a bid.
“After a short discussion of the terms of the contract, the meeting was adjourned.

“The conference lasted from thirty to forty-five minutes. At the hearing, Mr. Ray related the questions he could remember which were asked by the contractors. It was admitted that virtually all of the provisions and expectations, unique or otherwise, were fully spelled out in the contract documents. Most of the inquiries at the conference related to the absorption of certain maintenance and traffic costs and responsibilities between the contractor and the D.O.T. In each instance, it was disclosed that the D.O.T. would be responsible for these unless the contract specifically provided otherwise. Questions regarding the sequence of operations and the phasing of the work with the first stage contractor were not specifically answered by D.O.T. representatives.

“5. Of the three contractors who submitted bids on the subject project on December 21, 1977, only respondent/interve-nor White had attended the December 14th prebid conference. Joseph E. Villadsen, petitioner’s engineering division vice president, had visited the site of the project and had studied the contract provisions, which appeared clear to him. In numerical order, the bids submitted on December 21, 1977, were as follows:

"$1,410,730.72 - - petitioner Couch
"$1,514,272.63 - - respondent/intervenor White
"$1,579,168.72 - - Contee Sand and Gravel Company, Inc.

“6. The respondent has an Awards Committee composed of five executives from the D.O.T. This Committee generally meets once a month to review bids and make a recommendation to respondent’s Secretary on the award of contracts for some thirty-five to fifty projects per month. Although Secretary Webb has the authority to make an independent decision and/or to reject the recommendations of the Awards Committee with regard to the acceptance of bids, he could not recall ever having done so.

“7. On the afternoon of December 21, 1977, the same day as the bids were received, Mr. Jay Brown, respondent’s director of road operations and chairman of the Awards Committee, learned from two representatives of White that the apparent low bidder, petitioner Couch, had not attended the prebid conference. He thereupon called together those members of the Awards Committee who were in the building at that time to discuss what should be done. Brown also counseled with P. E. Carpenter, the division administrator for the Federal Highway Administration, to determine the extent of the federal participation in funding if a bid other than the low bid were accepted.

“8. Awards Committee members Brown, Bill Ekey, Peter J. White and Willis Armstrong met on December 21 and 22, 1977. In reaching a determination as to their recommendation to the Secretary, the committee members considered three alternatives — awarding the contract to Couch as the apparent low bidder, awarding the contract to White as the next lowest bidder and as the only bidder who attended the prebid conference or rejecting all bids received and readvertising for new bids. Each alternative was considered a viable one by the committee members. Although the members felt that the requirement of attendance at a prebid conference was a reasonable requirement due to the uniqueness of the project, no inquiry was made as to what actually transpired at the conference. Nor was any inquiry made as to a reason for petitioner’s nonattendance.

“9. It was the unanimous decision of those Committee members present that it would best serve the interests of the State to reject all bids and proceed to readvertise. This decision to recommend rejection and readvertisement was based upon several reasons. The prime consideration was that this project involved the last remaining unopen link in Interstate Highway 10 and time was of the essence. It was felt that if the contract were awarded to Couch or to White, there would be litigation causing delay to the completion of Interstate 10. The Committee members were also concerned with the significant amount of difference between the bids of Couch and White. Rejecting all bids appeared to the Committee members to be the ‘cleaner’ way to go. Mr. Brown testified that the D.O.T. does not generally accept the bid where only one bid is received. Here the apparent low bidder and the highest bidder were considered irregular for failure to attend the prebid conference. Thus, the Department was left with only one bid.

“10. Through Mr. Brown, Secretary Thomas Webb, Jr., was telephonically notified of the recommendation of the Awards Committee. Mr. Webb concurred with the Committee’s recommendation because he was concerned with a possible delay to the project due to litigation were the bid to be awarded to either Couch or to White.

“11. Thereafter, the bidders were notified by telegram that all bids on the project had been rejected due to the failure of the low bidder to attend the prebid conference, and that the project would be readvertised. “12. On December 29, 1977, Couch filed a ‘complaint’ with the D.O.T. requesting a hearing pursuant to F.S. § 120.57 on the issue of whether the D.O.T. lawfully rejected Couch’s bid on the subject project. By Order dated January 9, 1978, Secretary Webb denied Couch’s request for a hearing. This denial was appealed by Couch to the District Court of Appeal, First District, and White Construction Company was made a party to that proceeding. After numerous motions were filed and oral argument was had, the District Court, by Order dated February 24, 1978, relinquished jurisdiction for a period of sixty days and remanded the case to the D.O.T. for the purpose of providing Couch a § 120.57(1) hearing. The District Court stayed the D.O.T. from awarding the contract for the subject project.

“13. Prior to the Orders of the District Court, the D.O.T. readvertised the project, calling for a prebid conference on January 11,1978, and the receipt of bids on January 12, 1978. This time, attendance at the conference was announced to be ‘expected’, rather than ‘required.’ At the hearing, the D.O.T. divulged that attendance at prebid conferences would no longer be required or mandatory in order to avoid the problem inherent in the instant proceeding. Both Couch and White attended the January 11th prebid conference and submitted bids on January 12th. Couch’s bid was identical to its December 21, 1977, bid. White submitted a bid approximately $40,000.00 below the bid of Couch.

“14. The D.O.T. receives bids on approximately 420 to 550 construction projects a year. During the past ten years only seven other prebid conferences with required attendance have been held. In those instances, the language contained in the notice was different from the language used in the subject notice. On three occasions the language used was: ‘ALL PROSPECTIVE BIDDERS MUST ATTEND THIS PRE-BID CONFERENCE AS BIDDING DOCUMENTS WILL NOT BE ISSUED TO CONTRACTORS WHO HAVE NOT BEEN PROPERLY REPRESENTED AT THIS MEETING.’ On three occasions the language was: ‘ATTENDANCE WILL BE MANDATORY FOR THOSE INTENDING TO SUBMIT A BID ON THIS PROJECT.’ On one occasion the language was: ‘ATTENDANCE WILL BE MANDATORY FOR THOSE INTENDING TO SUBMIT A BID ON THIS PROJECT.’ The situation where the apparent low bidder has not attended a required prebid conference has never before arisen.

“CONCLUSIONS OF LAW

“The first issue presented for decision is whether, under the facts of this case, the D.O.T. abused its discretion or acted in bad faith, arbitrarily, capriciously or under a misconception of law in rejecting all bids received on December 21, 1977.

“F.S. Section 337.11(3) provides as follows:
‘The department may, at its discretion, award the proposed work to the lowest responsible bidder, or it may reject all bids and proceed to readvertise or perform the work with convict labor or free labor.’

“We are not here concerned with that portion of the quoted statute which permits the D.O.T. to award the work to the lowest responsible bidder. The D.O.T. made no determination that petitioner Couch or the other bidders were not responsible bidders. The evidence is clear that the members of the Awards Committee and the Secretary considered that awarding the contract to Couch was a viable alternative. Rather, the relevant inquiry is whether the D.O.T. improperly exercised its discretion in determining to reject all bids and proceed to readvertise. The statute does not mandate that the work be awarded to the lowest responsible bidder. It merely requires that the D.O.T. properly exercise its discretion in either awarding the contract or rejecting all bids or performing the work with convict or free labor. The issue is thus one of whether the Department’s decision to reject all bids was a reasonable exercise of its discretion. In order to determine this issue, it is necessary to examine the rationale behind such a decision and to weigh such rationale against the petitioner’s claims of arbitrariness or capriciousness.

“Here, the evidence is clear that those persons involved in the decision-making process both at the recommendation level and at the final level, were primarily concerned with a possible delay to the completion of this last link in Interstate Highway 10. This fear of delay from possible litigation was not unjustified. The D.O.T. had received complaints from White’s employees that petitioner had not attended the prebid conference. The construction industry bidding process being a very competitive one, and one of the bidders having failed to comply with the notice requirement of attendance, it was reasonable to assume that if the contract were awarded to Couch or to White, impending litigation would ensue, thus delaying construction on the project. While the decision-makers did not inquire as to what transpired at the conference, they were aware of the unique provisions of the contract and each felt that the attendance requirement was a reasonable one. They were also concerned that the second lowest bid was considerably higher than the bid of petitioner. Their decision to reject all bids and readvertise was based upon a determination that such a course of action would be the most fair to all concerned and in the best interests of the State.

“Such rationale cannot be characterized as action taken in bad faith, arbitrarily, capriciously, or under a misconception of law. Nor can it be said that the decision was made in ignorance or through lack of inquiry or through improper influence. Petitioner did not attend the required prebid conference. Whether this failure to attend would have been sufficient to declare petitioner to be irresponsible or disqualified as a bidder need not be determined herein, for that is not what the D.O.T. did. It rejected all bids, and not just the petitioner’s bid, as it had the authority to do pursuant to F.S. § 337.11(3). Its rationale for doing so was certainly within the boundaries of reasonableness. In conclusion, petitioner has failed to illustrate an improper exercise of discretion on the part of the D.O.T.

“Petitioner further contends that the D.O. T.’s decision to reject all bids was made in violation of Florida’s Government in the Sunshine Law. F.S. § 286.011(1) provides as follows:

‘All meetings of any board of commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times and no resolution, rule, regulation, or formal action shall be considered binding except as taken or made at such meeting.’

“The undersigned does not feel that this statute is pertinent to the facts in this case. It is clear from the evidence that though the chief executive officer of the D.O.T., Secretary Webb, relied upon the recommendation of the Awards Committee in reaching his decision, it was he who rendered and had the responsibility for rendering the final decision in this matter. The Awards Committee is composed of executives and staff employees of the D.O.T. who make recommendations within the areas of their expertise. As stated in footnote 10 of the case of Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977),

‘The members of a collegial administrative body are not obliged to avoid their staff during evaluation and consideration stages of their deliberations. Were this so, the value of staff expertise would be lost and the intelligent use of employees would be crippled.’

“And, in Bennett v. Warden, 333 So.2d 97 (Fla.App. 2nd 1976), the Court stated

‘ . . . frequent and unpublicized meetings between an executive officer and advisors, consultants, staff or personnel under his direction, for the purpose of “fact-finding” to assist him in the execution of those duties, are not meetings within the contemplation of the Sunshine Law. Any other conclusion, carried to its logical extension, would in our view unduly hamper the efficient operation of modern government the administration of which is more and more being placed in the hands of professional administrators. It would be unrealistic, indeed intolerable, to require of such professionals that every meeting, every contact, and every discussion with anyone from whom they would seek counsel .or consultation to assist in acquiring the necessary information, data or intelligence needed to advise or guide the authority by whom they are employed, be a public meeting within the disciplines of the Sunshine Law. Neither the letter nor the spirit of the law require it.’

“It is concluded that the deliberations within the Awards Committee and the communication between that Committee and Secretary Webb were not subject to the Sunshine Law.

“CONCLUSION

“Based upon the findings of fact and conclusions of law, set forth herein, the challenged action of the State of Florida, Department of Transportation to reject all bids and readvertise the subject project be and the same is hereby affirmed and upheld.”

A review of the record reveals substantial competent evidence to sustain the findings of fact recited in the well reasoned order recommended by the hearing officer and adopted by DOT and the applicable law sustains the conclusions found therein.

It was the prerogative of DOT, not the potential bidders nor this court, to determine, in its reasonable discretion, the conditions and specifications for bidding. Paragraph (2) of the “Findings of Fact” in the subject order recite adequate and reasonable grounds (sustained by the record evidence) for requiring attendance at the pre-bid conference, and it is abundantly clear that the requirement was set forth in underlined capital letters in the invitation to bid, which the record reveals was received by Couch.

The decision to reject all bids was also for sound reasons, within the broad discretion granted to DOT by F.S. 337.11(3), and was not shown to have been taken in bad faith, arbitrarily, capriciously nor under a misconception of law. In Wood-Hopkins Contract Company v. Roger J. Au & Son, supra, this Court stated the rule governing exercise of the discretion to reject all bids as follows:

“In exercising the power to reject any or all bids, and proceeding anew with the awarding of the contract, the officers cannot act arbitrarily or capriciously, but must observe good faith and accord to all bidders just consideration, thus avoiding favoritism, abuse of discretion, or corruption. Even where the right to reject any and all bids is properly reserved, the bidding law may not be evaded under the color of a rejection.” (354 So.2d at page 450)

See also City of Pensacola v. Kirby, 47 So.2d 533, (Fla.1950); McQuillin, Municipal Corporations, § 29.77.

The facts sub judice, however, are clearly distinguishable from those found in the Wood-Hopkins case wherein the trial court found, after hearing evidence, that in recommending rejection of all bids the advisory staff and consultants acted arbitrarily, unreasonably and capriciously. Under those circumstances we recited that such matters come to an appellate court with a presumption of correctness and will not be lightly set aside. Sub judice, on the other hand, the hearing officer found no such improper action on the part of DOT and its staff. Though the discretion is not unbridled (Wood-Hopkins Contract v. Roger J. Au & Son, supra and authorities therein cited) the Supreme Court of Florida has lent recognition to the discretion afforded by the statute in White Construction Co., Inc. v. Division of Admin., etc., 281 So.2d 194 (Fla.1973), wherein it concluded:

“However, although the Department of Transportation must open the bid submitted by White Construction Company, Inc., we recognize the application of Florida Statutes, Section 337.11(3), F.S.A., which provides,
'The department may, at its discretion award the proposed work to the lowest responsible bidder, or it may reject all bids and proceed to readvertise or perform the work with convict labor or free labor.’ ” (281 So.2d at page 197)

Notwithstanding the reason given for rejecting all bids, the laudable attempt to avoid litigation with the attendant delay, which the majority in my view unjustly critcize, DOT actually had little other choice. Clearly, it would have been suspect had it accepted the bid of Couch, who had flaunted a mandatory requirement for bidding; and it would have violated its own announced policy had it accepted the only valid bid received.

In my view the majority emphasize fanciful, but not therein written, procedures under the Administrative Procedures Act rather than the merits of this case. While the APA affords substantive rights and limited procedural guidelines, it is not Holy Writ. When substantial compliance has been accomplished we should address the issues presented rather than “second guess” the hearing officer and the agency as to what could have been articulated in the order. Hindsight is usually 20-20, whereas foresight is little more than conjecture. Taken as a whole, the hearing officer did an excellent job in preparing the recommended order and DOT did well to adopt it. Certainly it is easy for my colleagues to now look back and suggest methods and contents which might now appear to be an improvement. Indeed, a different panel of this same court might well make suggestions for improving this opinion (the majority as well as this dissent) and a superior court might be dissatisfied with both.

The majority make much ado of alleged failure of the hearing officer and DOT to take into account and to defend in the DOT order its decision “on the basis of what it knows at the time the order is entered,” reciting several matters as then being known. Yet not one of those alleged then known matters have any bearing whatsoever on the reasons for having rejected all bids.

As already explicated, DOT determined preliminarily the desirability of requiring attendance at a pre-bid conference. Such requirement need not have been necessary nor essential (few things are), but only desirable. In so determining it properly acted within its sound discretion. It also acted within its discretion in rejecting all bids. The APA does not stand as a vehicle for forcing the direction in which an agency must exercise its lawful discretion. Discretion implies the right to elect, depending upon the circumstances, a choice of several viable alternatives. DOT has had ample time and opportunity to recede and it has not elected to do so: That, too, is within its discretion.

Not one requirement of F.S. 120.57 has been omitted by DOT nor by the hearing officer. Even if it be Holy Writ its commandments have been obeyed.

Great emphasis is placed by the majority on this Court’s opinion in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). That emphasis is misplaced. It is elementary that every holding, in order to be meaningful, must be viewed in the context of the facts of the particular case. We were there concerned with the award of a bank charter which would have an effect upon other banks in the area and which award (or denial) would affect the public on a continuing basis because of its impact upon commercial interests and the economy of the area. Notwithstanding the exhaustive discussion of administrative law and legal philosophy found in that opinion, the only real issue related to the proper scope of inquiry and judicial review of the exercise of agency discretion when an agency, in an APA proceeding, discards the findings of a DOAH hearing officer and substitutes the agency’s own findings in their place and stead. Under those circumstances the facts as they existed up to the very moment of the award (or denial) of the charter were relevant and crucial. The award of a road construction contract has no such implications. The road will (presumably) be built. There is no issue as to the propriety or feasibility of the project. The impact on the community, if any, will be the same regardless of who does the construction. The only relevant and valid consideration (apart from specifications, which are not here involved) is selection of a qualified contractor. The principles announced in the McDonald case are appropriately applied in other cases involving factually similar circumstances. They have no applicability here. Although qualification is an issue in a companion case (case no. KK-100 also decided this date), no such issue has been raised in this case.

We have not overlooked nor ignored the contention urged by Couch that DOT, in deciding to reject all bids, violated F.S. 286.011, the Government in the Sunshine Law. That point too, is well covered in the order here sought to be reviewed, as herein-above quoted, and no useful purpose will be accomplished by repetition here. All the judges considering this case have discussed it repeatedly. I must assume therefore that the majority, by not mentioning the point, agree with me that it is without merit.

I would affirm the order here reviewed and vacate and set aside the stay order heretofore entered.

      . The Department has neglected to describe the “awards committee” or any other aspect of the bid review process in its rules. Section 120.-53(l)(a) requires that the Department and every agency “[a]dopt as a rule a description of its organization, stating the general course and method of its operations . . .” The Department has no rules of practice relating particularly to formal and informal procedures in the bidding and contract award process, but it has adopted comprehensive general rules of procedure for “decisions affecting substantial interests.” Ch. 14-6, Fla.Admin.Code.

      . The Department’s Rule 14-6.07 provides:
      A complaint is the appropriate initial pleading wherein an interested party complains of acts or things done or omitted to be done in violation of some law administered by the department, or in violation of some rule or order issued by the department.

      . The committee had received protests from both White and Contee that Couch, the apparent low bidder, had not attended the pre-bid conference.

      . DOT apparently relied upon the holding of our Supreme Court that the procedural requirements established by the administrative procedure act do not require hearings to find facts which can have no bearing on agency action. (ASI, Inc. v. Florida Public Service Commission, 334 So.2d 594 (Fla.1976))

      . Obviously anticipating that the matter would soon be resolved, Couch was not required to post any bond as a condition of the ordered stay. The majority yet extend the stay without bond.

      . See Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971) wherein a bid was rejected on the sole ground that the bidder was at the time of submitting the bid a non-registered and noncertified contractor, although in fact an experienced contractor holding a limited or restricted registration which was valid at the time the rejected bid was prepared and submitted, and who thereafter took and passed the necessary examination and acquired the requisite registration and certification prior to commencement of the project; the court stating:
      “ * * * Admittedly, Knott failed to comply with the foregoing provisions of the instructions when it submitted its bid without being currently registered with the licensing board. Since Knott did not meet the mandatory requirements of the statute regarding registration and certification nor comply with the prequalification requirements set forth in the instructions to bidders, the bid submitted by it was in violation of the act and was not qualified for consideration by General Services in determining the lowest responsible bid received for the work.” (247 So.2d at page 521)

      . That the requirement was changed to a request upon the re-bid invitation is of no materiality. The mere fact that an authority decides, with experience, to relax or modify bidding requirements has no effect upon the validity of the requirement during the period of its employment. Indeed, neither does the fact (when a fact) that a bid awarding entity has the power or authority to waive a bid requirement vest in either the bidders or the courts the right to require it to do so.

      .Again, the fact that DOT considered alternatives (see paragraphs 8, 9 and 10 of the “Findings of Fact” contained in the quoted order) does not detract from the validity of the one chosen. There are few decisions, indeed, which do not stem from multiple viable alternatives. The receipt of the Couch bid although it had not attended the pre-bid conference; the fact that only one bidder (White) had in fact attended; the desirability for the citizens of the state and the traveling public to have the highway completed and the threat of protracted litigation certainly made the alternative selected (the rejection of all bids) appear to be the best alternative at the time. Hindsight may often reveal that the hoped for results were illusive or not accomplished; but that does not affect the good faith, nor even the wisdom, of the act at the time it was taken.

      . See F.S. 120.68(12).

      . See “ISSUES”, McDonald v. Department of Banking and Finance, supra, at pages 574-575.

      .We address in another opinion bearing the same caption as this one, case no. KK-100, 361 So.2d 184, also released this date, other issues relating to the same project as involved sub judice.