text:
    Norman COHEN, Appellant, v. COMMODORE PLAZA AT CENTURY 21 CONDOMINIUM ASSOCIATION, INC., a Florida Corporation, Appellee.
    No. 78-1198.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rehearing Denied April 4, 1979.

      Frates, Floyd, Pearson, Stewart, Richman & Greer and Ronald Brenner, Miami, for appellant.
    Joseph S. Paglino, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The summary judgment under review denied the appellant’s claim, based upon a written agreement for indemnification, for the attorney’s fees it expended in defense of an action in the federal district court. Although it never became an actual party to the federal case, the interests of the appellee-condominium association were obviously aligned with those of the plaintiffs, who were individual unit owners and who were suing the present appellant, the developer-lessor of the condominium’s common areas. The federal action, which was ultimately dismissed, sought to invalidate the lease based upon allegations, among others, that it was in violation of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2 (1970). The indemnification agreement, which forms the basis of the suit now before us, is contained in that very lease.

Under these-circumstances, we think that the trial judge’s determination was properly founded upon the strong public policy which encourages the filing of private suits under the federal anti-trust laws; and which therefore precludes awards of fees to successful party-defendants in such actions. Byram Concretanks, Inc. v. Warren Concrete Products Co. of New Jersey, 374 F.2d 649 (3d Cir. 1964), cert. denied, 377 U.S. 916, 84 S.Ct. 1179, 12 L.Ed.2d 185 (1964); Juneau Square Corp. v. First Wisconsin National Bank of Milwaukee, 435 F.Supp. 1307, 1327 (E.D.Wis.1977); Gillam v. A. Shyman, Inc., 205 F.Supp. 534 (D.Alaska 1962). The judgment below is therefore

Affirmed.

      . See Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, 350 So.2d 502 (Fla. 3d DCA 1977), cert. denied, 362 So.2d 1051 (Fla.1978).


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    Timothy Windell SULLIVAN, Mansur K. Stevens and United Services Automobile Association, Appellants, v. Lonnie PRICE, Appellee.
    No. JJ-170.
    District Court of Appeal of Florida, First District.
    March 9, 1979.
    Rehearing Denied April 2, 1979.

      Robert P. Gaines, of Beggs & Lane, Pensacola, for appellants.
    Walter H. Beckham, Jr. and Joel D. Eaton, of Podhurst, Orseck & Parks, Miami, and Robert G. Kerrigan, of Kerrigan, Es-tess & Rankin, Pensacola, for appellee.
   ERVIN, Judge.

Sullivan, Stevens and Stevens’ insurer, United Services Automobile Association, appeal the trial court’s denial of their motion for a judgment notwithstanding the jury’s verdict or a new trial.

Price, an off-duty police officer at the time of the accident, sued the appellants after he was injured on his motorcycle while chasing Stevens’ car, driven by Sullivan. Price, while in his garage polishing his motorcycle, observed Sullivan in Stevens’ car and another individual in a separate car driving up and down the road at high speeds. He radioed for a “marked unit”, but the Department could not immediately respond. Subsequently, Price heard someone shout, “Help, I’ve been hit with a tire tool,” and “Call the police,” after which, thinking a felony was in progress, he notified the Department he intended to investigate the activity. As he approached on motorcycle, Sullivan, in Stevens’ car, “spun off”, and Price followed. Price’s testimony that the chase reached speeds of 95-100 mph was contradicted by Sullivan who stated he went no faster than 65 mph. The speed limit was 35 mph. After about two miles, Sullivan slowed suddenly at a curve. Price was unable to stop in time and, since a car was approaching in the other lane, he drove from the road into a wooded area where he was thrown from his bike. Sullivan testified he did not know Price was behind him and that he had turned off the road earlier than the location where Price stated the accident occurred.

Price broke his clavicle in three or four places. He spent a week in the hospital, and his medical bills totaled $1,100.05. He wore a surgically inserted pin for approximately two months which he testified was painful. His injuries precluded him from working at all for three months, and for three additional months he was only on limited duty. He was incapacitated at least two days a week the following year, and, in August, 1977, he was terminated as a motorcycle policeman because of his inability, caused by the injury, to perform fully. His new job with the force resulted in a loss in both status and pay. His hobbies have been curtailed by the injury.

Appellants first argue that the evidence was not sufficient to justify production of mortality tables or instructions to the jury on permanence of the appellee’s injuries since appellee presented no expert medical testimony. Cases in Florida involving the propriety of instructions on permanence of injuries or future pain and suffering in the absence of such evidence are unclear, and a solution to the problem depends upon a careful examination of the facts in each pertinent case.

Two cases from the Third District Court of Appeal have affirmatively stated that expert medical testimony is not a prerequisite to an instruction on permanent injury. Gallub v. Del Vecchio, 301 So.2d 785 (Fla. 3rd DCA 1974); Salvador v. Munoz, 193 So.2d 442 (Fla. 3rd DCA 1966). In Salva dor, no facts were given other than reciting plaintiff’s testimony of “continuing pain and inability to work ...” which justified the charge even without expert medical evidence. Id. In Gallub, the plaintiff had been injured by the defendant, a policeman, when the defendant’s revolver went off and shot plaintiff in both legs. The plaintiff appealed a $12,000 award, urging that the trial court erred in not issuing bench warrants for two of the plaintiff’s medical experts who failed to appear. The plaintiff’s medical expert who did testify stated the plaintiff had no permanent disability, although shell fragments remained in one of his legs. Following plaintiff’s own testimony that he was permanently injured, the defendant’s medical expert was called as an impeaching witness. The plaintiff’s later attempt to call the defendant’s doctor as his own witness to establish that the doctor had once stated plaintiff was 10% permanently disabled was denied. None of the trial court’s actions was error, the Third District concluded, since the jury was instructed on the possible permanency of the plaintiff’s injuries, and since “[t]he plaintiff’s own testimony respecting his permanent injury was sufficient to justify a charge upon that issue.” Id. at 786-787.

Neither Gallub nor Salvador cited Saucer v. City of West Palm Beach, 155 Fla. 659, 21 So.2d 452 (Fla.1945), where the court held, without reciting facts of the case: “If the doctors who treated appellant do not say there is .any permanent injury, the jury composed of laymen could certainly not be expected to say there was such injuries . .” 21 So.2d at 455. The court offered no comment upon the propriety of the jury considering lay testimony from which permanent injury could be inferred. Similarly, in Seaboard Air Line Railroad Company v. Ford, 92 So.2d 160 (Fla.1955), the court held error occurred by the admission of mortality tables since there was no evidence showing permanent impairment. The facts showed that plaintiff’s dermatitis, caused by a chemical solution given him by the defendant, had completely cleared at the time of trial. The plaintiff’s experts had testified that he still was sensitive to the chemical compound in the solution and that he suffered from nervousness brought on by the dermatitis. However, “no witness would venture an opinion as to how long either the sensitivity or the nervousness would last; no witness said that there was even a possibility that these injuries were permanent.” Id. at 163. Under such circumstances, the jury should not have been charged concerning the permanency of the plaintiff’s injury. In Morrison v. Bohne, 274 So.2d 896 (Fla. 2d DCA 1973), the plaintiff’s evidence was that she felt pain in her neck and left shoulder immediately after the accident; at the hospital she was treated and x-rayed; her arm was placed in a sling. She was still in pain following six weeks of physical therapy and seven months after wearing a neck collar. She was treated by an orthopedic surgeon and, at the time of trial, was still under her doctor’s care. She could do desk work at her job, but was unable to bowl or do housework as before. She offered no expert medical testimony and appealed the trial judge’s order granting a new trial because he had erroneously instructed the jury concerning mortality tables. Affirming, the Second District simply said that there was no evidence that the injury was permanent.

Thus, even though Gallub, supra, and Salvador, supra, appear to set a standard (see also 9A Fla.Jur., Damages, § 45), Morrison, supra, Seaboard Air Line Railroad Company, supra, and Saucer, supra, do not discuss the standard. Moreover, the conclusions stated in Salvador and Gallub appear to be in hopeless conflict with that reached in Morrison. In other jurisdictions, the rule is clearer. (See generally, Annot., 115 ALR 1149 (1938).) In Bitzan v. Parisi, 14 Wash. App. 791, 545 P.2d 578 (1976), the court reviewed the test for instructions on future pain and suffering and noted that the same test governed instructions on permanence of injuries:

The general rule followed by most all courts is that if the injury is “objective” and it is plainly apparent from the very nature of the injury that it will cause pain ... in the future, expert testimony is not required. . . . [I]f the injury is not obvious, nor the symptoms readily apparent, it is regarded as “subjective”, and medical testimony is generally necessary to support a claim of future-damages. Id. at 581.

Elaborating on the rule, in Parris v. Johnson, 3 Wash.App. 853, 479 P.2d 91 (1970), the court stated that “disability” was com-pensable when it caused a loss in work, sleep or leisure. Id. at 95. The plaintiff Parris was a truck driver who sued for personal injuries after an auto collision, the impact of which had sent his stomach and chest into the steering wheel, bending it, and had jammed his knees into the dashboard. His medical bills were less than $100, but at the time of the trial, he testified that his hip still bothered him, especially when he was in his truck. The court held instruction on the permanence of his injuries was justified. “The violent nature of the impact, the crushing type of bodily injury, and the resulting hip symptoms do not present an issue which would require medical testimony to resolve.” Id.

Similarly, in Washington B. & A. Electric R. Co. v. Cross, 142 Md. 500, 121 A. 374 (1923), the trial judge correctly refused to instruct the jury that, in the absence of medical testimony, the evidence was insufficient to show permanent injuries. The court pointed out that at trial, two and half years after the accident, the plaintiff had still not fully recovered, warranting an inference that her injuries were permanent. Accord, Horowitz v. Hamburg-American Packet Co., 18 Misc. 24, 41 N.Y.S. 54 (N.Y.1896). In Hecker v. Union Cab Company, 134 Or. 385, 293 P. 726 (Or.1930), lay evidence justified instructions on permanent injuries where, after being struck by one of the defendant’s cabs, the plaintiff was hospitalized for about six weeks, remained home six months after her discharge and eventually had to accept other employment at a lower salary because of her physical injuries.

In cases with facts similar to Morrison v. Bohne, supra, in which the plaintiff’s injuries are manifested by chronic pains, the cause of which are not diagnosed, courts hold that medical testimony must support an instruction on permanent injuries. See Raines v. Boltes, 258 Md. 325, 265 A.2d 741 (1970); Shuck v. Keefe, 205 Iowa 365, 218 N.W. 31 (1928).

In this case, the testimony of Price and of his co-workers and supervisors of his continuing inability to work which caused his demotion and which left him unable to work at all for three months, while able to work in only a limited capacity for three more months, justified introduction of the mortality tables and instructions to the jury on possible permanence of Price’s injuries. Clearly his disability is not merely subjective, so that expert medical testimony was unnecessary.

Appellants urge also that the lower court erred in refusing to read to the jury in its instructions certain portions of § 316.-126, Fla.Stat. (1977), which describes the action required of drivers and pedestrians upon the approach of an emergency vehicle and requires that emergency vehicles, en-route to an emergency, must sound an audible warning device. The evidence showed that Price did not use an audible warning device during the chase.

Section 288, Restatement (Second) of Torts, at subsections (e) and (f) (1965), states that a court will not adopt a statute as the standard of conduct of a reasonable man where the statute is intended to “protect another interest than the one invaded,” or “to protect against other harm than that which has resulted . . . .” Here the statute requiring a policeman to signal audibly enroute to an emergency was not meant to protect an individual like appellant, who was either speeding, or, from which it could be reasonably inferred, ille-gaily fleeing a policeman. We find no error resulted from the refusal to so instruct. Compare Reed v. City of Winter Park, 253 So.2d 475 (Fla. 4th DCA 1971).

The appellants’ argument concerning the sufficiency of the evidence is without merit, as is their argument that the appellee’s counsel was erroneously allowed to ask Sullivan how many times he had been convicted of a crime. See State v. Young, 283 So.2d 58, 60 (Fla. 1st DCA 1973), and Robinson v. State, 254 So.2d 379 (Fla. 3d DCA 1971).

AFFIRMED.

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

      . Recently we interpreted § 627.737(2)(c), Fla. Stat. (1977), precluding actions for pain and suffering following nonpermanent injury when the effects of the injury are not medically or scientifically demonstrable, as requiring the injured person show objective signs of injury. Howard v. Newman, 363 So.2d 65 (Fla. 1st DCA 1978).


author: PER CURIAM.

text:
    Evelyn Bryan CARRAWAY, Appellant, v. Franklin Wilson CARRAWAY, Jr., Appellee.
    No. KK-93.
    District Court of Appeal of Florida, First District.
    March 9, 1979.
    Mallory E. Horne and Edward S. Jaffry, of Horne, Rhodes, Jaffry, Stephens, Bryant, Horne & Chapman, Tallahassee, for appellant.
    J. Robert McClure, Jr., of McClure, Wig-ginton, Owen & Maynard, Tallahassee, for appellee.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the final judgment appealed is AFFIRMED.

Appellant’s motion for attorney’s fees is granted, and the trial court is directed to fix such fees under the guidelines set forth by this Court in Dresser v. Dresser, 350 So.2d 1152 (Fla.1st DCA 1977).

SMITH, Acting C. J., MELVIN, J., and VANN, HAROLD R., Associate Judge, concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Antoinette S. DOLCH, Appellant, v. David N. DOLCH, Appellee.
    No. 78-217.
    District Court of Appeal of Florida, Second District.
    March 9, 1979.

      Thomas W. Garrard, Port Charlotte, for appellant.
    John J. Dulmer, Jr. of McGill & Dulmer, Venice, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant/wife appeals the amended final judgment of dissolution of marriage. The pertinent portion of the trial court’s amended final judgment provides:

The Respondent, ANTOINETTE S. DOLCH, is given exclusive possession of the former marital residence, described as follows for a period of six (6) months or until the property is sold, whichever occurs first:
Lot 2, Block 130, Section 10, PORT CHARLOTTE SUBDIVISION, as per plat thereof recorded at Plat Book 4, Pages 20A through 20N, of the Public Records of Charlotte County, Florida.
During the foregoing described six (6) month period, said property shall be offered for sale by the parties and listed with a reputable real estate broker upon terms mutually agreeable to the parties. Should the property not be sold within six (6) months of this judgment, either party may petition the Court for partition of said property. Out of the proceeds of sale, either through private sale or partition sale, the parties shall repay the $2,500.00 jointly owed to the parents of Petitioner, DAVID N. DOLCH.

We hold that the trial court erred in ordering that the jointly owned marital home be sold within six months. That part of the amended final judgment is reversed. Appellant is entitled to the use and occupancy of the marital home as long as she remains unmarried and until the two minor children, ages two and three at this time, attain majority, die, marry, or are no longer dependent. See Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977). The trial court should determine on remand the appropriate provisions with regard to the payment of the mortgage, insurance, taxes, maintenance, and repairs on the marital home. See Maroun v. Maroun, 277 So.2d 572 (Fla. 3d DCA 1973). We note that the mortgage payment on the house, $152.93 per month, is reasonable, and it is unlikely that she could obtain alternative housing for herself and the children for that sum.

In all other respects the amended final judgment is affirmed, including the provisions for rehabilitative alimony, child support, and payment when the marital home is sold of the $2,500 owed to the parents of appellee/husband.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

SCHEB and DANAHY, JJ., concur.


author: BOARDMAN, Judge.

text:
    James C. EISAMAN, Appellant, v. Louis IOMELLI and Yvonne Iomelli, Appellees.
    No. 78-1363.
    District Court of Appeal of Florida, Second District.
    March 9, 1979.

      Thomas L. Boll of Safron & Rooney, Pun-ta Gorda, for appellant.
    No appearance for appellees.
   BOARDMAN, Judge.

The following facts were alleged in the complaint. Appellant/plaintiff general contractor entered into an oral contract on September 17, 1977, with appellees/defend-ants owners to install a cooling system in a residence owned by them. The contract price was $1385 to be paid in two installments. The system was partially completed when on September 23, 1977, appellees unilaterally terminated the contract. No payment had been made to appellant. The value of the labor and material provided by appellant at this point was $500.

Appellant filed a claim of lien for $500 on October 13, 1977, and the complaint was filed on December 12. Appellees’ filed a motion to dismiss based on appellant’s failure to comply with Section 713.06(3)(d)(l), Florida Statutes (1977). Section 713.-06(3)(d)(l) provides:

When the final payment under a direct contract becomes due the contractor:
1. The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount due or to become due each for labor, services or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services or materials furnished under the direct contract while in default by reason of not giving the owner such affidavit. The contractor shall execute said affidavit and deliver it to the owner at least 5 days before instituting suit as a prerequisite to the institution of any suit to enforce his lien under this chapter.

Appellant did not deliver an affidavit to appellees before instituting this suit. Ap-pellees argue that, therefore, dismissal was proper. We do not agree.

This requirement is clearly applicable only to a suit seeking final payment of the contract price. Appellant argues, and we agree, that an affidavit is not required by Section 713.06(3)(d)(l) in this case because the $500 he sought was not a final payment under the contract. See Connor v. Dreyer, 335 So.2d 352 (Fla. 2d DCA 1976).

Accordingly, the order of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

GRIMES, C. J., and RYDER, J., concur.


text:
    STATE of Florida ex rel. Gerald Dennis REGISTER, Petitioner, v. Louis SAFER, a Judge of the Circuit Court of the Fourth Judicial Circuit, In and For Duval County, Florida, Respondent.
    No. MM-374.
    District Court of Appeal of Florida, First District.
    March 14, 1979.

      Louis O. Frost, Jr., Public Defender, for petitioner.
    Jim Smith, Atty. Gen., for respondent.
   PER CURIAM.

Petitioner, a 17-year-old charged with burglary and grand theft in the adult division of the Circuit Court of the Fourth Judicial Circuit in and for Duval County, Florida, seeks a writ of prohibition. It is his contention that the adult division of the Circuit Court is without jurisdiction to proceed further against him. The trial court, in a well-reasoned, scholarly opinion, denied a motion to dismiss the case. We agree with the trial judge’s opinion and adopt it as our own, publishing it as follows:

“Findings of Fact

Gerald Dennis Register is seventeen (17) years old. He was arrested on charges of Burglary and Grand Theft on October 27, 1978. Upon his arrest he was taken to the Duval Regional Detention Center. He appeared before the Juvenile Court on October 27, 1978 and was ordered detained pursuant to Section 39.032 Florida Statutes. Gerald Dennis Register remained in secure detention at the Duval Regional Detention Center, without opportunity for bond, until November 17,1978. On that date an Order was entered by the Juvenile Court releasing the Defendant from secure detention pursuant to Section 39.032(5)(c) Florida Statutes. An Information was filed by the State Attorney on that same date, and upon the release of the Defendant from secure detention he was taken to the Duval County Jail, a warrant based upon the Information having been issued. The Defendant was incarcerated at the Jacksonville Correctional Institution. Arraignment upon the Information was had in this Court on November 28, 1978.

Contentions

A. Defendant contends that once the Juvenile Division of the Circuit Court has obtained jurisdiction by virtue of the detention hearing, that the State Attorney is prohibited from filing an information placing jurisdiction in the Felony Division of the Circuit Court until the Juvenile Court Division has entered an order relinquishing jurisdiction. No such order has been entered by the Juvenile Division in this case.

Defendant relies upon wording of Section 39.02, Florida Statutes, which is part of Chapter 39, known as the Florida Juvenile Justice Act, and which became effective October 1, 1978. Section 39.02 is entitled ‘Jurisdiction’ and sets forth in part:

(1) The Circuit Court shall have exclusive original jurisdiction of proceedings in which a child is alleged to have committed a delinquent act or violation of law.
(4) (W)hen the jurisdiction of any child who is alleged to have committed a delinquent act is obtained, the court shall retain jurisdiction, unless relinquished by its order, until the child reaches 19 years of age.
(5) (d) Once a child has been transferred for criminal prosecution pursuant to a waiver hearing, an indictment, or information and has been found to have committed the offense for which he is transferred or a lesser included offense, the child shall thereafter be handled in every respect as if he were an adult for any subsequent violations of Florida law.
(7) Nothing in this chapter shall be deemed to take away from the court any jurisdiction or duties conferred upon the court by general law.

B. State contends that under Section 39.04(2)(e)(4) Florida Statutes, an Information may be filed against certain juveniles and that even if the Juvenile Court has obtained jurisdiction over the child and the case, no order relinquishing the jurisdiction is necessary. Section 39.04 is entitled ‘intake’ and sets forth in part:

(e) The State Attorney may:
(4) With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child the case shall be transferred for adjudicatory proceedings as a child pursuant to s. 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts one of which involved an offense classified under Florida law as a felony.

Law

The matters mentioned in the Motion to Dismiss are not deemed by the Court to be frivolous, but seem to point out inartfully prepared legislation. There is no doubt that the legislature could have been more specific. For example, in Section 39.-02(4)(c), which permits grand jury action against a juvenile under certain conditions, the statute specifically states ‘when an indictment is returned, the petition for delinquency, if any, shall be dismissed’. The Legislature could have been equally explicit in connection with the filing of an information by the State Attorney and it would not be necessary for the Court to attempt to determine the legislative intent. However, this is an important function of the Court, because no legislature is so wise that it can foresee every potential conflict or inconsistent area within a piece of massive legislation such as the revision of Chapter 39.

In Part I, Section 39.001(4), it is stated: It is the intent of the legislature that this chapter be liberally interpreted and construed in conformity with its declared purposes.

Section 39.003 expresses part of the declared purposes:

To assure that the prosecution and disposition of a child charged and found to have committed a violation of Florida law be executed with appropriate discretion and in keeping with the seriousness of the offense_(emphasis added).

In whom did the Legislature intend to place discretion? Certainly not the Courts because the Courts are not responsible for the prosecution of a child — the Courts are neutral. It is the State Attorney’s office that has the responsibility of the prosecution of a child and it is the State Attorney who is given discretion by the Legislature to file an information in the Felony Division under certain conditions.

If the Court were to accept the contention of the Defendant, this new discretion set forth by the Legislature could only be exercised by the State Attorney in one of two ways: (1) either by filing the information so hastily that the child never appears before a Juvenile Judge, or (2) by asking the Juvenile Judge to relinquish jurisdiction. As to first possibility, it would seem impractical for the State to have gathered sufficient information within 48 hours to determine if it desires to exercise its discretion. As to the second possibility, what is to be gained by seeking from the Juvenile Division a relinquishment of jurisdiction so that the case can be heard by the Felony Division? The Statute does not set forth any standard to guide the Judge of the Juvenile Division in making such a determination, other perhaps than to determine whether the child meets the criteria, which right the child can challenge by motion under Section 39.04(2)(e)(4). If the Defendant’s contention were correct, would not the Legislature have inserted requirements as to such a hearing by the Juvenile Judge? If the transfer is a perfunctory duty of the Judge of the Juvenile Court, which it would appear to be from the statute if the Defendant’s contention is correct, then all that is being accomplished is more paper work and consumption of time; such waste of time and energy is never beneficial to the judicial system, particularly when viewed in the perspective of speedy trial deadlines and crowded court calendars. It would not seem logical that it was the intent of the Legislature to compound these problems now existing in our judicial system.

The new law in Section 39.09(2) still provides for the certification of juveniles under the procedure set forth therein; however, it should be noted that the last sentence of (2)(a) says: _the State Attorney shall file a motion requesting the Court to transfer the child for criminal prosecution or file an information pursuant to s. 39.04(2)(c)rel4. if applicable (underlined portion is new language of statute). If defendant’s contention is correct, then in almost all cases the right to file an information as provided by statute would be eliminated.

The Legislative act is also silent on another point, which could be improved upon, and that is during what length of time can the State Attorney act. As now written, the State Attorney would have the time allotted by the statute of limitations to bring such charges, subject, of course, to prior action of the Juvenile Division finding the Defendant either guilty or not guilty of the delinquency, in which case such determination by the Juvenile Division would be final and would bar any action by the State Attorney in placing the child in double jeopardy. Perhaps the statute is silent on the point, because it would appear so obvious that no one would think to the contrary.

The State also points out that Section 39.02(5)(a) which covers the certifying of a child for trial as an adult uses the language ‘transferring the case’ and leaves out the previous language of waiving jurisdiction. Likewise, subsection (b) states that the Court (eliminating ‘judge’) shall transfer (eliminating ‘waive jurisdiction’) and certify the case_ The State therefore contends that the jurisdiction argument of defendant is faulty in that the Circuit Court has jurisdiction in both a child delinquency or an information filed against a child, and the Legislature by removing the language in these sections regarding jurisdiction being divested or waived, intended the procedure to be streamlined.

Certain principles of law involving statutory construction have been enunciated by Florida courts, which offer guidance in reaching a decision in this case. In setting forth these principles, the Court does not mean to imply that the facts of the cited case are similar to the facts of the case sub judice, but only that the quoted principle is deemed applicable:

1. The Courts have no function of legislation, but simply' seek to effectuate the intent of the legislature. (State ex rel. Hanbury, et al vs. Tunnicliffe [98 Fla. 731], 124 So. 279, Florida, 1929)

2. One of the fundamental rules of construction is that the legislative intent must be ascertained and effectuated. The Courts will not ascribe to the legislature an intent to create absurd or harsh consequences, and so an interpretation avoiding absurdity is always preferred. Where two or more interpretations can reasonably be given a statute, the one that will sustain its validity should be given and not the one that will destroy the purpose of the statute. (City of St. Petersburg vs. Siebold, et al, 48 So.2d 291, Florida, 1950) (State ex rel Florida Industrial Commission vs. Willis, 124 So.2d 24 [48], DCA 1, 1960)

3. In ascertaining the legislative intent, the Court will consider the history of the Act, the evil to be corrected, the purpose of the enactment, and the law then existing bearing on the same subject. (State Board of Accountancy vs. Webb, 51 So.2d 296, Florida, 1951)

4. Where a literal interpretation of the statute would lead to an unreasonable conclusion or purpose not designated by the legislature, it is the Court’s duty to interpret the statute in accord with the clear purpose and intent of the legislature. (Con-ascenta vs. Girodano [Giordano], 143 So.2d 682, DCA 3, 1962, 143 So.2d 682)

5. Universal rule that statutes must be so construed as to avoid absurd results. (Sharon vs. State, 156 So.2d 677, DCA 3, 1963)

6. A basic rule of statutory construction requires that legislative intent be gathered from consideration of the statute as a whole rather than from any one part thereof. (Florida Jai Alai, Inc. vs. Lake Howell Water and Reclamation District, 274 So.2d 522, Fla., 1973).

Conclusions

1. One of the purposes of the revision of Chapter 39 was to permit the State Attorney to prosecute certain juveniles in the Felony Court by filing an information rather than to await certification by a Judge of the Juvenile Division of the Circuit Court.

2. By such revision, the Legislature intended to give discretion to the State Attorney’s office in prosecuting juveniles under certain conditions and did not intend for the State Attorney’s office to be bound by the certification provisions, which places discretion in the Judge, and which requires determination by the Court of certain factors as set forth in 39.09(2)(c).

3. Therefore, considering the entire statute, I find that the State Attorney has the right to file an information in the Felony Division of the Circuit Court against a juvenile, pursuant to Section 39.04(2)(e)4, without first obtaining a written waiver or transfer of jurisdiction from the Juvenile Division of the Circuit Court, notwithstanding that the juvenile has theretofore appeared before the Juvenile Division.”

PROHIBITION DENIED.

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


author: DAUKSCH, Judge. LETTS, Judge,

text:
    Samuel Paul DEUTSCH, Appellant, v. Elaine Simpson DEUTSCH, Appellee.
    No. 77-1793.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1979.
    Sara Soto and William Berger of Bailey & Dawes, P. A., Miami, for appellant.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Ft. Lauderdale, for appel-
   DAUKSCH, Judge.

On appeal is an order of the trial court finding appellant in contempt for non-payment of alimony. This order is reversed for the same reason we reversed the prior order in this case as reported in Deutsch v. Deutsch, 349 So.2d 725 (Fla. 4th DCA 1977). There was no proper finding of wilfulness and no proper finding of ability to pay. Beyond the insufficiency of the order, the court summarily precluded the appellant from presenting his case thereby rendering the insufficient order wrong even if it were sufficient.

We have also for our consideration the order denying appellant’s petition for modification. Again, the trial judge summarily refused to permit the parties their right to be heard on the issues raised by the petition.

The order of contempt is reversed and the order denying modification is reversed with instructions to permit both parties to have a full and fair hearing on the issues of modification followed by an adequate and complete order thereon. Any orders entered after the orders reversed here which find the appellant in contempt for non-payment of alimony are hereby stayed pending final disposition of the order determining the question of modification.

REVERSED AND REMANDED.

ANSTEAD, J., concurs.

LETTS, J., concurring specially with opinion.

LETTS, Judge,

concurring specially:

I completely agree with the majority opinion, yet I am apprehensive as to what will happen next. I have every sympathy for trial judges. They are on the firing line, we are not. Moreover they see we appellate judges make many mistakes ourselves — with less excuse. Nevertheless one gets a feeling of hopelessness for the sys-tern when any trial judge ignores our directions and goes his own way. The obvious question is: Will he do it again? What will happen to the system?

Meanwhile this appellant spent 44 days in jail for a supposed contempt that this court had already ruled was not established as such, in an exactly parallel proceeding involving the same appellant in the same case before the same court.

The wife argues that because the husband has purged himself of this particular contempt, he has rendered the matter moot. I do not agree. The issue here is whether the judge’s order of contempt was proper. It was not and the root problem must be addressed for the contempt orders continue to multiply. We note the wife has even filed a motion to dismiss this cause predicated on subsequent unpurged contempt orders! Where will it end? I cannot forecast that; but the end can begin if the trial judge will follow the instructions of this court.

      . The case was not before the same judge.


author: MOORE, Judge.

text:
    K. Frank VIHINEN, Appellant, v. STATE of Florida, Appellee.
    No. 77-2102.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1979.
    Andrew I. Friedrich, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is a timely appeal from a judgment of guilt and an order placing appellant on probation.

Appellant entered a plea of guilty to the charge of grand larceny. He was thereafter adjudged guilty and an order placing him on probation for a period of five years was simultaneously entered. The probation order required appellant to make restitution to the victim in the amount of $4,300 at the rate of $200 per month. Upon completion of the restitution appellant was then ordered to serve a three year period of imprisonment in the custody of the Department of Offender Rehabilitation. Although not indicated in the probation order the circuit court minutes reflect that upon completion of restitution the prison sentence may be mitigated to one year in the county jail.

The issue presented by this unusual order of probation is whether or not a term of imprisonment, as a condition of probation, can be ordered to commence upon the completion of a prior probationary period without the probationer having been charged with any violations of that probation.

The authority of placing an individual on probation is contained in Chapter 948, Florida Statutes (1977). Section 948.01(4) provides:

“Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.” (Emphasis added).

It appears obvious from the above language that the legislature intended probation to follow, and not precede, any period of incarceration. It is well settled that a period of incarceration can be imposed as a condition of probation. Lewis v. State, 298 So.2d 540 (Fla. 4th DC A 1974). Similarly, intermittent periods of incarceration during a probationary period have also been approved. State v. Williams, 231 So.2d 69 (Fla. 2d DCA 1970). In each of these approved procedures, however, the period of actual probation during which the probationer was under supervision followed the period of incarceration. We therefore find the afore-cited cases to be distinguishable and not controlling.

We turn now to the practical effect of the order of probation in the instant case. The prison sentence is “to commence when restitution is made.” Although the trial court apparently was attempting to insure that restitution would be made, let us suppose that, through no fault of his own, the probationer failed to make restitution for the five years of his probation. Under such circumstances the probationary period would terminate without the probationer having made restitution or served his incarceration. Perhaps this was not the intent of the trial court but we must, nevertheless, look to the clear language of the trial court’s order without speculating as to what might have been intended. See Falagan v. Wainwright, 195 So.2d 562 (Fla.1967).

In holding the order placing the appellant on probation improper for the foregoing reasons we also note the inconsistencies between the written order and the court’s minutes and between the written order and the terms of the plea negotiations. Accordingly, the judgment of guilt is affirmed and the order of probation is reversed and this cause is remanded for resentencing consistent with this opinion.

AFFIRMED in part; REVERSED in part.

DOWNEY, C. J., and LETTS, J., concur.


author: DAUKSCH, Judge.

text:
    Charles E. HUNTER, Appellant, v. Patricia B. HUNTER, Appellee.
    No. 77-2389.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1979.
    Louis V. Cianfrogna of Cianfrogna, Tel-fer & Evans, P.A., Titusville, for appellant.
    James R. Dressier, Cocoa Beach, for ap-pellee.
   DAUKSCH, Judge.

This is an appeal form a judgment in a marriage dissolution case. The trial court erred in awarding rehabilitative alimony for an extended period of time when the only evidence to support that award was that the appellee needed such alimony until she completed the last two years of her education to become a nurse. The award of rehabilitative alimony is hereby reduced to a period of two years from the date of the final judgment. We find no merit in appellant’s other points on appeal and affirm the judgment as modified.

AFFIRMED AS MODIFIED.

DOWNEY, C. J., and LETTS, J., concur.


author: DOWNEY, Chief Judge.

text:
    Ruth M. MITCHELL, Appellant, v. Ralph E. MITCHELL, Appellee.
    No. 77-2669.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1979.
    L. Guerry Dobbins, Jr., and Walter W. Manley, II, Lakeland, for appellant.
    Kendall T. Moran, Titusville, for appellee.
   DOWNEY, Chief Judge.

The parties to this dissolution of marriage proceeding were wed but for three years and no children were born. Prior to the marriage the husband owned a home which the parties eventually occupied as the marital home. Title remained in the husband’s name alone. Prior to the marriage the husband had accumulated some money which he used during the marriage to purchase a $20,000 certificate of deposit, title to which was taken in the joint names of husband and wife.

The wife claimed she was entitled to one-half of the certificate of deposit and a special equity in the marital home because they both worked during the marriage and deposited their respective salaries into a joint account from which their living expenses were paid including the monthly mortgage payment on the home.

The trial court found from the evidence that the home was purchased by the husband with his funds prior to the marriage and the wife’s contributions to the general living expenses of the parties via the joint account were simply non-recoverable contributions to the marriage. We believe the finding is adequately supported factually by the record and legally by the rule set forth in Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971).

With regard to the certificate of deposit the trial court found that the source of the money used to purchase the certificate of deposit came from the husband’s funds which were unconnected with the marriage and that there was no intention by the husband to make a gift to the wife. Therefore, the trial judge concluded the rule set forth in Ball v. Ball, 335 So.2d 5 (Fla.1976), controls and the husband was entitled to a special equity therein to the extent of the wife’s one-half interest in the certificate of deposit. We agree with the trial court’s legal conclusion that, although the Supreme Court made it clear through a footnote that Ball involved only real property, there is no apparent reason why it should not apply equally to personalty. However, since the application of the Ball rule to personalty involves a question of great public interest and should be settled for the benefit of bench and bar, we certify the following question to the Supreme Court of Florida:

IS A SPECIAL EQUITY CREATED IN PERSONAL PROPERTY BY AN UN-REBUTTED SHOWING THAT ALL OF THE CONSIDERATION FOR PROPERTY HELD AS TENANTS BY THE EN-TIRETIES WAS SUPPLIED BY ONE SPOUSE FROM A SOURCE CLEARLY UNCONNECTED WITH THE MARITAL RELATIONSHIP?

The judgment appealed from is affirmed.

MOORE, J., and FARRINGTON, OTIS (Retired), Associate Judge, concur.


text:
    WILSHIRE CONDOMINIUM ASSOCIATION, INC., Appellant, v. Lize KOHLBRAND, Appellee.
    No. 78-59.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1979.

      William J. Bosso, of Bosso & Bosso, Riviera Beach, for appellant.
    Dean J. Rosenbach and Michael A. Blank, of Lewis, Vegosen, Koeppel & Rosenbach, Palm Beach, for appellee.
   MOORE, Judge.

The sole question presented on this appeal is the enforceability of the following regulation contained in appellant’s Declaration of Condominium:

“Dwelling unit owners of dwelling units who own dogs (commonly known as lap dogs) at the time of purchase of such dwelling unit, shall be permitted to keep and harbor them in the condominium, provided, however, such dog shall not be replaced upon death or otherwise. In no event shall any pet of any kind be permitted in the swimming pool area or in any of the common elements of the condominium unless on a leash or carried.”

Appellant is the condominium association formed pursuant to a Declaration of Condominium. The above-quoted regulation appears as Article XII, Section E, of the Declaration of Condominium. Appellant commenced this action to permanently enjoin appellee from violating this regulation. Relying upon another section of the Declaration of Condominium pertaining to nuisances the trial court found that appellee’s replacement dog was not a nuisance and therefore determined the regulation to be an unreasonable restriction on the rights of appellee to enjoy her condominium unit. We respectfully disagree with the able trial judge.

Neither the appellant nor the appellee raises any other issue than that concerning the paragraphs of the Declaration dealing with pets and nuisances. We have not been furnished with the complete Declaration of Condominium or the By-laws of the Association. Our opinion is therefore limited to the sole issue of the enforceability of the restriction against replacing dogs upon the latter’s death or otherwise.

This court has previously addressed the scope of permissible condominium regulations in Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975) where Judge Downey, speaking for the court, said:

“. . .It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub-society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization. .
Certainly, the association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof. Of course, this means that each case must be considered upon the peculiar facts and circumstances thereto appertaining.” At 181-182.

In the instant case appellee admits knowledge of the restriction at the time she purchased her condominium unit. Her sole argument is the invalidity of the restriction. This case is unlike Winston Towers 200 Association, Inc. v. Saverio, 360 So.2d 470 (Fla. 3d DCA 1978) where a condominium association amended its by-laws to give retroactive effect to a similar restriction. Here, each of the owners purchased his unit knowing of, and accepting, the restriction imposed and in consideration of each other accepting the same restriction. The ultimate effect of this restriction will be a community living arrangement wherein no one will be permitted to keep or harbor a dog in his individual unit. We feel that such a restriction is not only reasonable but contractually sound in light of the circumstances in this case. As stated in Pepe v. Whispering Sands Condominium Ass’n., 351 So.2d 755, 757 (Fla. 2d DCA 1977):

“A declaration of a condominium is more than a mere contract spelling out mutual rights and obligations of the parties thereto — it assumes some of the attributes of a covenant running with the land, circumscribing the extent and limits of the enjoyment and use of real property.

Several New York cases have held that a cooperative association can prohibit the keeping and harboring of dogs as a matter of law. See, Knolls Cooperative Section No. II, Inc. v. Cashman, 14 N.Y.2d 579, 248 N.Y.S.2d 875, 198 N.E.2d 255 (1964), aff’g. App.Div., 243 N.Y.S.2d 182; Hilltop Village Cooperative # 4 Inc. v. Goldstein, 43 Misc.2d 657, 252 N.Y.S.2d 7 (1964); Luna Park Housing Corp. v. Besser, 38 A.D.2d 713, 329 N.Y.S.2d 332 (1972); Kingsview Homes, Inc. v. Jarvis, 48 A.D.2d 881, 369 N.Y.S.2d 201 (1975). We adopt the view that a restriction against the replacement of dogs is reasonably consistent with principles that promote the health, happiness and peace of mind of unit owners living in close proximity.

Accordingly, the judgment appealed from is reversed and remanded with instructions to enter judgment for the appellant, condominium association.

REVERSED and REMANDED.

BERANEK, J., and FARRINGTON, OTIS, Associate Judge, concur.


author: SCHEB, Judge.

text:
    Harold FLATT and Chet Flatt, his wife, Appellants, v. CITY OF BROOKSVILLE, a Municipal Corporation, Appellee.
    No. 78-26.
    District Court of Appeal of Florida, Second District.
    March 14, 1979.

      Frank McClung, Brooksville, for appellants.
    Richard G. Padgett, Brooksville, for ap-pellee.
   SCHEB, Judge.

Appellants challenge the trial court’s holding that they were not entitled to recover compensation for damage to their personal property occurring as a result of a “taking” by appellee City. We reverse.

Appellants/plaintiffs instituted inverse condemnation proceedings against ap-pellee City to recover for damage to their home and personal property. Appellants alleged that a drainage system constructed by the City caused surface water to flood their land and home. The trial court determined that there had been a taking by the City, and we affirmed. City of Brooksville v. Flatt, 345 So.2d 433 (Fla. 2d DCA 1977).

A jury trial was then conducted to determine how much compensation appellants were entitled to. Appellants sought to introduce evidence of the value of their personal property destroyed by the flooding. The court declined to receive such evidence, and entered a final order holding that damage to personal property was not recoverable “under the eminent domain provision of the Florida Constitution and applicable Florida Statute.”

Article X, § 6(a), Fla.Const. provides, “No private property shall be taken except for a public purpose and with full compensation therefor . . . .” Thus, no apparent distinction is made between real and personal property. This constitutional provision does not require enabling legislation to be effective, Jacksonville Expressway Authority v. Henry G. DuPree Co., 108 So.2d 289, 294 (Fla.1958), so it is immaterial that there is no statute specifically authorizing recovery for loss of personal property. Only by allowing such recovery can a property owner receive his constitutional entitlement to “full compensation” for his loss.

We agree with the general principle stated in Kirkpatrick v. City of Jacksonville, 312 So.2d 487, 489 (Fla. 1st DCA 1975) where the court said:

[A]n aggrieved property owner whose real or personal property has been destroyed by unwarranted governmental action may institute a proceeding to compel the governmental body to exercise its power of eminent domain and award just compensation to the owner. (Emphasis supplied.)

Accordingly, the order of the trial court is reversed and this cause remanded for a trial on the issue of the value of appellants’ personal property damaged or destroyed as a result of the City’s taking.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.

      . A public body is, of course, liable to the same extent in an inverse condemnation action as it would be if it were a petitioner in a direct condemnation action. State Road Department v. Lewis, 190 So.2d 598 (Fla. 1st DCA 1966).

      . We do not have the transcript of the initial trial before us. Upon remand the trial court must exercise caution to ensure that appellants do not recover for any losses they were compensated for in the initial trial.


text:
    Charlie TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 78-914.
    District Court of Appeal of Florida, Second District.
    March 14, 1979.

      Jack 0. Johnson, Public Defender, and James R. Wulchak, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgment appealed is affirmed.

The only point which merits discussion is the propriety of the appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellant need not be present for this purpose.

HOBSON, A. C. J., and SCHEB and RYDER, JJ., concur.


text:
    Gary Don DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1318.
    District Court of Appeal of Florida, Second District.
    March 14, 1979.
    Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, and Brent A. Woolbright, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The revocation of appellant’s probation is affirmed, but we remand for the lower court to strike the finding of violation of the condition requiring payment of court costs. Appellant did not admit this violation, and there was no evidence to show that appellant was able to pay the costs. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979).

HOBSON, A. C. J., and SCHEB and RYDER, JJ., concur.


text:
    Delroy Keith YOUNG, a/k/a “Buddy”, Appellant, v. STATE of Florida, Appellee.
    No. 78-1398.
    District Court of Appeal of Florida, Second District.
    March 14, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Fundak v. State, 362 So.2d 295 (Fla.2d DCA 1978).

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


text:
    STATE of Florida, Appellant, v. Randolph M. SMITH, Appellee.
    No. 78-1896.
    District Court of Appeal of Florida, Second District.
    March 14, 1979.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellee.
   PER CURIAM.

Reversed. See Helmig v. State, 330 So.2d 246 (Fla. 1st DCA 1976); § 831.02, Fla.Stat. (1969).

BOARDMAN, Acting C. J., and SCHEB and OTT, JJ., concur.


author: GRIMES, Chief Judge.

text:
    AUTO-OWNERS INSURANCE COMPANY, a Michigan Corporation, Appellant, v. Elizabeth S. YATES, Appellee.
    No. 78-49.
    District Court of Appeal of Florida, Second District.
    March 16, 1979.

      H. Vance Smith and M. W. Graybill, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    W. Nelson Rivers, Tampa, for appellee.
   GRIMES, Chief Judge.

This is an appeal from a summary judgment declaring the applicable limits of certain uninsured motorist coverage.

Appellee (Ms. Yates) was severely injured while a passenger in her own car on January 21, 1977. The limits of liability coverage available from the other vehicle’s insurer were $20,000/$40,000. Ms. Yates submitted a claim to appellant (Auto-Owners), her own insurance carrier, for underinsured motorist coverage. Auto-Owners denied the claim because the stated limits of uninsured motorist coverage on the policy issued to Ms. Yates were $15,000 per person/$30,000 per occurrence. Ms. Yates sued for declaratory relief.

Discovery developed the following pertinent facts: In 1975, the Cadillac in which Ms. Yates was later injured was insured by Unigard Mutual Insurance Company (Uni-gard) along with several other vehicles owned by Ms. Yates and her husband. Ms. Yates divorced her husband in the summer of 1976 and the Cadillac became her property as a result of the divorce. The Unigard insurance had been handled by the Allied Insurance Agency, and Hugh Harless was the Allied employee who was directly involved in placing the coverage. Harless left Allied in December of 1975 to establish his own insurance agency. When Harless learned that Ms. Yates had divorced, he contacted her about handling her insurance needs. As a result of their conference, she authorized him to place insurance for her on the Cadillac and some other property which she owned.

Harless was an authorized agent for several insurance companies, including one which wrote automobile liability insurance for commercial vehicles. However, he was not then an agent for any company writing insurance on family vehicles. Until he built up his business to the point where he could become an authorized agent for a company writing family automobile liability coverage, he obtained family automobile coverage for his customers from the Elmer Johnson insurance agency. This agency was an authorized agent for several companies writing this type of coverage, including Auto-Owners. Accordingly, Harless talked to Elmer Johnson of the Johnson agency about insurance on Ms. Yates’ Cadillac, and he obtained from Johnson a blank Auto-Owners’ insurance application. He took the application form to his office, filled it out, and returned it to Johnson, requesting liability insurance of $100,000/$300,000 and uninsured motorist coverage of $15,-000/$30,000. Unbeknownst to Johnson, Harless signed Ms. Yates’ name to the application in the two places indicated for the signature.of the insured. The application contained a provision just above one of the signatures which stated that under Section 627.727 of the Florida Statutes the company was required to offer uninsured motorist coverage limits equal to the bodily injury limits unless specifically lower limits were requested. There was a check next to the line which stated that the applicant requested uninsured motorist coverage in the reduced limits of $15,000/$30,000.

The Auto-Owners policy was issued effective July 10, 1976, in Ms. Yates’ name with the limits as requested by Harless. The policy was sent to Harless who mailed it to Ms. Yates. She sent the premium to Harless. He forwarded the premium to Johnson and received a portion of the premium back for his services. The policy was renewed by endorsement effective January 10, 1977, with the same limits. Once again, Harless and the Johnson agency shared the premium.

Prior to July 10,1976, Harless had obtained other insurance policies from Auto-Owners through Johnson for his customers, and on some of these occasions he had signed his customers’ names on the applications. Johnson was unaware that Harless sometimes signed the applications for his customers.

Ms. Yates and Harless differed with respect to their recollections of the discussion between them concerning the amount of uninsured motorist coverage to be included in the policy. Harless testified that he told her she could obtain uninsured motorist coverage in limits up to the amount of her liability limits but that it would cost more than the minimum uninsured motorist coverage which she previously had with Uni-gard. He said she told him that she wished to maintain the same limits which she had with Unigard, but that she wanted a price quote for the whole package. He then obtained a price quote from Johnson and relayed the information to Ms. Yates. She authorized him to obtain the policy on that basis. Ms. Yates recalled no specific discussion with Harless about uninsured motorist coverage, but she testified that she told him she wanted the “fullest coverage.” She said that she did not authorize him to sign her name on the application and that she had no idea that he had done so.

Both parties moved for summary judgment. The trial court concluded that Harless had provided Ms. Yates with no information regarding the selection of uninsured motorist coverage and that he had signed the insurance application without authority from Ms. Yates. The court further found that all of the acts of Harless were the acts of the Auto-Owners and that Ms. Yates had not rejected the uninsured motorist coverage in an amount equivalent to her liability limits to which she was otherwise entitled under Section 627.727(2), Florida Statutes (Supp.1976). The court ruled that the uninsured motorist coverage limits in the Auto-Owners policy applicable to Ms. Yates’ injuries were $100,000/$300,000.

Auto-Owners argues (1) that Harless was an insurance broker who acted as an agent for Ms. Yates rather than for Auto-Owners, and (2) that, in any event, there was a material issue of fact as to whether Ms. Yates requested Harless to obtain the higher coverage. Because we agree with Auto-Owners on the first point, there is no need to consider the second.

The distinction between an insurance broker and an insurance agent is explained in 3 Couch on Insurance 2d, § 25:92 (1960):

An “insurance broker” is one who acts as middleman between the insured and the insurer, and who solicits insurance from the public under no employment from any special company, and who, upon securing an order, places it with a company selected by the insured, or, in the absence of such a selection, with a company selected by himself; whereas an “insurance agent” is one who represents an insurer under an employment by it. Whether a person acts as a broker or agent is not determined by what he is called but is to be determined from what he does. In other words, his acts determine whether he is an agent or a broker.

In discussing the status of an insurance broker, 16 Appleman, Insurance Law and Practice § 8726 (1968) states:

A broker is ordinarily defined as being one who acts as a middleman between the insured and insurer and who solicits insurance from the public under no employment from any special company, but having secured an order either places the insurance with a company selected by the insured, or, in the absence of such selection, with a company selected by the broker. He enjoys no fixed or permanent relationship to an insurer but rather holds himself out for employment by the general public. And a broker is ordinarily employed by a person seeking insurance, and when so employed, is to be distinguished from the ordinary insurance agent who is employed by an insurance company to solicit and write insurance in the company.

The general rule that an insurance broker is the agent of the insured rather than of the insurer is not altered simply because the broker receives his compensation out of the premium. Thus, 16 Apple-man, supra, states at § 8727:

The mere fact that the insurance broker receives his compensation from the insurer, such as by a retention of all or part of the commissions paid from premiums received from the insured, cannot change his relation from that of agent for the policyholder to that of an agent for the insurance company. To hold otherwise would in almost every case alter the general rule, since insurance brokers are compensated out of premiums, making no additional charge for their services to the insured except in rare instances.

Florida law has followed the principles set forth in the treatises. In Centennial Insurance Company v. Parnell, 83 So.2d 688 (Fla.1955), the Parnells dealt with an insurance agent named Conklin in order to obtain insurance coverage for their boat. Conklin obtained some rates from Centennial, and the Parnells authorized him to obtain coverage for a year. Conklin, in fact, only obtained thirty days’ coverage, and the Parnells’ boat sank beyond the thirty day period. In the trial court the Parnells successfully contended that Conklin was the agent of Centennial. On appeal the supreme court reversed.

Not only did Conklin have no actual authority to bind Centennial to the risk, he had none of the indicia of apparent authority to do so — no application forms, literature, letterheads, calling cards, or anything else. The Parnells did not sign an application form for the insurance, nor did they testify that Conklin held himself out to be an agent of Centennial, although they said he told them he could “put” or “place” the insurance with Centennial on a fleet policy basis. There was, then, no showing of an actual or apparent authority on the part of Conklin to enter into an oral contract of insurance on behalf of Centennial .

Centennial Insurance Company v. Parnell, supra at 690.

Two years later the Fifth Circuit Court of Appeals in Peddy v. Pacific Employers Insurance Company, 246 F.2d 306 (5th Cir. 1957), applied Florida law on this subject. In that case, Allsopp was the appointed insurance agent of several companies and had the authority to bind risks, but he was not the agent of Pacific Employers. All-sopp solicited the automobile liability coverage on Peddy’s cars and trucks. At the time of the solicitation, Allsopp had no particular company in mind but he contemplated placing the business, if he procured it, through Bailey, an authorized agent of Pacific Employers. Allsopp obtained a rate quotation from Bailey which he submitted to Peddy; it was accepted by Peddy. Bailey then wrote the policy based on information furnished by Allsopp concerning the vehicles to be covered. Allsopp received the policy and forwarded it to Peddy. Following delivery of the policy, Peddy informed Allsopp that his son owned a jeep which he wished to insure. Allsopp told Peddy that the jeep would be fully covered from then on; however, he failed to properly inform Bailey as to the ownership of the jeep. Later, when the jeep was involved in an accident, there was a lack of coverage due to Allsopp’s omission. Pacific Employers obtained a summary judgment on the basis that Allsopp was not its agent. The court of appeals affirmed and said:

Allsopp was a broker. He did not have, at the time of the negotiations which led to the initiation of the policy by Pacific Employers any authority to represent it. He did not then know the name of the company which would issue the policy. Pacific Employers had not at that time ever heard of him. The general rule in such cases is that the broker is the agent of the insured and not of the insurer. 29 Am.Jur. 114, Insurance, § 91.

Peddy v. Pacific Employers Insurance Company, supra at 308.

Applying the law to the facts at hand, it is evident that in obtaining insurance coverage on Ms. Yates’ Cadillac Harless acted as an insurance broker. He had no authority to act for Auto-Owners, and he did not hold himself out as having such authority. The fact that in the past he had placed coverage with Auto-Owners through the Johnson agency on several automobiles would not make him an agent for Auto-Owners. See H & H Manufacturing Co. v. Cimarron Insurance Co., 302 S.W.2d 39 (Mo. App.1957). There was no evidence to indicate that Johnson should have known that Harless was signing some of the application forms for his clients. Auto-Owners simply issued the policy based upon the application. It was not to blame if Harless erroneously requested the wrong uninsured motorist limits. The conflict of testimony between Ms. Yates and Harless concerning the amount of coverage is, therefore, irrelevant because Harless was her agent and she was bound by his actions.

Finally, we reject the contention that it was imperative for Johnson, as a representative of Auto-Owners, to personally explain the nuances of uninsured motorist coverage to Ms. Yates. There was no reason for Johnson to have had direct contact with Ms. Yates because she was being represented by Harless, her insurance broker. Even if we were to agree with Protective National Ins. Co. of Omaha v. McCall, 310 So.2d 324 (Fla.3d DCA 1975), and Weathers v. Mission Insurance Company, 258 So.2d 277 (Fla.3d DCA 1972), they would be inapplicable here because in each of those cases the insurance company knew that the named insured had not signed the uninsured motorist coverage rejection. It makes no difference that Ms. Yates says that no one discussed uninsured motorist coverage with her, because an insurance company has no duty to explain uninsured motorist coverage to an insurance applicant unless the applicant asks for an explanation. Lopez v. Midwest Mutual Insurance Company, 223 So.2d 550 (Fla.3d DCA 1969).

Auto-Owners issued the policy containing the uninsured motorist coverage limits requested on the application. The application was ostensibly signed by the insured and indicated a rejection of the higher limits. The premium was predicated upon the limits requested, and any misunderstanding concerning the amount of the limits cannot be blamed upon Auto-Owners.

The judgment for Ms. Yates is reversed, and the case is remanded with directions to enter a judgment in favor of Auto-Owners.

HOBSON and SCHEB, JJ., concur.

      . Ms. Yates has not argued that there are any statutes governing the licensing of insurance agents which would make Harless the agent of Auto-Owners. We note, however, that in Centennial Insurance Company v. Parnell, supra, the court held that the Florida Insurance Code did not purport to fix the scope of authority of an insurance agent as between the insurance company and third persons.

      . See Aetna Casualty & Surety Co. v. Green, 327 So.2d 65 (Fla.lst DCA 1976), in which the First District Court of Appeal questioned the wisdom of these decisions.


author: GRIMES, Chief Judge. BOARDMAN, Judge,

text:
    Junior ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1652.
    District Court of Appeal of Florida, Second District.
    March 16, 1979.

      Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, and David A. Davis, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

The appellant was sentenced to five years upon conviction of the offense of carrying a concealed firearm. In this appeal he contests the court’s reservation of jurisdiction over a portion of his sentence under Section 947.16(3), Florida Statutes (Supp.1978).

The portion of that statute pertinent to this appeal reads as follows:

(3) Persons who have become eligible for parole and who may, according to the objective parole guidelines of the commission, be granted parole shall be placed on parole in accordance with the provisions of this law; except that, in any case of a person convicted of murder, robbery, aggravated assault, aggravated battery, kidnapping, sexual battery, arson, or any felony involving the use of a firearm or other deadly weapon or the use of intentional violence, at the time of sentencing the judge may enter an order retaining jurisdiction over the offender for review of a commission release order. This jurisdiction of the trial court judge is limited to the first third of the maximum sentence imposed.

The question before us is whether carrying a concealed firearm is a felony “involving the use of a firearm.”

Some good semantical arguments concerning the word “use” are made by both sides. The appellant also argues that because the statute is penal in nature, it must be strictly construed. Dotty v. State, 197 So.2d 315 (Fla. 4th DCA 1967). In the final analysis, a study of the enumerated crimes which bring the statute into play leads us to believe that the legislature contemplated that the firearm or other deadly weapon was to have been employed in some manner in connection with the felony before the court would be authorized to retain jurisdiction over the defendant’s sentence.

Our conclusion is fortified by Section 775.087, Florida Statutes (1977), which reclassifies felonies upward when a firearm is involved. In that section, the felonies in question are those in which “the defendant carries, displays, uses, threatens, or attempts to use” a firearm. If, in Section 775.087, the terms “uses” and “carries” have different meanings, then it should follow that the legislature also conceived of those terms as different when it enacted Section 947.16(3), and thus did not intend for that section to apply to a carrying offense.

The judgment is affirmed, but the retention of jurisdiction over the sentence pursuant to Section 947.16(3) is hereby stricken.

HOBSON, J., concurs.

BOARDMAN, J., dissents with opinion.

BOARDMAN, Judge,

dissenting.

Respectfully, I disagree with the majority. I would affirm the ruling of the trial court in all respects.

With due deference, I disagree with Chief Judge Grimes that “a study of the enumerated crimes which bring the statute into play leads us to believe that the legislature contemplated that the firearm or other deadly weapon was to have been employed in some manner in connection with the [crime] . . . Those crimes may all be committed without a firearm and some may be committed without a deadly weapon.

The majority opinion relies somewhat on the wording of Section 775.087 which speaks to sentencing for a commission of a crime during which a “defendant carries, displays, uses” a firearm. I find the distinction made between the words carries, displays, and uses in this statute offers little guidance to resolution of the issue before us. Since the majority has concluded based on this distinction that “the use” does not include carry, then it follows that “the use” must not include display. A logical extension of the majority’s reasoning would result in the inapplicability of Section 947.-16(3) to felonies where firearms or deadly weapons were “displayed” but not “used.” I do not believe that the legislature intended such a result.

If Section 947.16(3) contemplated actual employment of a firearm, “use” would have been included in the statute as a verb rather than as a noun. The definition of “use” as a noun includes several variations on the concept of the power to or availability for use. In my view carrying a concealed firearm necessitates “the use” of that weapon in the commonly understood meaning of the noun “use” since one must have in his possession a firearm; and, thereby, it is readily accessible, available, and adaptable for use.

Accordingly, I would affirm.

      . The legislature may well have intended by the terms of Section 775.087 to avoid problems other jurisdictions have experienced with statutes which include only the word “carries” such as whether locomotion of the defendant is required. See Annot., 43 A.L.R.2d 492.


text:
    Ruby WALKER, Appellant, v. J. V. DUNNE, M. D., Appellee.
    No. 78-1962.
    District Court of Appeal of Florida, Second District.
    March 16, 1979.
    Charles H. McQuillan, of McQuillan & Beltz, P.A., Bradenton, for appellant.
    G. Hunter Gibbons, of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellee.
   PER CURIAM.

This is an appeal from the entry of a summary final judgment in favor of appel-lee Dunne who was the defendant in a medical malpractice action in the court below. This action was based on a complaint filed by appellant, Mrs. Walker, in which she alleged that during an operation Dr. Dunne had lost a balloon tip in her leg. She further alleged that as a result of the presence of the balloon tip her leg had developed gangrene which necessitated its amputation.

In his motion for summary judgment, Dr. Dunne alleged that appellant had not filed her complaint within the applicable statute of limitations period. The trial court granted Dr. Dunne a summary judgment on this basis, finding that appellant became aware of his alleged negligence in October, 1975, and that the two-year limitation period of Section 95.11(4)(b), Florida Statutes (1975) barred her suit filed on July 19, 1978. We reverse.

In the affidavit which accompanied his motion for summary judgment Dr. Dunne stated that on October 24, 1975, immediately after Mrs. Walker awoke from surgery, he informed her that he had lost a balloon tip in her leg during that surgery. Mrs. Walker did not deny this, but in her affidavit she alleged that Dr. Dunne had continued to treat her and had told her that the amputation of her leg had not been a result of the lost balloon tip. Accordingly there was a factual issue as to whether Dr. Dunne fraudulently concealed his negligence, and thus there was a factual issue as to whether his conduct tolled the statute of limitations. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). As a result, the trial court should not have determined the matter on summary judgment but rather, should have left the question to the trier of fact. Edwards v. Ford, 279 So.2d 851 (Fla.1973); Smith v. Hussey, 363 So.2d 1138 (Fla. 2d DCA 1978); Pinkerton v. West, 353 So.2d 102 (Fla. 4th DCA 1977).

In view of what we have said, we remand this case for further proceedings.

HOBSON, A. C. J., and SCHEB and RYDER, JJ., concur.


author: ERVIN, Judge. MELVIN, Judge,

text:
    BOARD OF REGENTS of the State of Florida, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, State of Florida, and United Faculty of Florida, Respondents.
    No. EE-413.
    District Court of Appeal of Florida, First District.
    March 20, 1979.
    Rehearing Denied April 30, 1979.

      Cass D. Vickers of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, for petitioner.
    William E. Powers, Jr., Michael M. Switz-er, and Patricia A. Renovitch, Tallahassee, and Ken Megill, for respondents.
   ERVIN, Judge.

Petitioner, Board of Regents of the State of Florida, filed petition for a writ prohibiting PERC from holding an evidentiary hearing pursuant to § 447.307(3), Fla.Stat. (1977), on United Faculty of Florida’s petition to be certified as the collective bargaining agent for several categories of graduate research and teaching assistants. Approximately 1,800 graduate assistants, who teach at least 12% of the undergraduate courses in the state university system, are within the proposed collective bargaining unit. The Board moved to dismiss the petition on grounds that, as a matter of law, students were not under PERC’s jurisdiction due to the provisions of § 447.501(2)(f), Fla.Stat. (1977). PERC denied the motion without prejudice to the Board’s renewing it at a later date. The Board then filed its petition with us for a writ prohibiting PERC from holding the hearing. Finding that review of final agency action would not provide the Board an adequate remedy, we treated the petition as one seeking review of intermediate agency action under § 120.-68(1). The proceedings were stayed, except for PERC’s hearing and order, finding that graduate assistants are both students and public employees and that § 447.501(2)(f) does not impede “organization of graduate assistants by an employee organization.” The Board argues that PERC’s order misconstrued statutory law by determining graduate assistants were “public employees” within the definition in § 447.-203(3), since they were not barred from collective bargaining by the provisions of § 447.501(2)(f). We affirm.

The Board of Regents is included within the definition of a public employer under § 447.203(2), while a public employee, defined by § 447.203(3), is one “employed by a public employer,” subject to certain specific exceptions which do not include graduate assistants. The Board argues that since the graduate assistants are primarily students, § 447.501(2)(f), pertaining to unfair labor practices on behalf of public employee organizations, excepts them as public employees. That section provides that a public employee organization, its members or agents, are prohibited from “[ijnstigating or advocating support, in any positive manner, for an employee organization’s activities from high school or grade school students or students in institutions of higher learning.” PERC interpreted the intent of the statute as prohibiting “the exploitation of students by their teachers, . . ., who might otherwise take advantage of the dependent nature of the student’s posture in the student-teacher relationship in order to coerce from the students as unwilling pawns in organizational activities in which the students have no economic interest.” PERC concluded that on the facts before it no such exploitation was present; that the public employee organization was not seeking the support of the students and the advancement of someone else’s economic interest, but rather was soliciting employees, who" also happened to be students, to support the union’s activities on behalf of the same employees whose support was solicited.

PERC’s interpretation of the statute is within its range of discretion. We have on numerous occasions commented upon PERC’s responsibility to define and implement public employees’ substantive rights under PERA, and we are forbidden by § 120.68(12) from substituting our judgment for that of the agency on an issue of discretion. See Seitz v. Duval County School Board, 346 So.2d 644, 646 (Fla. 1st DCA 1977); Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1977).

AFFIRMED.

SMITH, Acting C. J., concurs.

MELVIN, J., dissenting.

MELVIN, Judge,

dissenting.

I must respectfully dissent. The resolution of this case hinges on the constructions placed on several, seemingly, contradictory statutes. The first, Section 447.203(2), provides that the petitioner here, the Board of Regents, is a “public employer”. The second, Section 447.203(3), defines a “public employee” as being one “employed by a public employer”. This section excepts from the definition of “public employee” certain classes of persons that might normally be considered as being “employed” by the State. They include, among others, executive appointees, persons holding elected positions, agency heads, members of boards or commissions, persons appointed to or employed by the militia, persons employed by the Florida Legislature, confined convicts, and certain designated managerial or confidential employees. As noted by the majority, this section does not specifically exclude graduate assistants or, as they are also known, graduate research associates, graduate research assistants, graduate teaching associates or graduate teaching assistants.

The last, Section 447.501(2)(f) describes a prohibited unfair labor practice and, specifically, provides that:

“(2) A public employee organization or anyone acting in its behalf, its officers, representatives, agents, or members are prohibited from:
s(t sfc ‡ ‡ ‡ ‡
(f) Instigating or advocating support, in any positive manner, for an employee organization’s activities from high school or grade school students or students in institutions of higher learning.” (Emphasis supplied)

The primary rule of construction of statutes is to ascertain the intention of the Legislature and to carry such intention into effect to the fullest degree, and it is my opinion that the Florida Legislature, by Chapter 447, intended that all students at institutions of higher learning be insulated from the pressures and distractions of the collective bargaining process and, to that end, that they designated the solicitation of such students as a prohibited unfair labor practice.

The majority place great reliance on these research assistants being “employed” by a “public employer” without also being excepted from the definition of a “public employee”. How conclusive is this fact on the research assistants’ status?

We have already seen that the definition “public employee” contains certain enumerated exceptions. However, not all of these exceptions are so specifically drawn that they do not require interpretation. For example, it has been held that whether the exemptions provided to “managerial” or “confidential” employees apply is a factual determination to be made by the Commission on a case by case basis. City of Winter Park v. Fla. Pub. Emp. Rel., 349 So.2d 224 (Fla. 4th DCA 1977). It is equally clear to me that one may be in the apparent “employment” of a “public employer” and still not be a “public employee”, even without a specific exemption in Section 447.203(3).

In the recent case of Murphy v. Mack, 358 So.2d 822 (1978), the Florida Supreme Court held that while the several sheriffs of the State were to be considered “public employers” pursuant to the Public Employees Relations Act, their respective deputy sheriffs were not to be considered “public employees”. The court found that the deputy sheriffs were not “public employees” because they were “appointed”, not “employed”, by their respective sheriffs and because their duties and powers constituted a part of the sovereign power. In doing so, the court stated:

“Since deputy sheriffs have not been identified as employees by the courts of this state, we cannot assume that the Legislature intended to include them within the definition of public employee without express language to this effect. In the absence of language including deputy sheriffs within the definition set forth in Chapter 447, Florida Statutes (1975), we find that they are not encompassed by the act.”

The court thus recognized that, at least in some cases, the recognition of a specific group as “public employees” requires their specific inclusion in Chapter 447 by the Legislature.

In the instant case, as in Murphy v. Mack, supra, there is a complete absence of language including this group of research assistants within the definition of “public employees” as set forth in Chapter 447. Indeed, flying in the face of any implied inclusion of these graduate students within the definition of “public employees” is the Legislature’s specific characterization of a public employee organization’s instigating or advocating support, in any positive manner, for its activities from such students in institutions of higher learning as an unfair labor practice [447.501(2)(f)].

Looking to the intent of the Legislature in enacting Section 447.501(2)(f), the Commission declared in its final order:

“The clear purpose and intent of Section 447.501(2)(f) is to prohibit employee organizations, and those acting on their behalf, from seeking student support for union activities. The most obvious evil to be prevented by the statute is the exploitation of students by their teachers, or representatives of their teachers, who might otherwise take advantage of the dependent nature of the student’s posture in the student-teacher relationship in order to coerce from the students what might well be very reluctant support. In other words, the statute is a prohibition against using students as unwilling pawns in organizational activities in which the students have no economic interest.”

The Commission and the majority found no potential for student exploitation in this situation because these particular students were seeking to advance their own economic interests. I think that they ignore the obvious. The bedrock of a union’s negotiating power lies in its membership. There is strength in numbers and greater strength in greater numbers. Notwithstanding these students’ desire to better their financial positions, I perceive that the pressures of the collective bargaining system have the potential for making “unwilling pawns” of these very students that Section 447.-501(2)(f) was designed to protect. I maintain that the graduate assistants are students of institutions of higher learning and are not “employees” as defined by Chapter 447. Contrary to the Commission’s finding that the union “. . . was not seeking the support of the students but rather was soliciting employees, who also happened to be students . . . ” is the uncontradict-ed fact that each graduate assistant was a student whose position and stipend were entirely dependent upon his or her continued status as a graduate student.

In the absence of specific language declaring graduate assistants to be “public employees”, I feel the specific prohibition of Section 447.501(2)(f) must control and that the intent of the Legislature to protect the students of the State from the potentially coercive and exploitative influences of the collective bargaining system must prevail.

I would declare the Commission’s order void and vacate the same.

      . To me, an example of an employee, “who also happened to be a student”, would be an individual working in the maintenance section and also attending classes on a full or part-time basis. In such a case, the state or “public” employment would be unrelated to the individual’s status as a student and solicitation of the individual in his non-student capacity would be appropriate.