text:
    Melody Hinson PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1087.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1976.

      Craig- S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   MELVIN, WOODROW M., SR., Associate Judge.

The Appellant, who will hereafter be referred to as the Defendant, was informed against and, by jury, found guilty of the charges contained in three counts, each count charging her with uttering a separate worthless check in violation of Section 832.05 Florida Statutes. Each check was in the amount of $200.00, was drawn on the account of Joseph Knight, and was drawn on Southeast Bank. The checks were cashed by the Defendant on December 27 and 30, 1974. Each check was dishonored by the drawee bank, its account for Joseph Knight having been closed December 16, 1974, and having never contained more than the sum of $5.00.

The thrust of the Defendant’s defense was that she was without knowledge that the checks were no good but, to the contrary, she considered the same to be valid, and she had no intent to defraud anyone.

The Defendant first contends that the charge, as stated in each of the three counts, must fall because there was no allegation in either count that she uttered or delivered the said checks with the intent to defraud. This question was laid to rest, contrary to appellant’s position, by the opinion of this Court in Herdman v. State of Florida, 328 So.2d 459, filed March 12, 1976. The Defendant next urges reversal because the standard jury instruction given by the Court did not charge the jury upon the basic proposition relating to the indispensable element of intend to defraud. With this thrust, the Defendant’s arrow hits the mark.

The Supreme Court of Florida has clearly established the doctrine that “intent to defraud” is an indispensable element in proof of a violation of Section 832.05, Florida Statutes. See Anderson v. Bryson, 94 Fla. 1165, 115 So. 505, text 507; Cahill v. State, Fla.App. 190 So.2d 621, text 622; Rapp v. State, Fla.App., 274 So.2d 18, text 19, relating to intent to defraud in forgery charge; Austin v. Wainwright, Fla.App., 305 So.2d 845, relating to intent to defraud in larceny charge.

The failure of the trial court, in view of the defense of good faith, to charge the jury that intent to' defraud is an indispensable element of the alleged crime which the State must establish was a fundamental error, the gravity of which requires reversal. Such charge would have given the Defendant the benefit that would flow from the jury knowing the law as the same relates to the defense that she had offered.

Reversed, with instruction to grant the Defendant a new trial.

WALDEN, C. J., and DOWNEY, J., concur.


source: Caselaw Access Project

author: BY THE COURT.

license: Public Domain

text:
    William Quinton ANDREWS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    Nos. BB-58 and BB-64.
    District Court of Appeal of Florida, First District.
    June 14, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch and Louis G. Carres, Asst. Public Defenders, for appellant.

      Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   BY THE COURT.

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

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: PER CURIAM.

text:
    BARNETT BANK OF COCOA, N.A., a National Banking Corporation, Plaintiff, v. Eugene H. OSBORNE and Faye Osborne, Defendants.
    No. 75-1488.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1976.
    Robert T. Westman of Stromire, West-man, Lintz & Baugh, Cocoa, for plaintiff.
    Barbara T. Taylor of Jamieson & Taylor, Cocoa Beach, for defendant Eugene H. Osborne.
   PER CURIAM.

This matter was considered on certified question from the Circuit Court for Brev-ard County. We respectfully decline to answer the certified question. We find the reasons stated in Iorio v. State, 297 So.2d 116 (Fla.App. 4th 1974) to be equally applicable herein.

WALDEN, C. J., ALDERMAN, J., and BERANEK, JOHN R., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Adeline W. WILLIAMS, formerly Adeline W. Pittman, Appellant, v. STREEPS MUSIC COMPANY, INC., Appellee.
    No. 75-1838.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1976.

      H. Jay Stevens, Orlando, for appellant.
    Byron R. Carter, Orlando, for appellee.
   DOWNEY, Judge.

Appellant sued appellee in the circuit court in a three count complaint. Count I alleged that appellee violated Part V of Chapter 559 F.S.1975 (§§ 559.55-559.75) in the collection of a consumer claim. Count II alleged that appellee wrongfully sold the goods involved without giving appellant notice of sale and an opportunity to buy at the sale. Count III alleged conversion.

On appellee’s motion, the trial court dismissed Count I without leave to amend and Count II and III with leave to amend.

The appellate presentation is directed totally at the propriety of the claim stated in Count I. The issue thus joined is whether the claim as alleged falls within the purview of §§ 559.72 and 559.77 F.S.

Count I of appellant’s amended complaint reads as follows:

“1. This is an action pursuant to Florida Statute 559.77 and jurisdiction is in the Circuit Court by virtue thereof.
“2. On or about November 13, 1971, Plaintiff purchased a Gibson guitar from Defendant for $194.50 plus state sales tax of $7.78 for a total purchase price of $202.28. Said purchase was for personal, family or household use.
“3. Plaintiff paid to Defendant a cash payment in the amount of $22.28, and entered into an Open-End Credit Agreement which credit was extended by Defendant. A copy of said credit agreement is attached hereto and made a part hereof and marked Plaintiff’s Exhibit “A”.
“4. On or about November 15, 1971, Defendant assigned the said Agreement to Westinghouse Credit Corporation.
“5. On or about September 18, 1973, Plaintiff’s account balance was reduced to $48.83, pursuant to payments made by Plaintiff to Westinghouse Credit Corporation.
“6. On or about November 2, 1973, the Defendant repossessed the said guitar, and Plaintiff delivered said guitar to Defendant upon Defendant’s demand.
“7. Thereafter, on November 11, 1973, Defendant sold the said guitar for the sum of $159.95.
“8. As a result of said sale, Plaintiff’s account was reduced to a balance of zero on November 12, 1973, and Plaintiff was not indebted to Defendant in any manner whatsoever.
“9. On or about May 30, 1974, Defendant employed Collection Bureau of Orlando, Inc., to collect its account in the name of the Plaintiff, in the amount of $48.83, even though Defendant knew or should have known that the said account had been satisfied in full since on or about November 12, 1973.
“10. On or about June 7, 1974, Collection Bureau of Orlando, Inc., pursuant to its employment agreement with the Defendant, contacted the Plaintiff and made demand for payment of her account with the Defendant in the amount of $48.83.
“11. Defendant thereby attempted to enforce a consumer claim with knowledge that the claim was not legitimate.
“12. Plaintiff, as a result of the actions of Defendant, has been required to enlist the aid of the undersigned attorney and has agreed to pay him a reasonable fee for his representation herein.
WHEREFORE Plaintiff demands judgment against the Defendant in the amount of $500.00, plus costs, interest, and attorneys fees.”

Appellant asserts that § 559.72(9) F.S. permits her to maintain an action against anyone attempting to collect a consumer claim unlawfully. Appellee on the other hand contends that §§ 559.55-559.78 F.S. apply only to a “collection agency” as that term is defined in § 559.55. True it is that the greatest portion of §§ 559.55— 559.78 deals with collection agencies and their regulation and control by the Division of General Regulation of the Department of Business Regulation. However, § 559.72 is not restricted to collection agencies. It mandates that no person shall engage in certain deferred practices in collecting consumer claims whether licensed by the division or not. It seems to us that this language includes all allegedly unlawful attempts at collecting consumer claims.

If the allegations of appellants complaint are true that appellee knowing appellant’s account was satisfied, attempted to effect the collection of an amount not due, appellant would be entitled to recover the statutory penalties provided in § 559.77 F.S. Thus, the circuit court had jurisdiction of the claim.

Since the trial judge did not state his reasons for dismissing the complaint, it may be that the dismissal resulted from the allegation that appellee knew “or should have known” that the claim was not legitimate. Section 559.72(9) F.S. requires that the person against whom recovery is sought “know” the claim is not legitimate. On remand the allegation “or should have known” should be stricken.

It may be that appellant intends to pursue Counts II and III, which were dismissed without prejudice. On remand leave to amend said counts should be allowed.

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

MAGER and ALDERMAN, JJ., concur.

      . “559.72 Prohibited practices generally.— In collecting consumer claims, whether or not licensed by the division, no person shall:

      “(9) Claim, attempt, or threaten to enforce a consumer claim when such person knows that the claim is not legitimate or some other legal right when such person knows that the right does not exist;”.

      . Chapter 72-81, Laws of Florida 1972 (codified as §§ 559.55-559.78, F.S.) bears the following title:
      “AN ACT relating to the regulation of consumer collection practices ; providing definitions ; providing for licensing, fees, and bonding of collection agencies; providing standards governing the issuance of collection agency licenses ; providing for prohibited practices applicable to persons generally . . . .” (Emphasis added.)

        . “559.77 Civil remedies.—
      (1) A debtor may bring a civil action against a person violating the provisions of this part in the circuit court of the county in which the alleged violator resides or has his principal place of business or in the county wherein the alleged violation occurred. Upon adverse adjudication, the defendant shall be liable for actual damages or five-hundred dollars, whichever is greater, together with court costs and reasonable attorney’s fees incurred by the plaintiff. . . . ”


text:
    Mario T. MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. Y-248.
    District Court of Appeal of Florida, First District.
    May 24, 1976.
    Rehearing Denied July 2, 1976.
    Richard W. Ervin, III, Public Defender, David J. Busch and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston and Richard W. Prospect, Asst. Attys. Gen., for appellee.
   PER CURIAM.

The defendant, appellant here, appeals his conviction of the crime of second degree murder.

We have read the transcript of the trial, including the court’s instructions to the jury, reviewed the briefs and heard oral argument, and conclude that the trial judge correctly charged the jury relative to the various degrees of homicide and that there is substantial competent evidence to support the jury’s finding that the defendant was guilty of second degree murder.

The trial court is charged with the responsibility of determining the admissibility of evidence, and his rulings will not be set aside unless it appears he has abused his discretion in connection therewith. We find no abuse of the trial judge’s discretion in refusing to admit the questioned evidence and will not attempt to substitute our judgment for that of the trial judge.

AFFIRMED.

McCORD, Acting C. J., SMITH, J., and FULLER, RICHARD S., Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    Don SADLER, Appellant, v. STATE of Florida, Appellee.
    No. Z-337.
    District Court of Appeal of Florida, First District.
    June 15, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   BOYER, Chief Judge.

Appellant, an inmate at the Union Correctional Institute at Raiford, received a two year sentence for possession of a weapon by a State prisoner. The sentence was imposed pursuant to appellant’s plea of nolo contendere which was entered with the express reservation of the right to appeal the denial of appellant’s motion to dismiss the information. Appellant argues on appeal, as he did in his motion to dismiss, that by virture of his special administrative confinement by prison authorities, the State’s attempt to further punish him for possessing a weapon was in contravention of the double jeopardy clauses of the United States and Florida Constitutions.

After careful consideration of the case authority cited to us by the parties, we have concluded that the double jeopardy provisions of the Florida and Federal Constitutions do not apply. We agree with the following decision reached by the U.S. Third Circuit Court of Appeal: “Administrative sanctions imposed by prison officials upon a prisoner following his apprehension in connection with the commission of a crime is [sic] not a bar to subsequent prosecution for the crime in a court of competent jurisdiction.” United States v. Stuckey, 441 F.2d 1104, 1105-1106 (3rd Cir. 1971), cert. den., 404 U.S. 841, 92 S. Ct. 136, 30 L.Ed.2d 76 (1971); see also Gilchrist v. United States, 427 F.2d 1132 (5th Cir. 1970). Virtually every other federal circuit has reached the same conclusion. Hamrick v. Peyton, 349 F.2d 370 (4th Cir. 1965); Gibson v. United States, 161 F.2d 973 (6th Cir. 1947); United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967); United States v. Salazar, 505 F.2d 72 (8th Cir. 1974); United States v. Apker, 419 F.2d 388 (9th Cir. 1969); Hutchison v. United States, 450 F.2d 930 (10th Cir. 1971).

AFFIRMED.

RAWLS and McCORD, JJ., concur.


author: RAWLS, Judge. SMITH, Judge

text:
    George B. STALLINGS, Jr., et al., Appellants, v. CITY OF JACKSONVILLE, a Municipal Corporation, Appellee. Mills SMITH and Mildred Smith, his wife, Appellants, v. CITY OF JACKSONVILLE, a Municipal Corporation, Appellee.
    Nos. X-317, X-90.
    District Court of Appeal of Florida, First District.
    June 15, 1976.

      Neal D. Evans, Jr., of Evans & Stewart, Jacksonville, for appellants.
    Donald R. Hazouri, Jacksonville, for ap-pellee.
   RAWLS, Judge.

A broadside challenge to the constitutional application of the City’s Housing Code is sought by appellants Stallings, et al. However, as the trial court so aptly found in its final judgments dismissing appellants’ complaints with prejudice, three issues were presented and considered, viz:

“(1) Whether the requirement by the Jacksonville Housing Code, page 506, section 304.13, requiring the installation of screen doors is capricious and arbitrary and a violation of their police powers.
“(2) Whether the Jacksonville Housing Code, page 906, section 306.5 that requires owners of multi-unit dwellings to provide and be responsible for the extermination of insects, rodents, or other pests within the building or premises, is prejudicial or a violation of the police powers.
“(3) Whether the citations and inspection forms used by the Jacksonville Housing Authority are too vague to notify the owners of the specific alleged defects and, therefore, are a violation of due process of law.”

We first consider the screen door question. Appellants Stallings and Butts own a 50-unit apartment building which, when constructed in 1967, complied with all requirements of the Florida Hotel and Restaurant Commission and the 1967 Jacksonville Housing Code. The apartment complex is located in, what was termed by one witness, a high crime area, and steel doors were installed in all exterior openings, primarily, for the security of the tenants and for minimal maintenance. In 1972, the City adopted Ordinance 72-307-158 amending the City’s Housing Code. Section 906-304.13 provides:

“906-304.13 — Screens. Every door opening directly from a dwelling unit to outdoor space shall have screens and a self-closing device; and every window or other device opening to outdoor space, used or intended to be used for ventilation, shall likewise have screens. (USDs 2-5 Excepted)
“Dwelling buildings containing central heating furnaces and air-conditioning equipment for mechanically ventilating the building year around are not required to have screen or door or window openings. Window type air-conditioning units are not included in this exception. (USDs 2-5 Excepted)”

The apartment building owned by appellants Stallings and Butts did comply with the requirement that windows be screened to provide for adequate ventilation; however, screen doors were not installed as required by amended Section 304.13. The City, in carrying out the announced purpose of the subject ordinance “establishing minimum standards . . . essential to make dwellings, dwelling units . safe, sanitary and fit for human habitation”, directed the property owners to install screen doors. Appellants strenuously objected on the grounds that such did not fall within the police power and would constitute a deprivation of property, without due process of law, by requiring a large expenditure of funds for a purpose not within the purview of public health and safety. In support of its health theory, the City adduced two outstanding authorities: Mr. Eric W. Mood, Associate Clinical Professor of Public Health, Department of Epidemiology and Public Health, Loyola University, and Dr. Lawrence E. Hinkle, Jr. (Director of the Division of Epidemiology), Professor of Medicine at Cornell University Medical College.

Professor Mood, after explaining the many diseases that may be borne by insects, testified:

. Screen doors are considered necessary for the health and sanitation of occupants residing in temperate, semi tropical and tropical areas, except for those dwelling units that are so far above the ground ... if the authorities believe they are sufficient to be above the flight capabilities of those insects which the authorities think are capable of carrying diseases.
“The health factors that come into play are those in which a screen acts as a barrier against the insect vector of disease, from a disease standpoint . . .”

Dr. Hinkle likewise testified:

“In my opinion, a requirement for screen doors in a community such as Jacksonville is essential to the health of the community as a whole, as well as to the health of those who may occupy dwelling units.”

Unquestionably, the testimony of the eminent epidemiologists supports a finding that the section of the Housing Code requiring screen doors is constitutionally valid insofar as it protects the health of the citizens of Jacksonville. However, the subject section, by exempting “[d] welling buildings containing central heating furnaces and air-conditioning” from the requirements imposed on non-aid-conditioned and non-centrally air-conditioned dwelling buildings, is flagrantly discriminatory.

Entrance doors to centrally air-conditioned dwellings must be opened and closed for ingress and egress the same as an entrance door to a non-centrally air-conditioned dwelling. Professor Mood was of the opinion that screen doors are necessary for the health and sanitation of occupants and that a screen door should be hung to swing outside, “ . . .so that when the door is opened and mosquitoes or flies that may be resting on the door are disturbed, they will fly out into the environment rather than into the interior . . . .” Mosquitoes and flies may rest upon a steel door opening into a centrally air-conditioned dwelling just as well as a steel door opening into a non-air-conditioned or non-centrally air-conditioned dwelling.

Further, we take judicial notice that children are children. Those privileged children chilled by central air-conditioning are just as subject to leaving a door open as those less fortunate children who must endure the semitropical climate of Jacksonville with window-type air-conditioning units or without the benefit of any air-conditioning. Section 304.13 of the Jacksonville Housing Code is blatantly discriminatory and is being unconstitutionally applied.

We next consider the propriety of the City imposing upon owners of multi-unit dwellings the responsibility for the extermination of insects, rodents or other pests within the building. A man’s home is his castle. Unsanitary conditions constitute the banquet feast upon which insects and rodents thrive. To require the owners, by provisions of a penal ordinance, to invade the private dwelling of a tenant and be responsible for keeping the interior free of insects, etc., is clearly beyond the police power of the City. Such duty can be imposed constitutionally only upon the occupant.

Finally, we consider the question of the sufficiency of the citations and inspection forms meeting minimal due process standards. In considering this question, the trial judge opined:

“As to the vagueness of the citation and inspection report, I must admit that I am troubled. Many items appear vague when not accompanied by ‘remarks’. However, there is testimony that neither the plaintiffs [appellants] nor their representative ever looked at the property with the report in hand to see if the alleged defects could be detected. Without anyone ever having looked to see if the alleged defects could be detected, [sic] Without anyone ever having looked to see if the alleged violations could be ascertained, I cannot say beyond a reasonable doubt that the allegations were vague to the extent of being unconstitutional.”

No person should be required at peril of life, liberty or property to speculate as to the meaning of a penal statute. The subject notice is couched in such vague and uncertain terms that an owner’s sole recourse to discover the alleged existing defects is to pursue the city inspector, either at city hall or wherever the owner may find such functionary, and inquire as to the transgressions of which the owner is accused. As yet, we have not in this jurisdiction reached the totalitarian era envisioned by Orwell’s 1984. In this bicentennial year, we are well advised to revisit the principles announced in the two great historical writs.

The judgments appealed are REVERSED.

BOYER, C. J., concurs.

SMITH, J., dissents.

SMITH, Judge

(dissenting) :

In my view the exception to the screen door requirement which Jacksonville made for centrally air conditioned and heated units is based on a difference which the City’s legislative authority could make without offending the equal protection clause of the Constitution. Neither can I perceive a constitutional objection to Jacksonville requiring the owner of multi-family dwelling units to deal with rodents and insects which know no subdivisions of his building. Nor do I consider that the City’s use of the questioned forms for notifying landowners of claimed code violations offends due process standards.

The City’s evidence showed abundantly that screen doors promote the health of dwelling occupants. That is conceded by the majority. It was demonstrated not only by the imported experts referred to in the majority opinion, but also by a Jacksonville physician who has been City Health Inspector for more than 20 years. Physicians obtained a screening ordinance in Jacksonville 60 years ago, he testified, and the incidence of typhoid fever dropped by half. The validity if not the desirability of a general screening requirement being conceded, it is not beyond reason that Jacksonville exempts dwellings which are centrally heated and air conditioned. Is there "no conceivably just basis” for a classification excepting dwellings whose doors are less likely to be left standing open because of automatically controlled temperature and humidity inside? Fronton, Inc. v. Florida State Racing Comm’n, 82 So.2d 520, 523 (Fla.1955). I think not. The legislative authority is at liberty to strike at a public problem in its most obvious form. If the classification of those affected bears some reasonable relation to the legislative purpose, there is no denial of equal protection because the legislation is not extended to its widest possible reach.

On evidence demonstrating beyond question that rodent and insect infestation of multi-unit buildings cannot effectively be controlled on a unit-by-unit basis, I am at a loss to appreciate how the due process clause of the Constitution prevents Jacksonville from placing the burden of that necessary health measure on the owner, whose access extends to all parts of the building. This Court did not hold in Safer v. City of Jacksonville, 237 So.2d 8 (Fla.App. 1st, 1970), as the majority declares, that “such duty can be imposed constitutionally only upon the occupant.” Rather, the court merely stated, quite independently of constitutional questions, that the “purpose and intent” of the code was “to impose the responsibility for keeping premises clean and sanitary on the occupant.” 237 So.2d at 14. The Court’s reference there was to “tenants whose rubbish, trash, or garbage forms the basis of the complaint.” The Safer opinion is no basis for asserting that rodent and insect control cannot constitutionally be required of the owner of multi-unit dwellings.

The majority have also inexplicably stricken, as offending due process considerations, the printed forms on which the City’s inspectors indicated the repairs necessary to bring appellants’ rental buildings into compliance with the code. The majority treats those forms as if they are indictments by which Jacksonville seeks to prosecute appellants for criminal offenses, which plainly they are not, and holds that use of the printed forms offends constitutional standards. On my part, I find notices such as “repair wall surfaces in living room, kitchen, bedroom, bedroom, bath” in a particular unit, repair “lavatory,” repair “toilet,” “check all gas lines and appliances because apartments have gas leaks in the kitchen,” repair “roof”, repair “paint”, and repair “a banister” sufficiently notify appellants wherein their buildings or specified units have been found deficient. The note “foundation piers, repair,” was intended by the inspector to call attention to a condition described in testimony as “defective” or “missing- bricks” or “leaning” piers. A request on the form for “ceiling and wall surface repairs” seems to me to reasonably call attention to conditions described in testimony as separations between the walls and ceilings of 90 percent of the units in appellants’ apartment complex, requiring “some kind of a plaster or compound to seal [the] crack, to restrict the rodents and such, and so forth, from crawling through the walls.” Although the City’s notices could conceivably have been made more explicit, they were adequate to inform a reasonably receptive owner wherein his buildings were found wanting.

On receipt of the notices, appellants neither inquired of the City concerning any uncertain descriptions of the shortcomings listed nor asked their rental agents to do so. The owners nevertheless testified that they were confused and left in doubt by ambiguities in the inspectors’ description of defects. Thus, one of appellants professed to be confused by the inspector’s directive to “check all gas lines and appliances” at specified apartments “because apartments have gas leaks in the kitchen.” “Well,” appellant Butts testified, “it would possibly mean that . . . the stoves or hot water heaters, either they were leaking gas, possibly in the line, or possibly the appliance itself, or I don’t know whether it applies to all — I mean the apartments they have listed here, it’s hard to believe that 20 apartments all have a gas leak in the kitchen. . . .” The attached forms reveal that the gas leaks were found in the kitchens at apartments 8 and 38. Butts also testified, concerning an inspector’s notation to “apply treatment for insect infestation,”

“I don’t know whether you are going to treat them to get them well or get rid of them.”

Similarly, one of the principals of the firm engaged by appellants to “collect rents and manage” some of the apartments testified that he too was confused by the ambiguities of the notice given by the inspector:

“It’s very vague information . . .
“ ‘Door frames repair’ and ‘door, repair.’ Now the doors out there are metal and the frames are metal, so I don’t understand what repairs could be made to that.
“Most of the things are very vague, as to trying to find out exactly what they have in mind. I don’t know.”

The rental agent did not inspect the door frames at the specified address in order to alleviate his confusion, but a contractor witness did look at the door frames and he found:

“There are steel jambs, and the lower part had spread, and, in some cases, disintegrated.
“Q. How much, could you estimate, for instance—
“A. We had several doors where I actually took a pencil and ran in the lower part, not to the top — it would go up to the bolt, probably, and you could almost run a pencil half way up.
“Q. A whole pencil or half pencil ?
“A. No, sir; the full thickness of the pencil.”

In my view, the trial court was at liberty to discount the confusion asserted by appellants as a result of vagueness in the inspection notices. Appellants, whose attitude toward the City’s inspection system was one of undifferentiated hostility, exhibited little interest in identifying the alleged defects.

I do not find any constitutional impediment to the measures enacted by Jacksonville. I would sustain the trial court’s action permitting Jacksonville to require appellants to exterminate the rodents and insects in their multi-unit projects, to put screens in the doors as they have in the windows, and to respond to the inspection notices.

      . Dr. Hinkle further testified:
      “ . . . But there is a reason why screen doors with adequate closures have been prescribed, and it has to do with the fact that, in a community like this, people do leave their doors open even though they have the windows open, and that is why we put the screen doors.
      “Q. That may be true, but you have never seen a member of the Society Court [apartment building owned by appellants Stallings and Butts] leave their doors open?
      “A. I am not here to testify about the Society Court Apartments. I am a resident of another city, and I know nothing about those things. I am testifying about the reason why we put screen doors on it.
      “Q. If a unit lias adequate ventilation through the windows as per our Code and as per our Code requirements, there really is no necessity for opening a door except for the purpose of getting in or out; is that not true?
      “A. . . . That when children are playing in and out of doors, this is even more likely to happen. So that, regardless of what you or I or others might think is necessary for them to do, they are prone to do it, and we do put the screen doors on for the reason of preventing access of insects at this time.”

      . Griffin v. Sharpe, 65 So.2d 751 (Fla.1953); and Ellis v. Thiesen, 78 Fla. 47, 82 So. 607 (1919).

      . Section 906.306.5 states : “Every occupant of a single dwelling building and every owner of a building containing two or more dwelling units shall be responsible for the extermination of any insects, rodents, or other pests within the building or premises.”

      . Safer v. City of Jacksonville, 237 So.2d 8 (1 Fla.App.1970), wherein this court held that the keeping of occupied rental units in a clean and sanitary condition could not be imposed upon tlie owner.

      . G. Orwell, 1984 (1949).

      . Magna Cliarta or the Great Charter of King John, June 15, A.D. 1215; and the Declaration of Independence, July 4, 1776.

      . “[T]he legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The Legislature ‘is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.’ If ‘the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.’ ” West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400, 57 S.Ct. 578, 585-86, 81 L.Ed. 703, 713 (1937). See also, as sustaining legislative distinctions based on differences in regulated classes having some substantial relation to the legislative purpose, Hunter v. Flowers, 43 So.2d 435 (Fla.1950); Selby v. Bullock, 287 So.2d 18 (Fla.1973); and Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla.1974).


text:
    STATE of Florida, Appellant, v. Francis Pineau ANTEL, Appellee.
    No. 75-671.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1976.
    Rehearing Denied June 30, 1976.
    D. H. Bludworth, State’s Atty., and Hayward D. Gay, Asst. State’s Atty., West Palm Beach, for appellant.
    William C. Sprott, of Hamilton, James, Merkle & Young, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, State of Florida, takes this appeal from an order dismissing an information charging appellee-defendant, Francis Pineau Antel, in three courts with uttering a forgery. We reverse.

On December 12, 1974, appellee-defend-ant, Francis Pineau Antel, was charged by information in three counts with uttering a forgery. After defendant was arrested on these charges, he was taken before a magistrate and ordered released on his own recognizance. A preliminary hearing was held on April 11, 1975 to determine if probable cause existed for holding the defendant for trial. The state declined to present evidence at the preliminary hearing on the issue of probable cause. The trial court thereupon entered an order dismissing the information. It is from this order that the state appeals.

In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L.Ed.2d 54 (1975), the United States Supreme Court determined that the fourth amendment requires a judicial determination of probable cause as a prerequisite to an extended restraint on liberty following arrest. Rule 3.131 Fla. RCrP governing preliminary hearings was thereafter amended to conform with the holding in Gerstein v. Pugh. Rule 3.-131(a)(2) Fla.RCrP (effective March 31, 1975) provides that a defendant who has been released from custody before a probable cause determination is made may file a written motion for a nonadversary probable cause determination. The motion shall set forth with specificity items of significant restraint on the defendant’s liberty.

Rule 3.131(a)(4) Fla.RCrP (effective March 31, 1975) further provides that where the magistrate determines that no probable cause exists, but an information has been filed against the defendant, the magistrate shall release the defendant on his own recognizance subject to the condition that he appear at all court proceedings or release the defendant under summons to appear before the appropriate court at a time certain.

Turning to the instant case, it is apparent that the procedures outlined by Rule 3.131(a)(2) Fla.RCrP were not adhered to by the trial court. Even if such procedures were followed by the the trial court, under no circumstances does Rule 3.-131(a)(4) authorize the trial court, upon a determination that no probable cause exists, to dismiss an information filed against a defendant. Therefore, the trial court erred in dismissing the information herein.

Accordingly, the order of the trial court dismissing the information charging the defendant in three counts with uttering a forgery is reversed and the cause is remanded with directions to reinstate the information and for further proceedings consistent with the views herein expressed.

Reversed and remanded.

CROSS and OWEN, JJ., and FUTCH, M. DANIEL, Jr., Associate Judge, concur.


author: RAWLS, Acting Chief Judge.

text:
    STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. EDWARD M. CHADBOURNE, INC., a Florida Corporation, Appellee.
    No. AA-267.
    District Court of Appeal of Florida, First District.
    May 14, 1976.
    Geoffrey B. Dobson and George L. Waas, Tallahassee, for appellant.
    Thurston A. Shell, Shell, Fleming, Davis & Menge, Pensacola, for appellee.
   RAWLS, Acting Chief Judge.

By this interlocutory appeal, appellant Department of Transportation challenges the trial court’s order denying a change of venue. The sole point on appeal is :

“Whether or not an action pursuant to a contract predicated upon Section 337.19, Florida Statutes, may be brought in a county other than Leon County, which is the headquarters of Appellant State of Florida Department of Transportation pursuant to Section 334.05, Florida Statutes, absent a waiver by the Appellant.”

The complaint, filed by appellee Chad-bourne in Escambia County, seeks damages pursuant to a contract with the Department of Transportation. The cause of action accrued in Escambia County. Florida Statute 337.19 is clear; suits at law upon a contract may be brought against the Department of Transportation within two years from and after the time of the completion of the work done and shall be brought in the county or counties where the cause of action accrued or in Leon County. By legislative decree, venue other than Leon County has been authorized in Department of Transportation contractual suits.

The Department of Transportation argues that the statute gives it the opportunity to be sued where the cause of action accrued, if it so desires, by waiving the right to be sued in Leon County. Such argument is fallacious in that the legislature, in its wisdom, eliminated the former “right” of the department to be sued only in Leon County. In support of its position, the department relies heavily upon this court’s opinion in State v. Negrin. Negrin, which involved a suit in tort, clearly states:

“. . . It is apparent therefore that the language of F.S. 337.19(3) that ‘All actions and suits brought against the department * * * shall be brought in the county or counties where the cause of action accrued or in Leon County’ was intended to relate to actions contemplated by Chapter 337 Florida Statutes and not tort actions.” (emphasis supplied)

Interlocutory appeal dismissed.

McCORD and SMITH, JJ., concur.

      . Florida Appellate Rule 4.2.

      . Florida Statute 337.19 provides:
      “337.19 Suits by and against department; limitation of actions; form.
      “(1) Suits at law and in equity may be brought and maintained by and against the department on any claim under contract for work done; provided, that no suit sounding in tort shall be maintained against the department.
      “(2) Suits against the department under this section can only be commenced within 2 years from and after the time of the completion of the work done.
      “(3) All actions and suits brought against the department after July 9, 1969, shall be brought in the county or counties where the cause of action accrued or in Deon County.”

        . State v. Negrin, 306 So.2d 606 (1 Fla.App.1975).


text:
    The DIVISION OF FAMILY SERVICES, Appellant, v. The ADOPTION OF L. B. L., a minor child, Appellee.
    No. BB-10.
    District Court of Appeal of Florida, First District.
    May 14, 1976.

      Phillip R. Trovillo, P.A., Ocala, for appellant.
    Hale R. Stancil, Ocala, for appellee.
   BY THE COURT.

Upon considering the briefs, the record and oral argument, the interlocutory appeal is dismissed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Blondelle CHEESEBORO, Appellant, v. In re ESTATE of Lydya B. HARRIS, Deceased, Appellee.
    No. Y-261.
    District Court of Appeal of Florida, First District.
    May 14, 1976.
    J. Ben Watkins of Watkins, Hill & Marts, Tallahassee, and E. Ward Harris, Panama City, for appellant.
    Robert B. Staats, of Staats & Nabors, Panama City, for appellee.
   PER CURIAM.

We have considered the briefs, record and oral arguments and find there is competent substantial evidence to support the findings and conclusions of the trial court and that the trial court did not misapprehend the evidence as contended by appellant. We, therefore, will not substitute our judgment for that of the trial court.

AFFIRMED.

McCORD, Acting C. J., SMITH, J., and FULLER, RICHARD S., Associate Judge, concur.


text:
    Anita Fay DURHAM, etc., Appellant, v. Roger JONES, Appellee.
    No. Y-476.
    District Court of Appeal of Florida, First District.
    May 14, 1976.
    Harry Lewis Michaels of Michaels & Patterson, Tallahassee, for appellant.
    W. Dexter Douglass of Douglass & Powell, Rufus O. Jefferson, Tallahassee, for appellee.
   BY THE COURT.

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

Accordingly, the judgment is affirmed.

MILLS, Acting C. J., SMITH, J., and EASTMOORE, E. L., Associate Judge, concur.


author: PER CURIAM. •

text:
    Jeffrey Steven WEISENFORD, Appellant, v. STATE of Florida, Appellee.
    No. W-460.
    District Court of Appeal of Florida, First District.
    May 18, 1976.
    Rehearing Denied June 11, 1976.
    Ronald L. Bloom, of Greene, Greene, Smith & Davenport, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM. •

Affirmed. See Joyner v. State, Fla.App. 1st 1974, 303 So.2d 60, cert. dismissed, Sup.Ct.Fla.1976, 325 So.2d 404.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


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

text:
    EMMCO INSURANCE COMPANY, an Indiana Corporation, Appellant, v. SOUTHERN TERMINAL AND TRANSPORT COMPANY, Appellee.
    No. Z-302.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Rehearing Denied June 30, 1976.

      James M. McLean, of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellant.
    William C. Owen, of McClure & Wig-ginton, Roy T. Rhodes, of Rhodes, Stephens & Bryant, J. Ben Watkins, of Watkins, Hill & Marts, Guyte P. McCord, III and Sam Spector, Tallahassee, for appellee.
   SMITH, Judge.

Emmco, a marine insurer, appeals from a final summary judgment entered against it and in favor of appellee Southern for benefits payable under a protection and indemnity (P&I) rider on a policy insuring against liability, to the extent of their hull value, specified tugs and barges of Southern. Following a Mississippi River collision in which Southern’s insured tug SUZANNE was at fault while towing Southern’s uninsured barge CHEM-III, Emmco paid under the tug hull policy to the extent of the tug’s hull value, less appropriate deductibles. However, since the collision arose out of and had a relation to towage by the SUZANNE of the CHEM-III, Emmco declined coverage under the P&I rider, which provided in relevant part as follows:

“The Assurer hereby undertakes to make good to the Assured ... all such loss and/or damage ... as the Assured shall as owners of the vessel named herein have become liable to pay and shall pay on account of .
“(4) Liability for loss of, or damage to, any other vessel or craft caused by collision with the vessel named herein, insofar as such liability would not be covered by full insurance under the [companion policies] . . . .”
“Notwithstanding anything to the contrary contained in this policy, no liability attaches to the Assurer:
“For any loss, damage, expense or claim arising out of or having relation to the towage of any other vessel or craft .” (Emphasis in original.)

The trial court held that, since Emmco knew Southern’s business is towage, there is an irreconcilable conflict or ambiguity between the insuring clause and the exclusion. The court therefore determined that the ambiguity should be resolved favorably to the insured, e. g., Nixon v. United States Fid. and Guar. Co., 290 So.2d 26 (Fla.1973), and entered judgment for the difference between the amount paid by Emmco in hull coverage and the amount of Southern’s liability, plus attorney’s fees and costs.

Clearly, the P&I policy insured Southern against liability for the fault of the SUZANNE, to the amount by which Southern’s liability exceeded the hull coverage and did not exceed liability limits, not here pertinent, unless the loss was excluded from coverage as “one arising out of or having relation to the towage of any other vessel or craft.” The policy unambiguously insured against liability for “the vessel named herein,” and the SUZANNE was one of numerous tugs and barges, not including the CHEM-III, named in a schedule attached.

The critical question is whether there is an irreconcilable conflict between the insuring clause and the exclusion, as found by the trial court. We conceive that the exclusion clause may be given meaning which does not entirely defeat the insuring clause and, consequently, that neither should be held to cancel the other.

It is significant that the P&I rider is in a form designed primarily for the insuring of a single vessel, hence its repeated references to “the vessel named herein.” We may therefore read the rider as though it listed and referred to the SUZANNE alone, because the CHEM-III, though surely a vessel, was not one “named herein” for which a premium was paid and P&I insurance provided. So clarified, the exclusion clause may be seen as negating coverage for any loss “arising out of or having relation to the towage of any other vessel or craft” except the insured vessel, the SUZANNE. The same language also excludes P&I coverage for a loss having relation to the SUZANNE’s towage of the uninsured CHEM-III. Had the CHEM-III been insured by the P&I policy and at fault in the collision, e. g., Bisso v. Waterways Trans. Co., 235 F.2d 741 (5th Cir., 1956), P&I coverage would have attached regardless of whether the SUZANNE had been either at fault or insured. Similarly, had the insured SUZANNE been at fault when towing one of the “vessel [s] named herein,” including any one of the several barges for which a P&I premium was paid, the collision could not be said to have arisen out of or in relation to the towage of “any other vessel or craft,” as that phrase is employed in the rider, and there likewise would have been coverage. But in the absence of irreconcilable ambiguity, we are not at liberty to cancel entirely the explicit exclusion in the rider and thus convert the policy to one indiscriminately covering all towing activities of Southern’s tugs, whether of insured barges or otherwise. The risk of collision and of damage by collision is affected by the towing relationship, as a combined tug and tow has reduced maneuverability and creates maneuvering problems for other vessels. G. Gilmore & C. Black, The Law of Admiralty, § 7-14, at 424 (1957). This being so, a marine insurer may competently contract to limit its liability to those collisions in which a premium has been paid for both tug and barge. We believe that was done in this case.

We have considered whether the exclusion clause is susceptible to yet another construction favorable to the insured, which of course would require affirmance of the trial court’s judgment. The only remaining hypothesis suggested or occurring to us is that the exclusion clause’s reference to loss “arising out of or having relation to the towage of any other vessel or craft” is in truth a reference to “[such] other vessel or craft,” meaning the “other vessel or craft” which was damaged in the collision giving rise to Southern’s liability. It would require the addition of only one word to the policy to effect this transformation, but we are unauthorized to add or subtract even one word from the bargain.

The judgment for Southern will be vacated and the cause remanded for entry of judgment for Emmco.

REVERSED.

COX, JOHN S., Associate Judge, concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent. In my view the critical question is not whether there is an irreconcilable conflict between the insuring clause and the exclusion, but rather whether there is an ambiguity which should be resolved favorably to the insured, as found by the trial court. It seems to me that the very language cited in the majority opinion is blatantly ambiguous. I would therefore affirm.

ON PETITION FOR REHEARING

SMITH, Judge.

Southern’s petition for rehearing newly asserts that the barge CHEM-III was owned by one other than Southern. We evidently had an erroneous impression of the matter, for evidence not previously alluded to by the parties supports Southern’s suggestion, which does not, however, vary our decision.

Southern urges also that the exclusion clause in the P&I rider can and should be given effect consistent with its interpretation of the policy. When towage is involved, Southern suggests by way of example, liability may properly be denied under P&I clause 5, insuring against “Liability for loss of or damage to any other vessel not caused by collision.” Thus Southern’s argument does not read the towage exclusion entirely out of the P&I rider but negates it only when the collision coverage of clause 4 is invoked. That collision coverage must be honored notwithstanding the exclusion clause, it is urged, because clause 4 explicitly refers to the underlying tug hull policy in defining coverage for collision damage, and the tug hull policy covers liability resulting from a vessel’s collision with the tug SUZANNE whether it had a tow or not. Southern’s logic is persuasive to a point, but it is unnecessary to obliterate the towage exclusion to enable clause 4 to adopt for the P&I rider many coverages of the underlying tug hull policy. We cannot accept Southern’s conclusion that the integrity of the P&I towage exclusion must be violated if the integrity of the tug hull policy and of P&I insuring clause 4 is to be preserved.

Again, Southern would create an irreconcilable conflict between two clauses of the P&I rider in order to strike down one of them. For the reasons previously stated, we conceive it is our duty to adopt, if we can, an interpretation of the policy which permits each of the pertinent clauses to coexist with the others except to the extent of necessary conflict. We cannot doubt that other available insurance would have afforded broader coverage, but it is not our function to provide it.

Southern properly points out that its complaint asserted a theory of liability on the part of Emmco which was not touched on by the trial court’s summary judgment or by the briefs and argument on the appeal. The remand should therefore be made not necessarily for entry of judgment for Emmco but for further proceedings consistent with our disposition of the case.

The prayer of the petition for rehearing is otherwise

DENIED.

COX, JOHN S., Associate Judge, concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge, Dissents.

I am yet of the views expressed in my dissent to the original opinion. The petition for rehearing strengthens those views and furnishes even further reasons for af-firmance. I would grant the petition for rehearing, recede from this Court’s prior holding and affirm the trial court.


text:
    In the Interest of G. S. M., a child, Appellant, v. STATE of Florida, Appellee.
    No. AA-422.
    District Court of Appeal of Florida, First District.
    June 10, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

AFFIRMED. See In Interest of K. P., a child v. State, Fla.App. 1st 1976, 327 So.2d 820.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


text:
    Paul W. PRICE, Appellant, v. STATE of Florida, Appellee.
    No. Y-266.
    District Court of Appeal of Florida, First District.
    June 9, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

The question presented here is whether one who fails to timely return from a furlough from county jail may be charged with the crime of escape pursuant to Florida Statute 944.40.

Appellant was serving a one year sentence in the St. Johns County Jail for the crime of forgery. While the record lacks detail, it appears that appellant was on a furlough one Sunday from the jail. As appellant explained it to the trial court, he “had a drinking problem”, attended an AA meeting, “got to drinking” and “wound up in Jacksonville”. Appellant failed to return to the county jail at the designated hour and was later picked up in Jacksonville by the “chief”. Appellant was charged with the crime of escape, plead guilty, was adjudged guilty and sentenced to a term of five years to run consecutive to the term then being served.

Florida Statute 944.40 clearly provides that a prisoner who escapes from confinement in a county jail shall be guilty of a second degree felony. The legislature, by the adoption of Florida Statutes 945.091 and 951.24, has recognized that a prisoner may still be regarded as “confined” even though not physically present in a state or county correctional facility.

Florida Statute 945.091 relates to prisons and correctional institutions under the jurisdiction of the Department of Offender Rehabilitation. It is broad in scope, authorizing the extension of the limits of confinement for various purposes, including, generally, the visiting of places to aid in the rehabilitation of the inmate. Florida Statute 951.24 relates to county prisoners, such as appellant herein. It is narrower in scope in that it authorizes giving prisoners the privilege of leaving the jail to work or to participate in educational or vocational programs, but says nothing of other purposes. Under both statutes, failure to return to the place of confinement within the time prescribed constitutes an escape. Appellant argues that Florida Statute 945.091 is inapplicable to him because it deals with state facilities, not county jails. He also argues that Florida Statute 951.24 is inapplicable, since he was simply on furlough and not working. Therefore, he could not be- charged with escape because there is no statutory provision dealing with the factual situation presented by this case.

This court declines to construe Florida Statutes 944.40 and 951.24 in a manner which would permit a county prisoner whose furlough became a “lost weekend” to remain at-large indefinitely without punishment, while subjecting a prisoner slow in returning from vocational school to be charged with the commission of a felony. Statutes must be so construed as to avoid absurd results. The legislature has evinced an intent to have the phrase “escape from such confinement” given an interpretation which includes the act for which appellant was charged.

The judgment appealed is AFFIRMED.

MILLS and SMITH, JJ., concur.

      . Johnson v. State, 91 So.2d 185 (Fla.1956).


text:
    Tommy PATTON, Appellant, v. STATE of Florida, Appellee.
    No. X-496.
    District Court of Appeal of Florida, First District.
    May 26, 1976.
    Robert A. Harper, Jr., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See State ex rel. Williams v. Bruce, 327 So.2d 51 (Fla.App. 1st 1976).

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


text:
    Josephine TRAVIS and Jacqueline McKee d/b/a El Rancho Motel, Appellants, v. DEPARTMENT OF TRANSPORTATION, a sub-division of the State of Florida, Appellee.
    No. Z-208.
    District Court of Appeal of Florida, First District.
    June 9, 1976.
    Larry H. Hipsh, Sr. and John L. Myrick, of Hipsh & Myrick, Pensacola, for appellants.
    James P. Judkins, Winifred Sheridan Smallwood, Tallahassee, for appellee.
   BOYER, Chief Judge.

Appellants, plaintiffs in the trial court, appeal an order dismissing with prejudice their complaint for inverse condemnation.

Appellants are the owners of the El Ran-cho Motel located on Highway 98 in the City of Gulf Breeze. During 1972 the ap-pellee, defendant in the trial court, constructed an acceleration lane located adjacent to the southerly portion of plaintiffs’ property. The acceleration lane was constructed entirely upon property already owned by the Department of Transportation. None of appellants’ property was condemned. The complaint for inverse condemnation alleged that because of appellee’s construction of the acceleration lane appellants’ right and the rights of appellants’ motel guests or patrons to ingress and access have been impaired and virtually eliminated and that the two most southerly motel units have been continually unoccupied since the opening of the acceleration lane because of vehicular noise and vibrations, all resulting in severe financial losses.

The learned and able trial judge was eminently correct. The law in support of his order here appealed is so well settled as to render further discussions superfluous. (See Weir v. Palm Beach County, Sup.Ct.Fla.1956, 85 So.2d 865; Poe v. State Road Department, Fla.App. 1st, 1961, 127 So.2d 898; and Northcutt v. State Road Department, Fla.App. 3rd, 1968, 209 So.2d 710, rehearing denied Sup.Ct.Fla., 219 So.2d 687.)

AFFIRMED.

SMITH, J., and HODGES, JOHN G., Associate Judge, concur.


text:
    Emmanuel STAMITOLES et al., Appellants, v. Bernie Mae OUTLAW and James E. Outlaw, husband and wife, Appellees.
    No. BB-294.
    District Court of Appeal of Florida, First District.
    May 20, 1976.
    William H. Clark, Clark & Partington, Pensacola, for appellants.
    John L. Myrick, Pensacola, for appellees.
   PER CURIAM.

Having considered the record, briefs, and oral arguments of counsel, and finding that the interlocutory appeal is without substantial merit, it is dismissed pursuant to Rule 4.2C, Florida Appellate Rules.

McCORD, Acting C. J., MILLS, J., and AGNER, JOHN ROYCE, Associate Judge, concur.


text:
    Mamie B. YOUNG, Appellant, v. PHILLIPS PETROLEUM COMPANY, a Foreign Corporation, Appellee.
    No. Z-388.
    District Court of Appeal of Florida, First District.
    June 9, 1976.
    William F. Daniel, of Cotten, Shivers, Gwynn & Daniel, Tallahassee, for appellant.
    Ann C. Booth, of Hall & Booth, Tallahassee, for appellee.
   PER CURIAM.

Appealing from an adverse judgment entered on a jury verdict, plaintiff complains that the trial court supplemented the jury charges recommended for slip and fall cases in Florida Standard Jury Instructions-Civil by elaborating, as requested by defendant, on one aspect of the issues posed by charge 3.5f. The record does not reveal the specific ground of plaintiff’s objection to the additional charge. Had plaintiff explicitly objected that the recommended standard charge accurately and adequately covers the subject, the trial judge would have had had an opportunity to comply with Form 1.985, R.C.P., by stating “on the record or in a separate order” wherein he conceived that the standard form was “erroneous or inadequate and the legal basis of his finding.” For aught that appears, plaintiff complained only that the supplemental statement was incorrect as a matter of abstract law, which it was not. The general objection made by plaintiff was insufficient to preserve the error asserted here. Henningsen v. Smith, 174 So.2d 85 (Fla.App.2nd, 1965); DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla.App.3rd, 1970), cert. den. 238 So.2d 105 (Fla.1970).

AFFIRMED.

BOYER, C. J., SMITH, J., and HODGES, JOHN G., Associate Judge, concur.


text:
    Flavous ROSE, Petitioner, v. The SCHOOL BOARD OF MARION COUNTY, Florida, Respondent.
    No. AA-336.
    District Court of Appeal of Florida, First District.
    May 20, 1976.
    Richard H. Frank and Ronald G. Meyer of Frank & Meyer, Tampa, for petitioner.
    John P. McKeever, Ocala, Charles E. Miner, Jr., Tallahassee, for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari filed herein is

DENIED.

BOYER, C. J., SMITH, J., and HODGES, J. G., Associate Judge, concur.


text:
    PREFERRED RISK MUTUAL INSURANCE COMPANY and Ralph M. Parker, Appellants (Defendants), v. Donna M. MORELAND a/k/a Donna M. Morris, Appellee (Plaintiff).
    No. Y-118.
    District Court of Appeal of Florida, First District.
    June 4, 1976.
    A. Craig Cameron of Gosney, Haas, Cameron & Parsons, Daytona Beach, for appellants.
    Anthony I. Provitola of Provitola & McDermott, DeLand, for’appellee.
   BY THE COURT.

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

Accordingly, the judgment is affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Barbara R. WOODBURN, Appellant (Petitioner), v. George Richard WOODBURN, Jr., Appellee (Respondent).
    Nos. X-442, Y-311.
    District Court of Appeal of Florida, First District.
    May 20, 1976.
    Paul Shimek, Jr., of Shimek & McDaniel, Pensacola, for appellant.
    David H. Levin of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   BY THE COURT.

The briefs, records and oral arguments having been considered, the judgment and orders are affirmed.

BOYER, C. J., and MILLS and SMITH, JJ., concur.


author: SMITH, Judge. MILLS, Judge

text:
    Christine MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. AA-98.
    District Court of Appeal of Florida, First District.
    June 9, 1976.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

This appeal questions whether a jury may be permitted to convict the accused of having committed the offense charged on a date other than that specified in both the State’s accusation and its proof, when substantial alibi evidence given in defense raises doubts that the accused committed the offense on the date specified.

Christine Mitchell was tried, convicted and sentenced for a sale of heroin to an undercover agent on December 14, 1974. The State charged and offered proof that she made the sale to the agent shortly before midnight on that date at Pick-Up Liquors in Jacksonville. The undercover agent testified unequivocally that the sale took place on the night of December 14 and that he delivered the heroin to his vice squad supervisor the next day, December 15. The supervisor corroborated the agent’s testimony.

Appellant presented several witnesses, in addition to herself, who testified that appellant was continuously with a group which left Jacksonville for Lakeland early on December 14, attended a Lakeland funeral that afternoon, spent the night and returned to Jacksonville on December 15.

Anticipating an alibi, the State filed a pretrial demand pursuant to Rule 3.200, R.Cr.P., that appellant give notice of her intention to claim an alibi and that she specify its details and name her supporting witnesses. In conformity with the rule, the prosecutor recited in his demand:

“As particularly as is known to me, the place, the date and time of the commission of the crime charged in the above-numbered information are as follows :
“December 14, 1974, at approximately 11:30 p. m., in the vicinity of 760 W. Ashley Street, Jacksonville, Duval County, Florida.”

Appellant’s counsel responded with the names of 15 witnesses and other pertinent details of her Lakeland trip. The State was granted a continuance of the trial and more time in which to list anticipated witnesses in rebuttal to appellant’s alibi. See Rule 3.200, R.Cr.P. More than three months after notice of the alibi was given, the case went to trial with the State still insisting that appellant sold heroin to the undercover agent on the night of December 14, 1974. No bill of particulars had been demanded and none had been given.

At the conclusion of the trial, over objection by defense counsel, the court charged the jury in accordance with Charge 2.08 of Florida Standard Jury Instructions in Criminal Cases, designated as applicable when “no bill of particulars as to date” has been given:

“It is not necessary that the State prove that the crime was committed on the exact date alleged in the information. It is sufficient if the evidence establishes beyond a reasonable doubt that the crime was committed within two years immediately prior to the filing of the information in this case.”

Precisely stated, the rule of law on which the standard charge was based is that “one date may be alleged and another proved, providing the proof shows the crime committed before the information was filed and within the time of the Statute of Limitations.” State v. Clein, 93 So.2d 876, 879 (Fla.1957). See also Green v. State, 113 Fla. 237, 151 So. 898 (1934); Alexander v. State, 40 Fla. 213, 23 So. 536 (1898); Warrace v. State, 27 Fla. 362, 8 So. 748 (1891). The rule is said not to apply in “those rare cases . . . where the exact time enters into the nature or legal existence of the offense.” Horton v. Mayo, 153 Fla. 611, 613-14, 15 So.2d 327, 328 (1943). Our colleagues on the District Court of Appeal, Fourth District, have suggested in dicta that variance between information and statement of particulars on the one hand and the evidence on the other may be prejudicial when an alibi is relied on. Howlett v. State, 260 So.2d 878, 880 (Fla.App. 4th, 1972). The 1934 Green decision of the Supreme Court is perhaps to the contrary. 113 Fla. at 240, 151 So. at 899.

We need not here decide whether the State, not having filed a statement of particulars hut having committed itself to a certain date for purposes of limiting and meeting an alibi defense, may without notice disregard that date, finesse the alibi and prove that the offense was committed some other time within the period of limitation. The State did not choose that course here, but held steadfastly to its proof that appellant committed the offense in Jacksonville on the evening of December 14, 1974. There was no evidence from which the jury could properly have found, beyond and to the exclusion of every reasonable doubt, that appellant committed the offense on December 13 or on December 15 or at any other time.

It follows that, in the circumstances of this case, the trial court erred in charging the jury in effect that it might convict appellant if it found she committed the offense charged on some date other than December 14, 1974. That the evidence which was adduced gave the jury a hard choice was no justification for inviting the jury to indulge in speculation which disregarded all the evidence.

REVERSED for a new trial.

BOYER, C. J., concurs.

MILLS, J., dissents.

MILLS, Judge

(dissents) :

I dissent. The giving of Charge 2.08 of Florida Standard Jury Instructions in Criminal Cases was proper because the defendant failed to request a statement of particulars. In addition, the jury, as trier of the facts, heard the evidence and resolved the conflicts in favor of the State. I would affirm.


text:
    David Allen SMITH and Dennis S. Stone, Appellants, v. STATE of Florida, Appellee.
    No. Y-526.
    District Court of Appeal of Florida, First District.
    June 7, 1976.
    Rehearing Denied June 30, 1976.

      William R. Slaughter, II, Slaughter & Slaughter, Live Oak, for appellants.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Pursuant to their pleas of nolo conten-dere, appellants received concurrent five year sentences for possession of marijuana with intent to sell and possession of cocaine. Their pleas were conditioned upon a reservation of a right to appeal the trial court’s denial of their motion to suppress evidence. Appellants now claim on this appeal that the evidence used to convict them was obtained by means of an illegal arrest.

On the morning of January 29, 1975, J. W. Davis, an inspector at a State Agricultural Station on Interstate 10 near Live Oak, observed a Ryder rental van containing the two appellants passing the inspection station. Although there were signs for all trucks to stop at the station, the van did not. Mr. Davis attempted to stop the van by waving his hands, but the driver kept on going down the highway. Mr. Davis pursued the van in his state car and turned on his flashing blue light. After succeeding in stopping the van, Mr. Davis went to the back of the vehicle and asked the driver if he could check the load inside. When the driver gave a negative response, Mr. Davis told the appellants that they would have to go back to the inspection station. According to Mr. Davis, the driver agreed.

Mr. Davis led the way to the inspection station as appellants followed him in their van. By coincidence, a group of Ocala law enforcement officers, while on their way to a meeting in Tallahassee, fell in behind the van and noticed one of the appellants throw out burlap bags from the back. The Ocala officers followed the van to the inspection station and reported what they had seen. The bags were retrieved and were found to contain marijuana. Su-wannee County Sheriff Robert Leonard was notified and proceeded to the inspection station. After searching the glove compartment of appellants’ vehicle and finding a bag of marijuana in it, he placed appellants under formal arrest. When the appellants’ vehicle was searched for inventory purposes, a small plastic bottle containing a substance identified as cocaine was discovered.

From the foregoing facts, appellants infer three significant conclusions. First, under the holding of Melton v. State, Sup. Ct.Fla.1954, 75 So.2d 291, appellants assert that when Inspector Davis told appellants that they had to return to the inspection station with him, appellants were under “arrest”. Second, appellants argue that said arrest was unlawful in that Inspector Davis had no authority, either express or implied, under F.S. 570.15 (1973) to arrest appellants. Finally, appellants conclude that the evidence used to convict them was the fruit of the unlawful arrest, and should therefore have been suppressed.

Assuming, without deciding, that appellants were arrested at the time Inspector Davis stopped them, and that the arrest was unlawful, we nevertheless conclude that appellants’ convictions must be affirmed. It has been generally held that where there is no search, the constitutional guarantee against unlawful searches and seizures is not applicable. (29 Fla.Jur., “Search and Seizure”, § 12) Sub judice, there was no search involved when appellants began throwing bags of marijuana from the back of their van. In a similar case, the Fourth District affirmed a conviction for possession of marijuana where a police officer unlawfully stopped the defendant who thereupon voluntarily tossed a vial of marijuana into a nearby waterway. The appellate court agreed with the trial court which reasoned that the tangible evidence had not been produced as a result of a search, but rather had been voluntarily abandoned by the defendant. (Riley v. State, Fla.App. 4th 1972, 266 So.2d 173). In the instant case, the abandonment of the bags of marijuana by appellants constituted sufficient probable cause to justify the subsequent warrantless search of appellants’ vehicle. (Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), F.S. 933.19 (1975). See also Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1940)). The subsequent inventory search which revealed the small plastic bottle of cocaine was also valid. (State v. Cash, Fla.App. 1st 1973, 275 So.2d 605).

Affirmed.

RAWLS and McCORD, JJ., concur.

      . There is some authority for appellants’ position on this point. F.S. 570.151 (1975) gives agricultural inspection station officers express authority to make arrests while F.S. 570.15 (1973) did not. See also the specially concurring opinion of Judge Rawls in Sindrich v. State, Fla.App. 1st 1975, 322 So.2d 589. It also appears that the vehicle which Inspector Davis was driving unlawfully displayed a flashing blue light. See F.S. 316.223 (1973).


text:
    NATIONAL FREIGHT, INC., a corporation, et al., Appellants (Defendants), v. Betty Jane REAMES, as Administratrix of the Estate of Carol McKinney Barnes, Deceased, Appellee (Plaintiff).
    No. AA-378.
    District Court of Appeal of Florida, First District.
    June 10, 1976.
    Rehearing Denied June 29, 1976.
    Robert L. Cowles of Howell, Kirby, Montgomery, D’Aiuto & Dean, Jacksonville, for appellants.
    John F. Roscow, III, and James L. Tomlinson, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Langdon & Helpling, Gainesville, and Shaw & Kope-lousos, Richard E. Welty, Starke, for ap-pellee.
   BY THE COURT.

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

Accordingly, the judgment is affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Richard BARBEE, Sr., Appellant (Respondent), v. Tamiko BARBEE, Appellee (Petitioner).
    No. Z-425.
    District Court of Appeal of Florida, First District.
    May 26, 1976.
    George G. Phillips, Pensacola, and Ed Leinster, Orlando, for appellant.
    George Estess, Pensacola, for appellee.
   BY THE COURT.

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

Accordingly, the order granting petition for modification is affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    BOIARDI PRODUCTS CORPORATION, a New York Corporation, Appellants, v. ANGELINI TILE CO., a Florida Corporation, Appellee.
    No. BB-233.
    District Court of Appeal of Florida, First District.
    June 4, 1976.
    Jack S. Graff and Jeffrey A. Cramer, of Levin, Warfield, Middlebrooks, Graff, Ma-bie, Rosenbloum & Magie, Pensacola, for appellant.
    J. Lofton Westmoreland, of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellee.
   PER CURIAM.

Having considered the record, briefs and the oral arguments of counsel, and finding that this interlocutory appeal is without substantial merit, it is dismissed pursuant to Rule 4.2c Florida Appellate Rules.

BOYER, C. J., MILLS, J., and AGNER, ROYCE, Associate Judge, concur.


text:
    Thomas ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. Z-219.
    District Court of Appeal of Florida, First District.
    May 20, 1976.
    Thomas Allen, appellant, in pro. per.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Allen appeals from an order denying his motion for relief under Rule 3.850, R.Cr. P., urging matters which might have been raised on appellant’s appeal from the judgment of his conviction. Allen’s motion in the court below was his third motion for post-conviction relief predicated on the same or similar errors allegedly committed at trial. This appeal is frivolous and is accordingly

DISMISSED.

BOYER, C. J., and MILLS and SMITH, JJ., concur.


text:
    The SCHOOL BOARD OF SARASOTA COUNTY, Florida, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    No. 76-798.
    District Court of Appeal of Florida, Second District.
    June 2, 1976.
    Rehearing Denied June 30, 1976.
    Roger C. Benson, St. Petersburg, Jackson, Lewis, Schnitzler & Krupman, New York City, and Richard W. Cooney, Sarasota, for petitioner.
    Jack L. McLean, Jr., Tallahassee, for respondent Florida Public Employees Relations Commission.
    Frank E. Hamilton, III, of Hamilton, Douglas & Bennett, Fort Lauderdale, for intervenor-respondent International Brotherhood of Firemen & Oilers, Local No. 5.
   PER CURIAM.

On April 30, 1976, the Florida Public Employees Relations Commission (PERC) entered an order (76E-945) which provided:

“1. Pursuant to Fla.Stat. Section 447.307(3) (a)(1) (1975) and Section 8H-3.25 of the Commission Rules and Regulations, the Commission ORDERS that an election by secret ballot be held within 45 days for the following unit:
INCLUDED: All eligible employees in the facilities, transportation, food service and purchasing divisions of the Sarasota County School System.
EXCLUDED: All other non-instructional and instructional and all managerial/confidential employees in the Sarasota County School System.’’

The School Board of Sarasota County, Florida, has petitioned for review seeking to set aside the aforesaid order.

We do not construe PERC’s order determining the appropriateness of the bargaining unit as final agency action subject to judicial review under Fla.Stat. § 120.68 (1975). The City of Panama City, Florida v. The Florida Public Employees Relations Commission, Fla.App.1st, 1976, 333 So.2d 470. A certification following an election will constitute final agency action from which a petition for review may be filed at which time the issue of the appropriateness of the bargaining unit may be raised.

Accordingly, the petition for review is dismissed.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.


text:
    Kenneth Alan WOFFORD, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-215.
    District Court of Appeal of Florida, First District.
    June 4, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   BY THE COURT.

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

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: PER CURIAM BOYER, Chief Judge

text:
    Mary R. HAMBRICK and South Carolina Insurance Company, Inc., a corporation, Appellants, v. Ethel JACKSON and Johnny M. Jackson, her husband, Appellees.
    No. X-357.
    District Court of Appeal of Florida, First District.
    June 10, 1976.
    John I. Todd, Jr., Jacksonville, for appellants.
    George L. Proctor, of Smith & Proctor Jacksonville, for appellees.
   PER CURIAM

The only point on appeal that merits discussion is appellants’ contention that the trial court erred in refusing to instruct the jury as to the defense of assumption of risk. Our sister court has held that the doctrine of assumption of risk is a valid defense. Dorta v. Blackburn, 302 So.2d 450 (Fla.App. 3rd, 1974). This court held to the contrary in Parker v. Maule Industries, Inc., 321 So.2d 106 (Fla.App. 1st, 1975), and, of course, we are bound by our own precedent.

This case was argued on November 18, 1975. We delayed disposition with the expectation that the Florida Supreme Court would resolve the conflict, however, as of this date, we have not been enlightened by that court. It is time to dispose of the matter.

The judgment appealed is AFFIRMED.

RAWLS, J., and CREWS, JOHN J., JR., Associate Judge, concur.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

(concurring specially) .

I am yet of the view expressed in my dissenting opinion in Parker v. Maule In dustries, Inc., cited above. However, a majority of a panel of this Court having held contra, in deference to the doctrine of stare decisis and stability of the law in this District, I concur in affirmance.


author: McNULTY, Chief Judge.

text:
    Michael M. BENNETT, President of St. Petersburg Junior College, Appellant, v. Marcia D. WARDEN, Appellee.
    No. 75-984.
    District Court of Appeal of Florida, Second District.
    June 4, 1976.
    Rehearing Denied June 29, 1976.

      Allen M. Blake of Alley, Alley & Blue, Tampa, and Edward A. Turville of McClure & Turville, St. Petersburg, for appellant.
    Larry G. Turner of Goldin & Turner, Gainesville, for appellee.
    Kenneth L. Ryskamp and Arthur M. Simon of Bolles, Goodwin, Ryskamp & Welcher, Miami, for amicus curiae, Miami-Dade Community College.
   McNULTY, Chief Judge.

Florida’s Sunshine Law provides that all meetings of any “board” or “commission” of any “agency” or “authority” of any county, city or political subdivision shall be open, public meetings. Appellant Bennett, as President of St. Petersburg Junior College, periodically met in private with a group of junior college employees, called the Career Employees Council (hereinafter CEC), who were designated by Bennett as representatives of the career employees of St. Petersburg Junior College for the purpose of discussing with him various problems and suggestions relating to employees’ working conditions in general and wages and hours in particular. •

Plaintiff/appellee Warden, a labor organizer for the Communication Workers of America, was allegedly frustrated by the aforesaid closed meetings in her efforts to organize the junior college employees on behalf of her union. As the union organizer, and as a citizen of the State of Florida, she instituted this action seeking to enjoin the aforesaid meetings between appellant Bennett and the CEC contending that both Bennett and the CEC were “boards” or “commissions” within the contemplation of the Sunshine Law. She prevailed below and an injunction issued. We reverse.

The thrust of appellee’s argument is that appellant Bennett is the designee of the Junior College Board of Trustees, the governing body of the college, to act in the Board’s stead and as its alter ego in negotiating working conditions for career employees of the college. Additionally, or at least alternatively, she contends that the CEC is also an alter ego of the Board since, though appointed by appellant Bennett, it has been impliedly ratified and approved by the Board because of the Board’s knowledge of its existence and acquiescence in its liaison with Bennett. She relies essentially on the case of Town of Palm Beach v. Gradison as authority for her conclusions, but we think her reliance is misplaced.

In that case, the town council passed a resolution creating a citizen planning committee to meet with and advise a planning firm which was engaged to update and revise the town’s zoning ordinances. None of the citizens’ committee was a landscape or civil engineer or other expert zoning planner who would, in his expert capacity, give testimony or advice relating to desirable land use control. Rather, as the supreme court determined,

“[T]hey were a buffer lay group of citizens to serve part-time as the alter egos of the Town Councilmen to make tentative decisions guiding the zoning planners and advising the Council as to their ultimate zoning ordinances. In other words, the Council delegated to the committee much of their administrative and legislative decisional zoning formulation authority which is ordinarily exercised by a city-governing body itself— and particularly the position of the process where the affected citizens expect to be officially heard. Thus, the nature of the committee and its function reached the status of a board or commission that to act legally must comply with the sunshine law.”

Moreover, in that case, the Town Council expressly ordained the committee as an “element” of the zoning commission (though pro-forma reserving the right to override the committee’s recommendations) and through the president of the Town Council and/or various members of the zoning commission met frequently in executive session with the town manager, their liaison with the committee, to participate in the formulation of the final comprehensive zoning plan which, in essentially the same form as produced by the committee and the zoning consultants, was ultimately approved by the Town Council. Clearly, we would agree, the citizens’ planning committee was an arm or alter ego of the Town Council over whom the Council maintained constant vigilant dominion and control. As stated by the Court:

“The citizens’ planning committee was not an organization formed by any civic group such as a taxpayer’s league, better government league, civic association, etc. It was conceived and formed by the Town Council for the purpose of working with the planning consultant so that the plan produced would be consistent with the land-use controls intended by the citizens. The citizens’ planning committee was an arm of the Town Council.”

The operative facts here, however, are inapposite. To begin with, with respect to appellant Bennett, he is merely the executive officer of the Board of Trustees and, in this respect, is no different than any other executive officer of any other board, agency or commission of government. By definition and capacity, then, he is clearly outside the ambit of the Sunshine Law; he is neither a “board” nor a “commission.” The mere fact that he may carry out the directions, orders and policies of the “board” in the day-to-day administration of the junior college does not make him an “alter ego” of the Board; and in the performance of those duties we are of the view that, as suggested by Town of Palm Beach, supra, 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 m 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.

Concerning the CEC, the facts are that the members thereof are appointed by and serve at the pleasure of the appellant, President Bennett; that there is no evidence beyond the naked knowledge of its existence and function that the Board of Trustees has reserved or exerted any control of any nature, kind or description over the CEC; that the matters discussed between the President and the CEC are not policy matters but, rather, constituted fact-finding expeditions by the President as executive officer of the Board; that, even so, the President’s recommendations resulting therefrom are first made to an Administrative Council, comprised of supervisory and executive administrative officials under the President (whose meetings are open to the public and in the Sunshine since such council admittedly exercises decision-making functions amounting to the formulation of policy or to governmental decisions) ; and that, finally, the recommendations of the Administrative Council are submitted to the Board of Trustees for ultimate ratification or rejection. In short, we are of the view that the CEC is far too remote in the decision-making process relating to working conditions of career employees of St. Petersburg Junior College to be capable of making or formulating policy or crystalizing decisions anywhere near that point, “. just short of ceremonial acceptance . .” by the Board, which the supreme court in Town of Palm Beach, supra, recognized as a measure of capacity which compels the conclusion that a “council,” “committee” or “group” is an alter ego of a “board or commission” bound by the Sunshine Law. We think, therefore, and so hold, that the CEC herein is not governed by the sanctions of that law.

We have reviewed the remaining arguments of appellant with respect to claimed exemptions under the Public Employees’ Relations Act and find them to be without merit. The factual framework herein makes the provisions thereof inapplicable.

The judgment appealed from should be, and it is hereby reversed; and the cause is remanded with directions that the injunction issued herein be vacated and set aside and that appellee’s complaint be dismissed with prejudice.

GRIMES and SCHEB, JJ, concur.

      . Section 286.011, F.S.1973.

      . (Fla.1974), 296 So.2d 473.

      . Id. at p. 474.

        .Id. at p. 476.

      . Id. at p. 477.

      . Section 477.605, F.S.1975.


text:
    Eugene BALL, Appellant, v. STATE of Florida, Appellee.
    No. Z-348.
    District Court of Appeal of Florida, First District.
    June 9, 1976.
    Richard W. Ervin, III, Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Andrew W. Lindsey, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We have carefully examined the record-on-appeal and briefs filed by able counsel. Finding therefrom that appellant has failed to demonstrate prejudicial error, the judgment and sentence appealed are

AFFIRMED.

BOYER, C. J., and MILLS and SMITH, JJ., concur.


text:
    Junior W. SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. Y-461.
    District Court of Appeal of Florida, First District.
    May 24, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, and Junior W. Sullivan, in pro per., for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Davis Schwartz, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

AFFIRMED. (See Hatchell v. State, Fla.App.1st 1976, 328 So.2d 874).

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: PER CURIAM. WALDEN, Chief Judge

text:
    Paul Alan PRESTON, Appellant, v. Paula Ann PRESTON, Appellee.
    No. 75-1949.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1976.
    Rehearing Denied June 30, 1976.
    Jack B. Nichols and R. Wayne Evans of Nichols & Tatich, Orlando, for appellant.
    Robert J. Buonauro and James N. Powers, Orlando, for appellee.
   PER CURIAM.

Affirmed.

CROSS and MAGER, JJ., concur.

WALDEN, C. J., dissents, with opinion.

WALDEN, Chief Judge

(dissenting) :

I dissent.

This is an appeal brought by the husband from a final judgment of dissolution of marriage. The grievance centers upon the award of child support of $600 per month (for two children), plus rehabilitative alimony of $200 per month from October 1, 1976, through March 1, 1977.

The parties agree on the law of the case and the necessity of the husband to show an abuse of the trial court’s discretion as a predicate for appellate relief, White v. White, 249 So.2d 729 (2d Fla.App.1971). The issues have to do with the facts.

Very shortly and simply, the husband was a dentist and the parties had lived beyond their means during their ten year marriage, so that at the time of the dissolution they had, without dispute, outstanding liabilities of about $70,000 such as tax liens, credit card debts, mortgages, and personal loans. The husband’s net income was $138 per week. With his personal expenses (including award of alimony and child support) the husband’s deficit was about $600 weekly.

The wife had six years of college training in nursing (but no degree). She is thirty-two years of age and has some past work experience.

Accepting the wife’s statement of needs for herself and children, her deficit (the difference between what she says she needs and the amount adjudged) is $45 weekly.

As I view it, from a comparison of the two deficits and all other facts and circumstances, the trial court abused its discretion, Cummings v. Cummings, Fla., 330 So.2d 134, Supreme Court Opinion filed March 31, 1976; Gordon v. Gordon, 4th DCA Opinion filed April 20, 1976, and imposed an obligation upon the husband which he cannot meet, Garlick v. Garlick, 38 So.2d 222 (Fla.1948); Traylor v. Traylor, 214 So.2d 15 (1st Fla.App. 1968).

From a review of the record and consideration of the appellate presentments, it is my judgment that the award of alimony should be reduced to $100 monthly during the stated period, and the award of child support reduced to $150 monthly per child, for a total of $300 monthly child support, Helin v. Helin, 235 So.2d 533 (3rd Fla.App.1970). Of course, my view would be without prejudice to the right of the parties to seek modification, based on any material change in circumstances occurring after the entry of the final judgment.

I would reverse and remand for further proceedings consistent herewith.


text:
    COMMERCIAL BANK AT DAYTONA BEACH, etc., Petitioners, v. Kate MAMOS and Xanthippe Vladenides, Respondents.
    No. BB-71.
    District Court of Appeal of Florida, First District.
    June 4, 1976.
    Hugh M. Palmer, of Wilbaum, Zook, Jones & Williams, Orlando, for petitioners.
    Merritt H. Powell, Daytona Beach, for respondents.
   PER CURIAM.

Upon consideration of the record, briefs and oral arguments, the petition for writ of certiorari is

DENIED.

BOYER, C. J., SMITH, J., and HODGES, JOHN G., Associate Judge, concur.


text:
    Allen Wayne OLIVER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. BB-15.
    District Court of Appeal of Florida, First District.
    June 7, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   BY THE COURT.

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

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: HOBSON, Judge.

text:
    John E. NAST, Appellant, v. STATE of Florida, Appellee.
    No. 75-655.
    District Court of Appeal of Florida, Second District.
    June 11, 1976.

      Jack O. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

We have for review a case involving incriminating statements obtained as a result of a warrantless arrest, the legality of which is at issue.

Following the lower court’s denial of the appellant’s motion to suppress his statements, the appellant withdrew his plea of not guilty and entered a plea of nolo con-tendere to possession of more than five grams of marijuana, reserving his right to appeal the order denying his motion, as permitted by State v. Ashby, Fla.1975, 245 So.2d 225. The factual basis on which the lower court accepted his nolo plea was provided solely by the incriminating statements. We reverse.

At two o’clock in the afternoon of November 11, 1974, Officer Britts of the Clearwater Police Department observed two young men, one of whom was the appellant, seated on a public bench, apparently talking to one another. Alongside the bench he saw what appeared to be a bundle of clothing, so he decided to find out where the two young men were staying. As he approached them in his patrol car he observed the appellant’s companion walk to the seawall and perform a throwing motion. The appellant remained seated at the bench. Britts left his cruiser, walked over to the seawall and observed a plastic baggie containing what appeared to be marijuana. He directed the appellant’s companion to retrieve the baggie, examined the contents, and determined that the substance was in fact marijuana; whereupon, he arrested both young men, searched them, and took them into custody. No contraband was found on the person of the appellant. The two were advised of their constitutional rights at the scene and again at the police station. Approximately half an hour later, while in custody, the appellant made incriminating statements to the effect that he and his companion were holding the marijuana for a friend, and that they were preparing to smoke some of it when they saw Britts approaching.

Appellant contends that his arrest was unlawful because Officer Britts lacked probable cause to believe that the appellant had either actual or constructive possession of the contraband. We agree.

In the case at bar it is evident from the record that Officer Britts had no indication that the appellant had ever had actual possession of the marijuana found at the scene. Therefore his decision to arrest the appellant had to be based on the reasonable belief that the appellant had constructive possession.

Constructive possession has been defined as the ability to reduce to actual possession and control. Spataro v. State, Fla.App.2d 1965, 179 So.2d 873; Frank v. State, Fla.App.1st 1967, 199 So.2d 117. In order to establish constructive possession of contraband when the accused does not have exclusive possession of the premises where the contraband is found, actual knowledge of its presence and the ability to control it may not be inferred but must be proven. Frank v. State, supra; Langdon v. State, Fla.App.3d 1970, 235 So.2d 321.

The instant record discloses no evidence on which the arresting officer at the time of the arrest could reasonably conclude that the appellant knew of the presence of the marijuana or had the ability to reduce it to his possession and control. Britts saw only that the appellant was in a public place in the middle of the afternoon, apparently conversing with an acquaintance who was caught disposing of the contraband.

We hold that these facts, without more, were insufficient to constitute probable cause for the appellant’s warrantless arrest based on constructive possession. Thus his incriminating statements made within thirty minutes of his unlawful arrest and obtained as a result of his unlawful arrest were inadmissible against him. Fla.Const. Art. I, § 12; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416; Phelper v. Decker, 5th Cir. 1968, 401 F.2d 232; United States v. Owen, 5th Cir. 1974, 492 F.2d 1100.

Accordingly, the appellant’s incriminating statements are suppressed, the judgment and sentence are reversed and the cause remanded.

McNULTY, C. J., and GRIMES, J., concur.


text:
    Roy Dino HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. AA-54.
    District Court of Appeal of Florida, First District.
    June 9, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The judgment and sentence here being appealed from are affirmed without prejudice to the appellant’s rights to seek a reduction of sentence pursuant to Rule 3.-800(b), R.Cr.P.

BOYER, C. J., and MILLS and SMITH, JJ., concur.