author: ADKINS, Justice.

text:
    ALACHUA COUNTY, a Political Subdivision of the State of Florida, Appellant, v. A. Curtis POWERS, Clerk of the Circuit Court of Alachua County, Florida, Appellee.
    No. 51465.
    Supreme Court of Florida.
    Oct. 6, 1977.
    Rehearing Denied Nov. 15, 1977.

      Norm La Coe, County Atty., Alachua County, Gainesville, for appellant.
    Larry G. Turner, Gainesville, for appellee.
    Fred W. Baggett, Tallahassee, for amicus curiae Fla. Ass’n of Court Clerks.
    William J. Roberts and Wilson W. Wright, Tallahassee, for amicus curiae State Ass’n of County Com’rs.
   ADKINS, Justice.

This case arose when the Clerk of the Circuit Court of Alachua County, appellee herein and referred to as the “clerk,” sued the Board of County Commissioners of Ala-chua County, appellant herein and referred to as the “board,” seeking a declaratory judgment to clarify his fiscal duties as Clerk of the County Commission. The issues presented by the clerk were to seek clarification of his duties in four capacities: as auditor, accountant, custodian, and investor of county funds. This appeal is from the final judgment.

The trial court construed provisions of the State constitution and initially and directly passed upon the validity of Chapter 71-443, Laws of Florida, a special act relating to the Clerk of the Circuit Court of Alachua County. We have jurisdiction.

The Clerk is a constitutional officer deriving his authority and responsibility from both constitutional and statutory provisions. Security Finance Company v. Gentry, 91 Fla. 1015, 109 So. 220 (1926); Article V, Section 16, Florida Constitution.

Article V, Section 16, Florida Constitution, contains the following provisions:

“There shall be in each county a clerk of the circuit court who shall be selected pursuant to the provisions of Article VIII section 1. Notwithstanding any other provision of the constitution, the duties of the clerk of the circuit court may be divided by special or general law between two officers, one serving as clerk of court and one serving as ex officio clerk of the board of county commissioners, auditor, recorder, and custodian of all county funds.”

Article VIII, Section 1(d), Florida Constitution, provides for the election of the clerk of circuit court, along with other officers, and also provides:

“When not otherwise provided by county charter or special law approved by vote of the electors, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds.”

The trial court was correct in interpreting these two constitutional provisions as prescribing the only means of separating the clerk’s judicial functions as clerk of the court from his clerk’s county officer functions as auditor, accountant, custodian of county funds and official recorder. The office may be divided by special or general law pursuant to Article V, Section 16, Florida Constitution, or the clerk’s county officer functions may be divided by county charter or special law approved by a vote of the electors pursuant to Article VIII, Section 1(d), Florida Constitution. In the absence of either of these two methods, the clerk must perform the dual role prescribed by constitutional mandate.

There is no applicable general law or special law approved by the electors which would vary those duties in Alachua County, and the county is not governed by a county charter. Under these constitutional provisions the clerk is the ex officio clerk of the board of county commissioners, the auditor, recorder and custodian of all county funds.

We first consider the clerk’s auditing responsibility. Section 129.09, Florida Statutes (1975), forbids the clerk “acting as county auditor,” from signing illegal warrants and provides both personal and criminal liability for violation of this provision. The clerk, as auditor, is required by law to refuse to sign and deliver a county warrant for an unlawful expenditure, even though approved by the board of county commissioners. Mayes Printing Company v. Flowers, 154 So.2d 859 (Fla.1st DCA 1963). Although an appropriation of county funds may serve a county purpose, there must be some type of pre-audit review of the disbursement in order to be sure that the funds will not be used for an unlawful purpose.

Section 136.08, Florida Statutes (1975), provides that the accounts of the board of county commissioners and the account of any bank acting as a depository shall be subject to the inspection, and examination of the “county auditor, the auditor general and the department of banking and finance or persons designated by it.” Section 11.-45(3)(a), Florida Statutes (Supp.1976), provides for post-audits by the auditor general of accounts and records of “county agencies,” which includes the board of county commissioners and the clerk of the circuit court. See Section 11.45(1)(e), Id, defining county agencies. All agencies have the power to have a performance audit or post-audit of their accounts and records by an independent certified public accountant retained by them and paid from their public funds. Section 11.45(3)(a), Id.

The Board, as the governing body of the county, has the power to

“Make investigations of county affairs; inquire into accounts, records, and transactions of any county department, office, or officer; and, for these purposes, require reports from any county officer or employee and the production of official records”. Section 125.01(l)(s), Florida Statutes (1975).

In accomplishing this purpose the board also has the power to

“Employ an independent accounting firm to audit any funds, accounts, and financial records of the county and its agencies and governmental subdivisions. Not less than five copies of each complete audit report, with accompanying documents, shall be filed with the clerk of the circuit court and maintained there for public inspection. The clerk shall thereupon forward one complete copy of the audit report with accompanying documents to the Auditor General, who shall retain the same as a public record for ten (10) years from receipt thereof.” Section 125.01(l)(x), Florida Statutes (1975).

The trial court correctly determined that the Clerk was to act as county auditor in all auditing functions except when the board employs an independent auditing firm pursuant to Section 125.01(l)(x), Florida Statutes (1975).

Sections 129.07 and 129.08, Florida Statutes (1975), expressly provide civil and criminal sanction against the members of the board of county commissioners for fiscal maladministration. The board says it should not be “blindly” dependent on the clerk for information which may be necessary for proper budget administration, approval of checks and authorization of the chairman of the board to sign such checks. The board refers to White v. Crandon, 116 Fla. 162, 156 So. 303 (1934), where this Court held that county commissioners could be personally liable for funds expended without authority of law. The board also points to Davis, et al. v. Keen, 140 Fla. 764, 192 So. 200 (1939), where the Court said that the board has the power and authority to reject payment of an unlawful account, holding that the statutes imposed a discretionary power or authority on the Board to determine whether or not a claim when presented is a just and lawful account.

No one quarrels with the assertion that the responsibility for pre-auditing is shared by the board and the clerk. A duplication of official duties is not invalid when within the purview of the constitution. This Court in State ex rel. Landis v. Wheat, 108 Fla. 1, 137 So. 277 (1931), said:

“The name given a statutory officer is not material even if it is similar to a constitutional ex officio officer, if the authority conferred on the statutory officer does not conflict with the authority conferred by the Constitution on a constitutional officer. A mere duplication of official duties may not be a violation of the general intendments of the Constitution when statutory regulation of duties is authorized by the Constitution. If there is duplication of duties, no organic provision is violated. Questions of legislative policy, not of power, are involved.” At 283.

While clerk has the responsibility to act as pre-auditor of county funds, the board has the right to audit its own funds and make such investigations as may be necessary before the use of any public funds. The constitutional and statutory language discussed above require that the auditing function in making such an investigation be carried out by one of three entities: pre-auditing by the clerk in his capacity as county auditor, performance audit by an independent certified public accountant (or independent accounting firm), and post-audit by the auditor general or the independent auditing firm. Section 11.-45(3)(a), Florida Statutes (Supp.1976).

The board refers to a local ordinance creating the county auditing department. Under the ordinance the auditor answers directly to the board as to fiscal matters involving departments under the board’s direct supervision and control — not including constitutional officers. The county auditor is charged with the responsibility to develop accounting systems and procedures. The county auditor was established to provide a post-audit of county fiscal affairs, not including constitutional officers, as the auditor general fails to make such audits annually.

Any effort by the board in the adoption of this ordinance to create an independent county auditing department, which is not an independent auditing firm, is beyond the authority of the board. The ordinance may properly set forth the purchasing procedures for the county and may provide for audits of any agencies purely under the control of the board. The clerk has the authority and responsibility to perform the auditing functions both as an arm of the board in auditing the records of constitutional officers and as a watchdog of the board in the case of pre-auditing accounts of the board in determining legality of expenditure. The phrase “legality of expenditure” includes that the funds are spent for a public purpose, that the funds are spent in conformity with county purchasing procedures or statutory bidding procedures, that the expenditure does not overspend any account or fund of the budget as finally adopted and recorded in the office of the clerk. If the board becomes concerned, it has the authority to require a performance audit or post-audit by an independent accounting firm.

By expressed statutory provision, the clerk of the circuit court is made the “accountant” of the board and required to keep the “minutes and accounts” of the board. Sections 28.12 and 125.17, Florida Statutes (1975). The board is required by statute to keep an accurate and complete “set of books showing the amount on hand, amount received, amount expended and the balances thereof at the end of each month,” for each fund carried by the board. Section 136.05, Florida Statutes (1975). We agree with the trial court that this section is satisfied by the board keeping the set of books through its clerk. This construction is in conformity with Section 136.02(2), Florida Statutes (1975), which requires each county official and board maintaining funds in a county depository to file a monthly report with the clerk of the circuit court. This statute also requires the clerk to consolidate the reports as to each bank and file the consolidated report with the department of banking and finance. If the board questions the handling of the funds under the budget and is not satisfied with the audit of the clerk, an independent accounting firm may be employed. Section 125.-01(1)(x), Florida Statutes (1975).

When not otherwise provided by general law, county charter or special law approved by vote of the electors, the clerk is custodian of all county funds. Article VIII, Section 1(d), Florida Constitution. The' care, custody and method of disbursing county funds must be provided by general law. Article VIII, Section 1(b), Florida Constitution.

The trial court was correct in holding invalid those provisions of Chapter 71-443, Laws of Florida, Special Acts, which attempt to designate a different custodian of county funds. This special act failed to meet the requirements of both Article VIII, Section 1(b), of the Florida Constitution, requiring a general law for the care, custody and disbursing of county funds, and Article VIII, Section 1(d), which prohibits the clerk of being divested of his custodial responsibility except by “county charter or special law approved by vote of the electors”.

The board contends that the language of certain statutes clearly contemplates that the county commission shall have care and control over funds on deposit in various banks.

Section 136.05, Florida Statutes (1975), reads:

“County board to keep set of books; overdrawing prohibited. — The board of county commissioners shall keep an accurate and complete set of books showing the amount on hand, amount received, amount expended and the balances thereof at the end of each month for each and every fund carried by said board, and no check or warrant shall ever be drawn in excess of the known balances to the credit of that fund as kept by the said board.”

Section 136.06, Florida Statutes (1975), further provides that money drawn from a depository shall be:

“ . . i upon a check or warrant issued by the board or officer drawing the same, said check or warrant . . shall be signed by the chairman of said board, attested by the clerk or secretary of said board . . . .”

In addition, it would appear from Section 136.02(2), Florida Statutes (1975), that the board, along with other county officials, is authorized to maintain funds in a qualified county depository. However, the statute requires county officials and the board to make a monthly report on these funds to the clerk of the circuit court who in turn is required to file a consolidated report with the Department of Banking and Finance. Where the duties of the office of circuit court clerk are divided by special law between the clerk and.a county comptroller, the comptroller is responsible for the monthly reports of county funds on deposit as required by this section. See Op.Attorney Gen. 073-213. Thus, it appears that the clerk of the circuit court, in his capacity as clerk of the board, auditor, recorder and custodian of county funds is ultimately responsible for accounting for county funds on deposit.

In addition, Section 219.07, Florida Statutes (Supp.1976), requires each officer to distribute all public money collected by him within seven working days to the officer, agency or fund entitled to receive it. Section 116.01, Florida Statutes (Supp. 1976), requires these funds to be paid into the county treasury. The clerk, pursuant to Section 218.35(2)(b), Florida Statutes (1975), is the custodian or treasurer of all county funds, therefore all public moneys are deposited into the county treasury by him. Finally, Section 116.07, Florida Statutes (1975), requires “all . . . clerks of the circuit court and ex officio clerks of the boards of county commissioners . (to) keep books of account and of record . . except such books and forms as are now otherwise provided for by law”; and Sections 28.12 and 125.17, Florida Statutes (1975), authorize the clerk to be clerk and accountant of the board of county commissioners and to keep their minutes and accounts.

From the above statutory provisions it appears that the trial court correctly interpreted Section 136.05, Florida Statutes (1975), to be satisfied by the board keeping the books and accounts through its clerk, the clerk of the circuit court.

In regard to investment of county funds the court below held that Section 28.33, Florida Statutes (1975), requiring the clerk of the circuit court to invest funds in interest bearing certificates or direct obligations of the United States, “applies to all funds in the clerk’s control, whether they come from fees or commissions of the office collected or fees deposited in the registry of the court ... or the operating funds of the office paid over by the county . or all other funds held by the clerk as custodian of county funds.” The trial court properly recognized that:

“This would incorporate those funds held in the general operating funds of the County except as to those funds the Clerk holds which are ‘Board monies’ including capital accounts. The Board may by appropriate resolution, duly adopted, designate the investment place of surplus funds . . . pursuant to Florida Statute 125.31 . .

In its brief the board stipulates that the trial court properly ruled that investments of surplus may be made upon approval by the county commission by adoption of an appropriate resolution. See also Op. Attorney General 075-241A which agrees with this conclusion and states that when investment of surplus county funds is specified by the county commissioners pursuant to Section 125.31, Florida Statutes (1975), the clerk is required to carry out the directives of the county commissioners in that respect.

Thus, there appears to be no conflict with the holding of the court below that the board may by appropriate resolution designate the investment place of surplus funds and the clerk is required to carry out the board’s directive. In the alternative, where the board does not so designate the investment of surplus funds, these funds are to be invested by the clerk pursuant to Section 28.33, Florida Statutes (1975).

The next question concerns the responsibility for preparation of the budget for all county officers. Section 129.01(2)(a), Florida Statutes (1975), requires the budget to be “prepared, summarized, and approved by the board of county commissioners of each county”. The procedural requirements are set forth in the Florida County Commissioners Manual, Section 3-39 (1972 Revision, Supplement 4, December, 1976).

“The original responsibility for the preparation of the tentative budget rests upon the county auditor, who, unless otherwise provided by county charter or special law, is also clerk of the circuit court. He first ascertains the board’s proposed fiscal policies for the ensuing fiscal year as well as the officer’s operating budgets as submitted to the board. He then prepares a tentative budget for each of the funds. The budget includes all estimated receipts, taxes to be levied, and balances to be brought forward. It likewise includes all estimated expenditures, reserves and balances to be carried over at the end of the year. By July 15 the clerk must complete the tentative budget and present it to the board.” At 507.

The Manual cites Article VIII, Section 1(d), Florida Constitution (1968), Sections 125.-01(1)(v) and 129.03(2), Florida Statutes.

Section 2-28, Manual of Duties and Procedures for Court Clerks (December, 1976), sets forth the following procedure:

“On or before July 15 of each year the clerk as county auditor, after ascertaining the proposed fiscal policies of the board for the ensuing fiscal year, must prepare and present to the board a tentative budget for each of the funds established through the budget system. The budget shall include all estimated receipts, taxes to be levied, and balances expected to be brought forward, and all estimated expenditures, reserves and balances to be carried over at the end of the year.
“The board of county commissioners must then examine the tentative budget for each fund and require that any necessary changes be made. The county auditor’s estimates of receipts other than taxes, and of balances to be brought forward, cannot be revised except by a resolution of the board, duly passed and appearing in the minutes of the board.
“The remaining steps in the preparation and adoption of the budget require the board to prepare a statement summarizing the tentative budgets. The board must then advertise the summary statement according to procedure set forth in the statute, hold a meeting on the fixed day for hearing requests and complaints from the public, make whatever revisions are necessary, adopt the budget, and file the tentative budget in the office of the county auditor as a public record.” At 69.

The Manual cites as authority Section 129.-03 (1975).

There is no conflict in the procedures set forth in the two Manuals. However, the county administrator, when appointed, is given the power and duty to submit to the board of county commissioners for its consideration and adoption, “An annual operating budget, a capital budget, and a capital program.” Section 125.-74(1)(d), Florida Statutes (1975). Statutes which relate to the same or a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other. Markham v. Blount, 175 So.2d 526 (Fla.1965). The Court, in construing similar statutes, should preserve the force of both without destroying their evident intent. City of St Petersburg v. Pinellas County Power Company, 87 Fla. 315, 100 So. 509 (1924).

The trial court found no irreconcilable repugnancy between the statutes and resolved the apparent conflict so as to preserve the force of both. The trial court correctly concluded that the clerk, as county auditor, had responsibility for the preparation of the initial budget for consideration by the board. The county administrator’s responsibility for preparing the budget extends only to those departments responsible to the board and which are under the jurisdiction of the board, as Section 125.74(2), Florida Statutes (1975), provides:

“It is the intent of the legislature to grant to the county administrator only those powers and duties which are administrative or ministerial in nature and not to delegate any governmental power imbued in the board of county commissioners as the governing body of the county pursuant to [s.l(e), Art. VIII] of the state constitution. To that end, the above specifically enumerated powers are to be construed as administrative in nature, and in any exercise of governmental power the administrator shall only be performing the duty of advising the board of county commissioners in its role as the policy-setting governing body of the county.”

To the extent not inconsistent with general or special law, the board of county commissioners has the authority to require every county official to submit an annual copy of his operating budget. Section 125.-01(1)(v), Florida Statutes (1975). In addition, Section 218.35(4), Florida Statutes (1975), requires that the proposed budget of a county fee officer must be filed with the clerk by September 1 preceding the fiscal year of the budget. The clerk, functioning in his dual capacity as clerk of the circuit and county courts and as clerk of the board of county commissioners, prepares his budget in two parts:

“218.35 County fee officers; financial matters
(2)(a) The budget relating to the state court system, including recording, which shall be filed with the state courts administrator as well as with the board of county commissioners; and (b) The budget relating to the requirements of the clerk as clerk of the board of county commissioners, county auditor, and custodian or treasurer of all county funds and other county-related duties.”

Section 218.36, Florida Statutes (1975), provides in part:

“County officers; record and report of fees and disposition of same
(2) On or before the date for filing the annual report, each county officer shall pay into the county general fund all money in excess of the sum to which he is entitled under the provisions of chapter 145. ...”

Chapter 145, Florida Statutes (1975), provides for the annual compensation and method of payment for the several county officers named therein; i. e.: clerk of the circuit court and county comptroller (145.-051); sheriff (145.071); property appraiser (145.10); tax collector (145.11).

Section 145.022, Florida Statutes (1975), provides the method by which the guaranteed salary may be established. It reads, in pertinent part:

“Guaranteed salary upon resolution of board of county commissioners
(1) Any board of county commissioners, with the concurrence of the official involved, shall by resolution guarantee and appropriate a salary to the county official, in an amount not to exceed that specified in this chapter, if all fees collected by such official are turned over to the board of county commissioners. . . ” (Emphasis supplied.)

Section 145.131, Florida Statutes (1975), states that: “[ajfter July 1,1969, compensation of any official whose salary is fixed by this chapter shall be the subject of general law only. . . . ” Further, Section 145.-16, Florida Statutes (1975), provides in part:

“Special laws or general laws of local application prohibited
(2) Pursuant to § ll(a)(21), Art. Ill of the state constitution, the legislature hereby prohibits special laws or general laws of local application pertaining to the compensation of the following county officials:
(a) Members of the board of county commissioners;
(b) Clerk of the circuit court;
(c) Sheriff;
(d) Superintendent of schools;
(e) Supervisor of elections;
(f) [Property appraiser]; and
(g) Tax collector.”

Finally, Article III, Section 11(a)(1), Florida Constitution, prohibits any special law or general law of local application pertaining to the election, jurisdiction or duties of officers, except officers of chartered counties.

Absent the concurrence of the county official involved and a resolution of the board of county commissioners, the circuit court clerk (and the county comptroller in those counties where the duties of the office have been divided, or the clerk of the circuit court as auditor, recorder and custodian where the duties are not divided) operates as a fee officer in carrying out his duties as clerk of the circuit court and as a budget officer in carrying out his duties as clerk of the county court. See Op. Attorney General (072-424).

However, several of the statements of the court below regarding the submission of a budget by the clerk of the circuit court in his various functional roles were in error. In summarizing its holdings, the court below stated:

“The Clerk’s budget is not subject to control of the County Board of County Commissioners except as to his court functions. The auditor, Section B, functions are not subject to control by the Board up to the total income of the Clerk’s office plus that amount for his salary as permitted by 145.051 and 145.141.”

We feel that the proper interpretation of the various statutes is that where the circuit court clerk (and county comptroller if the duties of the office have been divided) agree to turn over all fees collected by their office to the county commissioners they become county budget officers by resolution of the board pursuant to Section 145.022(1), Florida Statutes (1975). As county budget officer, the clerk, and not the county administrator, remains responsible for submitting the budget of his office to the board of county commissioners. It was not the intent of Chapter 145, Florida Statutes (1975), to alter the clerk’s authority as a constitutional officer or to place his office under the control or jurisdiction of the board. Absent this agreement and resolution, the clerk of the circuit court remains a county fee officer, responsible for establishing his own annual budget. Section 218.35(1), Florida Statutes (1975). He is required by law merely to file his proposed budget with the clerk of the county governing authority by September 1 preceding the fiscal year of the budget and to make an annual report of his finances upon the close of each fiscal year to the county fiscal officer for inclusion in the annual financial report of the county. Section 218.35(3), (4), Florida Statutes (1975).

We now consider Chapter 71-443, Laws of Florida, Special Acts. Section 1 was not ruled unconstitutional by the trial court as it ties into Section 145.022, Florida Statutes, authorizing the board to appropriate an annual salary to the clerk with the concurrence of the county official involved, “if all fees collected by such official are turned over to the board of county commissioners.” This section provides that the clerk shall receive as his sole compensation for the performance of his official duties the annual salary provided by general law, in lieu of all compensation authorized by any other law relating to his office.

Section 2, Chapter 71—143, Laws of Florida, sets out the procedure to be followed by the clerk in the preparation of the budget. In view of the pre-audit function of the clerk, the trial court reasoned that it was not logical to give the board de facto control of this function by attempting to make the clerk’s office subservient to the board and under the control of the board by the appropriation process. The special law does not place the clerk in this situation. In the event the board is unreasonable in reducing the clerk’s budget, an appeal mechanism is provided by Section 2(e), Chapter 71-443. Under this appeal mechanism, the clerk may appeal to the department of administration with a statement of the reasons or grounds for his complaint. The trial court erred in exempting the clerk from the budget and compensation laws as to a part of his official duties, as the law contemplates that the clerk shall participate in the budget process as to all his functions. Section 2, Chapter 71-443, is constitutional.

Section 3, of Chapter 71-443, provides that the board shall retain custody of funds appropriated for the office of clerk and provides methods of disbursement and manner of handling such funds. As discussed above, the trial court correctly held that Section 3 was unconstitutional.

Section 4, of Chapter 71—443, relates to fees and commissions. Section 4(a) provides that all fees shall be paid over to the county. This is constitutional. However, Section 4(b) provides that these “fees, commissions or other funds collected by the Clerk” shall be deposited in a special trust fund to be remitted to the board once each month. As discussed above the constitution makes the clerk custodian of all funds, and Section 4(b) was correctly held by the trial court to be unconstitutional.

We now turn to the question of whether the board may adopt a uniform pay plan for all county employees. The trial court ruled that the authority of the board to adopt a pay plan for employees of the county, pursuant to Section 125.74(1)(h), Florida Statutes (1975), does not extend to the employees of the several constitutional officers. The board says that the language of the subsection prescribing a function of the county administrator,

“Recommend to the board a current position classification and pay plan for all positions in county service.” (Emphasis supplied.)

requires a broader interpretation by the court. We disagree. The county administrator is responsible for the administration of only those departments of the county which the board has the authority to control. Section 125.73(1), Florida Statutes (1975).

The clerk is a county officer pursuant to Article VIII, Section 1(d), Florida Constitution and, as an officer, he is delegated a portion of the sovereign power. State v. Sheats, 78 Fla. 583, 83 So. 508, 509 (1919).

The clerk is responsible for the efficient and effective operation of his office and has the authority to appoint deputies to assist him in his constitutional and statutory duties. Section 28.06, Florida Statutes (1975).

Employees of constitutional officers cannot be included in a uniform pay plan adopted by a board of county commissioners in the absence of specific statutory authorization. The present statute merely authorizes a county administrator to “recommend” to the board a uniform pay plan. There is no specific statutory authorization for the board to include the employees of other constitutional officers within a uniform pay plan for county employees. In the absence of statutory authorization the board is without power to adopt a uniform pay plan for county employees.

In summary we hold:

1. The clerk is county auditor, accountant and custodian of all funds of the county pursuant to constitutional and statutory provisions.

2. Pre-audits are conducted by the clerk in his capacity as county auditor, a performance audit may be made by an independent certified public accountant (or independent auditing firm), and post-audit may be made by the auditor general or the independent accounting firm.

3. The clerk’s office may be divided by general or special law between two officers, one serving as clerk of the court and one serving as ex officio clerk of the board, auditor, recorder and custodian of all county funds, or, the duties of the clerk may be varied by county charter or special law approved by the electors of the county.

4. The clerk is responsible for submit-, ting the initial budget proposal to the board for all constitutional county officers.

5. Sections 1, 2, and 4(a), of Chapter 71-443, Laws of Florida, are constitutional. Sections 3 and 4(b), of Chapter 71 — 443, Laws of Florida, are unconstitutional.

6. The clerk has investment discretion of county funds except for those surplus funds directed by resolution of the board to be invested pursuant to their directions.

7. The board is not authorized to set a uniform pay plan for employees of county constitutional officers.

The judgment of the trial judge is affirmed in part and reversed in part.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


source: Caselaw Access Project

author: SACK, MARTIN, Associate Judge.

license: Public Domain

text:
    William SADOWSKI, Appellant, v. Robert SHEVIN, Attorney General for the State of Florida, et al., Appellees, and Ronald S. Lieberman, Intervenor-Appellee.
    No. 76-1036.
    District Court of Appeal of Florida, Third District.
    June 24, 1976.

      Talbot D’Alemberte, William E. Sadow-ski, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and James Whisenand, Asst. Atty. Gen., Tallahassee, Hershoff, Smith, Berlinsky & Lieberman and Sheridan K. Weinstein, Miami, for ap-pellees.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   SACK, MARTIN, Associate Judge.

Plaintiff, William Sadowski, takes this interlocutory appeal to review an order denying his motion for preliminary injunction against the enforcement of § 106.15, Fla. Stat., F.S.A., which he alleges is unconstitutional. The trial judge denied the motion on the grounds that the granting of the injunction would disturb the status quo under the existing election laws, and plaintiff has been guilty of laches in challenging the statute.

Plaintiff is an announced candidate for election to the Florida House of Representatives. He filed his preliminary papers with the Secretary of State and in April 1976 opened his campaign depository, designated a treasurer and commenced collection of campaign funds. Being desirous of spending these funds for media advertising and printing while the legislature was still in session, plaintiff on May 11 filed a complaint for injunctive and declaratory relief seeking to have declared unconstitutional § 106.15, Fla.Stat, F.S.A. which prohibits certain types of campaign advertising by candidates prior to qualifying for office (until 63 days before election). In addition, he filed a motion for a preliminary injunction against the enforcement of § 106.15, Fla.Stat. and any interference with the plaintiff’s right to free speech and to seek elective office. Another candidate for the same office was permitted to intervene and he contended that his campaign is geared to a July commencement pursuant to the dictates of § 106.15, Fla.Stat. and he would be disadvantaged if the requested preliminary injunction is granted. After a hearing, the trial judge denied the preliminary injunction and plaintiff appeals therefrom.

Wide judicial discretion rests in the trial court in granting, denying dissolving or modifying injunctions and an appellate court will not interfere where no abuse of that discretion has been made to appear. Lane v. Clein, Fla.App.1962, 137 So.2d 15; Cunningham v. Dozer, Fla.App.1963, 159 So.2d 105; Baboun v. Royal Atlas Corp., Fla.App.1973, 287 So.2d 407. A trial court may properly refuse to grant an injunction when it appears that greater injury and inconvenience would be caused to the defendant by granting the injunction than denying it, or where the granting of an injunction will result in confusion, disorder and injury to the public outweighing any individual right to relief the complainant may have. Bronson and Lanier, Trustees v. Board of Public Instruction, 108 Fla. 1, 145 So. 833 (1933); Gibson, et al. v. City of Tampa, 114 Fla. 619, 154 So. 842 (1934).

Unquestionably if the trial court had granted plaintiffs request for preliminary injunction, the upcoming fall election and the campaign would have been tossed into a state of confusion and great harm to the public and the candidates would have resulted. Thus, we find no abuse of discretion in the denial of the injunction.

Nevertheless, if § 106.15, Fla.Stat., F.S.A. is unconstitutional, then the above grounds are not sufficient to deny plaintiff’s request for an injunction. Thus, we will consider the constitutional issue. See Zabel v. Pinellas County Water & Nav. Control Auth., Fla.App.1963, 154 So.2d 181, 186.

Plaintiff basically argues that this statute is unconstitutional in that it is an infringement of his right of free speech guaranteed under the U.S. and Florida Constitutions.

The guaranteed right of free speech is not an absolute right. State v. Mayhew, Fla.1973, 288 So.2d 243. It is well established that a state has a valid interest to protect the integrity of its political processes and insure free and fair elections, and this paramount interest may infringe somewhat upon the area of absolute free speech. Cf. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); State v. Headley, Fla.1950, 48 So.2d 80; Danciu v. Glisson, Fla.1974, 302 So.2d 131; Town of Lantana v. Pelczynski, Fla.1974, 303 So.2d 326. Nevertheless, these controls provided by the state through the legislative branch to insure orderly and effective elections must be reasonable. Danciu, supra. In other words, the legislature may enact reasonable time, place and manner regulations which do not discriminate between speakers or ideas in order to further an important governmental interest unrelated to the restriction on communication; however, the regulations may not impose direct quantity restrictions on political communication and association by persons, groups, candidates and political parties. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

Turning to the case at bar in light of the above principles of law, we find that § 106.15, Fla.Stat. is reasonable to preserve the integrity of the electoral process and insure free and fair elections inasmuch as this statute which applies to all candidates whether they are incumbents or not, regulates only the time and manner of political communication by the candidates and does not impose quantity restrictions on a candidate’s communication. Clearly § 106.15, Fla.Stat. does not prohibit all forms of political communication, just media advertisements and distribution of campaign literature; and once a candidate qualifies, he is no longer subject to its restrictions. The act protects the public from frivolous candidacies, confusion and deception by limiting the use of campaign advertising through the media to serious candidates, i. e. those who have qualified. It also maximizes the time for incumbents to devote full time to the duties of their publicly held office and reduces the period in which these officeholders will have to concentrate their efforts on campaigning for re-election. Certainly these benefits are valid and legitimate goals of the state to insure the integrity of the political processes. Thus, we conclude that this contention of the appellant is without merit.

For the reasons stated hereinabove, the order denying the preliminary injunction is affirmed.

It is so ordered.

      . which reads in pertinent part:
      “106.15 Certain expenditures prohibited
      “(1) No person, candidate, political party, political committee, or person acting on behalf of another shall, prior to qualifying for office, directly or indirectly in furtherance of any candidacy make any use of:
      “(a) Advertising on radio or television;
      “(b) Advertising in newspapers, magazines, or periodicals;
      “(c) Advertising on billboards, banners, or streamers;
      “(d) Advertising on campaign literature or any other printing; or
      “(e) [A rented] hall in which to address the public.”
      ‡ ‡ ‡ *

      . pursuant to § 99.061, Fla.Stat.


author: NATHAN, Judge.

text:
    Alan E. KRUEGER, Appellant, v. STATE of Florida, Appellee.
    No. 76-868.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Rehearing Denied Nov. 16, 1977.
    James McGuirk, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arnold R. Ginsberg, Special Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   NATHAN, Judge.

Appellant Alan E. Krueger was found guilty of direct criminal contempt in a summary proceeding; he was fined and sentenced to a period of confinement in the Dade County Jail. Krueger, an Assistant State Attorney, had appeared as prosecutor at a hearing on a motion for continuance brought by the defendant in a criminal case. Appellant advised the court that he had no objection to a continuance, inasmuch as the State intended to appeal the court’s prior dismissal of one of the counts against the defendant.

The trial court record of the ensuing colloquy reads as follows:

“MR. KRUEGER: I have no objection [to a continuance] Your Honor. In fact, our office is going to take an appeal, a written order on Count 1. We will request a stay. I got it typed up.
THE COURT: I am not going to grant any stay, for it is frivolous. Set it over two weeks on the motion of the defendant. April 26.
In fact, frivolous is too good a word for it. I would say absurd would be better.
MR. KRUEGER: You are entitled to your opinion, Your Honor.
THE COURT: Thank you. I appreciate that. Mr. Krueger, don’t leave this room.
* # * * * *
THE COURT: Mr. Kroeger [sic], pursuant to Rule 3.830 of the Florida Rules of Criminal Procedure, I inform you that you are accused of direct criminal contempt of this Court, by virtue of the statement made in the presence of the Court, that, quote, “The Court is entitled to its own opinion”, or, I believe, “You are entitled to your own opinion”, and the manner in which the statement was made.
Do you have any cause to show why you should not be adjudged guilty for contempt?
MR. KRUEGER: Yes, Your Honor. I do not feel that I showed the Court any disrespect. I merely was responding to the fact that the Court was deprecating the legitimacy of the State’s argument, and I felt that, as opposed to an absolute statement of fact in the Court’s opinion, I had a right to give the State’s opinion or the State’s position, as distinguished from the opinion of the Court.
I don’t feel I said anything that was either improper or that in any way negatively reflected upon the Court.

Appellant was thereafter adjudged to be in contempt of court. The trial judge filed a written judgment of contempt on April 16, 1976, finding appellant guilty of direct criminal contempt for “behavior unbecoming an officer of the court.”

In an additional untitled order dated May 5, 1976, the court found that appellant’s statement, to wit: “You are entitled to your opinion, Your Honor,” was made “in a loud, rude, impertinent and thoroughly contemptuous manner while Mr. Krueger, having turned, was walking toward the door with his back to the court.”

After filing his notice of appeal, appellant filed a Motion to Correct the Trial Court Order and for Leave to Correct and Complete the Record on Appeal, asserting that the trial court transcript did not reflect the physical acts of the parties. An evidentiary hearing was subsequently conducted, at which time appellant testified that he had begun to leave the courtroom after the trial judge ruled that the defendant’s request for a continuance would be granted, since the court had disposed of all pending matters. Appellant stated that he had taken several steps toward the rear of the room, whereupon the trial judge remarked, “In fact, frivolous is too good a word for it. I would say absurd would be better.” According to appellant’s testimony, he then turned toward the trial judge and made his allegedly contumacious statement without changing his tone of voice.

The trial judge refused to hear any further testimony at the evidentiary hearing, inasmuch as appellant’s version of the incident conflicted with the judge’s own findings of fact. However, the court did rule that the affidavits of appellant and another Assistant State Attorney who was in the courtroom at the time of purported contempt could be included in the Supplemental Record on Appeal.

Appellant’s affidavit reiterates the testimony which he gave at the evidentiary hearing; the affidavit of the other State Attorney similarly reflects that appellant faced the trial court judge and addressed him in ordinary fashion after the judge had remarked that the State’s appeal was absurd.

Appellant contends that no contempt actually occurred and that he was not afforded the procedural protections to which he was entitled under Rule 3.830, Fla.R.Crim.P., which governs summary criminal contempt procedure.

To say the least, we are faced here with a rather difficult and atypical case of direct criminal contempt. There were no continuing attempts to disrupt court proceedings, no wilful disobedience of court instructions, nor any foul epithets unleashed against the trial judge. Rather, a facially neutral statement was made by appellant and apparently ruled contemptuous because of the manner in which it was spoken.

Our problem on review is compounded by the fact that the transcripts in no way bear witness as to appellant’s demeanor at the time of the allegedly offensive conduct. It is true that the trial judge’s supplemental order recites his finding that appellant’s remark was made in a rude and impertinent fashion. Further, a judgment of contempt is clothed with a presumption of correctness. Belote v. Slye, 206 So.2d 276 (Fla.1st DCA 1968). On the other hand, we are mindful of the admonition that the power to punish for criminal contempt should be exercised cautiously and sparingly. Carroll v. State, 327 So.2d 881 (Fla.3d DCA 1976). It is not to be used to avenge personal affronts, but to punish assaults or aspersions upon the authority and dignity of a court or judge. Ex parte Earman, 85 Fla. 297, 95 So. 755 (1923).

“[I]f the matter complained of as constituting contempt, when fairly interpreted, does not have a reasonable tendency to degrade or to embarrass or hinder . a judge in performing his own duty, or to affect a mind of reasonable fortitude, it is not a criminal contempt for which imprisonment may be lawfully adjudicated, particularly when an intent to offend is denied on oath.
Generally it is the nature and reasonable tendencies of the matter complained of that controls; and, if the matter is of doubtful tendency or might or might not be considered ambiguous as to its general or specific purpose, the circumstances under which the thing was done or in which its consequences are to appear, may be considered in determining the reasonable tendency of the matter to affect judicial authority or dignity . . . .” Ex parte Biggers, 85 Fla. 322, 343-44, 95 So. 763, 769 (1923).

The Florida Supreme Court’s language in Biggers, supra, is most appropriate for application here, since we are faced with a statement of “doubtful tendencies.” Our review compels the conclusion that the allegedly offensive remark did not have a reasonable tendency to degrade the integrity of the court or hinder judicial functions when fairly interpreted. Thus, we hold that appellant’s conduct was not contemptuous as a matter of law under the facts of this case.

We feel constrained to note that while it is possible that appellant’s comportment was primarily responsible for the finding of contempt rather than the comment itself, this is not manifested in the transcripts of the hearing. Instead, it objectively appears that appellant responded with relative moderation to a direct attack upon the position which he was advocating. This interpretation is supported by the affidavits which were submitted by appellant and his fellow State Attorney. Thus, we are left in the unfortunate position of having to essentially weigh the veracity of contradictory recitations of the offending occurrence.

In dealing with a similar case of summary contempt, the Supreme Court of California observed that there is a need for independent objective evidence to support the trial court’s finding:

“Broadly speaking, judges are empowered to punish summarily for contempt of court in order to facilitate the orderly administration of justice. Disobedience of court orders tends to lessen the effect of those orders; intemperate behavior in the course of a trial . . . lessens the mastery of the trial judge over the process of the proceedings and thus tends to obstruct the course of the trial. Considerable summary power ... is therefore vested in judges. If that power is not wisely exercised it can readily become an instrument of oppression. In a summary contempt proceeding the judge who metes out the punishment is usually the injured party and the prosecutor as well. Since such a situation invites caprice, appellate courts almost without exception require that the order adjudging a person in direct contempt of court recite in detail the facts constituting the alleged transgression rather than the bare conclusions of the trial judge. . This rule in itself demonstrates, if only by implication, that some objective support must be present to support the order of contempt. If a trial judge had only to state that the contemnor raised his voice and twisted his features, no contempt order could be attacked. The well recognized principle that in a criminal contempt proceeding the accused is afforded many of the protections provided in regular criminal cases would be rendered meaningless . . . and the burden of proof would be sustained by the subjective reactions of the offended judicial officer.” Gallagher v. Municipal Court of City of Los Angeles, 31 Cal.2d 784, 192 P.2d 905, 912 (1948) (Citations omitted.) (Emphasis added.)

This statement is consistent with the law and policy of the State of Florida. Our courts also require that an accused criminal contemnor be afforded many of the basic constitutional rights provided in regular criminal cases, Aaron v. State, 284 So.2d 673 (Fla.1973); and Rule 3.830, Fla.R.Crim.P., provides that the judgment of guilt of contempt must contain a recital of those facts upon which the adjudication of guilt is based.

Thus, where the judgment of contempt is not objectively supported by the court transcripts, we hold that it is procedurally defective. Given the fact that the hearing before the trial judge in this action had for the most part beentconcluded prior to the allegedly contumacious conduct, it would seem that there was no need for summary punishment in this instance. See U. S. v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975). Without advocating recusal by trial judges in cases of direct criminal contempt, we find that in cases such as this, where an alleged personal attack on a judge is not objectively supported by the record, summary punishment by the offended judge is not appropriate. Moreover, if a trial judge should become personally embroiled with a purported contemnor, and another judge should be appointed to hear the charges. See Offutt v. U. S., 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954). At that time, the offended judge as well as others may testify regarding the claimed contempt.

Reversed.


author: BOYER, Chief Judge.

text:
    George H. POIRIER, III, Petitioner, v. DIVISION OF HEALTH, STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
    No. BB-252.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1977.
    Rehearing Denied Nov. 16, 1977.

      John L. Riley, Riley, Schowe & Saltsman, St. Petersburg, Robert J. Angerer, Joseph C. Jacobs, Ervin, Varn, Jacobs & Odom, Tallahassee, for petitioner.
    J. E. Hodges, Jacksonville, for respondent.
   BOYER, Chief Judge.

By timely petition for review filed pursuant to the appropriate provision of the Administrative Procedures Act, Section 120.68, Florida Statutes (1975), petitioner challenges respondent’s order which suspended his license to sell hearing aids for one year. Of the numerous charges lodged against petitioner, the hearing examiner found that only the following charges were established: Selling rebuilt hearing aids as new ones, permitting the selling and fitting of hearing aids by a suspended or unregistered person, and failure to provide customers with a proper receipt.

Before proceeding to petitioner’s “substantive” complaints, we must first discuss the alleged “procedural” irregularities.

At the hearing held on the administrative complaint filed against petitioner, petitioner objected to the testimony being recorded by a mechanical device, rather than a court reporter. He relies upon Section 120.57(1)(b)6, Florida Statutes (1975) which requires the agency to “accurately and completely preserve all testimony in the proceeding . . .” However, there is nothing in that statute requiring that a certified court reporter record the hearing, and we refuse to read that element into the statute. However, we do hold that any party has a right, as distinguished from a duty, to arrange, at his, her or its initial expense, to have the proceedings reported by a court reporter. Petitioner further asserts that the transcript of the hearing contains certain unexplained blank pages, but petitioner has not demonstrated that he has been prejudiced by any discrepancies or omissions in the record. Accordingly, petitioner’s first procedural point is without merit.

A second procedural issue concerns the refusal of the hearing examiner to allow petitioner to proffer certain testimony tending to show the bias of one of respondent’s investigators, Ralph Gray. In refusing to allow the proffer, the hearing examiner indicated that the matter of the investigator’s bias was outside of her “jurisdiction”. The general rule is that proffer of testimony should be permitted where an adequate predicate has been laid. Green v. Hood, 120 So.2d 223 (Fla.1st DCA 1960). However, where, as here, the evidence sought to be proffered relates to an issue which the hearing officer has declared to be outside of her “jurisdiction”, and no contrary showing having been made, the proffer of evidence relating to that issue is unnecessary. It appears that petitioner’s primary objection was that the hearing examiner refused to consider the issue of the investigator’s bias. Interestingly enough however, petitioner does not raise that point on appeal.

In a further assault on Investigator Gray’s testimony, petitioner claims that his entire testimony is absolute hearsay or hearsay on hearsay and should therefore not have been considered by the hearing examiner. Petitioner further objects to a post-hearing letter written by Florence Holmes concerning petitioner’s activities regarding the sale of a hearing aid to her. Respondent’s staff counsel sent copies of the letter to the hearing examiner and petitioner’s counsel. Under Section 120.-58(1)(a), Florida Statutes (1975), “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” Upon examination of the findings of fact contained in the recommended order of the hearing examiner, we have found no finding solely supported by hearsay evidence or testimony. Thus, admission of the hearsay evidence was not, under the facts of this case, erroneous.

In a final procedural point, petitioner argues that respondent did not follow the proper procedure in having the rules which petitioner allegedly violated officially recognized. Contrary to Section 120.61, Florida Statutes (1975) which requires that the parties be notified and given an opportunity to examine and contest the material when official recognition is requested, respondent in the instant case did not furnish copies of the applicable rules to petitioner with the amended complaint nor were they offered into evidence at the time of the hearing. Petitioner’s point is well taken. No attempt was made to comply with Section 120.61. For the proposition that a hearing officer may take judicial notice of an officially published rule found in the Florida Administrative Code, respondent relies upon State v. Mobley, 133 So.2d 334 (Fla.2nd DCA 1961). However, the Supreme Court, in reversing that decision (see Mobley v. State, 143 So.2d 821 (Fla.1962)), stated:

“We think it essential to the orderly dispensation of justice that a defendant be apprised, under the rules of procedure, of the regulation of which violation is alleged. The requirement imposes no hardship upon the prosecution and affords to the defendant a reasonable safeguard of his liberty. It is our view that in those instances in which the court should by reason of statute or otherwise take judicial notice of a rule, regulation or order of an administrative agency of the state, the federal government or political subdivision thereof, or an ordinance of a municipality, that the pertinent text of such rule, regulation, order or ordinance should be made to appear as a part of the record in the trial court.” (Mobley v. State, supra, at 823, 824)

Although the Mobley case involved the criminal prosecution of a defendant for violation of a rule promulgated by the Game and Fresh Water Fish Commission, we find the language in that case no less applicable here where petitioner’s livelihood and vocation are at stake. The failure of respondent to comply with the requirements of either Section 120.61 or the Mobley case was, therefore, error.

Turning to the more “substantive” issues, we first consider the charge lodged against petitioner that he failed to provide certain of his customers with proper receipts as required by Section 468.136, Florida Statutes (1975). According to the administrative complaint, the receipts were deficient in that they did not contain all of the required information such as brand of hearing aid, serial number, model and whether the hearing aid is new, used or rebuilt, and petitioner’s signature. It was petitioner’s testimony at the hearing that his procedure was to provide his customers with a purchase order receipt at the time the order for a hearing aid was made, and then at the time of delivery, to provide a written guarantee. Although petitioner admitted that not all of the required information was on the first purchase order receipt, he claimed that the two receipts taken together contain all that the statute required. Petitioner asserts on appeal that the statute does not require that all of the information be placed on one receipt. Notwithstanding the logical force of that argument, the record indicates that the necessary information was not given to all of the customers. For example, the serial number of the hearing aid bought by Mrs. Charity Moore is not found on either the purchase agreement or security agreement which were introduced at the time of the taking of her deposition. The same can be said of the “receipts” given to Clara Smith which were introduced into evidence at the taking of the deposition of Mrs. Smith’s daughter, Joann Gadd. Consequently, respondent established • that petitioner failed to provide at least some of his customers with a proper receipt.

Petitioner next claims that he did not employ an unregistered person to perform acts defined as fitting and selling of hearing aids, as charged in the administrative complaint. As to the transactions between himself and two customers (Sylvia Game and Geraldine Combs), he argues that there was no “selling” involved because those customers canceled their orders, never received a hearing aid from him, and were refunded their deposits. Under Section 468.122(6)(b), Florida Statutes (1975), “Selling means all acts and agreements pertaining to the selling, renting, leasing, pricing, delivering, and guaranteeing of a hearing aid and other services not related to fitting, as outlined in this Part III.” Petitioner asserts that the statute contemplates a completed transaction, as evidenced by the conjunction “and” tying together the words “delivering” and “guaranteeing”. Petitioner’s position is untenable. Under the reasoning advanced by petitioner, in order for there to be a sale, all of the enumerated categories in the statutory definition would have to be met, including “renting” and “leasing”. In our view, the statute should not be so tortuously construed. The legislature intended for the definition to include all acts and agreements pertaining to any of the enumerated categories. Sub judice, the unregistered persons in petitioner’s employ came within the statutory definition when they induced Mrs. Game and Mrs. Combs to sign a purchase agreement.

Petitioner assaults a third instance of permitting an unregistered employee to fit and sell a hearing aid to a customer (E. T. Breazeale) by contending that respondent failed to establish that the employee acted with petitioner’s knowledge. Such a showing is not an unreasonable requirement. It would be unfair to penalize an employer for the unauthorized actions of his employees unless the employer knew or should have known of the employees’ actions. Similar reasoning has been employed by courts reviewing the revocation of liquor licenses based upon the sale of intoxicating beverages by the licensee’s employee to minors. See Taylor v. State Beverage Department, 194 So.2d 321 (Fla.2nd DCA 1967). Sub judice, there was no showing that petitioner knew or should have known that his unregistered employee (Joseph King) was going to sell a hearing aid to any of petitioner’s customers. In fact, after the sale was made, petitioner rebuked Mr. King for exceeding his duties, and finally discharged King from his employ for exceeding his authority. Given those circumstances, the charge that petitioner permitted Mr. King to sell a hearing aid to Mr. Breazeale cannot be used to sustain the suspension of petitioner’s license.

Petitioner also insists that the element of guilty knowledge should be imposed on the charge of selling rebuilt hearing aids as new hearing aids, which charge the hearing examiner found was sustained by the evidence. Again, we find the element of guilty knowledge to be an indis-pensible element of the charge. To be sure, petitioner may not stick his head in the sand like the proverbial ostrich and claim that he is without knowledge. Moreover, respondent could establish knowledge by the use of circumstantial evidence. Petitioner’s status as an experienced hearing aid dealer is relevant on that point. However, the record on appeal fails to establish either by direct or circumstantial evidence the requisite element of guilty knowledge. Bill Austin, president of Starkey Laboratories, stated that the hearing aids were mistakenly invoiced to petitioner as new hearing aids. He further testified that petitioner did not know and had no way to know that the hearing aids in question were rebuilt and that petitioner had purchased in the past nothing but new hearing aids from his company. Mr. Austin’s testimony was corroborated by the interrogatories supplied by Dale Thorested, production manager for Starkey Laboratories. When coupled with the testimony of petitioner who absolutely denied knowing that the hearing aids were rebuilt instead of new, the testimony establishes lack of guilty knowledge on petitioner’s part.

Finally, petitioner urges us to eliminate or, at least, reduce the punishment meted out by respondent. Based on our conclusions as expressed in the earlier portion of this opinion, we have authority to do so under both the APA and caselaw. Because of the “procedural” and “substantive” errors contained in the record on appeal, we conclude that the one year suspension of petitioner’s license should be reduced to a suspension of 90 days. Accordingly, the cause is reversed and remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . § 120.68(9)(a), Fla.Stat. (Supp.1976).

      . Rogers v. King, 161 So.2d 258 (Fla.1st DCA 1964), cert. disch. 176 So.2d 65 (Fla.1965).


author: DAUKSCH, Judge.

text:
    William E. DOERR, Appellant, v. STATE of Florida, Appellee.
    No. 76-1543.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1977.
    Rehearing Denied Nov. 15, 1977.
    Tom Bush of Murray & Bush, Fort Laud-erdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was convicted of delivery of cocaine and carrying a concealed firearm. We affirm.

The admitted facts are that the Appellant had just left his apartment and was arrested outside in a common driveway. Upon search of his person a concealed pistol was found. In French v. State, 279 So.2d 317 (Fla. 4th DCA 1973), this court held that the carrying of a concealed firearm in one’s home is not unlawful. That case did not extend the right beyond the home into common areas of apartment or condominium complexes. To the contrary, we hold that an apartment dweller may not lawfully carry a concealed firearm in the common areas of his apartment building.

The Judgments and Sentences are AFFIRMED.

ALDERMAN, C. J., and ANSTEAD, J., concur.


author: PER CURIAM.

text:
    J. C. BENEFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 76-1198.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1977.
    Rehearing Denied Nov. 18, 1977.

      John D. Demmi, Michael L. Kinney, and Richard A. Lazzara, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After jury trial appellant was found guilty on two counts of bribery, one count in violation of Section 838.01, Florida Statutes (1973), and the other count in violation of Section 838.015, Florida Statutes (1975), both of which are third-degree felonies. He was sentenced to a ten-year term of imprisonment with credit for time served in jail awaiting trial.

The points relied upon by appellant for reversal have been carefully considered in the light of the record and briefs, and we hold no reversible error has been made to appear. It is necessary, however, for the case to be remanded to the trial court for correction of appellant’s sentence. It is apparent from our reading of the colloquy at the sentencing hearing that the trial court intended to impose the maximum sentence available, i. e., five-year consecutive sentences on the charged offenses which, we submit, would have been proper. The judgment and sentence rendered in this case shows that the trial court did not carry out his expressed intention, but imposed a single general sentence, which is improper. Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975). See also Darden v. State, 330 So.2d 750 (Fla.2d DCA 1976).

Therefore, the convictions are affirmed, but the general sentence is vacated. The case is remanded for resentencing in order that the judgment and sentence may reflect the imposition of sentence announced by the trial court in open court. It is not necessary that appellant be present in court for this purpose.

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

      . Sec. 775.082(3)(d), Fla.Stat. (1975) provides that the maximum prison sentence for a third degree felony is five years.


text:
    The CLEVELAND TRUST COMPANY, a corporation, Appellant, v. OUSLEY SOD COMPANY, a Florida Corporation, ACME Sheet Metal Specialties, Inc., et al., Appellees.
    No. 76-676.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1977.
    Rehearing Denied Nov. 9, 1977.
    Lewis I. Horwitz and Richard D. Rosen of Broad & Cassell, Bay Harbor Islands, for appellant.
    Arthur R. Pulskamp, Deerfield Beach, for appellee Ousley Sod Co.
    William H. Lefkowitz of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for appellee Acme Sheet Metal Specialties, Inc.
   DAUKSCH, Judge.

Cleveland Trust Company appeals the Summary Final Judgment of foreclosure of a mechanic’s lien claimed by Ousley Sod Company against property owned by Cleveland Trust Company.

The issue raised by this appeal is whether the recording of a notice of lis pendens in a mortgage foreclosure action and a subsequent judicial sale bars enforcement of a mechanic’s lien which was unrecorded at the time the notice of lis pendens was filed.

On March 7, 1973, a mortgage on the subject property was recorded by the mortgagee, Leader Mortgage Company. On July 3, 1973, the owner’s notice of commencement was recorded. Approximately one year later, the owner defaulted in its mortgage payments and the mortgagee filed a complaint in foreclosure and a notice of lis pendens on July 11, 1974. On August 19, 1974, Ousley Sod Company recorded its claim of lien against the property. Leader Mortgage Company assigned the note and mortgage to Cleveland Trust Company. A Final Judgment of foreclosure in favor of Cleveland Trust was entered on January 20, 1975. On February 3, 1975, the property was sold at a judicial sale to Cleveland Trust Company. In March, 1975, Ousley Sod Company filed this suit to foreclose the mechanic’s lien it claimed against the subject property. Summarizing the relevant dates:

March 7,1973 — Mortgage recorded.
July 3,1973 — Notice of commencement recorded.
July 11.1974 — Foreclosure complaint filed and notice of lis pendens recorded.
August 19, 1974 — Claim of lien recorded.
August 20, 1974 — Mortgage and note assigned to Cleveland Trust.
January 20,1975 — Final Judgment of foreclosure.
February 3,1975 — Property sold.
March. 1975 — Mechanic’s lien foreclosure suit filed.

Ousley Sod Company was not joined as a party to the mortgage foreclosure action.

Cleveland Trust Company contends that the lower court should have found that Ousley’s claim of lien was barred and discharged by the operation of the lis pendens statute since the claim of lien was unrecorded at the time the notice of lis pendens was filed. Ousley Sod Company says that its claim of lien “relates back” to the notice of commencement under Section 713.07(2), Florida Statutes (1975). As a result, its claim of lien is deemed to have been recorded at the time the notice of commencement was recorded.

We find that Section 713.07(2), Florida Statutes (1975), is not applicable and that the lis pendens barred the enforcement of Ousley Sod Company’s claim of lien. Accordingly, the Summary Final Judgment of foreclosure is reversed.

The Florida lis pendens statute, Section 48.23(l)(b), Florida Statutes (1975), provides that the recordation of a notice of lis pen-dens bars the enforcement against the property described in the notice “of all liens . unrecorded at the time of filing for record such notice of Ms pendens unless the holder of any such unrecorded lien shall intervene in such proceedings within 20 days . . . ” It is undisputed that Ous-ley Sod Company’s claim of lien was not recorded at the time the mortgagee’s notice of lis pendens was filed. Ousley Sod Company took no steps to intervene in the mortgage foreclosure proceedings. Therefore, looking solely to the lis pendens statute, Ousley Sod Company’s claim of lien was barred from enforcement.

We now turn to the Florida Mechanics’ Lien Law, and particularly to Section 713.-07(2), Florida Statutes (1975), the “relation back” statute, to determine if there is any statutory provision which would save Ous-ley Sod Company’s claim of lien from the operation of the lis pendens statute.

Section 713.07(2), Florida Statutes (1975) provides:

“Liens under ss. 713.05 [Liens of persons in privity] and 713.06 [Liens of persons not in privity] shall attach and take priority as of the time of recordation of the notice of commencement, but in the event a notice of commencement is not filed, then such liens shall attach and take priority as of the time the claim of lien is recorded.”

We note that this statute is concerned only with the priority of liens. It makes no reference to the acquisition or perfection of a claim of lien. Section 713.-05, Florida Statutes (1975), provides that the type of lien at issue here, a lien claimed by a person in privity with the owner, is acquired when a claim of lien is recorded. A lien is perfected by recording a claim of lien in the manner and form set forth in Section 713.08, Florida Statutes (1975). Since acquisition and perfection of a lien are accomplished by the same process, rec-ordation of a claim of lien, it appears that the two terms are synonymous. It follows that the date of acquisition or perfection of the lien is the date of recordation of the claim of lien.

The “relation-back” concept comes into play when the mechanic lienor seeks to foreclose his claim of lien or to assert the priority of his claim of lien in a foreclosure action initiated by another claimant. The relation-back provision of Section 713.07(2), Florida Statutes (1975), protects mechanic lienors from encumbrances or interest acquired in the property after the notice of commencement has been recorded. See 1 Rakusin, Florida Mechanics’ Lien Manual, § 6.02(B) (1974). However, if the mechanic’s claim of lien is unenforceable for any reason, there is no need to determine priorities and, in fact, there is no lien to relate back to the notice of commencement. Thus, the “relation-back” concept presumes the acquisition or perfection of a claim of lien which is presently valid and enforceable.

We find there is no conflict between the ' operation of the lis pendens statute and the relation-back provision of Section 713.07(2), Florida Statutes (1975). The former is concerned with the enforceability of a lien recorded after the notice of lis pendens is filed; the latter is concerned with the priority of a valid lien which is presently enforceable.

Had Ousley Sod Company sought to intervene in the mortgage foreclosure action within 20 days of the filing of the notice of lis pendens, its lien may have been determined to be valid and enforceable. If so, the relation-back provision of Section 713.-07(2), Florida Statutes (1975), would be applied to determine the priority of Ousley Sod Company’s claim of lien with respect to other claimants. However, since Ousley Sod Company failed to comply with the requirements of the lis pendens statute, its claim of lien became unenforceable and the relation-back provision was never activated.

REVERSED and REMANDED with direction to enter summary judgment for Appellant.

DOWNEY, J., and BERANEK, JOHN R., Associate Judge, concur.


text:
    Donald ARTHUR, Appellant, v. STATE of Florida, Appellee.
    No. 76-1212.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1977.
    Rehearing Denied Nov. 15, 1977.

      Richard L. Jorandby, Public Defender, and Preston Mighdoll, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, for appellee.
   DAUKSCH, Judge.

In this case the Appellant pleaded nolo contendere to the charge of robbery while carrying a firearm as proscribed in Section 812.13(2), Florida Statutes (1975). This is a life felony and under the provisions of Section 775.087, Florida Statutes (1975), one convicted of this crime is required to serve at least three years in prison.

The question on appeal is whether the Appellant is subject to the minimum three year imprisonment since he did not possess the firearm but it was possessed by his co-perpetrator.

Interestingly, the Defendant’s attorney has filed an Anders brief saying there “is no point of reversible error presented.” We cannot find the appeal to be “wholly frivolous” as that standard is required in An-ders, supra, and suggest counsel for the Appellant reconsider the guidelines set out in Anders, supra.

In taking the plea of nolo contendere two slightly different factual bases for the plea were given by counsel:

Counsel for the State: “. . . this Defendant, along with his brother, went to the 7-11 on South Federal Highway and at that point, the brother, Mitchell Arthur, got a rifle and robbed two of the people who were inside the 7-11 and both Defendants were apprehended as they were making their get-away with the fruits of the crime in their possession.
“This Defendant did not have in his possession at that time, the handgun, but was a participant of the taking of the fruits of that robbery which are described in the information.”
Counsel for the Defendant: “. this Defendant walked in a store and about three minutes later, his brother came in with a rifle and began robbing the store.
“This Defendant then participated in this robbery.
“I think we can stipulate and agree before this Court that this Defendant, at that time, Donald Claude Arthur, did not have any weapon in his possession.”
Counsel for the State: “As far as the factual presentation about what was said about the facts, is that what you did?
“THE DEFENDANT: Right.”

Under the State’s version it appears the Appellant might only be guilty of receiving stolen property, Section 812.031, Florida Statutes (1975), since there was no showing this Appellant knew of any robbery or otherwise participated except in “making the get-away with the fruits.” This is also a possible aceessory-after-the-fact situation. Section 777.03, Florida Statutes (1975).

However, because the Appellant admitted participation in the robbery by his answer, “Right,” to the State’s attorney’s question and because his plea of nolo con-tendere presents no defense to the crime charged, robbery with a-firearm, we easily affirm the Judgment of guilt.

When Appellant entered his plea he specifically reserved the right to appeal the minimum three year imprisonment saying he did not possess the firearm personally therefore he is not liable under Section 775.-087, Florida Statutes (1975). In Earnest v. State, 349 So.2d 1190 (Fla.S.Ct.1977), and Johnson v. State, 349 So.2d 1190 (Fla.S.Ct.1977), the Supreme Court of Florida has answered the question. In order for the defendant to be required to serve the minimum of three years it is necessary that it be pleaded and proved that the defendant personally, and not vicariously, possessed the firearm.

Therefore that portion of the sentence which requires the Appellant to serve a minimum of three years is REVERSED.

ANSTEAD, J., concurs.

CROSS, J., concurs only in conclusion.

      . Anders v. State of California, 386 U.S 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: HUBBART, Judge.

text:
    Lena SHUSTER, Appellant, v. NEW YORK LIFE INSURANCE CO. and Shirley Shuster Grossman, Appellees.
    No. 76-971.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Rehearing Denied Nov. 16, 1977.

      Martin Lemlich, Miami, for appellant.
    Shutts & Bowen and Don A. Lynn, H. Robert Koltnow, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

This case is an action to recover benefits due on a life insurance policy instituted by an alleged beneficiary of the policy. Judgment was rendered against the insurer but in favor of another alleged beneficiary who was impleaded as a third party defendant. The plaintiff appeals.

The central issue presented for review is whether the insured prior to his death properly effected a change of beneficiary on the life insurance policy in favor of the plaintiff. If so, a secondary issue is presented as to whether the plaintiff is entitled to reasonable attorney’s fees for bringing action to recover under the policy. We conclude that the change of beneficiary in favor of the plaintiff was properly effected and that the plaintiff is entitled to recover reasonable attorney’s fees for bringing the action. We accordingly reverse.

I

On October 8, 1930, the defendant New York Life Insurance Company issued a paid up life insurance policy to the now deceased insured, Sol Shuster. Some twenty-two years later, he changed the beneficiaries under the policy to his two children. One of these beneficiaries was his daughter, the third party defendant Shirley Shuster Grossman. The other named beneficiary predeceased the insured.

On July 29, 1975, the insured went to the office of his lawyer, executed a change of beneficiary form on his life insurance policy in favor of his wife, the plaintiff Lena Shuster, and gave the change of beneficiary form to his lawyer for mailing to New York Life Insurance Co. On August 25,1975, the insured died.

Sometime between September 5-10,1975, the insured’s lawyer mailed the change of beneficiary form and the insurance policy to the New York Life offices, which form and policy were received shortly thereafter. On September 23, 1975, New York Life endorsed the change of beneficiary on the insurance policy, which endorsement was made known to the company’s home office the next day. Both the plaintiff Lena Shuster and the third party defendant Shirley Shuster Grossman filed proofs of claim as a beneficiary under the policy. New York Life refused payment under the policy as to both claimants.

The New York Life Insurance policy contains a specific provision on a change of beneficiary. It provides as follows:

“The Insured may from time to time change the beneficiary unless otherwise provided by indorsement on this Policy or unless there be an existing assignment of this Policy. Every change of beneficiary must be made by written notice to the Company at its Home Office accompanied by the Policy for indorsement of the change thereon by the Company, and unless so indorsed the change shall not take effect. After such indorsement the change will relate back to and take effect as of the date the Insured signed said written notice of change whether the Insured be living at the time of such in-dorsement or not, but without prejudice to the Company on account of any payment made by it before receipt of such written notice at its Home Office.” [Emphasis added.]

The plaintiff, Lena Shuster thereafter filed suit against New York Life for the proceeds allegedly due under the policy. Suit was filed 24 days after the plaintiff had filed proof of claim with New York Life but subsequent to the receipt of New York Life’s letter to her refusing payment under the policy.

New York Life was permitted to implead Shirley Shuster Grossman as a third party defendant. New York Life requested the court to determine which of the two rival claimants was entitled to the proceeds of the policy. After a non-jury trial, the trial court awarded judgment against New York Life in favor of the third party defendant Shirley Shuster Grossman and denied attorney’s fees for the plaintiff. The plaintiff appeals assigning as error the denial of his pre-trial motion for summary judgment, the entry of the final judgment, and denial of his motion for attorney’s fees.

II

It is the established law of this state that the right of an insured to change the beneficiary of a life insurance policy depends on the terms of contract between the insurer and insured as expressed in the insurance policy, and strict compliance with the terms of the policy is required in order to effect such change. Gerstel v. Arens, 143 Fla. 20, 196 So. 616 (1940); Warren v. Prudential Insurance Co. of America, 138 Fla. 443, 189 So. 412 (1939); Sheppard v. Crowley, 61 Fla. 735, 55 So. 841 (1911).

If an insured dies before the insurer endorses a change of beneficiary on an insurance policy pursuant to prior notice by the insured, the change is ineffective under a policy which provides that such change shall take effect only upon such endorsement. Sheppard v. Crowley, 61 Fla. 735, 55 So. 841 (1911). On the other hand, the change is effective under the same set of facts when a policy provides that upon such notice and endorsement, the change shall relate back and take effect as of the date the insured executed the change of beneficiary notice; moreover, the insurer is responsible for the payment of reasonable attorney’s fees incurred by the rightful beneficiary in bringing suit on the policy when the insurer refuses to pay such beneficiary. Kurz v. New York Life Insurance Co., 168 So.2d 564 (Fla. 1st DCA 1964); Section 627.-428(1), Florida Statutes (1975).

Applying these principles to the instant case, it is clear that the insured’s change of beneficiary form executed shortly prior to his death became effective as of the date it was executed upon New York Life’s endorsement of the change on the policy. The policy specifically provides that upon notice by the insured of the change and the insurer’s endorsement of the change on the policy, the change will relate back and take effect as of the date the insured signed the written notice of change “whether the Insured be living at the time of such indorsement or not. . . . ” As such, the plaintiff Lena Shuster was the rightful beneficiary under the strict terms of the policy and was entitled to reasonable attorney’s fees in bringing this action to enforce her claim against New York Life.

The third party defendant Grossman argues that the failure of the insured’s attorney to mail the change of beneficiary form to New York Life prior to the insured’s death defeats the effectiveness of the change under the strict terms of the policy. We cannot agree. Nowhere in the policy is there any provision that the notice of change of beneficiary must be mailed by the insured prior to his death in order to effect such a change. No one disputes that New York Life received notice of the change of beneficiary on a form executed by the insured and that New York Life thereupon endorsed the change on the policy. By the strict terms of the policy, the change became effective upon the date of the execution of the change by the insured. The fact that the insured had died prior to the mailing of the notice pursuant to the insured’s instructions, or the endorsement on the policy by New York Life, is of no significance under the strict terms of the policy.

New York Life seeks to avoid liability for the plaintiff’s attorney’s fees by pointing to the rival claimants as beneficiaries under the policy and insisting that its refusal to pay was a good faith refusal. We cannot agree. “The fact that there are conflicting claims to the proceeds of an insurance policy, the terms and conditions of which are clear, will not operate to relieve the insurer from prompt performance of its obligation to pay the proceeds to the recognized rightful beneficiary, nor will it be permitted to relieve that obligation ... by resorting to interpleader on the theory that it may be put to vexatious suits by contesting claimants when, as in this ease, it has wrongfully delayed payment. It is a normal consequence of engaging in business that the parties to an unambiguous contractual relationship accept the risk of performing according to the clear terms and conditions of their undertaking.” Kurz v. New York Life Insurance Co., 168 So.2d 564, 568 (Fla. 1st DCA 1964).

New York Life further seeks to avoid liability for the attorney’s fees by arguing that the plaintiff brought suit less than 60 days after she had filed a proof of claim under the policy with New York Life. It is true that Section 627.428(2), Florida Statutes (1975), provides that “[a]s to suits based on claims arising under life insurance policies . . . , no such attorney fee shall be allowed if such suit was commenced prior to expiration of 60 days after proof of claim was duly filed with the insurer.” The purpose of this statute is to allow the insurer a reasonable time not to exceed 60 days to investigate a claim by an insured or beneficiary under a life insurance contract prior to being subjected to suit for failure to pay on such claim. In the instant case, however, New York Life waived the 60 day grace period by refusing payment to the plaintiff within the 60 days allowed for a reasonable investigation. New York Life denies that it actually refused payment, but we do not so interpret its letter to the plaintiff. Consequently, New York Life cannot escape liability for the payment of attorney’s fees required under Section 627.-428(1), Florida Statutes (1975).

The judgment appealed from is reversed and the cause remanded with directions to enter judgment in favor of the appellant Lena Shuster for the full proceeds due under the policy and to award her a reasonable attorney’s fee for bringing this action in the trial court.

Reversed and remanded.


text:
    Clemintina CHACON and Raul Chacon, her husband, Appellants, v. SEARS, ROEBUCK & CO., etc., et al., Appellees.
    No. 76-1069.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Rehearing Denied Nov. 16, 1977.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Stanley M. Rosenblatt, Miami, for appellants.

      Helliwell, Melrose & De Wolf and William E. Sadowski, Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appel-lees.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This appeal questions the correctness of a summary final judgment rendered in favor of appellees in an action arising from injuries sustained by appellants when Mrs. Cha-con slipped and fell while she was attempting to ascend to the second floor of appel-lee’s store on its escalator.

We have carefully examined the record on appeal, considered the briefs and argument of counsel and have concluded therefrom that reversible error has not been demonstrated.

Affirmed.