author: BOARDMAN, Judge.

text:
    TRIO SALES, INC., a Florida Corporation, Appellant, v. CROSSROADS SHOPPING CENTER, INC., a Florida Corporation, Appellee.
    No. 75-5.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1975.
    Rehearing Denied Jan. 19, 1976.

      Ainslee R. Ferdie, Coral Gables, for appellant.
    James I. Knudson, St. Petersburg, for appellee.
   BOARDMAN, Judge.

On April 9, 1968, the Azar Corporation (Azar), as lessor, and Austin Grote and Marion Grote (Grotes), as lessees, entered into a written lease agreement for store space in the Azar Plaza Shopping Center to be utilized by the lessees as a laundromat. The lease provided, among other things, for the said lessor to retake possession of the premises in the event of default by the lessees.

On June 10, 1968, the Grotes entered into a contract to purchase a laundromat franchise and the necessary equipment from Miller Coin Laundry Distributors of Tampa, Inc., now known as Trio Sales, Inc., appellant.

In the interim, Azar sold the plaza and all leasehold interests to Crossroads Shopping Center, Inc., appellee. Subsequently, the Grotes defaulted in the lease by failing to pay the agreed monthly rental payments; whereupon, appellee filed an appropriate action and obtained possession of the premises pursuant to a final judgment. The Grotes likewise defaulted in their purchase agreement with appellant. This agreement had been assigned to the Thrift Corporation (Thrift) by appellant.

Upon default in the said lease agreement by the Grotes, appellant, through its representative advised appellee of its willingness to pay the back rent then due and owing and assume possession of the premises. Appellant believed it had that right under the provisions of Article 33 of the lease.

Appellant was informed by appellee’s representative that it would only consider leasing the premises to appellant under a new lease agreement. The parties were unable to agree on either the monthly payments or the space to be occupied by appellant. Thereafter, appellee leased the premises to two other tenants and denied that appellant had any rights under the lease with the Grotes. Appellant became obligated upon the default of the Grotes and paid the sum of $14,666.50 to its assignee, Thrift.

Appellant filed the instant action against appellee seeking a declaration of whether it had any rights under the lease aforesaid and for money damages. During the non-jury trial, appellant contended that under Article 33 of the lease it had an absolute right to assume possession of the premises and operate the laundromat. The trial court entered a final judgment in favor of appellee. This timely appeal followed.

Inasmuch as the interpretation and construction placed upon said Article 33 is paramount to our decision reached in this case, it is set out in its entirety:

In the event that Miller Coin Laundries Distributors, of Tampa, Inc. [appellant] assigns this lease and the assign-ee is indebted upon a Security Agreement Retail Installment Contract or Chattel Mortgage to [appellant] and said assignee or his successor should default in either the obligations under said Security Agreement Retail Installment Contract or Chattel Mortgage or under this lease, the Lessor agrees that said . . . [appellant] may in that event have the Lessor’s consent to resume control of the premises for the then existing remaining portion of said lease or option providing that they correct any delinquency in rent then owing. (Bracketed portions supplied).

A cursory reading’ of Article 33 shows it is ambiguous and subject to several different interpretations. For example, appellant was not the lessee under the lease. When reviewed in the light of the surrounding factual circumstances, the article, as written, simply does not comport with plain ordinary common sense. Ambiguities in a contract may be resolved by judicial interpretation. The circumstances existing at the time the parties entered into the contract should be considered in ascertaining the meaning of ambiguous or uncertain language. See 7 Fla.Jur., Contracts § 90, entitled Surrounding Circumstances.

The record reflects that appellant was in the business of obtaining locations for coin operated laundromats and selling laundry equipment to the prospective operators. Appellant was actively engaged in the negotiations for the Grote lease. Azar’s president testified that appellant wanted a waiver from Azar whereby in the event the Grotes defaulted in the lease, appellant could remove the laundry eqüipment it would be selling to the Grotes under a security agreement. Azar refused to give such a waiver but advised appellant that should a default occur Azar would be willing for appellant to step in and pay the rent and either operate the business or resell it.

Article 33 of the lease reflects this intention except that the designation of the parties seems to be mixed up. The explanation for this confusion obviously lies in the fact that appellant establishes laundromats in many locations, and in most instances appellant, itself, actually enters into a lease of the premises and then assigns the lease to the party who will operate the business and to whom appellant then sells the equipment. The record reflects that this type of provision had been used in more than three hundred contracts, and in those instances where appellant was the lessee it precisely states the understanding of Azar’s president with respect to the rights of appellant under the subject lease. Therefore, we think it clear that the parties intended for appellant to have, or at least in light of the circumstances surrounding the entry into the lease, appellee, as the successor lessor, cannot be heard to deny that appellant had, the right to pay the rent and assume possession of the leasehold premises upon a default by the Grotes. In effect, appellant is a third party creditor beneficiary under the provisions of the lease. See 4 A. Cor-bin, Corbin on Contracts, § 787 (1951).

Appellant asserts that it is entitled to damages of at least $25,000 because this figure was testified as being the value of the equipment and fixtures in place. However, to award appellant this sum might result in a windfall because such of the equipment which could have been removed at the time of the default in its used condition was worth only about $2,000. Actually, had Article 33 been performed according to the way that we interpret it, appellant would have taken over the leasehold, and on this record it would be speculative to estimate the profits appellant might have made under these circumstances. Thus, we think the proper measure of damages in this case is the amount which appellant had to pay Thrift upon the default of the security agreement.

Accordingly, we reverse and remand to the trial court with directions to enter a final judgment in favor of appellant in the sum of $14,666.50 plus interest at 6% per annum from the date of the payment to Thrift.

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


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    TACO BELL OF CALIFORNIA, a California Corporation duly authorized to transact business in Florida, Appellant, v. Ralph ZAPPONE, Appellee.
    Nos. 74-765, 75-665.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
    Rehearing Denied Jan. 20, 1976.

      W. Daniel Stephens, Roger W. Sims, and Bruce Stone, Holland & Knight, Tampa, for appellant.
    A. J. Barranco, Jr. and Harold Blue-stein, of Barranco, Darlson & Daniel, Miami, for appellee.
   SCHEB, Judge.

The plaintiff/appellee recovered $108,-318.25 as a result of a jury verdict rendered in a suit for misrepresentation by defendant/appellant concerning a restaurant franchise. We reverse.

The operative facts are these: Appellant Taco Bell of California (Taco Bell) is a California corporation which operates retail food outlets in Florida and other states. Appellee Ralph Zappone operated a restaurant in California which was netting him about one thousand dollars per month. Interested in associating with a company that would allow him to operate more than one restaurant, Zappone contacted Taco Bell in early 1968 to inquire about franchises. After initial review of the Taco Bell literature, Zappone telephoned and in May 1968, Taco Bell put him in touch with William Radford, a franchise salesman for Taco Bell, at its corporate headquarters in the L.os Angeles, California, area.

On or about June 11, 1968, Radford signed and presented to Zappone a document entitled, “Initial Deposit Receipt and Agreement to Pay.” Radford signed on the line labeled “Representative for Taco Bell . ” There was a place for a further signature labeled “Home Office Approval by Taco Bell.” The document included a statement that provided:

“This agreement will not be binding upon Taco Bell until it is executed by a corporate officer at the home office of the company at Torrence, California. . . ”

Zappone never signed this document; however, after several subsequent meetings with Radford, arrangements were made for him to operate the Taco Bell Restaurant in Lakeland where the franchisee was terminating his association.

According to Zappone, during the course of negotiations the following representations were made to him by Radford:

(1) That the Lakeland Taco Bell had a volume of $8,000 per month in sales,
(2) That the operator would receive $1,600 per month, and
(3) If appellant moved to Lakeland and took over the operation there, he could become the exclusive franchise operator in the Orlando, Florida area for at least two Taco Bell Restaurants.

Zappone severed his business ties in California and moved his family to Lakeland where in July 1968, he began operating the restaurant. According to his testimony he soon discovered that the sales volume and his proceeds were far less than had been represented. He later discovered that there was already a Taco Bell in the Orlando area, and the company had no intention of opening other restaurants there. Zappone contended that assurance of the Orlando franchise had been a prime inducement for his move to Florida.

On October 8, 1968, after Zappone had operated the business for some two and one-half months, an agent for Taco Bell delivered a license agreement and sublease agreement to him. The license agreement included a disclaimer by Taco Bell as to any representations of results or profits which may be derived from the business. Although he testified he had not previously reviewed these documents, he signed them all and continued to operate the business until November 25, 1968, at which time he left with outstanding obligations to Taco Bell totaling $1,682.75.

At trial Zappone testified that he suffered economic losses as well as considerable rtiental distress as a result of his move from California. The jury returned a verdict in favor of Zappone and against Taco Bell for $41,250, as compensatory damages, and $68,750, punitive damages. A judgment of $1,682.75 was awarded Taco Bell on its counterclaim. Upon denial of Taco Bill’s motion for a new trial and a re-mittitur, a net judgment of $108,318.25 in favor of Zappone was entered by the trial court. Taco Bell appeals.

We perceive the controlling question in this appeal to be:

Whether the trial court erred in instructing the jury that the acts of Rad-ford were the acts of Taco Bell, thereby determining as a matter of law that Rad-ford was in all instances acting within the scope of his authority as an agent of Taco Bell.

We hold it did and reverse.

It is undisputed that Radford was a franchise salesman and thereby an agent for Taco Bell. In an action for misrepresentation, a principal is liable for the fraud of his agent while acting in the scope of his authority, and this principle of law is fully applicable to corporations. Wheeler v. Boars, 1894, 33 Fla. 696, 15 So. 584; 37 Am.Jur.2d, Fraud and Deceit, § 321. But, to bind his principal, an agent’s actions must be within the scope of his express or implied, i. e., his “actual or real” authority, or be of such a nature as third parties would be entitled to rely upon as being within his “apparent” authority. This issue of apparent authority often presents a mixed question of law and fact, Watkins v. Sims, 1921, 81 Fla. 730, 88 So. 764, and is one which should be submitted to the jury under appropriate instructions. Parsons v. Federal Realty Corp., 1931, 105 Fla. 105, 143 So. 912; J. A. Cantor & Associates, Inc. v. Devore, Fla.App.3d 1973, 281 So.2d 245.

There was no evidence that Rad-ford had actual authority to make the representations in question. Taco Bell’s chairman of the board and its vice president both testified that they were never informed of the representations attributed to Radford by Zappone. Significantly, the testimony elicited from the officers of Taco Bell did not elaborate the scope of Rad-ford’s authority beyond describing him as a “franchise salesman.” Any liability of Taco Bell must therefore be based upon Radford’s apparent authority.

Apparent or ostensible authority arises where a principal allows or causes others to believe the agent possesses such authority, as where the principal knowingly permits the agent to assume such authority or where the principal by his actions or words holds the agent out as possessing it. Tampa Sand and Material Company v. Davis, Fla.App.2d 1960, 125 So.2d 126. The doctrine rests on the premises that one who allows another to serve as his agent must bear the loss which results to a third party from that party’s dealings in reliance on that agent’s supposed authority. But as Mechem points out, the doctrine rests on appearances created by the principal and not by agents who often ingeniously create an appearance of authority by their own acts. Mechem on Agency, 4th Ed. 1952, § 94.

Here there was evidence of obvious misrepresentations made to Zappone, and the jury so found in its affirmative responses to a series of nine interrogatories posed by the trial judge. Specifically, the jury found that Taco Bell knowingly and maliciously made false representations of material facts and opinions to induce Zap-pone to rely upon them, and that Zappone was justified in reliance upon such misrepresentations. From the evidence presented, the jury could have so concluded if it determined all of the representations made by Radford were within his authority as Taco Bell’s agent. But, the jury was deprived of considering the extent to which Radford’s acts were indeed the acts of Taco Bell since the trial judge instructed the jury, in part, as follows:

The court has determined and instructs you as a matter of law that William Rad-ford was an agent of the defendant, Taco Bell, and as such, his acts were the acts of the defendant, Taco Bell, and by giving you that instruction as a matter of law, I am removing from your consideration any question — you will accept the fact that Radford was the agent and acted for the defendant. (Emphasis supplied)

If the actions of Radford were not within the scope of his actual or apparent authority, and not specifically authorized or ratified by Taco Bell, then there would be no liability to Taco Bell as a principal. Kennedy and Cohen, Inc. v. Allen Appliance Service, Inc., Fla.App.3d 1968, 214 So.2d 488. And where, as here, the evidence showed that Radford was an agent with certain actual authority, but the scope of his apparent authority was in dispute, it was critical for the triers of fact to have the opportunity to make its own finding on this point. The exculpatory language in the “Initial Deposit Receipt and Agreement to Pay” signed by Radford and exhibited to, but not signed, by Zappone clearly was evidence tending to negate Radford’s apparent authority to promise an exclusive franchise in the Orlando area. This document could have, and arguably should have, suggested to Zappone that only a corporate officer could make such a representation binding on Taco Bell.

Under the circumstances, we hold that the trial judge’s instruction to the extent it concluded that the acts of Radford were acts of Taco Bell was erroneous and prejudicial to Taco Bell.

Reversed and remanded for new trial consistent with this opinion.

McNULTY, C. J„ and BOARDMAN, J., concur.


author: GRIMES, Judge.

text:
    James William LANE, Appellant, v. STATE of Florida, Appellee.
    No. 75-465.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
    Rehearing Denied Jan. 19, 1976.

      Raymond 0. Gross, Phillips, McFarland, Gould & Korones, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

The only point on appeal meriting discussion is the effect upon a conviction following a trial in which evidence of a similar offense is admitted when the defendant is subsequently acquitted of having committed the similar offense.

Appellant was convicted of involuntary sexual battery. Since the question of identity was in issue, the state sought to introduce evidence that the appellant had perpetrated a similar offense upon another woman nine days before. The circumstances of the previous offense and the manner in which it was committed were uniquely similar to facts pertinent to the crime charged, so the evidence was properly admitted. Williams v. State, Fla.1959, 110 So.2d 654; Duncan v. State, Fla.App.2d, 1974, 291 So.2d 241.

The week following appellant’s conviction, he was tried and acquitted of the offense which constituted the similar crime evidence introduced at the trial in which he was convicted. Thus, appellant argues that his conviction must be reversed because of the introduction of evidence tending to show that he committed another crime in the same manner when it was ultimately determined that he was not guilty of that crime.

Our Florida courts have held that an acquittal in a previous criminal proceeding does not automatically preclude the reference to the crime as evidence in a subsequent criminal case where the relevance of the prior crime is justified under the Williams rule. E. g., Johnson v. State, Fla.App.1st, 1973, 285 So.2d 436; Blackburn v. State, Fla.App.3d, 1968, 208 So.2d 625. However, in Wingate v. Wainwright, 5th Cir. 1972, 464 F.2d 209, the Court of Appeals vacated a Florida conviction in which evidence of a crime for which the defendant had previously been acquitted was admitted as similar fact evidence under the Williams rule. Referring to Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the court said:

. . We hold that under Ashe where the state in an otherwise proper prosecution seeks for any purpose to re-litigate an issue which was determined in a prior prosecution of the same parties, then the evidence offered for such a re-litigation must be excluded from trial and the state must be precluded from asserting that the issue should be determined in any way inconsistent with the prior determination.”

The question before us, which appears to be one of first impression, is whether the rationale of Wingate should be extended to a situation where the acquittal of the “similar crime” occurs after the trial in which evidence of the similar crime was introduced. We think not. In applying the Ashe doctrine, Wingate was predicated upon collateral estoppel. This is a doctrine which precludes the relitigation of an issue which has been determined in a prior proceeding between the same parties. Seaboard Coast Line Railroad Company v. Industrial Contracting Company, Fla.App.4th, 1972, 260 So.2d 860. In the instant case when the similar crime evidence was introduced, the issue of whether appellant had actually committed that crime had never been litigated before. Hence, the doctrine of collateral estoppel could not have applied.

Affirmed.

McNULTY, C. J., and SCHEB, J., concur.


author: PER CURIAM.

text:
    Robert H. ADAMS, Appellant, v. Cheryl D. ADAMS, Appellee.
    No. 75-445.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Samuel B. Pearlman, Miami Beach, for appellant.
    Henry W. Ciar, Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on authority of Groover v. Walker, Fla. 1956, 88 So.2d 312.


author: NATHAN, Judge.

text:
    Freeman Curtis WATSON, Appellant, v. Barbara L. WATSON, Appellee.
    No. 75-331.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Rehearing Denied Jan. 20, 1976.

      Alden Sanford Tarte, Miami, for appellant.
    Stephen F. Bazzano, Miami, for appel-lee.
    Before BARKDULL, C. J„ and PEARSON and NATHAN, JJ.
   NATHAN, Judge.

Respondent, Freeman Curtis Watson, appeals from the financial provisions of a decree dissolving his marriage to Barbara Watson.

Among the points raised on appeal, he contends that the trial court erred in granting exclusive possession and use of the marital home decreed by the court to be held as tenants in common, to the wife until any sale or other disposition of the home by the parties in that this award precludes the possibility of partition.

The parties became tenants in common upon the entry of the final judgment of dissolution of marriage. § 689.15, Fla.Stat. As a general rule, tenants in common are entitled to partition as a matter of right. Condrey v. Condrey, Fla.1957, 92 So.2d 423; Ranes v. Ranes, Fla. App.1975, 311 So.2d 370. There are exceptions to the general rule which as in the Ranes case, are not present in the instant case. In the case of Saviteer v. McAdoo, Fla.App.1975, 310 So.2d 28, it is stated that the granting of exclusive possession of en-tireties property to one of the parties in a final judgment of dissolution is an anathema unless it either takes the form of a lump sum alimony award or is awarded to a wife and mother with minor children of whom she has custody so as to enforce the husband-father’s obligation to support and maintain the children. In this case, as in Saviteer, there was no award of lump sum alimony, and there are no children involved. From the facts and the record in the instant case, we are of the opinion that the wife is entitled to exclusive possession of the marital home for no more than 90 days from the date this opinion is filed.

Appellant also challenges the award to the wife of one-half of a $9,000 joint savings account. The record shows that the total amount in the savings account was received by appellant as the result of a workmen’s compensation claim following a work related back injury. It was also shown that the wife maintained her own savings separately in a different account. Although it is presumed that a gift resulted when the husband deposited $9,000 in a joint savings account, we find that there is sufficient evidence in the record of the husband’s real intention to rebut the presumption. See Pollak v. Pollak, Fla.App. 1973, 282 So.2d 30. Therefore, that portion of the final judgment awarding one-half of the jointly held bank account to the wife is reversed.

As to the matters of rehabilitative alimony, attorneys fees and the award of shares of AT&T stock to the wife, the final judgment is affirmed.

Affirmed in part and reversed in part.


text:
    Henry DUBBIN and Dorothy Dubbin, Appellants, v. TOUCHE ROSS & CO., a Florida partnership, and Touche Ross & Co., a New York partnership, Appellees. Daniel DUBBIN and Gladys Dubbin, Appellants, v. TOUCHE ROSS & CO., a Florida partnership, and Touche Ross & Co., a New York partnership, Appellees.
    Nos. 75-416, 75-417.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Rehearing Denied Jan. 22, 1976.
    Stephens, Magill, Thornton & Sevier and Paul E. Gifford, Miami, for appellants.
    Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

These two appeals have been consolidated for all appellate purposes. In each case, the appeal is from a dismissal of the complaint with prejudice. The only difference between the two complaints is the amount of damages sought by the individual plaintiffs.

The plaintiffs filed their complaints charging the defendants, an accounting firm, with malpractice and breach of a contract for services to a public corporation known as Canaveral International Corporation. The plaintiffs recognize the rule as stated in Fried v. Easton, Fla.App.1974, 293 So.2d 87, to wit:

******
“A stockholder may bring a suit in his own right to redress an injury sustained directly by him, and which is separate and distinct from that sustained by other stockholders; however, if injury is primarily against corporations, or stockholders generally, then the cause of action is in the corporation and the individual’s right to bring it is derived from the corporation. Citizens National Bank of St. Petersburg v. Peters, Fla.App. 1965, 175 So.2d 54.”
******

The plaintiffs claimed that they suffered direct or individual damage and that they were third party beneficiaries to the contract for services between the corporation and the defendants. The trial court held that the above-quoted rule controlled and, therefore, dismissed the complaints. The plaintiffs urge that the fact that they sought to have their stock registered with the Securities and Exchange Commission so that its value would be enhanced, and the fact that it was necessary for them to make their application for registration as an adjunct to the corporation’s application to register stock, made them parties to, or third party beneficiaries of, the contract between the corporation and the public accounting firm. The trial court correctly determined that the facts pleaded did not create an exception to the rule. The injury, if any, was primarily to the corporation. See James Talcott, Inc. v. McDowell, Fla.App.1962, 148 So.2d 36. Cf. Grandin Industries, Inc., v. Florida National Bank of Orlando, Fla.App.1972, 267 So.2d 26. See also Cullum v. General Motors Acceptance Corporation, Tex.Civ.App.1938, 115 S.W.2d 1196.

Affirmed.


author: PEARSON, Judge.

text:
    FLORIDA ANTILLES PROPERTIES, N. V., a Netherland Antilles Corporation, and Yehuda Gertner, Appellants, v. ROSE AND ROSE, INC., Appellee.
    No. 75-161.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 20, 1976.
    Faunce, Fink & Forman, Miami, for appellants.
    Podhurst, Orseck & Parks, Miami, Leon Brezier, Cohen, Angel, Feinberg & Roll-nick, North Miami, Koenig, Katz & Goodman, Hollywood, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PEARSON, Judge.

The appellants were two of the defendants in an action brought by the appellee real estate brokers. The action sought damages against the sellers and the defendant purchasers in a real estate transaction. The plaintiff claimed compensatory and punitive damages against the sellers and the buyers upon an allegation that the actions of the defendants revealed a conspiracy and a tortious interference with plaintiff’s brokerage contract. The verdict finally recorded was against the sellers and the purchasers for both compensatory and punitive damages. This appeal is by the purchasers.

The point presented urges a procedural error in that upon the return of the first verdict form, which the trial judge found to be defective, the court returned the case to the jury without resubmitting all the original forms of verdict.

Based upon the evidence, the trial judge properly instructed the jury. The jury was provided with four forms of verdict which accommodated the various determinations of liability and damages available under the instructions. The first verdict returned assessed punitive damages against all the defendants, but compensatory damages against only the sellers. The trial court declared this verdict ineffective as to the purchasers, as to whom the jury was instructed either to drop the punitive damages or to add compensatory damages. The tendered verdict was returned to the jury for correction. The jury then returned the form of verdict resubmitted to it, with compensatory damages inserted as to the purchasers. This appeal followed.

There is no doubt that there was a procedural error. The real question is whether appellants are now estopped to demand a new trial because they did not object and, in fact, tacitly agreed to the procedure proposed and carried out by the trial judge.

When the first verdict was handed to the judge, he called counsel to the bench and stated:

“THE COURT: It is obviously ineffective as to these three; Breziner, Gertner and Florida Antilles because they -cannot find punitive unless they find compensatory. I will so instruct them.
“I will ask them to take back the verdict and come back with what they want to do; either they can check or they can erase.
“MR. PARKS: That will explain the whole thing. I have no objection to you doing that, Your Honor.”

Counsel for the defendants did not respond but, after the jury had retired, moved “ . . . that the Court direct a verdict for the defendants, Gertner and Florida Antilles and Mr. Breziner too.” The court denied the motion.

We hold that no reversible error is established. See Brown v. Ripley, Fla.App. 1960, 119 So.2d 712; see also Lee County Oil Co. v. Marshall, Fla.App.1957, 98 So.2d 510.

Affirmed.

      . In Stevens Markets, Inc. v. Markantonatos, Fla.1966, 189 So.2d 624, 626, the Supreme Court held:
      “No ease is cited and none is found sanctioning the resubmission of less than all the multiple verdicts in a cause.* ***The District Court erred in affirming the trial court’s resubmission of only one of three verdicts involved in this cause.”


text:
    Nathan FRITZ and Southeast Gunite Corp., Appellants, v. Jack AUGUST, Appellee.
    No. 75-488.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 22, 1976.

      Seymour London, Miami, for appellants.
    Stephen L. Raskin, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant appeals a summary final judgment for $4,200 plus costs and attorney’s fees in this action to recover the amount due on a promissory note.

Plaintiff, Jack August, filed a complaint against the defendant, Nathan Fritz, and alleged that defendant executed and delivered a $5,000 promissory note to plaintiff and failed to pay the note when due. Defendant responded with a motion to dismiss on the grounds the complaint was vague and ambiguous. Thereafter, plaintiff filed a motion for summary judgment with supporting affidavits. Defendant filed no' opposing affidavits, but did take plaintiff’s deposition. The trial judge entered final summary judgment awarding plaintiff $4,200 plus $40 in costs and $1,000 as a reasonable attorney’s fee.

Defendant contends it was error to enter summary final judgment inasmuch as there existed material issues of fact, to wit: (1) the complaint alleged that $5,000 was due and owing and defendant asserted that he made a total of $800 in partial payments, and (2) the note shows plaintiff and Air-Lite Pools, Inc. as the payees, nevertheless the complaint alleges defendant only owes the plaintiff the money due.

As to the issue of the amount due on the note, plaintiff in his affidavit in support of his motion for summary judgment and in his deposition clearly states that the amount due on the note is $4,200. Defendant did not contest this amount as still being owed and, in fact, in his brief admits he made partial payments totaling $800.

With respect to the question of plaintiff and Air-Lite Pools, Inc. being joint payees, the record contains the deposition testimony of the plaintiff that he is president and sole stockholder of Air-Lite Pools and that no other person had an interest in the company. In addition, there is a corporate resolution authorizing the transfer of any interest Air-Lite Pools may have in the note to the plaintiff. There being no material issues of fact, the trial judge was correct in entering the summary final judgment herein appealed.

Affirmed.


text:
    Russell ZIERS, Petitioner, v. E. Wilson PURDY, Director, Dade County Public Safety Department, et al., Respondents.
    No. 75-1757.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 20, 1976.
    Pollack, Tunkey, Robbins, Weiner & Leen, Miami, for petitioner.
    Stuart Simon, County Atty., and Alan J. Kan, Asst. County Atty., for respondents.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

The petitioner has filed a petition for certiorari to review an administrative action by the respondents. He has also filed an application for supersedeas.

The petition for writ of certiorari filed herein pursuant to § 120.68, Fla.Stat., fails to conform to the applicable Florida Appellate Rules in that it fails to file, along with the petition, a petitioner’s brief or a record of the proceedings before the appeals examiner as required by Rule 4.5, subd. c(l), F.A.R. Therefore, this court, pursuant to Rule 3.17, is empowered to dismiss the petition for failure to comply with the applicable Florida Appellate Rules.

As to the application for superse-deas, § 120.68(3), Fla.Stat. provides a stay may be granted by the agency or by the reviewing court. Therefore, pursuant to Rule 5.5, F.A.R., it would be proper to deny this application without prejudice to apply to the administrative agency for su-persedeas. It is therefore

Ordered and adjudged that the applica. tion for supersedeas is denied and the petition for certiorari is dismissed.


author: SMITH, Judge.

text:
    SOUTHERN AMERICAN FIRE INSURANCE COMPANY, a corporation, Appellant, v. Leonard RINZLER and Peninsular Life Insurance Company, a corporation, Appellees.
    No. X-460.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1975.
    Rehearing Denied Jan. 16, 1976.
    John L. Hartnett, Miami, and Roger W. Rizk, Kent, Sears, Durden & Kent, Jacksonville, for appellant.
    Joseph M. Glickstein, Jr., and Thomas C. Dearing, Glickstein, Crenshaw, Glickstein, Fay & Block, Jacksonville, for appellee, Rinzler.
   SMITH, Judge.

The insurer contends, on its appeal from a judgment awarding $45,600 in fire loss benefits to its insured, that the deductible stated in the policy endorsement applicable to extended coverage perils must be applied to reduce the benefits payable to the insured for fire damage to the insured premises. The policy, however, specifies no deductible from benefits payable for loss by fire, and a deductible applicable only to certain losses specified in the extended coverage endorsement cannot be applied by implication to the primary fire coverage. The fire coverage intended was evidently full indemnity. Compare Glens Falls Ins. Co. v. Gulf Breeze Cottages, Inc., 38 So.2d 828 (Fla.1949).

While appellant complains also of the sufficiency of the insured’s evidence to justify the amount of the verdict and judgment, we cannot review the evidence in the absence of a motion for directed verdict or for new trial, predicated on the sufficiency of the evidence, and in the absence of assignments of error in trial court rulings touching on the evidence and its sufficiency. Neither are we able to consider appellant’s complaint that the attorney’s fee awarded pursuant to § 627.428, F.S.1973, was excessive, no record of the evidence submitted on that issue having been brought here. We are unwilling to rule that, regardless of the circumstances, the fee awarded is excessive as a matter of law. Worcester Mutual Fire Ins. Co. v. Eisenberg, 147 So.2d 575 (Fla.App.3d, 1962).

We grant Rinzler’s motion for allowance of a fee for attorneys’ services on this appeal. The amount will be determined by the trial court on proper application.

Affirmed.

BOYER, C. J., and RAWLS, J., concur.


text:
    Robert MEYERS, Jr., et al., Appellants, v. Bernard GARMIRE, Chief of Police, etc., et al., Appellees.
    No. 75-235.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 22, 1976.
    Whitman & Wolfe, Miami, for appellants.
    John S. Lloyd, City Atty., and S. R. Sterbenz, Asst. City Atty., for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by the petitioners, Robert H. Meyers and John Brooks Hastey III, as representatives of a class of City of Miami police officers, from an adverse final judgment in an action for injunctive relief in which the Chief of Police, the City Manager and the Executive Secretary of the Civil Service Board, all of the City of Miami, were named as respondents. The defendants have cross-appealed.

In the second amended petition, the petitioners sought an injunction, or in .the alternative, a writ of mandamus, and alleged that the petitioners were being denied promotion to the rank of sergeant in the police department due to respondents’ actions which were calculated to abolish the positions to which the petitioners claim to be entitled to be promoted. It is alleged that the respondents failed to promote the petitioners prior to the expiration of the promotional lists on which they held priority positions. The respondents filed an answer and affirmative defenses. A pretrial conference was held, and the court entered a pretrial order limiting the issues for trial to two basic points, (1) the number of vacancies for sergeant available to be filled, and (2) the top candidates on the promotional register to fill' the vacant positions. The respondents moved to vacate the pretrial order, which was denied. Final hearing was held. Respondents’ counsel announced that he accepted the pretrial order as it appears, but that other matters would have to be brought out in the defense of the action. The trial court permitted him to do so, and at the conclusion of the testimony entered final judgment in favor of the respondents, denying all relief sought by the petitioners. Subsequently, the court denied the petitioners’ motion for rehearing or to vacate the judgment, and this appeal ensued.

The petitioners contend that the trial court erred in not limiting the issues at trial to those set forth in the pretrial order. They claim that they prepared and presented their case in such a manner as to prove the issues set forth in the pretrial order. Then suddenly the respondents surprised them with new issues and defenses not previously presented to them or the court. Therefore, they were unable to present testimony in response to those issues, and as a result suffered manifest injustice, prejudice and defeat. We agree with respondents’ position that the trial court was permitted to modify the issues by Rule 1.200(c), RCP, which provides,

. . The (pretrial) order shall control the subsequent course of the action unless modified at the trial to prevent injustice.”

However, under the circumstances of this case it was prejudicial to permit the addition of matters outside the scope of the pretrial order at the time of trial since the petitioners were not prepared to present evidence on those issues. Therefore, we reverse the final judgment in favor of the respondents and remand the cause to the trial court with directions to hold a full trial on the merits of all questions of law and fact which the trial court finds to be meritorious issues in the case, prior to the pre-trial order, giving both sides an opportunity to prepare and effectively present their respective positions on the issues.

The points raised by the respondents on cross-appeal are not well taken and will not be discussed.

Reversed and remanded with directions.


text:
    Shirley FLETCHER, Appellant, v. PETMAN ENTERPRISES, INC., Appellee.
    No. 75-19.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 22,1976.

      Colson & Hicks, Susan Goldman, Miami, for appellant.
    Kates, Ress, Gomez & Rosenberg, North Miami, and Linda M. Rigot, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This is an appeal in a negligence action from an order, granting defendants’ motion for summary judgment.

Plaintiff, Shirley Fletcher, filed a complaint for damages against defendant Pet-man Enterprises, Inc. d/b/a the Yorkshire Inn, and its liability insurer, Safeco Insurance Company of America, for injuries suffered as a result of a fall atT0:30 p. m. on March 31, 1973. Plaintiff alleged that on the evening in question, she and a male companion along with her sister and brother-in-law had dined at the Yorkshire Inn. Upon exiting, plaintiff and her sister sat on a bench in front of the inn while waiting for their car to be delivered. The bench was located approximately 8}4 inches above the driveway elevation and it was two steps down to the driveway pavement. When their car arrived, plaintiff got up from the bench, took a few steps, and, as testified in her deposition, the next thing she knew she had fallen. Plaintiff further testified she was unaware the steps existed because she entered the restaurant by walking up a ramp.

Plaintiff basically alleges (1) the steps were not of uniform design and construction, (2) the steps were not apparent, (3) there was inadequate lighting in the area, and (4) placement of the bench was improper.

Upon reviewing the propriety of a summary judgment, the classic inquiry is whether or not there remains genuine issues of material fact and if issues of fact exist and the slightest doubt remains, a summary judgment cannot be granted and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Fletcher Co. v. Melroe Manufacturing Co., Fla.App.1972, 261 So.2d 191.

In the cause before us, we find there exists genuine issues as to material facts, i. e. design of the steps, adequacy of the lighting, etc. See Coburn v. Delmonico Hotel Corp., Fla.App.1967, 203 So.2d 30; Winsemann v. Travelodge Corporation, Fla.App.1967, 205 So.2d 315; Robinson v. Kiwanis Club of Delray Beach, Fla.App.1972, 265 So.2d 387.

In addition, we note that although plaintiff was unable to recall precisely what caused her fall, this fact would not entitle defendants to summary judgment in that the record reveals plaintiff fell to the driveway directly below the steps and the jury would be entitled to consider, without speculating, and draw all reasonable inferences from the pertinent evidence as to the proximate cause of plaintiff’s injuries. See Majeske v. Palm Beach Kennel Club, Fla.App.1959, 117 So.2d 531.

The order granting summary judgment in favor of the defendants is reversed and the cause remanded to the trial court for further proceedings.


author: HALL, VINCENT T., Associate Judge.

text:
    TAMIAMI ABSTRACT & TITLE COMPANY, a Florida Corporation, Appellant, v. Morris V. BERMAN, Individually and as Executor of the Estate of Pauline Berman, Deceased, et al., Appellees.
    No. 75-146.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 22, 1976.
    Fogle, Connelly & Cook, Miami, for appellant.
    Harold C. Culmer, Miami, Morris V. Berman, for appellees.
    Before HENDRY, and NATHAN, JJ., and HALL, VINCENT T., Associate Judge.
   HALL, VINCENT T., Associate Judge.

This matter has come on for review by the Appellate Court of a Final Judgment finding that the Appellant, Tamiami Abstract & Title Company, has no interest in the mortgage being foreclosed in this action, and dismissing the complaint in foreclosure.

The record reveals that on or about March 19, 1959, Theodore R. Potter and Mary Lou Potter, his wife, executed and delivered to Heymar Holding Corporation, a Mortgage securing a loan of $2,763.43, that was filed for record on April 15, 1959. On April 22, 1959, Heymar Holding Corporation executed and delivered a collateral assignment of the mortgage to Pauline Berman to secure a loan of $1,500.00. The assignment was recorded on April 28, 1959. The assignment became void upon the complete payment of the loan, including interest, on or before July 10, 1962. If the payments were not made according to the terms of the assignment, and were in default for a period of thirty (30) days, the party of the second part, Pauline Berman, • had the following- rights under paragraph 5: “In the event of any default in the performance or observance of the conditions or covenants of the said mortgage hereby assigned, whether before or after any default in the performance or observance of the conditions and covenants hereof the said party of the second part, her executors, administrators, or assigns, may take any remedy by foreclosure or otherwise by the said mortgage conferred for the recovery of the debt and interest thereby secured, or to enforce or realize the security therefore, but it shall not be incumbent upon them so to do.”

On or about February 3, 1961, Pauline Berman died. Appellee, Morris V. Ber-man, was subsequently appointed • Executor of her estate.

Heymar Holding Corporation went into bankruptcy, and Morris V. Berman, as Executor of the Estate of Pauline Berman, filed a claim in bankruptcy. The claim alleged that the note was in default, and the entire balance was due as of June 26, 1962. He further claimed outright possession of said mortgage under the terms of the collateral assignment. The record reflects that at no time did any party to the assignment or the Referee in Bankruptcy object to the claim of outright possession of said mortgage under the terms of the assignment.

The property subject to the aforesaid mortgage was sold to the appellees, Prentice P. Cooper, and Phyllis J. Cooper, his wife, on September 14, 1967. They were advised by their attorney that Berman had a lien on the property. In June of 1969, the Coopers attempted to borrow money on the property, but were advised by Metropolitan Mortgage Company that they owed a sum of money to Mr. Berman, and that Berman would accept $750.00 to clear the property. The Coopers advised the Mortgage Company to subtract that amount from the loan and pay Berman. Thereafter, Morris V. Berman, as Executor of the Estate of Pauline Berman, gave a satisfaction of the Mortgage on the subject property, and the said satisfaction was recorded on June 26, 1969.

On December 7, 1970, the Trustee in bankruptcy for Heymar Holding Corporation sold to appellant, Tamiami Abstract & Title Company, all interest of Heymar Holding Corporation, including mortgages in which they had an interest in on June 26, 1968.

Appellant, Tamiami Abstract & Title Company, filed a complaint for foreclosure of said mortgage on February 9, 1973, requesting that the Trial Court order an accounting to determine the sums properly due the Appellant, and payment of sums due, and to further set aside the satisfaction of mortgage given by Berman.

The Trial Court entered a Judgment in favor of the Appellee dismissing the foreclosure action filed by the Appellant.

After due consideration of the complete record of the Trial Court, it appears to this Court that the provisions of the assignment of the mortgage from Hey-mar Holding Corporation to Pauline Ber-man vested complete ownership in the mortgage in Pauline Berman as of July 10, 1962, upon the failure of Heymar Holding Corporation. to fully repay the loan of $1,500.00. Pauline Berman was vested with the right, upon default, to take any remedy for the recovery of the debt and interest secured by the mortgage. It appears from the record that the executor of the estate of Pauline Berman elected to declare the debt in default by filing a claim in bankruptcy against Heymar Holding Corporation. In the claim he alleged that the note was in default and the entire balance was due and owing to the estate of Pauline Berman. He further claimed outright possession of the mortgage under the terms of the collateral assignment. The Referee in Bankruptcy made no attempt to settle the claim with Berman or to contest the complete assignment of the mortgage. Seven years later Berman agreed to take $750.00 in satisfaction for the debt that was secured by the mortgage on the subject property. He then gave a satisfaction of the mortgage, which was duly recorded on June 26, 1969. Thereby exercising his rights under the complete assignment of the mortgage. As of July 10, 1962, he was vested with full right, title and interest in the mortgage and had the authority to fully satisfy the mortgage.

Approximately eight years after the claim was filed in bankruptcy, and over a year after the satisfaction of mortgage was placed on record, Tamiami Abstract & Title Company purchased from the Trustee in Bankruptcy for Heymar Holding Corporation, all the assets of Heymar including mortgages in which they had an interest on June 26, 1968.

It is evident to this Court that the Appellant, Tamiami Abstract & Title Company, knew, or should have known, that a claim was filed in bankruptcy claiming complete assignment of the mortgage to Berman, and that the satisfaction of the mortgage was of record on July 26, 1969. That there had been no action by the Referee in Bankruptcy to dispute the claim at any time, and therefore Heymar held no interest in the mortgage on June 26, 1968. Tamiami Abstract & Title Company Ping a company that deals with title records should have known that the mortgage in question had vested in Berman, and Ber-man had satisfied the mortgage.

Therefore, we affirm the ruling of the Trial Court finding that Tamiami Abstract & Title Company has no interest in the mortgage being foreclosed in this action.

Affirmed.


author: RAWLS, Acting Chief Judge.

text:
    COUSINS MORTGAGE AND EQUITY INVESTMENTS, a real estate investment trust, Appellant, v. The FLORIDA FIRST NATIONAL BANK AT PENSACOLA, Appellee.
    No. Z-276.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
    Rehearing Denied Jan. 16, 1976.

      Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    M. J. Menge, Pensacola, for appellee.
   RAWLS, Acting Chief Judge.

Appellant, Cousins Mortgage and Equity Investments, appeals from an order denying its motion to dismiss the complaint upon the grounds of improper venue.

Appellee, The Florida First National Bank at Pensacola, sued Cousins upon a promissory note in the sum of one million dollars. The note was executed in Atlanta, Georgia, on behalf of Cousins by its senior vice president and treasurer. Likewise, subsequent renewals of the note were executed in Atlanta. The note, and renewals thereof, is payable in Pensacola, Florida. Cousins was authorized to do business and had done business in Pensacola, Escambia County, Florida. It is upon the foregoing facts that Cousins relies upon the following special venue statute, viz:

“47.061 Action on promissory notes, etc. —Actions on unsecured negotiable or nonnegotiable promissory notes shall be brought only in the county in which such notes were signed by the maker or one of the makers or in which the maker or one of the makers resides. When any such note was signed by the makers in more than one county, or district, action may be brought thereon in any such county. This section shall be liberally construed in favor of the makers of such notes.”

Cousins relies primarily upon Woodley Lane, Inc. v. Nolen wherein the Second District Court of Appeal, in construing the cited statute, stated:

“It is a well settled rule of statutory construction that a special statute covering a particular subject is controlling over a general statutory provision covering the same and other subjects in general terms. In this situation, the statute relating to the particular part of the general subject will operate as an exception to, or qualification of, the general terms of the more comprehensive statute to the extent only of the repugnancy, If any.”

Significantly, Woodley involved a controversy among Florida residents as to proper Florida venue for the action upon a promissory note.

Venue is not the same as jurisdiction, and the two must not be confounded. Appellant-defendant Cousins conducts business in the State of Florida, the subject note is held in Florida, and is due and payable in Florida; thus, Cousins is subject to the jurisdiction of this sovereign. Venue statutes are employed solely for the purpose of establishing the situs of a suit. The interpretation of Florida Statute 47.061, as urged by Cousins, smacks of establishing jurisdiction and would operate to divest Florida courts of the jurisdiction to try this cause. Such a proposition is clearly erroneous. As Cousins (the maker) does not reside in Florida and the note was not executed in Florida, it is clear that for determining venue of this action Florida Statute 47.061 is not applicable.

Interlocutory appeal dismissed.

MILLS and SMITH, JJ., concur.

      .An interlocutory appeal from an order relating to venue is cognizable under Florida Appellate Rule 4.2(a).

      . Woodley Lane, Inc. v. Nolen, 147 So.2d 569 (2 Fla.App. 1962).

      . 34 Fla.Jur., Venue § 2.


text:
    COGGIN PONTIAC, INC., a Florida Corporation, Appellant, v. PUTNAM AUTO SALES, INC., a Florida Corporation, Appellee.
    No. X-388.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 16, 1976.
    Hugh M. Davenport, Jacksonville, for appellant.
    Angus W. Harriett, Palatka, for appel-lee.
   SMITH, Judge.

This money judgment for fraud was predicated entirely on allegations and proof that appellant Coggin, being advised that appellee Putnam suspected irregularities in a wholesaler’s purchases of cars from Cog-gin on Putnam’s credit, assured Putnam that the wholesaler’s purchases would be monitored and properly billed to Putnam. The wholesaler continued to defraud Putnam by purchases from Coggin on Putnam’s credit.

There was neither allegation nor proof that Coggin knowingly participated in or profited by the wholesaler’s fraud, nor that Coggin knowingly misrepresented any fact to induce detrimental reliance by Putnam. Coggin’s promissory representation was made in good faith. In the absence of a fiduciary obligation which was neither pleaded nor proved, Coggin’s failure or inability to prevent loss to Putnam is not actionable as fraud. Stoler v. Metropolitan Life Ins. Co., 287 So.2d 694 (Fla.App. 3d, 1974); Bernard Marko & Assoc., Inc. v. Steele, 230 So.2d 42 (Fla.App.3d, 1970). The trial court erred in not rendering judgment for Coggin.

Reversed.

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


text:
    Bernard J. FOX, Appellant, v. Dorothy M. FOX, Appellee.
    No. Y-273.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 16, 1976.
    Robert H. Matthews, New Smyrna Beach, for appellant.
    John J. Upchurch, Daytona Beach, for appellee.
   SMITH, Judge.

The parties to this marriage dissolution proceeding stipulated to the entry of a final judgment by which the court dissolved their marriage of 27 years and “reserve [d] jurisdiction to enter Orders as regards the equities of the parties in real estate” and other matters which the parties requested be considered after entry of the final judgment. Thereafter the parties developed evidence before a special master concerning their respective contributions to the jointly owned home property. The circuit judge then found a “special equity” of the wife in her husband’s interest in that home and ordered the husband to convey his interest to the wife. The husband appeals, asserting that the court had no jurisdiction concerning that property in the absence of a claim of “special equity” by the wife’s petition. Niemann v. Niemann, 294 So.2d 415 (Fla.App.4th, 1974), cert. disch. 312 So.2d 733 (Fla.1975).

The parties specifically submitted to the court, for resolution and disposition, their respective claims of equities in real estate within the court’s jurisdiction, of which there was none except the home property. Testimony before the special master revealed that the wife contributed the bulk of the funds used for a down payment on the home in 1952. She contributed substantially to installing air conditioning and re-roofing the home. Since leaving the home in 1969, the husband regularly made the monthly mortgage payment of $52 but did not otherwise materially contribute to the support of his wife. There is evidence that, as part of a desired settlement of the economic issues 'between the parties, the husband sought monetary consideration from the wife for conveyance of his interest in the home property. In these circumstances, the court was authorized to exercise the powers which the parties invoked and to award the wife the home property. Walton v. Walton, 290 So.2d 110 (Fla.App. 3d, 1974).

Affirmed.

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


text:
    Thomas P. CAHILL, etc., Appellant, v. William R. FRAZIER, etc. et al., Appellees.
    No. Z-50.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 16, 1976.
    Interlocutory Appeal from Circuit Court, Duval County; McKenney J. Davis, Judge.
    E. K. Mcllrath, Jacksonville, for appellant.
    Wayne D. Clance and William R. Frazier, Jacksonville, for appellees.
   PER CURIAM.

This interlocutory appeal, having been considered, is dismissed.

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


author: MILLS, Judge. BOYER, .Chief Judge

text:
    CENTRAL FLORIDA DISTRIBUTING COMPANY, Petitioner, v. Charles JACKSON, as Executive Director of the Department of Business Regulation, and Edward B. Ashley, as Director of the Division of Beverage of the Department of Business Regulation, agencies of the State of Florida, Respondents.
    No. X-502.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1975.
    Rehearing Denied Jan. 16, 1976.

      Wilbur E. Brewton, of Taylor, Brion, Buker & Greene, Tallahassee, for petitioner.
    Charles L. Curtis, Tallahassee, for respondents.
   MILLS, Judge.

Central, a wholesale alcoholic beverage distributor, seeks review of an order of the Department of Business Regulation which affirms an order of the Division of Beverage which found that Central violated an administrative rule by leasing equipment to retail alcoholic beverage vendors for use in their businesses, and assessed a civil penalty of $2,000.00 against Central because of the violation.

The issues are (1) whether Administrative Rule 7A-4.18 contributes an invalid extension of Section 561.42, Florida Statutes; (2) whether Central’s right to due process was violated when the hearing examiner considered the Division’s official file, which was not introduced into evidence, in arriving at his recommendation as to the penalty; and (3) whether the penalty assessed against Central was reasonable.

The Division charged .Central with leasing beer coolers to four vendors. Central moved to dismiss on the ground that Rule 7A — 4.18 constituted an invalid extension of the statutory authority granted to the Division. The motion was denied.

Central did not appear at the hearing before the examiner, but agreed to the admission into evidence of the Division’s case report, excluding any admission of guilt. This was done. The examiner found that Central leased beer coolers to four vendors through a corporation to whom Central paid a commission for use of its name and for handling the paper work, which was in violation of Rule 7A-4.18. To assist him in recommending a penalty, the examiner reviewed the Division’s official file pertaining to Central’s past record. The file showed that Central had been charged with four prior violations of various rules of the Division, resulting in three warning letters and a civil penalty of $1,800.00. The examiner recommended that Central’s license be suspended for twenty days.

The Division adopted the examiner’s findings of fact but reduced the penalty from license suspension to a civil penalty of $2,000.00. .

Section 561.42 provides that no distributor shall have any financial interest in the business of any vendor. Section 561.11, Florida Statutes, authorizes the Division to promulgate rules to carry but the purposes of the beverage law. The Division adopted Rule 7A-4.18, which provides that it shall be considered a violation of Section 561.42 for any distributor to rent any property to any vendor if the property is used in the vendor’s business.

The purpose of Section 561.42 is to prohibit any financial obligation between a distributor and a vendor, thus, prevent control of retail outlets. Pickerill v. Schott, 55 So.2d 716 (Fla.1951). The plain and specific language of Section 561.42 clearly provides sufficient standards for the adoption of Rule 7A^4.18.

Central contends that because the statute does not specifically prohibit leases, the Division lackedf authority to adopt the rule before us. This has no merit. Because of ever-changing conditions, the Legislature cannot prescribe all necessary rules. Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789 (1919). Here, where the business engaged in is a privilege, rather than a right, it is not essential that a specific prescribed standard be expressly stated in the legislation. Permenter v. Younan, 159 Fla. 226, 31 So.2d 387 (1947). Rule 7A-4.18 reasonably carries out the intent of Section 561.42.

Although it would have been better practice to introduce into evidence those parts of the official file reviewed, we see no harm in the examiner reviewing the file for the purpose of arriving at a just penalty. For example, in criminal cases the court reviews presentence investigative reports prepared by the Parole and Probation Commission to aid it in arriving at just sentences. In addition, Section 120.24(2), Florida Statutes, provides that where an agency order rests on official notice of a material fact not appearing in the record, a party shall on timely request be afforded an opportunity to show the contrary. Central did not take advantage of the opportunity' afforded it to challenge the facts gathered from the official file, therefore, it cannot be heard to complain now.

Under the provisions of Section 561.29(4), Florida Statutes, the Division could have assessed a civil penalty of up to $4,000.00 or two times more than it assessed. Since the record reflects four prior violations of various rules, in addition to the present four violations, there was no abuse of discretion, and the $2,000.00 penalty was reasonable.

Certiorari denied.

McCORD, J., concurs.

BOYER, C. J., concurs in part and dissents in part.

BOYER, .Chief Judge

(dissenting in part and concurring in part).

I respectfully dissent. In my view the leasing of the equipment here involved by a distributor to a vendor is not prohibited by F.S. 561.42(1). I would therefore hold that the challenged rule (Rule 7A-4.18) is an invalid extension of the statutory authority granted to the Division. In all other respects I concur with the majority. Had the hearing examiner considered information not introduced into evidence for the purpose of determining guilt I would hold such to constitute error requiring our review. However, sub judice it appears that the hearing examiner considered the challenged “evidence” only for the purpose of arriving at a recommendation as to an appropriate penalty. In so doing I concur that he did not err.


text:
    L. K. IRELAND, etc., et al., Appellants, v. J. B. THOMAS et al., Appellees.
    No. Y-83.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1975.
    Rehearing Denied Jan. 16, 1976.
    Robert L. Shevin, Atty. Gen., Stephen F. Dean and Carol L. Reilly, Asst. Attys. Gen., L. Keith Pafford, David V. Kerns, J. W. Chalkley, III, Tallahassee, and Howard Horowitz, Tallahassee, for appellants.
    M. Howard Williams, and Robert E. Gibson, Tallahassee, for appellees.
   SMITH, Judge.

Appellants, officials who are responsible for the proper administration of state retirement plans, appeal from a final judgment entered by the Circuit Court of Leon County in an action by appellee Thomas for declaratory and ancillary relief resolving the parties’ controversy over Thomas’ entitlement to retirement benefits for the period July 17, 1967 through October 1, 1973. The circuit court held that Thomas, formerly sheriff of Jefferson County, is entitled to the benefits and appellants insist that payment is barred by the provisions of § 122.08(7), F.S. 1973 (1974 Supp.):

“No state or county official or employee who has a shortage in his accounts, as certified by the auditor general, may retire or receive any benefits under this chapter so long as such shortage exists.”

The auditor general certified that a shortage existed in the former sheriff’s accounts on June 14, 1967, and a shortage existed until it was corrected by payment in September 1973. While the correction of the shortage resulted in Thomas receiving his pension benefits on and after October 1, 1973, the existence of the shortage prevented his receiving benefits from the date of his attempted qualification for retirement, July 17, 1967, until the date the shortage was corrected.

The trial court held that the quoted statute did not irrevocably forfeit the former sheriff’s retirement benefits accruing between July 1967 and October 1973, but merely postponed his entitlement to those benefits until the shortage was removed. We agree. The statute does not clearly require a forfeiture or irremediable penalty. None should be supplied by unnecessary implication. See Hotel and Rest. Comm’n v. Sunny Seas No. One, Inc., 104 So.2d 570 (Fla.1958).

Affirmed.

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


text:
    The JOHN BLUE COMPANY, an Alabama Corporation, Appellant, v. ROPER PUMP COMPANY, Appellee.
    No. 75-916.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 20, 1976.
    Virgin & Whittle and Gary E. Garbis, Miami, for appellant.
    Papy, Levy, Carruthers & Poole, Coral Gables, and Sheridan K. Weinstein, Adolfo Del Castillo, Coral Gables, Philip Freidin, Miami, for appellee.

      Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, John Blue Company, third party defendant in the trial court, takes this interlocutory appeal from an order denying its motion to dismiss for lack of jurisdiction.

Plaintiff, Panelfab International Corporation purchased from Jesse W. Eakins Company, a foreign corporation, a glue pump manufactured by Roper Pump Company, also a foreign corporation. Due to an alleged defect in its make-up, the pump exploded causing several thousand gallons of glue to spill onto the plaintiff’s premises. Plaintiff sued the Eakins Company and Roper Pump Company for damages. Thereupon, Roper filed a third party complaint for indemnification against appellant which manufactured the casing, a component part of the pump which exploded. Process was served on appellant, an Alabama corporation, pursuant to § 48.182, Fla.Stat., F.S.A. Appellant filed consolidated motions to quash service of process and to dismiss the third party complaint for lack of jurisdiction over the appellant. These motions were denied and this interlocutory appeal followed.

Appellant contends the trial judge erred in determining that service under § 48.182 is applicable to it. We agree.

As the court held in Youngblood v. Citrus Assoc. of N. Y. Cotton Exch., Fla.App. 1973, 276 So.2d 505, the resolution of the dispute over the validity of the service of process under § 48.182, Fla.Stat. depends on' whether the requirements of (1) connexity, i. e. the cause of action arose out of a transaction or operation connected with or incidental to the activities of the foreign corporation in Florida, (2) commission of a wrongful act by the foreign corporation, and (3) the derivation of substantial revenue from interstate or international commerce have been met. See also. Bayitch, Conflict of Laws: Florida 1970-1971, 26 U.Miami L.Rev. 1, 25 (1971). We concern ourselves only with the requirement of connexity which is dispositive of the case before us. The record reflects that the third party plaintiff, John Roper Company, is a Georgia corporation and John Roper purchased the pump casing from the appellant third party defendant John Blue Corporation, which manufactured the casing in Alabama. After the pump was assembled in Georgia by Roper, it was shipped to the Jesse W. Eakins Company in Michigan, which in turn sold it to the plaintiff Panelfab International Corporation in Florida. Thus, we conclude that Roper’s crossclaim for indemnity does not arise out of a transaction or operation connected with or incidental to the activities of the appellant John Blue Company in Florida.

Accordingly, the requirement of connexity not having been met, the courts of Florida do not have in personam jurisdiction over the appellant.

The order appealed is reversed and the cause remanded to the trial court to enter an order quashing service of process and dismissing Roper Pump Company’s third party indemnity complaint for lack of jurisdiction.

So ordered.

      . “48.182 Service on nonresidents committing a wrongful act outside the state which causes injury within the state. — Any nonresident person, firm, or corporation who in person or through an agent commits a wrongful act outside the state which causes injury, loss, or damage to persons or property within this state may be personally served in any action or proceeding against the nonresident arising from any such act in the same manner as a nonresident who in person or through an agent has committed a wrongful act within the state. If a nonresident expects or should reasonably expect the act to have consequences in this state or any other state or nation and derives substantial revenue from interstate or international commerce, he may be served; provided, that if such nonresident is deceased, his executor or administrator shall be subject to personal service in the same manner as a nonresident. This section shall not apply to a cause of action for defamation of character arising from the act.”


text:
    CABLE-VISION, INC., a Florida Corporation, Appellant, v. William A. FREEMAN, Jr., et al., Appellees.
    No. 74-1408.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 22, 1976.

      Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for appellant.
    Horton, Perse & Ginsberg, Paul E. Sawyer, Key West, Robert L. Shevin, Atty. Gen., and Tom Harris, Asst. Atty. Gen., Tallahassee, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   NATHAN, Judge.

Appellant, Cable-Vision, Inc., brings before this court for review, a final declaratory judgment arising out of a suit brought in the trial court by the Board of County Commissioners of Monroe County for the purpose of determining the rights of the county to construct and operate television broadcast translator stations.

The facts in this case, and the trial court so found, are not in dispute. The county, on March 9, 1965, granted to Cable-Vision an exclusive 30-year franchise to furnish a cable television system. Apparently, and for good reason, there was some doubt as to the county’s authority to grant such a franchise. Consequently, during the 1965 session of the Florida Legislature, Chapter 65-1916 was enacted specifically ratifying the March 9, 1965 franchise. At the same session of the Florida Legislature, Chapter 65-1927 was enacted, the effect of which purports to grant a non-exclusive franchise by the State of Florida to Cable-Vision to operate a cable television system in Monroe County for a period of 30 years. The county, on May 22, 1973, enacted Ordi- • nance No. 5-1973 which authorized the county to construct and operate television broadcast translator stations within the county for the purpose of providing direct television reception to its citizens. The trial court held that the county had the power to construct and operate television broadcast translator stations. It is from this final declaratory judgment that Cable-Vision appeals.

The first issue for our consideration is whether Cable-Vision has an exclusive franchise to furnish all forms of television in Monroe County, stemming, not only from the agreement granting the franchise, but from legislative enactments under Chapters 65-1916 and 65-1927, Laws of Florida. If this be so, then the county’s resolution to construct, maintain and operate television broadcast translator stations would be invalid because it would violate the terms of such legislative enactments and, in addition, the ordinance would be an unconstitutional impairment of the obligations of an existing contract. Jarrell v. Orlando Transit Co., 1936, 123 Fla. 776, 167 So. 664.

Cable-Vision contends that it has an exclusive franchise from the county, and thus the county is barred from competing with Cable-Vision as well as from granting any competing franchises. We disagree. The county’s agreement of March 9, 1965, purported to grant an exclusive franchise to Cable-Vision. This was, and obviously was so recognized, an ultra vires and invalid ordinance because, as the trial court declared, the power to regulate occupations and businesses by licensed franchises is a peculiar attribute of state sovereignty which requires state legislation. It would appear that this is why the Florida Legislature enacted Chapter 65-1916 which ratified the exclusive franchise agreement and subsequently enacted Chapter 65-1927 granting to Cable-Vision, by the State of Florida, a non-exclusive franchise. Since Chapter 65-1927 was the last expression of the legislature as far as the franchise enjoyed by the appellant is concerned, and since that act only granted a nonexclusive franchise whereas Chapter 65-1916 sought to grant or ratify an exclusive franchise granted by the appellee, the question arises as to which of the laws is paramount and which should be construed as controlling. The trial judge found that there was an inconsistency between Chapter 65-1916, Laws of Florida, 1965, and Chapter 65-1927. He construed the last expression of the legislature, to-wit: Chapter 65-1927, to be controlling and he did it upon the well recognized proposition of law that any such inconsistency should be resolved in favor of the last expression of the legislative will. In 30 Fla.Jur., Statutes § 210, Irreconcilable Provisions, it is stated:

“One important general rule in this regard (the reconciliation of inconsistent provisions) is that the last expression of the legislative will is the law, and that, therefore, the last in point of time or order of arrangement prevails. This rule is applicable where the irreconcilable provisions appear in different statutes, or in different provisions of the same statute.”

See also: Johnson v. State, 1946, 157 Fla. 685, 27 So.2d 276; Overstreet v. Ty-Tan, Inc., Fla.1950, 48 So.2d 158; State v. Board of Public Instruction of Escambia County, Fla.1959, 113 So.2d 368; Sharer v. Hotel Corporation of America, Fla.1962, 144 So.2d 813. In view of the fact that Chapter 65-1916 provides for an exclusive franchise and Chapter 65-1927, which came after it, provides for a non-exclusive franchise, the court, under the statutory construction applicable, properly concluded that the franchise itself was not exclusive as to all forms of television reception. The franchise not being exclusive, it follows that the county agreement of 1965, and the legislative enactments do not give Cable-Vision an exclusive franchise to operate a cablevision system or a translator system. From the language of Chapter 65-1927, Cable-Vision only has a franchise to operate a cablevision system. Therefore, there can be no prohibition by virtue of the 1965 agreement and Chapters 65-1916 and 65-1927, for the county to construct, operate and maintain television broadcast translator stations. Cable-Vision contends that county ordinance 5-1973, authorizing translator stations is a constitutional impairment of contract. This is not so because the trial court found, after taking testimony, which was uncontroverted, that there was a distinct difference between a cablevision system, and the operation of a television broadcast translator system. From the testimony it appears that a cable television system is a direct wire reception of television and a television broadcast translator system is an over-the-air broadcast facility which does not involve wire transmission by picking up television signals from the air for broadcast over the air. Furthermore, while it appears that the operation of translator stations could substantially harm Cable-Vision’s business, there is no evidence in the record to this effect.

Cable-Vision next contends that the county did not have authority to authorize construction and to operate television broadcast translator stations; that Monroe County being a non-chartered county,' has its power of self-government from Article VIII, § 1(f) of the 1968 Florida Constitution which provides:

“(f) Non-charter government. Counties not operating under county charters shall have such power of self-government as is provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law, but an ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict.”

Cable-Vision contends that such authority to construct and operate television broadcast translator stations is not within one of the powers authorized by Article VIII of the Constitution, supra, and delegated under § 125.01(1) (f), (1) (w) and (3) (b), Fla.Stat., which provide in pertinent part:

“(1) The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power shall include, but shall not be restricted to, the power to :
*£****
(f) Provide parks, preserves, playgrounds, recreation areas, libraries, museums, historical commissions, and other recreation and cultural facilities and programs;
* * * * * ' *
(w) Perform any other acts not inconsistent with law which are in the common interest of the people of the county, and exercise all powers and privileges not specifically prohibited by law.
* * * * * *
(3) (b) The provisions of this section shall be liberally construed in order to effectively carry out the purpose of this section and to secure for the counties the broad exercise of home rule powers authorized by the state constitution.”

Therefore, it is argued, this county ordinance # 5-1973 is invalid because it is inconsistent with a general or special law, namely Chapter 65-1916 and Chapter 65-1927, Laws of Florida. We disagree. The mere fact that Chapters 65-1916 and 65-1927 grant Cable-Vision a franchise, which we determine to be non-exclusive, to operate a cable television station, does not, in itself, prohibit the county from constructing and operating a television broadcast translator station especially where there is a difference between a cablevision system and a translator system.

Cable-Vision relies on the case of Davis v. Gronemeyer, Fla.1971, 251 So.2d 1. However, that case is distinguished from the instant case as there was an attempt by a non-charter county, under home rule, to repeal a special act of the legislature which created a civil service system of county employees contravening a special act of the legislature. Cable-Vision cites the case of Byers v. Board of Supervisors of the County of San Bernardino, 262 Cal.App.2d 148, 68 Cal.Rptr. 549 (1968), which held that where the County Board of Supervisors sought an agreement to establish television broadcast translator stations under a somewhat similar provision of a California County Code, the county had no power or authority to provide translator stations by taxing its citizens. However, the Code involved in the Byers case did not include a provision for “recreational and cultural facilities and programs.”

The county, in its ordinance # 5-1973, authorizing the Board of County Commissioners of Monroe County to construct and obtain the necessary licenses for the operation of television broadcast translator stations, recites that there are unsatisfactory conditions existing in the reception of direct television signals now available to the public in the county and that no television broadcast stations are operating in close enough proximity to Monroe County to effect any relief from this condition; that the county feels it should provide its citizens with the opportunity to obtain a better life by being more enlightened in the areas of political, cultural, social and educational communication available by broader access to the television media and that television broadcast translator stations provide the only means of receiving and transmitting such communication. Today, counties provide vast cultural and recreational facilities for the welfare of their citizens. Television does have educational programs and is virtually a necessary means of transmitting what is thought to be cultural enlightenment, and the mere fact that Cable-Vision has a franchise for a cable television system should not prevent the citizens of the county from obtaining other types of television service especially where the geographical and economic situation does not adequately provide access to such service. Determination of what is a county purpose may be express or implied in the provisions of the ordinance. The courts will not interfere with such determination unless it has no legal or practical relationship to a valid county purpose. State v. Brevard County, 1930, 99 Fla. 226, 126 So. 353, 355.

Since the franchise to Cable-Vision was not exclusive, and there appears to be, in this case, a valid county purpose, the county has the authority, under constitutional self-government and § 125.01, Fla.Stat., to construct, maintain and operate television broadcast translator stations. The declaratory judgment of the trial court is affirmed except as to that part of the judgment which declares that Cable-Vision has an exclusive right to furnish cablevision services.

Affirmed in part and reversed in part.

      . The Agreement entered into between Monroe County and Cable-Vision, Ine., on March 9, 1965:

      “The County of Monroe, . . . does hereby grant to said Cable-Vision, Inc., an exclusive franchise for the operation of a cable television system in Monroe County, Florida, under the following terms and conditions :
      Section 1. Effective upon the date of the execution of this Agreement, Cable-Vision, Inc., a Florida Corporation, be, and it is hereby granted for a period of 30 years and any renewals and extensions thereof as authorized by the Laws of the State of Florida, the right, privilege, license, and/or franchise to furnish direct wire reception of television, radio, music, closed circuit programs, signals, and services to the inhabitants of the County of Monroe, Florida, or any person, firm or corporation within said county limits . . . ” (emphasis added)

      . Chapter 65-1916:
      “AN ACT giving to the county commissioners of Monroe county the power to grant franchises or licenses for the establishment, maintenance and operation of community antenna systems, closed circuit or cable television systems, or any other similar communication or distribution systems or services ; . . .
      * * * * *
      Be It Enacted by the Legislature of the State of Florida:
      Section 1. The county commissioners of Monroe county whenever it shall be made to appear to them that the convenience of the public requires the establishment, maintenance and operation within the county of a community antenna system or systems, closed circuit or cable television system or systems, or any other similar communication or distribution systems or services are hereby given the power to grant by resolution a franchise or license to any company, corporation, partnership or indi-vidal .
      * * * . * *
      Section 3. The county commissioners under the exercise of the power given by this act may grant an exclusive or limited franchise or license, operating in either a portion or throughout the limits of Monroe county, including municipalities therein. The franchise or license rights contemplated by this act when granted within the purview hereof shall continue in such grantee, or personal representatives, successors, or assigns for the full term granted . . . ” (emphasis added)

      . Chapter 65-1927:
      sjt * % * *
      “AN ACT granting to Cable-Vision, Inc., a Florida corporation, the right, privilege, license and franchise, for a period of thirty (30) years for the operation of a eable television system throughout Monroe county, Florida, and all municijialities therein, including the furnishing of direct wire reception of television, radio, music, closed circuit programs, signals, and similar services, together with necessary rights to erect and maintain poles, wires, fixtures, towers, amplifiers, electronic equipment, etc., along the streets, alleys, avenues and highways and other public places throughout the county and all municipalities therein; providing the terms and conditions of such franchise ; prescribing charges and service rates; providing for taxes; providing for termination and lease of this franchise and providing an effective date.
      Be It Enacted by the Legislature of the State of Florida:
      * * * * *
      Section 2. Cable-Vision, Inc., a Florida corporation, its successors or assigns is granted for a period of thirty (30) years and during the period of any renewals and extensions thereof as may hereafter be authorized, the right, privilege, license, and franchise to furnish direct wire reception of television, radio, music, closed circuit programs, signals, and services to the inhabitants of Monroe county, or any person, firm or corporation within said county limits, including the municipalities therein, . . . ” (emphasis added)
      * * sf; ❖ *

      . Ordinance No. 5-1973:
      $ * * * *
      “WHEREAS, the Board of County Commissioners of Monroe County, Florida, have by petition and other means has had called to its attention the unsatisfactory conditions existing in the reception of direct television signals now available to the public in said County, and
      WHEREAS, there are no television broadcast stations operating in a close enough proximity to Monroe County to afford any relief from this condition, and
      WHEREAS, the Board of County Commissioners of Monroe County, Florida, now has the opportunity to provide the residents of said County with adequate and satisfactory direct television reception through television translator systems, and

        WHEREAS, the Board of County Commissioners of Monroe County, Florida feels it should provide its citizens the opportunity to obtain a better life by being more enlightened in the areas of political, cultural, social and educational commentary, available by broader access to the television media, and (emphasis added)
      S¡! * % % !{!

        WHEREAS, the Board of County Commissioners feel that educational television is necessary in the development of the educational and cultural background of the children of the County, and (emphasis added)
      WHEREAS, the transmission of television signals for direct reception is regulated by the Federal Communications Commission, and

        WHEREAS, the Board of County Commissioners is empowered to obtain the necessary license under Section 74.782 of the Federal Communications Rules and Regulations, Volume 8, dated September, 1972, which would allow the Board of County Commissioners to correct this present denial of direct television service to the people of Monroe County, and (emphasis added) WHEREAS, the Board of County Commissioners of Monroe County, Florida, are able to finance, install, maintain and operate such a service, and (emphasis added) WHEREAS, the distance and peculiar geographical features of Monroe County, Florida make it impossible for its citizens to have broad and acceptable direct television reception by any other method, now therefore,
      BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA:
      Section 1. The Board of County Commissioners of Monroe County, Florida, is hereby authorized and empowered to apply for .and obtain the necessary licenses for the operation of television broadcast translator stations in Monroe County, Florida under Section 74.732 of the Federal Communications Rules and Regulations . . . said television broadcast translator stations being defined in Subsection (2) of Section 74.701 of said Federal Communications Rules and Regulations as follows:
      (a) Television broadcast translator station A station in the broadcasting service operated for the purpose of retransmitting the signals of a television broadcast station, another television broadcast translator station, or a television translator relay station, by means of direct frequency conversion and amplification of the incoming signals without significantly altering any characteristic, of the incoming signal other than its frequency and amplitude, for the purpose of providing television reception to the general public.
      Section 2. Said Board of County Commissioners is authorized and empowered to expend County monies necessary for the installation of and maintenance of television broadcast translator stations and related towers and buildings.” (emphasis added)