author: HUBBART, Judge.

text:
    Anthony Raymond POMERANTZ, Appellant, v. The STATE of Florida, Appellee.
    No. 78-840.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Rehearing Denied June 13, 1979.

      Alan M. Medof, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., and Sharon Langer, Legal Intern, for appellee.
    Before HENDRY and HUBBART, JJ., and EZELL, BOYCE F, Jr. (Ret.), Associate Judge.
   HUBBART, Judge.

This is a criminal prosecution for possession of marijuana with intent to distribute in which the defendant was convicted as charged and placed on probation in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant appeals.

We are concerned upon review of this case with whether the evidence upon which the conviction herein rests was the product of an unreasonable search and seizure and thus subject to being suppressed upon the defendant’s timely motion in the trial court. Based on the authorities and reasoning which follow, we conclude that the search herein was conducted by the police rather than a private party, that the search was unreasonable within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12, of the Florida Constitution, and that the fruits thereof should have been suppressed by the trial court. Accordingly, we reverse.

I

The facts pertaining to the search and seizure issues involved in this case are as follows. On November 16, 1977, between 3:30 p. m. — 3:45 p. m., the defendant Anthony Pomerantz arrived at the Miami International Airport and checked a three piece matched set of suitcases on a non-stop Continental Airlines flight to Denver, Colorado, on which he held a reserved seat. He received three consecutively numbered baggage claim receipts for his checked luggage and thereafter boarded the plane which was scheduled to leave at 4:25 p. m. that afternoon.

Pursuant to routine procedure, airline employees placed the defendant’s three suitcases on a conveyor belt which went to a baggage room for eventual transport to the Continental Airline flight on which the defendant was ticketed. While in transit, one of the three matched suitcases got jammed on the conveyor belt against an adjoining pipe .which caused the suitcase to break open. An airline employee in the baggage room discovered the damaged suitcase, took it off the conveyor belt and observed that the suitcase contained two black plastic trashbags which were taped shut. He unsuccessfully attempted to place these bags back and close the suitcase, and, as he did so, some seeds of undisclosed description came off in his hands. He thereafter notified Continental Airlines supervisor Kenneth Schroeder.

Mr. Schroeder immediately came to the baggage area and observed the damaged, open suitcase with the two black plastic trashbags therein. The defendant’s two other suitcases had also been taken off the conveyor belt and were standing next to the open suitcase. All three suitcases had airline baggage tags on them, but had no other identification. Mr. Schroeder thereupon notified the police to investigate the matter.

Detectives William Johnson and Miguel Magdalena of the Dade County Public Safety Department, specifically assigned to the airport, responded to the call and came to the baggage area. Mr. Schroeder showed the officers the suitcase that had broken open with the two black plastic trashbags contained therein. The officers thereupon opened these two black plastic bags to ascertain their contents. They determined that the contents were marijuana based on their training and experience.

A discussion then ensued as to whether the other two suitcases should be opened to determine whether marijuana was in these suitcases as well. The officers advised that they could not open these suitcases nor could they influence Mr. Schroeder to do the same as that might nullify the search in any subsequent legal proceedings. They further stated that any decision that Mr. Schroeder made on the matter would have to be entirely his own.

Mr. Schroeder thereupon forced open the other two suitcases in the presence of the two officers. One of the suitcases contained black plastic trashbags which were taped shut. Detective Johnson cut open one of these plastic bags and determined that this too contained marijuana. The third and last suitcase contained clothing and toilet articles. Detective Johnson searched the clothing and tote bag therein finding various items of the defendant’s identification including a master charge receipt and receipt from Bentley’s luggage store in Miami indicating that the defendant had recently purchased the subject luggage. It was stipulated by both parties in the trial court that the police neither applied for nor obtained a search warrant for the search of the defendant’s suitcases.

The Continental Airlines flight to Denver was held up during this brief investigation. Upon learning the defendant’s identity, the airline was requested to page the defendant. Meanwhile, Detective Johnson and an airline employee carried the defendant’s three suitcases to the jetway connecting the terminal with the airplane. A flight attendant located the defendant in the plane and told him to step outside.

The defendant, shortly thereafter, emerged from the airplane and had a conversation with Detective Johnson. The defendant was informed that his bags had fallen off the conveyor belt. The defendant thanked the officer and picked up the suitcase containing the clothing. Detective Johnson took the defendant’s arm and stated that the defendant had forgotten the other two suitcases which were standing there. The defendant denied ownership of these suitcases. Detective Johnson thereupon identified himself, stated that he had reason to believe that the suitcases both belonged to the defendant and contained marijuana, and placed the defendant under arrest.

At about the same time the formal arrest was effected, Detective Johnson asked the defendant for permission to search the defendant’s carry-on briefcase and the defendant’s person. The defendant said that the officer could do so. Detective Johnson searched the defendant’s person, seized three baggage claim receipts which numerically matched the checks on the three pieces of luggage herein. The search of the briefcase yielded no incriminating evidence. At a later time while under arrest, the defendant signed a written consent to search after being told by the police that Detective Johnson would testify in court that the defendant had orally given his consent to search his person and briefcase.

The defendant was subsequently charged by information with possession of marijuana with intent to distribute [§ 893.13(l)(a), Fla.Stat. (1977)] in the Dade County Circuit Court. The defendant entered a plea of not guilty and filed a pre-trial motion to suppress the evidence seized from his three suitcases and his person. Fla.R.Crim.P. 3.190(h). The trial court took extensive testimony on the motion which established the above facts. At the conclusion thereof, the trial court ruled that the search of the three suitcases was a purely private search and not a police search, that the defendant was lawfully arrested based on the fruits of the private search, and that the search of the defendant’s person was incident to that lawful arrest. Accordingly, the motion to suppress was denied.

The parties thereafter stipulated that the testimony on the motion to suppress, except as to the defendant’s testimony, would be the testimony at trial. The trial court found the defendant guilty as charged based on this stipulated testimony and placed the defendant on three years probation with a special condition that the defendant serve thirty days in the county jail. The defendant appeals urging as the sole ground for reversal the denial of the motion to suppress.

II

We are first confronted with the threshold question of whether the marijuana and identification papers seized from the defendant’s suitcases was the fruit of a search and seizure conducted by the police or conducted by a private party. This issue was the central issue litigated in the trial court and subsequently briefed by the parties on this appeal. If it was a private search, as the trial court below concluded, our inquiry is at an end as such a search, regardless of its unreasonableness, is beyond the scope of constitutional protection. If it was a police search, as urged by the defendant, we must then inquire as to whether such a search was unreasonable.

The Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution guarantees to the people the right to be free from “unreasonable searches and seizures. . . . ”. Implicit in such constitutional guarantees is the requirement that such searches and seizures must be conducted by an agent of the government. Neither constitutional provision affords any protection against purely private searches and seizures no matter how unreasonable. Indeed, such provisions were designed to protect the individual against certain abuses of governmental power and were never intended as a limitation on private action. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Hornblower v. State, 351 So.2d 716 (Fla.1977); Bernovich v. State, 272 So.2d 505 (Fla.1973); Church v. State, 151 Fla. 24, 9 So.2d 164 (1942).

The law is, therefore, clear that “the Fourth Amendment’s protection applies in cases involving governmental action only, not against searches and seizures by a private individual.” Bernovich v. State, 272 So.2d 505, 507 (Fla.1973). “It has been consistently held that the Fourth Amendment protection against unreasonable searches and seizures apply only in cases involving governmental action, and does not afford protection against searches and seizures by a private individual.” State v. Bookout, 281 So.2d 215, 216 (Fla. 4th DCA 1973). “[E]vi-dence obtained as a result of a wrongful search by a private individual may be admitted into evidence in a criminal prosecution against the victim of the search if that search was not in any way instigated or participated in by government agents.” Annot., 36 A.L.R.3d 553, 561 (1971). On the other hand, “[wjhere a government agent participates in a lawless private search or where the individual perpetrates a lawless search at the suggestion, order or request of police such as to make him their agent, the evidence produced may be excluded as in derogation of the constitutional mandate against unreasonable searches and seizures by governmental action.” Annot., 36 A.L. R.3d 553, 559 (1971). See State v. Gibson, 362 So.2d 41, 44 (Fla. 3d DCA 1978).

In the instant case, we have no problem in determining that Detective Johnson and Magdalena actively participated in the search of the defendant’s suitcases. When the officers arrived in the baggage area, they observed two black plastic trashbags laying in an open suitcase. They clearly conducted a search by opening these bags, examining the contents therein and seizing the suspect marijuana. They obviously could not see through such non-transparent bags and had to conduct a search in order to discover the subject marijuana.

As to the other two suitcases, it is equally clear that the same police officers participated in searching the contents thereof. It is true that Mr. Schroeder of Continental Airlines forced open these suitcases, ostensibly on his own authority, but thereafter Detective Johnson opened the black plastic trashbags contained in the second suitcase to discover more suspect marijuana and looked through the clothing and other articles in the third suitcase to discover certain other incriminating identification evidence. Nothing incriminating could be seen in plain sight by the officers after these suitcases had been opened by Mr. Schroeder. The fact that a private party like Mr. Schroeder had a hand in the search did not make it any less a governmentally conducted search as it was enough, for the purpose of invoking the protection of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution, that the police actively participated in the search.

Ill

The next question in this case is whether the police search of the defendant’s suitcases was “unreasonable” within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution. In our view, such a search was constitutionally unreasonable and the fruits thereof should have been suppressed by the trial court upon the defendant’s timely motion.

The law is well-settled that a search of private property conducted by state or federal agents without a duly issued search warrant is per se “unreasonable” under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution — subject only tó a few specifically established and well-delineated exceptions justified by absolute necessity. These exceptions have been jealously and carefully drawn, and the burden is upon the state to demonstrate their application in a given case which implicit therein requires a showing that the procurement of a search warrant was not feasible because the exigencies of the situation made threat course imperative. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Hornblower v. State, 351 So.2d 716 (Fla.1977); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978).

A

In the instant case, the search of the defendant’s private property, to wit: his suitcases in the airline baggage area, was conducted by the police without a search warrant and was therefore presumptively unreasonable. The state argues, however, that the seizure of the marijuana from the first suitcase was a valid plain sight seizure of contraband which excused the necessity of obtaining a search warrant therefore. We disagree.

In a long line of cases, the Florida and federal courts have held that it is not a search for the police to discover evidence in plain sight. The warrantless seizure of such evidence is constitutionally permissible providing three requirements are met: (1) the police must observe the evidence in plain sight without the benefit of a search [i. e., without invading one’s reasonable expectation of privacy], (2) the police must have a legal right to be where they are when they make the plain sight observation, and (3) the police must have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crime. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) and cases collected; Sheff v. State, 329 So.2d 270 (Fla.1976); Spinkellink v. State, 313 So.2d 666 (Fla.1975); State v. Ashby, 245 So.2d 225 (Fla.1971); State v. Parnell, 221 So.2d 129 (Fla.1969); Fletcher v. State, 65 So.2d 845 (Fla.1953); State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970); Boim v. State, 194 So.2d 313 (Fla. 3d DCA 1967). Such plain sight seizures have been treated either as an exception to the search warrant requirement rule, Coolidge v. New Hampshire, 403 U.S. 443, 464-473, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), or as being entirely beyond the scope of Fourth Amendment protection. Hornblower v. State, 351 So.2d 716, 718 (Fla.1977). In any event, a search warrant is not required in order for the police to conduct such a constitutional seizure.

In the instant case, the police officers had every right to be where they were when they observed the black plastic trash-bags contained in the first suitcase, which suitcase was laying open in the airline baggage area. It is clear, however, that they observed at this point no contraband marijuana in-plain sight. It was necessary for the officers to conduct a search by slitting open the black plastic trashbags in order to discover the marijuana. As such, no valid plain sight seizure of contraband from the first suitcase was ever accomplished and the search and seizure conducted therein was unreasonable. Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978).

B

The state next contends that the warrantless search of the second and third suitcases was reasonable because it was based on probable cause and was conducted under exigent circumstances which made it impracticable to obtain a search warrant. Here the state apparently relies on a general exception to the search warrant requirement rule that “[pjrobable cause to search plus exigent circumstances will usually justify a warrantless search.” Raffield v. State, 351 So.2d 945, 947 (Fla.1977). We find this exception inapplicable to the instant case.

The search of the second and third suitcases was based entirely on the fruits of the unreasonable search of the first suitcase. As such, there was no probable cause for the search of the second and third suitcases under the fruit of the poisonous tree doctrine. The unreasonable search of the first suitcase fatally tainted the subsequent search of remaining suitcases. “Evidence which is located by the police as a result of information and leads obtained from illegally seized evidence, constitutes ‘the fruit of the poisonous tree’ and is equally inadmissible in evidence.” French v. State, 198 So.2d 668, 669 (Fla. 3d DCA 1967). As such, the search and seizure conducted by the police as to the second and third suitcases was unreasonable.

IV

The final issue in this case is whether the search of the defendant’s person was “unreasonable” within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution. In our view, such a search was constitutionally unreasonable and the fruits thereof should have been suppressed by the trial court upon the defendant’s timely motion.

The trial court concluded that the search of the defendant’s person was reasonable because it was made incident to a lawful arrest of the defendant which required no search warrant to conduct. State v. Gustafson, 258 So.2d 1 (Fla.1972). It is clear, however, that the defendant’s arrest was unlawful because it was based entirely on the fruits of the unreasonable search of the defendant’s suitcases. As such, the search conducted incidental thereto was unreasonable and its fruits were inadmissible in evidence. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); D’Agostino v. State, 310 So.2d 12 (Fla.1975); Brown v. State, 62 So.2d 348 (Fla.1952).

The state urges that the search of the defendant’s person was based on the defendant’s voluntary consent which dispensed with the necessity of a search warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). We disagree. The trial court implicitly, although not expressly, rejected this contention by treating the search as incident to the arrest. Moreover, it has long been held that an illegal arrest, as here, presumptively taints and renders involuntary any subsequent consent to search. Bailey v. State, 319 So.2d 22, 27-28 (Fla.1975). We see no evidence in this case which breaks the chain of presumptive invalidity as to the consent given herein. See Taylor v. State, 355 So.2d 180, 184 (Fla. 3d DCA 1978).

V

The conviction and sentence appealed from is reversed and the cause remanded to the trial court with directions to grant the defendant’s pre-trial motion to suppress. As the state’s entire case is based upon the fruits of this search, the trial court is further directed to discharge the defendant from the cause.

Reversed and remanded.

      . There is no further mention of these seeds in the testimony of any other witness in the case. So far as the record discloses, it is unknown as to what these seeds were or whether their discovery was ever relayed to or verified by any other witness in the case.

      . This error is squarely presented by the defendant in his appellate brief filed in this cause wherein he urges that “the order denying [a]ppellant’s [m]otion to [s]uppress should be reversed.” See Fla.R.App.P. 9.040(e), 9.210(b) and committee notes. We decline to interpret counsel’s oral argument before this court as a waiver, either in whole or in part, of this error for appellate review.

      . We entertain serious doubts as to whether the officers by their legal disclaimers effectively disassociated themselves from Mr. Schroeder’s act of opening these two suitcases. It certainly was no idle curiosity which kept the officers present while the suitcases were pried open. It is not necessary, however, to resolve this question in view of the officers’ subsequent participation in the search after the suitcases had been opened.

      . We leave for another day a determination of the question as to whether exigent circumstances might exist for the warrantless search of luggage which, as here, has been checked on an airline flight destined to leave the jurisdiction within a short period of time. Such in transit luggage could be treated the same as first class mail, see United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), or might more appropriately be analogized to a moving vehicle search. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), adopted as the law of Florida by § 933.19, Fla.Stat. (1977), and compare United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). It is not necessary to reach that question in this case, however, because clearly no probable cause existed for the search of the second and third suitcases which renders inapplicable, in any event, the exigent circumstances exception to the search warrant requirement rule.


source: Caselaw Access Project

author: BOARDMAN, Judge.

license: Public Domain

text:
    FIRST NATIONAL BANK OF SEARCY, ARKANSAS, a national banking corporation, Appellant, v. Joseph P. COLLINS and Geneve H. Collins, husband and wife, Appellees.
    No. 78-2113.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    Rehearing Denied June 13, 1979.

      C. Philip Campbell, Jr. of Battaglia, Ross, Stolba & Forlizzo, St. Petersburg, for appellant.
    Lemuel S. Hunnicutt, St. Petersburg, for appellees.
   BOARDMAN, Judge.

Appellant First National Bank of Searcy (Bank) instituted this action in the Circuit Court of Pinellas County to establish a judgment entered in Arkansas as a Florida judgment. Appellees, Joseph P. and Ge-neve H. Collins, filed a motion to dismiss Bank’s second amended complaint alleging that the Arkansas judgment was not valid in Florida for the reason that personal jurisdiction had not been obtained over appel-lees in the Arkansas action. After a hearing, the trial court entered its order granting the motion to dismiss with prejudice. This timely appeal followed. The question for our determination is whether the Arkansas court had personal jurisdiction over appellees.

The documents before the circuit court showed that the Bank brought suit in Arkansas against appellees to foreclose a mortgage on appellees’ real property in Arkansas. Appellees were Florida residents. To effect service, Bank mailed a letter with a return receipt request to appellees at their home address in St. Petersburg, Florida. Enclosed was a copy of the complaint, affidavit, and notice of lis pendens which had been filed in Arkansas. Appellees’ Florida attorney responded by making inquiry into the case, but took no other action on behalf of appellees. A default judgment was entered against appellees. After sale and confirmation of the mortgaged property a deficiency judgment was entered in favor of Bank in the amount of $8,456.37 plus interest and costs. No part of that judgment has been paid. Bank then brought this action to establish that Arkansas judgment as a Florida judgment alleging that the foreign judgment was a valid in personam judgment entitled to full faith and credit in our courts. We agree with Bank and reverse the trial court.

It is well settled that in an action to establish a foreign judgment, the question of whether the court which rendered the judgment had jurisdiction over the person is open to challenge. National Equipment Rental, Ltd. v. Cooiidge Bank & Trust Co., 348 So.2d 1236 (Fla. 2d DCA 1977).

To resolve the issue before us we must first determine whether jurisdiction was obtained in compliance with Arkansas’ long-arm statute, and if so, determine if the assertion of jurisdiction comports with due process. Founding Church of Scientology of Washington, D. C. v. Verlag, 175 U.S.App.D.C. 402, 536 F.2d 429 (1976).

The jurisdictional provisions of the Arkansas statute are set forth in Section 27-2502, Arkansas Statutes, which reads as follows:

A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person's .
(3) having an interest in, using, or possessing real property in this state

Section 27-2503, Arkansas Statutes, provides that:

When the law of this State authorizes service outside this State, the service, when reasonably calculated to give actual notice, may be made .
(c) by any form of mail addressed to the person to be served and requiring a signed receipt .

Since appellees owned real property in Arkansas, they were subject to personal jurisdiction under the statute. Service of process was perfected by giving notice by mail. Therefore, in our opinion, the Arkansas statutory requirements were substantially satisfied. The record shows appellees had actual notice.

We see nothing in this statute which offends the due process standards enunciated in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Further, the Arkansas long-arm statute was held constitutional under similar circumstances in Bowsher v. Digby, 243 Ark. 799, 422 S.W.2d 671 (1968). Minimum due process requires only that the plaintiff show (1) the defendant purposefully acts or causes consequences in the forum state, (2) the cause of action arises from the defendant’s activities there, and (3) the acts or consequences caused have substantial connection with forum. Horace v. American National Bank and Trust Co., 251 So.2d 33 (Fla. 4th DCA 1971). In the case before us the ownership of the property was a purposeful act, the cause of action arose from the ownership, and the property was located in Arkansas. Therefore, the Arkansas court did have personal jurisdiction over appellees. Accordingly, it was error to dismiss appellant’s complaint.

The order appealed is reversed, and the case remanded for further proceedings.

REVERSED and REMANDED.

HOBSON, A. C. J., and OTT, J., concur.


author: LARRY G. SMITH, Judge.

text:
    STATE BOARD OF EDUCATION, Appellant, v. Gregory Bruce NELSON, Appellee.
    No. MM-203.
    District Court of Appeal of Florida, First District.
    May 22, 1979.
    Rehearing Denied July 11, 1979.
    James D. Little, Tallahassee, for appellant.
    Marion R. Shepard and John M. McNatt, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appel-lee.
   LARRY G. SMITH, Judge.

This is an appeal by the State Board of Education from an order entered by the Division of Administrative Hearings which declared invalid certain rules issued by the board providing for the revocation of a teacher’s certificate held by an instructor in a community college. We find error and reverse.

At issue in this proceeding is the hearing officer’s interpretation of Section 230.759, Florida Statutes, under which the State Board of Education derives its specific authority with respect to “certification” of community college personnel. The statute provides:

“Employment of all personnel in each community college shall be upon recommendation of the president, subject to rejection for cause by the board of trustees and subject to the rules and regulations of the state board relative to certification, tenure, leaves of absence of all types, including sabbaticals, remunerations, and such other conditions of employment as the Division of Community Colleges deems necessary and proper; and to policies of the board of trustees not inconsistent with law.” (Section 230.-759, Florida Statutes) (emphasis supplied)

The hearing officer reasoned that since the foregoing statute refers only to “employment”, the power of the board with reference to “certification” relates only to the power to issue certificates, there being no express language conferring the power to “revoke” certificates. Therefore, following this line of reasoning, he declared that the assumption of power by the board in the adoption of its rules relating to revocation exceeds the authority conferred upon the board by law. We disagree with this interpretation by the hearing examiner and adopt the reasoning and arguments of the appellant which convinces us that the power to issue certificates in this instance carries with it the power to specify the terms and conditions of their issuance, as well as the terms and conditions upon which the same may be held by the employee, or revoked by the board.

The State Board of Education is created by Article IX, Section 2, Florida Constitution. The general powers and duties of the board as set forth by statute include the following:

“(1) The State Board of Education is the chief policy-making and coordinating body of public education in Florida. It has the general powers to determine, adopt or prescribe such policies, rules, regulations, or standards as are required by law or as it may find necessary for the improvement of the state system of public education. .
“(2) The board has the following duties: “(a) To adopt comprehensive educational objectives for public education;
“(e) To hold meetings, transact business, keep records, adopt a seal, and perform such other duties as may be necessary for the enforcement of all laws and regulations relating to the state system of public education; . . (Section 229.053, Florida Statutes) (emphasis supplied)

In addition, the legislature has conferred upon the state board the power and duty to prescribe minimum standards with respect to the operation of community colleges as follows:

“The state board shall prescribe minimum standards which must be met before a community college is organized, acquired or operated, and which will assure that the purposes of the community college are attained.” (Section 230.755, Florida Statutes)

We note here that we are not dealing with a claim of unlawful delegation of legislative power such as might occur when discretionary authority is granted to an administrative agency without the inclusion of specific intelligible principles or standards to be used by the agency as a guide in the performance of its duties. 1 Fla.Jur.2nd, § 27 — “Necessity for setting policy and standards”. No contention is made by ap-pellee that the rules and regulations for issuance of certificates are invalid, even though a review of the statutes discloses that while there are specific guidelines for the issuance (and revocation) of teacher’s certificates in the public schools (Sections 231.14-231.28, Florida Statutes, inclusive) these provisions do not apply to community colleges (Section 230.776, Florida Statutes).

We think the following text discussion found in Florida Jurisprudence Second is applicable:

“§ 48. Scope and extent of powers.
“Where lawful rulemaking authority is clearly conferred or fairly implied, and it is consistent with the general statutory duties of the agency, a wide discretion is accorded it in the exercise of such authority. Statutory authority to make reasonable and just rules and regulations to carry into effect a legislative purpose necessarily includes the power to make all rules and regulations needed or expedient to accomplish the general statutory purpose.” (1 Fla.Jur.2nd, Administrative Law, § 48)

Further, on the subject of “implied powers” we find the following:

“§ 21. Implied powers
“While it is recognized that administrative agencies may possess implied as well as expressed powers, a power which is not expressed must be reasonably implied from the express terms of the statute, or, as otherwise stated, it must be such as is by fair implication and intendment incident to and included in the authority expressly conferred.” (1 Fla.Jur.2nd, Administrative Law, § 21)

The grant of general authority to provide rules and regulations for certification of teaching personnel (Section 230.759, Florida Statutes) is consistent with the board’s legislatively mandated responsibilities to see to “the improvement of the state system of public education” (Section 229.-053, Florida Statutes), and to “prescribe minimum standards . which will assure that the purposes of the community college are attained” (Section 230.755, Florida Statutes). The power to issue a certificate, in keeping with the broad objectives to be accomplished by these legislative enactments, necessarily and by fair implication includes the authority to specify the conditions under which such certificates shall be held and revoked.

The order appealed from is reversed.

MILLS, Acting C. J., and ROBERT P. SMITH, J., concur.


author: KEHOE, Judge.

text:
    MERCURY MOTOR EXPRESS, INC., Appellant, v. Patricia Lynn SMITH, etc., Appellee.
    No. 78-1710.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.
    Rehearing Denied July 10, 1979.
    Papy, Duval, Poole & Usich and Sheridan K. Weissenborn, Coral Gables, for appellant.
    Headley & Headley, Daniels & Hicks and Mark Hicks, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a final judgment against it in a wrongful death action. The final judgment awarded appellee, plaintiff below, $400,000 compensatory and $250,000 punitive damages. Appellant paid the compensatory damage award and has appealed only the punitive damage portion of the final judgment.

Appellant raises two points on appeal, both of which raise the same legal issue. The issue presented is whether a corporate employer and Interstate Commerce Commission permit holder can be liable in punitive damages for the willful and wanton misconduct of its employee while acting within the scope of his employment and operating a tractor and trailer leased by the corporate employer and operated under its permit. In this case, the employee was operating the tractor and trailer while intoxicated and, as a result, ran off the road and killed David J. Faircloth, Jr. Subsequently, the employee driver was charged and pleaded guilty to manslaughter. The case was both pleaded and submitted to the jury on the theory that this issue could be decided in the affirmative.

Florida has long followed the majority rule that a jury may assess punitive damages against a corporate employer when its employee, acting within the scope of his employment, has been guilty of willful and wanton misconduct, such as in this case. See, e. g., Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936); Joab, Inc. v. Thrall, 245 So.2d 291 (Fla. 3d DCA 1971); and Wackenhut Corp. v. Greene, 238 So.2d 431 (Fla. 3d DCA 1970). Compare Simmons v. King, 478 F.2d 857 (5th Cir. 1973), and Wellman v. Liberty Mutual Insurance Company, 496 F.2d 131 (8th Cir. 1979). But see Alexander v. Alterman Transport Lines, 350 So.2d 1128 (Fla. 1st DCA 1977). Based upon the principles set forth in these cases, we are of the opinion that appellant has failed to show any reversible error in the proceedings below. Accordingly, the final judgment appealed is affirmed. •

Affirmed.


author: SCHWARTZ, Judge.

text:
    DADE COUNTY MEDICAL ASSOCIATION, Petitioner, v. John HLIS and Joyce Hlis, his wife, Peninsular Fire Insurance Company, Geni-Chlor of Dade County, Inc., All Florida-Distributors, Inc., d/b/a All Florida Pool Supplies, and Fremont Indemnity Company, corporations licensed to do business in the State of Florida, Respondents.
    No. 79-264.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.
    Rehearing Denied July 10, 1979.

      Goodwin, Ryskamp, Welcher & Carrier and Arthur M. Simon, Miami, for petitioner.
    Demos, Dougherty & Perez, Kenneth B. Sherouse, Jr., Richard M. Gale, Miami, for respondents.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The Dade County Medical Association (DCMA) seeks review, by petition for a writ of common law certiorari, Fla.R.App.P. 9.100, of an order which required it to produce records of its Ethics Committee concerning two physicians who are members of the Association. We grant the petition and quash the order under review.

The doctors in question were treating physicians of John Hlis who was injured in an automobile accident on July 10, 1976. Hlis and his wife sued those allegedly liable for the accident, as well as their insurance company, Peninsular Fire, in the Dade County Circuit Court. In the course of taking discovery in that case, the defendants served a subpoena duces tecum on the DCMA which called for its records custodian to produce at a deposition “any and all records” concerning the two physicians. In response, the Association produced all of the records requested except those of its Ethics Committee. The DCMA moved, pursuant to Fla.R.Civ.P. 1.310(b), for a protective order precluding discovery of those records as privileged either under Section 768.-40, Florida Statutes (1977) or as a matter of public policy. The trial court denied both that motion and a subsequent motion for rehearing based on the asserted ground that the documents were “immaterial and irrelevant and not calculated to lead to the discovery of admissible evidence.” The DCMA was ordered to produce the documents within five days. Before the expiration of that period, the Association petitioned this court for certiorari and for a stay of the order of production. We granted the stay; issued a rule to show cause why the petition should not be granted, . Fla.R.App.P. 9.100(f); and have heard oral argument. We have concluded that the order under review constitutes a departure from the essential requirements of the law from which immediate relief is appropriate and therefore grant the petition for certiorari.

The function of the Ethics Committee of the DCMA, the records of which were ordered produced below, is to investigate, consider and discuss issues which involve the professional conduct of its member physicians. We think it self-evident that this activity, as a means of improving the quality of medical practice in our community through self-regulation, is a salutary one which should be encouraged. More to the point as to the issues presented here, we also agree with petitioner that it is important, perhaps indispensable, to the achievement of'the committee’s purposes that its proceedings remain confidential. It is obvious that both complaints and free discussion about the activities of physicians would be markedly discouraged if their contents were to be held open to public perusal. These considerations were largely responsible for the recent enactment of Section 768.40, Florida Statutes (1977), which provides in pertinent part:

“(1) As used in this section, the term ‘medical review committee’ or ‘committee’ shall mean a committee of a state or local professional society of health care providers or of a medical staff of a licensed hospital or nursing home . which [committee] is formed to evaluate and improve the quality of health care rendered by providers of health service or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area.”
“(4) The proceedings and records of committees as described in the preceding subsections shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee, . ” [emphasis supplied]

Although the DCMA Ethics Committee undoubtedly qualifies as a “medical review committee” under § 768.40(1), see Feminist Women’s Health Center v. Mohammad, 415 F.Supp. 1258 (N.D.Fla.1976), we cannot hold its records are privileged from discovery under § 768.40(4), which provides that the privilege exists only “in [a] civil action against a provider of professional health services . . ” Since the action below was simply one for damages against those who negligently caused an auto accident, no amount of judicial interpretation can render the statute applicable to this case. Cf. Good Samaritan Hospital v. Simon, 370 So.2d 1174 (Fla. 4th DCA 1979).

The non-applicability of the statutory privilege does not mean, however, that we may or should ignore the considerations of public policy which informed the enactment of the statute and of which we have spoken. Even without a pertinent statute, several cases have held that records of bodies similar to the Ethics Committee are not subject to discovery. The leading such authority is Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C.1970), adhered to, 51 F.R.D. 187 (D.D.C.1970), affd., 156 U.S.App.D.C. 199, 479 F.2d 920 (1973). At 50 F.R.D. 250, 251, the court held:

“Confidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine quo non of adequate hospital care. To subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations. Constructive professional criticism cannot occur in an atmosphere of apprehension that one doctor’s suggestion will be used as a denunciation of a colleague’s conduct in a malpractice suit.
The purpose of these staff meetings is the improvement, through self-analysis, of the efficiency of medical procedures and techniques. They are not a part of current patient care but are in the nature of a retrospective review of the effectiveness of certain medical procedures. The value of these discussions and reviews in the education of the doctors who participate, and the medical students who sit in, is undeniable. This value would be destroyed if the meetings and the names of those participating were to be opened to the discovery process.
‘The public interest may be a reason for not permitting inquiry into particular matters by discovery.’ 4 Moore, Federal Practice ¶ 26.22(2) at 1287 (2d ed. 1969). As doctors have a responsibility for life and death decisions, the most up-to-date information and techniques must be available to them. There is an overwhelming public interest in having those staff meetings held on a confidential basis so that the flow of ideas and advice can continue unimpeded. Absent evidence of extraordinary circumstances, there is no cause shown requiring disclosure of the minutes of these meetings.”

See also Franklin v. Blank, 86 N.M. 585, 525 P.2d 945 (1974); Oviatt v. Archbishop Bergan Mercy Hospital, 191 Neb. 224, 214 N.W.2d 490 (1974); Gillman v. United States, 53 F.R.D. 316 (S.D.N.Y.1971); Annot., Discovery of Hospital’s Internal Records, 81 A.L.R.3d 944 (1977); cf. Banks v. Lockheed-Georgia Co., 53 F.R.D. 283, 285 (N.D.Ga.1971). Very significantly, this court has cited with approval and followed the Bredice case in Carter v. Metropolitan Dade County, 253 So.2d 920 (Fla. 3d DCA 1971). We again endorse the views expressed in that opinion.

In opposition to these significant considerations which would preclude discovery, those who seek it have made virtually no showing at all. The defendants in Hlis’ personal injury action, who are the only real parties respondent in interest, contend in this court that the DCMA documents are pertinent to their affirmative defense that the plaintiff’s injuries are due in whole or in part to the “acts of negligence of others not a party to this cause,” presumably the doctors whose records are now at issue. But since the defendants are responsible as a matter of law even for an aggravation of the plaintiff’s initial injuries caused by his doctors’ malpractice, this evidence would be neither admissible nor likely to lead to the discovery of relevant evidence in the proceeding below. Stuart v. Hertz Corp., 351 So.2d 703, 707 (Fla.1977); J. Ray Arnold Corp. v. Richardson, 105 Fla. 204, 141 So. 133 (1932).

It is true, as the defendant-respondents argue, that, in the ordinary case, a non-party who challenges discovery may not contend that the materials sought are not relevant to the underlying action. Ghandi v. Police Dept. of City of Detroit, 74 F.R.D. 115, 123 (E.D.Mich.1977). Nevertheless, the' DCMA surely has standing to assert its own interest in preserving confidentiality as a means to the effective self-discipline of its members. It likewise may assert the similar interest and concern of those who report and comment upon alleged medical improprieties. See Tucson Medical Center, Inc. v. Misevch, 113 Ariz. 34, 545 P.2d 958, 961 (1976); Boddy v. Parker,, 45 A.D.2d 1000, 358 N.Y.S.2d 218 (1974). Moreover, Fla.R.Civ.P. 1.310(b) specifically permits “the person to be deposed” to file a motion for an order of protection from a notice of taking deposition. As is stated in the Ghandi case, supra, at 74 F.R.D. 123-124:

“ . . .a third party deponent . is properly concerned only with whether the subpoena is burdensome, oppressive, unreasonable or seeks the disclosure of confidential information. If a subpoena duces tecum does fall into one of these categories, it may be quashed, modified, or subject to a protective order, even though it seeks relevant information. Hecht v. Pro-Football, Inc., 46 F.R.D. 605 (D.D.C.1969).” [e. s.]

In Argonaut Ins. Co. v. Peralta, 358 So.2d 232 (Fla. 3d DCA 1978), cert. denied, 364 So.2d 889 (Fla.1978), this court, at the instance of the defendant physician, denied discovery of the records of other patients the doctor had similarly treated. The decision was based largely upon a concern for the rights of those unrepresented “strangers” to the action. It is all the more clear that we should consider a similar claim of confidentiality, when, as in this case, it is raised by one of those directly concerned in preserving it.

Many, probably most, discovery questions may be decided by a proper balancing of the competing interests to be served by granting discovery or by denying it. See, e. g., Argonaut Ins. Co. v. Peralta, supra; American Health Plan v. Kostner, 367 So.2d 276 (Fla. 3d DCA 1979); Travelers Indemnity Co. v. Salido, 354 So.2d 963 (Fla. 3d DCA 1978); Begel v. Hirsch, 350 So,2d 514 (Fla. 4th DCA 1977), cert. denied, 361 So.2d 830 (Fla.1978); Reeg v. Fetzer, 78 F.R.D. 34 (W.D.Okl.1976); Payne v. Howard, 75 F.R.D. 465 (D.D.C.1977). In this case, the interest of the public, of the DCMA, and of those the association represents in the non-production of the records in question, far outweighs the almost chimerical grounds for their discovery asserted by the respondents.

By this decision, we do not establish a general common-law “privilege” of non-disclosure of documents of the character involved in this case, much less indicate the parameters of such a privilege. We hold merely that, in view of what has been called “the overwhelming public interest in maintaining the confidentiality” of such records, Tucson Medical Center, Inc. v. Misevch, supra, at 545 P.2d 962, the defendants have not made the “showing of exceptional necessity” or of “extraordinary circumstances” which is required to justify their production. Bredice v. Doctors Hospital, supra, at 50 F.R.D. 250, 251.

Certiorari granted.

      . In the exercise of the judicial discretion involved in determining whether certiorari should be granted, we decline, as the respondents suggest, to postpone determination of the significant issues involved in this case until the DCMA is held in contempt for failure to produce the documents in question. Joldersma v. Stewart, 370 So.2d 80 (Fla. 2d DCA 1979); see Dade County v. Grossman, 354 So.2d 131 (Fla. 3d DCA 1978); compare Strain v. Miami Transfer Co., 155 So.2d 170 (Fla. 3d DCA 1963), cert. denied, 161 So.2d 216 (Fla.1964).

      . As the petitioner cogently argues, since the statute immunizes the records from discovery in a malpractice case, in which they might be of the greatest significance to the litigants, there is all the more reason to recognize the public interest in preserving their confidentiality in a case, such as this one, in which the parties are at best only tangentially interested in their contents. Indeed, the lack of a demonstration of real need for the records by the defendant-respondents, the movants below, is one of the bases of our holding that they should not be produced.

      . In the trial court, the plaintiffs-Hlis took no part below in the present controversy, which was litigated only between the defendants and the DCMA. They belatedly appeared in this court to assert their interest in proceeding to trial against Peninsular and the other defendants without the delay occasioned by the pend-ency of the case in this court. In support of that argument, they have asserted, citing Stuart v. Hertz Corp., infra, the irrelevance of the records to their case.

      . Even if the issue is at all pertinent, our holding that the records themselves are not subject to production does not affect the defendants’ right to discovery as to the factual basis of any complaints, or any information within the knowledge of any witness concerning the events surrounding the doctors’ allegedly improper treatment. See F.S. § 768.40(4), supra.

      . In Sunrise Shopping Center, Inc. v. Allied Stores Corp., 270 So.2d 32 (Fla. 4th DCA 1972) the court held that an opposing party had standing on behalf of a non-party witness to move to quash a subpoena duces tecum as unreasonable and oppressive. A fortiori, the non-party, as here, may do so himself.


author: PER CURIAM.

text:
    BURROUGHS CORPORATION, Petitioner, v. WHITE LUMBER SALES, INC., Respondent.
    No. 78-2192.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.
    Rehearing Denied July 17, 1979.
    Lawrence R. Heller of Gilbride & Heller, P. A., Miami, for petitioner.
    Robert F. Jordan of Grimmett, Scherer & James, P. A., Fort Lauderdale, for respondent.
   PER CURIAM.

This matter has been considered on petition for common law certiorari. Petitioner contends that certain interrogatories which the trial court sustained over objection by petitioner are burdensome and irrelevant. While the answers to these interrogatories obviously will require great effort on the part of petitioner, the supervision of the scope of discovery is a matter within the wide discretion of the trial court. Affirmance is required except in those case where an abuse of discretion has been shown so as to constitute a departure from the essential requirements of law which cannot be remedied on appeal. Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla. 2d DCA 1977). The trial court’s resolution of discovery problems should not be disturbed absent a clear abuse of discretion. Abelson v. Bosem, 329 So.2d 330 (Fla. 3d DCA 1976); Continental Mortgage Investors v. Village By The Sea, Inc., 252 So.2d 833 (Fla. 4th DCA 1971).

Here it is clear that the trial court carefully considered the particular interrogatories after a full hearing and presentation of the position of the various parties. We conclude there has been no abuse of discretion demonstrated and that a jurisdictional basis for certiorari review is thus lacking. Certiorari is, therefore, denied.

CERTIORARI DENIED.

CROSS, LETTS and BERANEK, JJ., concur.


text:
    Donald W. STOWE, Appellant, v. Margaret Elizabeth Williams SHULTS, as Personal Representative of the Estate of George D. Shults, Deceased, Appellee.
    No. 79-447.
    District Court of Appeal of Florida, Second District.
    May 23, 1979.
    Rehearing Denied June 25, 1979.
    James E. Foster of Fishback, Davis, Dominick & Bennett, Orlando, for appellant.
    Stephen C. Chumbris of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellee.
   PER CURIAM.

Under Rule 9.320, Fla.R.App.P., we hereby dispense with oral argument in this cause and affirm. Madax Intern. Corp. v. Delcher Inter. Moving, 342 So.2d 1082 (Fla. 2d DCA 1977).

HOBSON, Acting C. J., and OTT and DANAHY, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    GENERAL TIRE & RUBBER COMPANY and General Motors Corporation, Appellants, v. George MADDOX and Jewel Maddox, his wife, Appellees.
    No. 77-1922.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.
    Rehearing Denied June 29, 1979.
    Majorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach, for appellants.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellees.
   PER CURIAM.

AFFIRMED.

CROSS and MOORE, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

This is an appeal from a final judgment in favor of appellees, George Maddox and Jewel Maddox, his wife, and against appellants, General Tire & Rubber Company and General Motors Corporation, in a products liability action. Appellants assert that the trial judge erred by refusing to allow them ■to introduce into evidence the deposition of appellees’ expert witness. I agree.

George Maddox owned a service station where he performed the majority of the tire repair work for an Oldsmobile dealer. He was injured when a tire manufactured by General Tire & Rubber Company and installed as part of the original equipment on a new General Motors Corporation Oldsmobile exploded. Maddox sued, contending that the explosion was due to a defective bead. The appellants maintained that the tire exploded because of the application of excessive air pressure by Maddox.

In an attempt to support their theory, appellees retained an expert, Dr. H. A. B. Wiseman, and advised appellants that he would be a trial witness. Pursuant to Fla. R.Civ.P. 1.280(b)(3), the appellants deposed Dr. Wiseman. He testified that he had found a broken bead in the tire but that it was not a manufacturing defect. Rather, he concluded that the broken bead was caused by the application of energy during the initial mounting of the tire prior to Mr. Maddox’ attempted repair.

Shortly before trial, appellees advised the appellants that they would not call Dr. Wiseman to testify. At trial, the appellees’ objection to appellants’ reference to Dr. Wiseman’s testimony in opening statement was sustained. Subsequently, appellants were denied the right to introduce the opinion portions of Dr. Wiseman’s deposition, although they were allowed to read to the jury those portions which established that he was an expert hired by counsel for the appellees and that he had examined the tire in question.

The appellees rely on Pinellas County v. Carlson, 242 So.2d 714 (Fla.1970) as support for the trial court’s rulings. That case involved a condemnation proceeding where the condemnor had been permitted by the trial court to discover the opinion of the condemnee’s expert appraiser even though the appraiser was not to be called as a witness nor had the condemnee initiated discovery of the condemnor’s experts. Under these facts, the Florida Supreme Court held the condemnee’s expert appraisal to be privileged under the work product doctrine. The decision did not address itself to the admissibility at' trial of expert evidence which had previously been discovered without objection. Similarly, I believe appel-lees’ reliance on Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla. 2d DCA 1977) is misplaced. There, the Second District held that the condemnor may discover the condemnee’s expert opinion where the expert is expected to be called as a trial witness, even though the condemnee had not elected to seek discovery. The court stated that:

[Tjhere is no reason to preclude discovery processes as relate to those witnesses expected to testify at trial. (Id. at 1308)

Zuberbuhler also noted that Pinellas County v. Carlson, supra, was decided before the enactment of the present rules of civil procedure regarding the discovery and use of experts’ testimony.

Discovery of opinions held by experts expected to be called as witnesses at trial is specifically authorized under Fla.R.Civ.P. 1.280(b)(3)(A). A party may challenge the propriety of a discovery request by moving for a protective order pursuant to Fla.R. Civ.P. 1.280(c). This is the point at which a party should assert any privilege based on work product. I believe that once the opinion is properly discovered the privilege is waived. Savino v. Luciano, 92 So.2d 817 (Fla.1957). Here Dr. Wiseman was listed as an expert who was expected to testify at trial. No objection was made to appellants deposing him. Once deposed, his testimony could be used at trial under the provisions of Fla.R.Civ.P. 1.330(a)(3) and 1.390(b). Accordingly, I believe the trial court erred by refusing to permit Dr. Wiseman’s opinion testimony to be presented to the jury.

Appellees also contend that this error was harmless because Dr. Wiseman’s testimony was cumulative to the testimony of other defense experts, and because defense counsel was able to infer to the jury in argument that Dr. Wiseman’s testimony would have been unfavorable to the appellees. However, the trial judge here specifically recognized the importance of Dr. Wiseman’s testimony and specifically stated that if he was in error on this point, it would be more than harmless error.


text:
    UNITED STATES FREEDOM TOWER, INC., a Florida Corporation, Appellant, v. CITIBANK, N. A., Appellee.
    Nos. 78-345, 78-775.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Rehearing Denied July 13, 1979.

      Sam Polur, James J. McVeigh, Miami, for appellant.
    Meyer, Weiss, Rose, Arkin, Sheppard & Shockett and William E. Shockett, Miami Beach, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Appellant United States Freedom Tower, Inc., was the defendant in the trial court to a mortgage foreclosure action brought by appellee Citibank, N.A. These appeals are from a summary final judgment of foreclosure and an order denying defendant’s motion to set aside the foreclosure sale. The matter was briefed and heard as a consolidated appeal. All of the points presented on appeal by the defendant go to the propriety of the summary judgment of foreclosure. The appeal from the order denying defendant’s motion to set aside and vacate the foreclosure sale has not been argued.

The defendant has presented nine points, all of which have been considered by the court. In the interest of economy of space and time, only the following need be discussed.

It is urged that the summary judgment was erroneously entered because there was an issue of fact concerning the payment by the mortgagor of $275,000 on October 19, 1976. There was before the trial court at the time of the hearing of the summary judgment the pleadings in the case and an affidavit of the plaintiff with regard to the indebtedness. No depositions had been taken and no counter-affidavits were presented by the defendant. Nevertheless, we have examined the affidavit of indebtedness and find that the defendant was given credit for the payment of $275,-000 made October 19, 1976.

In arguing that there was actually no default, the defendant has failed to show any portion of the record which supports his position that there was an issue of fact in the following finding of the trial court:

“The consolidated indebtedness was in default at the time of filing the original Complaint and is presently in default because the installments of interest due from and after April 20, 1976, were not paid and for failure to make payment of the real estate taxes due for the year 1976 by failing to provide Plaintiff with paid tax receipts therefor on or before March 10, 1977.”

The covenant of a mortgagor to pay real estate taxes is a contract right conferred upon the mortgage holder and gives the holder the right to enforce this provision upon the mortgagor’s default. See Campbell v. Werner, 232 So.2d 252, 255 (Fla. 3d DCA 1970).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Anthony RIOCABO, Appellee.
    No. 78-453.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Rehearing Denied July 10, 1979.
    Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellee.
    Jack R. Blumenfeld, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal by the State from an order of the trial court granting defendant’s motion to suppress evidence seized by police officers at thé time of the defendant’s arrest. The point involved is whether an individual may be legally arrested for carrying a concealed firearm when the officers actually see a portion of the firearm prior to the arrest. We hold that a concealed firearm may be accidentally, partially exposed so that an arresting officer may see a portion of the firearm but that the firearm is concealed within the meaning of Section 790.001(2), Florida Statutes (1977).

The defendant was arrested for the crimes of carrying a concealed firearm and possession of cocaine. An information was filed on both counts. The defendant filed a motion to suppress the firearm and the cocaine alleging that this evidence was obtained illegally. A hearing was held on the motion at which the testimony without conflict revealed that a police officer was standing behind defendant in a convenience grocery store. Both the officer and the defendant were waiting to make purchases. The defendant was carrying a brown leather purse tucked under his arm. The officer’s attention was called to the defendant when the defendant dropped a large sum of money on the floor. As the defendant leaned forward, the officer observed a portion of a metal object inside the purse which the officer believed to be a pistol. The officer then summoned a second officer who, by standing close to the defendant, was also able to see a portion of a magazine clip inside the purchase through a small gap where the purse was not completely zipped closed. The gun was not protruding from the purse but could be seen by standing close to the defendant and looking down into the approximately one-quarter inch gap in the purse.

The trial court heard argument on the matter and granted the motion to suppress upon a holding that the defendant’s arrest was illegal because there was no probable cause for the police to believe that the defendant was carrying a concealed firearm, as a portion of the firearm was visible to the officers. The court, in its order, set forth the grounds for its holding, as follows:

“1. The only reason the officers suspected the defendant had a firearm was that it was visible to them.
“2. In Christian v. State, 303 So.2d 405, the District Court of Appeal of Florida, Third District, in 1974, held that a firearm visible to the officer, protruding from the seat of the vehicle, was not a concealed firearm. On that basis, the search of the car was not permissible. Christian v. State, supra, and State v. Day [Fla.App.], 301 So.2d 469 (1st Dist. 1974) are controlling as to the definition of a concealed firearm rather than State v. Sellers [Fla.App.], 281 So.2d 397 (2d Dist.1973) cited by the State.”

The trial court’s determination upon questions of fact at a motion to suppress hearing will not be reversed unless clearly shown to be without basis in the evidence or predicated upon an incorrect application of the law. See the principle of law in Cameron v. State, 112 So.2d 864, 869 (Fla. 1st DCA 1959). See also United States v. Reynolds, 511 F.2d 603, 607 (5th Cir. 1975); and United States v. Montos, 421 F.2d 215, 219 n. (5th Cir. 1970).

In the present instance, the facts are not in dispute. The judge’s reliance upon Christian v. State, 303 So.2d 405 (Fla. 3d DCA 1974); and State v. Day, 301 So.2d 469 (Fla. 1st DCA 1974), is, we think, misplaced. In Christian v. State, this court held that the defendant’s conviction for carrying a concealed firearm must be reversed and the evidence of the firearm suppressed where a police officer discovered the firearm upon shining a light into the passenger’s side of the car and saw what appeared to be the butt of a gun protruding from the seat in which the defendant was sitting. The court said, “Obviously, either the firearm was within the ordinary sight of another' or it was not. * * * In our view, the State did not prove all of the elements of the crime of carrying a concealed firearm, and we think it follows that the search of the car also was not permissible.”

In State v. Day, supra, the District Court of Appeal, First District, affirmed the granting of a motion to suppress evidence found in the search of an automobile. The court held that a pistol under the driver’s front seat of an automobile which was partly exposed was not concealed from the ordinary sight of another person.

However, in State v. Sellers, 281 So.2d 397 (Fla. 2d DCA 1973), the District Court of Appeal, Second District, held that a pistol, the butt of which was exposed for about one-quarter inch, could have been concealed within the meaning of the statute. In so holding, the court stated: “We think that the proper rule is that where the weapon is carried in such a manner that an ordinary citizen viewing the accused would not see the weapon clearly exposed as such[,] the question of concealment should be left to the jury.”

In the present instance, we are not dealing with a question of the sufficiency of the evidence of concealment for a finding of guilt, but rather with the trial court’s conclusion that, as a matter of law, a weapon which is seen at all cannot be concealed. In this assumption, the trial court was incorrect. The very inclusion in the statute of the provision that the weapon need only be concealed from the “ordinary sight of another person” shows that the crime may be committed by the concealing of a weapon which is not concealed from everyone. In the present case, the weapon was certainly concealed until such time as the defendant leaned over to pick up his money from the floor of the store. In that instant, and by his own act, he allowed a person who happened to be an officer standing exactly behind and close to him to see that a weapon was, in fact, concealed inside the purse. Neither the Christian nor the Day case, which have to do with weapons protruding from under the seat of an automobile, compels a contrary holding. See State v. Sellers, supra; and see the discussion in Powell v. State, 369 So.2d 108 (Fla. 1st DCA 1979). See also People v. Jones, 12 Mich. App. 293, 162 N.W.2d 847 (1968); and Shipley v. State, 243 Md. 262, 220 A.2d 585 (1966).

Accordingly, the order suppressing the evidence of the firearm and a quantity of cocaine seized pursuant to the defendant’s arrest is reversed and the cause is remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

      . See Fla.R.Crim.P. 9.140(c)(1)(B).

      . “790.001 Definitions

      “(2) ‘Concealed firearm’ means any firearm, as defined in subsection (6), when the same is carried on or about a person in such a manner as to conceal said firearm from the ordinary sight of another person."


author: HOBSON, Acting Chief Judge.

text:
    In re ESTATE OF Madge FORNASH, Deceased. James A. GARLAND, as Personal Representative of the Estate of Madge Fornash, Deceased, Appellant, v. Helen BARNES, Appellee.
    No. 78-873.
    District Court of Appeal of Florida, Second District.
    May 30, 1979.
    James A. Garland, Bradenton, for appellant.
    Ernest S. Marshall, Bradenton, for appel-lee.
   HOBSON, Acting Chief Judge.

Claimant, decedent’s niece, filed her statement of claim against the estate within the three-month claim period and the personal representative filed a timely objection to this claim. Subsequently, claimant filed a motion to extend time for filing action and the court entered an order granting claimant additional time to file a petition for further proceedings to initiate suit on the claim. Claimant then filed a document entitled Motion for Court to Set Hearing pursuant to F.S. 733.705(5). Whereupon the personal representative moved to dismiss this document and require a more definite statement as to the allegations of the claim. This motion was denied. The cause came on for hearing without further pleadings or responsive documents as to the issue and the court entered judgment in favor of claimant. The personal representative’s motion for rehearing was denied.

Appellant contends that the trial court erred in failing to require the claimant to file an independent action pursuant to Section 733.705(3), Florida Statutes (1977). We believe that appellant’s argument has merit and, therefore, reverse the final judgment entered in favor of the claimant.

The statutory requirement of Section 733.705(3) contains the following:

(3) The claimant shall be limited to 30 days from the date of service of an objection within which to bring an independent action upon the claim, (emphasis added)

“Independent action” as defined in Costin v. Estate of Pridgeon, 349 So.2d 741 (Fla. 1st DCA 1977), requires “the filing of a separate action upon a claim against an estate to which an objection has been filed . .” This requirement allows pleadings and responses sufficient to set the issues before the court prior to hearing.

In view of the foregoing, it is not necessary for us to address the remaining issues raised by appellant. The final judgment under review is hereby reversed. In all fairness to the appellee, the trial court should, after notice, entertain a motion to extend the time for filing an independent action upon the claim. Section 733.705(3), Florida Statutes (1977).

OTT and RYDER, JJ., concur.


text:
    FALLS POULTRY DISTRIBUTING CO., a Florida Corporation, Appellant, v. Arlene CANNER, Appellee.
    No. 78-1835.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 13, 1979.
    Freshman, Gerson & Freshman and Jerold A. Freshman, Miami, for appellant.
    Ginsberg & Goldman and Daniel L. Ginsberg, North Miami Beach, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

The summary judgment for the defendant entered below is reversed and the cause remanded for further proceedings. The defendant’s affidavit, which was filed before answer and which did no more than generally deny the allegations of the complaint in conclusory terms, did not sustain her affirmative burden to demonstrate conclusively the absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 45 (Fla.1966); Silber v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla.1st DCA 1975); Hurricane Boats, Inc. v. Certified Industrial Fabricators, Inc., 246 So.2d 174 (Fla.3d DCA 1971), and cases cited; see Pino v. Lopez, 361 So.2d 192 (Fla.3d DCA 1978), cert. dism. 365 So.2d 714 (Fla.1978); Freeman v. Equilease Corp., 346 So.2d 619 (Fla.3d DCA 1977). Moreover, the summary judgment was prematurely entered before the completion of discovery. Cullen v. Big Daddy’s Lounges, Inc., 364 So.2d 839 (Fla.3d DCA 1978); Commercial Bank of Kendall v. Heiman, 322 So.2d 564 (Fla.3d DCA 1975).

Reversed and remanded.


text:
    UNIVERSAL MICROGRAPHICS, INC., et al., Appellants, v. MIDWEST C.O.M. SYSTEMS, INC., Appellee.
    No. 79-648.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 13, 1979.
    Layne & Brill and Michael E. Marder, Miami, for appellants.
    Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and William H. Benson, Miami, for appellee.
    HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16-17 (Fla.1976); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972); Zambetti v. Commodores Land Co., 102 Fla. 586, 136 So. 644 (1931).


text:
    Francis T. CONNOR, Appellant, v. June V. CONNOR, Appellee.
    No. 78-1093.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Rehearing Denied July 17, 1979.
    J. Russell Hornsby of Law Offices of J. Russell Hornsby, P. A., Orlando, for appellant.
    James K. Freeland of James K. Freeland, P. A., Orlando, for appellee.
   PER CURIAM.

This is an appeal by the husband from a final judgment in a dissolution of marriage proceeding. Appellant contends the trial court erred in denying his request for alimony and in awarding the wife lump sum alimony in the form of the husband’s one-half interest in the marital domicile. We reverse the final judgment insofar as it denied alimony to the husband and granted alimony to the wife. We find that the award of the husband’s interest in the marital domicile was improper under Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976). We further reverse the denial of the husband’s prayer for alimony. It is clear from the record appellant is not able to support himself in that he is permanently and totally disabled. The husband’s claim for alimony meets the criteria set out in McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), and should have been granted. Therefore, the grant of alimony to the appellee/wife and the denial of alimony to the appellant/husband are reversed. The cause is remanded for further proceedings in accordance with this opinion. The judgment is affirmed other than as indicated herein.

REVERSED in part, AFFIRMED in part, and REMANDED.

DAUKSCH and BERANEK, JJ., concur.

CROSS, J., concurs only in conclusion.


text:
    Robert L. WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-677.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Richard L. Jorandby, Public Defender, and Rendell Brown, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and DAUKSCH, J., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I agree that the judgment of conviction should be affirmed. However, I note from the record that there may be an issue, not involved in this appeal, as to whether the appellant was in possession of a firearm and subject to the provisions of Section 775.087, Florida Statutes (1977). Arthur v. State, 351 So.2d 60 (Fla. 4th DCA 1978). That issue, if it exists, would be the proper subject of a motion for post-conviction relief.


author:
PER CURIAM.
      ANSTEAD, Judge, specially

text:
    PATRICIAN SOUTH ASSOCIATES, INC., Appellant, v. PATRICIAN SOUTH CONDOMINIUM APARTMENTS, INC., etc., et al., Appellees.
    No. 77-1903.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    James R. Rich of Law offices of Ronald Sales, Palm Beach, for appellant.
    Herbert L. Gildan of Nason, Gildan & Yeager, West Palm Beach, for appellees.
   PER CURIAM.

Affirmed.

CROSS and MOORE, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge, specially

concurring:

I concur in affirmance on the authority of Century Village, Inc. v. Wellington, etc., 361 So.2d 128 (Fla.1978).


text:
    Timothy FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 78-780.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Richard L. Jora^dby, Public Defender, and Larry S. Weaver, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and MOORE, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I agree that the proof was sufficient to sustain revocation of probation on two counts, but a third finding of appellant’s failure to pay a number of monthly supervisory fees was in error because there was no proof that appellant had the financial ability to make the payments. Accordingly, that portion of the revocation order should be stricken. Cohen v. State, 365 So.2d 1052 (Fla. 4th DCA 1978).


text:
    Harvey E. MORSE, Appellant, v. SEMINOLE COUNTY BOARD OF COUNTY COMMISSIONERS, Dick Williams, Bob French, John Alexander, Bob Kirchoff and Harry Kwiatkowski, as and constituting the Board of County Commissioners of Seminole County, Florida, Appellees.
    No. 78-937.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Mark P. Rabinowitz of Lubet, Heffernan & Rabinowitz, Altamonte Springs, for appellant.
    Harry A. Stewart, County Atty., Sanford, for appellees.
   PER CURIAM.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

The appellant seeks to reverse an order of the trial court quashing an alternative writ of mandamus which had been directed to the commissioners to show cause why they should not be compelled to issue appellant a license to carry a concealed weapon. The appellant contends that he met all statutory and county requirements for the issuance of a license and was entitled to a writ of mandamus compelling the issuance of the permit. Iley v. Harris, 345 So.2d 336 (Fla.1977); Johnson v. Alexander, 219 So.2d 66 (Fla. 4th DCA 1969). The statute in question was amended in 1976 and for the first time authorized the county commissioners to establish by ordinance criteria for the issuance of licenses to carry concealed weapons. Seminole County passed such an ordinance which included a requirement that the applicant demonstrate an immediate need to carry a weapon. The commissioners denied appellant's application and claim on appeal that he did not demonstrate sufficient need. Appellant claims he did demonstrate immediate need. Since there is a factual dispute as to appellant’s need to carry a weapon I do not believe mandamus is a proper remedy. The commissioners must originally determine that issue. That determination may be subject to judicial review, but not by mandamus. Unlike the situation in Iley v. Harris, supra, the legislature has now vested substantial discretion in the county commissioners to determine the criteria for the issuance of licenses. It is true that after establishing such criteria the discretion of the commissioners is limited to determining whether or not an applicant meets the criteria. However, when compliance with such criteria becomes an issue of fact the commissioners necessarily must exercise some discretion in resolving that issue, and hence mandamus, available only when a purely ministerial, non-discretionary act is involved, is not a proper remedy. State ex rel. Zuckerman-Vernon Corp. v. City of Miramar, 306 So.2d 173 (Fla. 4th DCA 1974). Therefore, the trial court was correct in quashing the writ of mandamus.

      . Section 790.06, Florida Statutes (1977).