author: BOOTH, Judge.

text:
    EXXON CORPORATION, Appellant, v. Gerald A. LEWIS, Comptroller, State of Florida, Appellee.
    No. JJ-364.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1978.
    Peter A. Knocke and Peter J. Winders of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    William L. Lyman, Asst. Gen. Counsel, Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from final agency action holding Exxon’s claims for severance tax refunds for the period March 1, 1974 through December 31, 1976 are barred under Florida Statute § 211.-06(2). The issue on appeal is whether Florida Statute § 211.06(2) applies and bars the claim (as contended by DOR) or whether Florida Statute § 215.26 applies and the claims are timely filed (as contended by appellant).

We hold that § 215.26 controls and allows three years after accrual of the right to a refund within which the taxpayer can file application with the Comptroller for the refund. That statute expressly provides that unless filed within the three-year period “such right shall be barred . ”, thereby signaling its effect as a non-claim statute.

As to Florida Statute § 211.06, its apparent function is to authorize the DOR to adopt regulations for processing taxpayer adjustments within one year of payment of the tax. Under this statute the DOR, as the collecting agency, is permitted to initially pass upon and determine refund questions during the first year following payment, though application to the Comptroller for release of any appropriated monies needed for refunds is still contemplated. No language in § 211.06 puts the taxpayer on notice that, as claimed by DOR, severance tax refunds can only be claimed within the one year following payment, and we reject that strained construction in favor of the clear language of § 215.26 allowing a three-year period for tax refunds.

Accordingly, the ruling ' below is REVERSED and the cause REMANDED for consideration on the merits.

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

      . Fla.Stat. § 211.06(2):
      “The department is authorized and empowered to adjust and make proper settlements and refunds in cases of overpayment of the tax or where payment is made when no tax is due or when payment is made through error, under regulations prescribed by it, and there is hereby appropriated a sufficient amount for the comptroller to refund said taxes, when and if on proper application and proof filed with him within 1 year from the date of the payment of such taxes, he deems it necessary to make such refunds, and this provision shall in no way prejudice any right of action that may accrue to any person liable for the payment of the tax to contest in any court of competent jurisdiction the payment of any or all of the taxes imposed herein.”

      . Fla.Stat. § 215.26:
      “(1) The comptroller of the state may refund to the person who paid same, or his heirs, personal representatives or assigns, any moneys paid into the state treasury which constitute:
      (a) An overpayment of any tax, license or account due;

      (2) Application for refunds as provided by this section shall be filed with the comptroller within 3 years after the right to such refund shall have accrued else such right shall be barred and such application shall be
      on a form to be prescribed by the comptroller and shall be sworn to and supplemented with such additional proof as is necessary to establish such claim; provided, such claim is not otherwise barred under the laws of this state.”


source: Caselaw Access Project

license: Public Domain

text:
    FLORIDA INTERCONNECT TELEPHONE COMPANY, Petitioner, v. DISTRICT SCHOOL BOARD OF SEMINOLE COUNTY, an Administrative Agency, Respondent.
    No. 77-2161.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1979.
    H. Vernon Davids, of Davids, Henson & Hadley, Winter Garden, for petitioner.
    Ned N. Julian, Jr., of Stenstrom, Davis & McIntosh, Sanford, for respondent.
   Petition for Writ of Certiorari to District School Bd. of Seminole County, Davie E. Sims, Chairman; District School Bd. of Seminole County.

Petition for Writ of Certiorari is hereby denied.

DAUKSCH and LETTS, JJ., and RIVKIND, LEONARD, Associate Judge, concur.


author: PER CURIAM.

text:
    HUNT TRUCK SALES AND SERVICE, INC., a Florida Corporation, Petitioner, v. BONANZA CONSTRUCTION, INC., a Florida Corporation, a/k/a Bonanza Construction, a/k/a Bonanza Construction Company, Orleans Investment Company, Inc., a corporation, Treelake Company, Inc., a corporation, GTM Atlanta, Inc., a corporation, SH Investment and Development Corp., a corporation, Respondents.
    No. 77-477.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1979.
    Francis E. Pierce, Jr., Orlando, for petitioner.
    Thomas F. Lang, Orlando, for respondents, Orleans Investment and Treelake Co.
    Bruce M. Bogin, Orlando, for respondent, SH Investment and Development Corp.
    Emery H. Rusenbluth, Jr., Orlando, for respondent, GTM Atlanta, Inc.
   PER CURIAM.

Petition for writ of certiorari is hereby DENIED.

DOWNEY, C. J., and ANSTEAD and BERANEK, JJ., concur.


text:
    John Edward STOKES, Appellant, v. STATE of Florida, Appellee.
    No. KK-345.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1979.

      Leo A. Thomas of Levin, Warfield, Mid-dlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This is an appeal from a judgment and sentence for manslaughter. Appellant juvenile contends that his statement was obtained in violation of his rights and the motion to suppress the statement should have been granted. We agree and reverse.

Appellant lacked eight days of having reached his fifteenth birthday when he cut another juvenile with a knife during an argument; the victim subsequently died. Appellant and all the witnesses to the incident were taken to the Juvenile Justice Center for questioning. Before the police officers left the house where the incident occurred, they informed his father that he was being taken for questioning. The father stated that he wanted to be present during the questioning and that he would get there as soon as he could; he needed to stay and calm his wife down first. The testimony shows that appellant was taken from the house about 4:30 p. m. His statement was taken by one of the police officers out of the presence of either parent at 6:03 p. m. The father had arrived at the Juvenile Justice Center at 6 p. m. but was detained by a receptionist who said he needed to fill out some forms.

At the hearing on the motion to suppress the statement, appellant stated that the officer said he was waiting for appellant’s father because the father wanted to be there, but that the officer waited only three or four minutes and then said, “I can’t wait on him and he went ahead and started.” The officer did not testify at the hearing on the motion to suppress. At trial, however, the officer did testify that he waited for other parents and that at least one parent of every other individual interviewed relative to this case was present before the interview took place.

Section 39.03(3)(a), Florida Statutes (1977), requires that when a person determines that a child should be detained, he must immediately notify the parents or legal guardian. In this case, there is no question but that the parents were notified. We believe, however, that the purpose of the statute is not only notice to the parents or legal guardians, but also a reasonable opportunity for them to confer with the juvenile. Just as we held in Dowst v. State, 336 So.2d 375 (Fla. 1st DCA 1976), that where the child requested to speak to his parents and was denied, any confession given by him was inadmissible because his request constituted a continuous assertion of his privilege against self-incrimination, we now hold that where a parent or legal guardian requests to be present and makes himself or herself reasonably accessible, it is error to proceed in questioning the juvenile. Under facts such as those in this case, the parent or legal guardian must be given a reasonable opportunity to confer with the juvenile. The statute is not satisfied by a race of diligence between the parent and the officer.

Accordingly, the judgment and sentence are reversed and the cause is remanded for a new trial.

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


text:
    John A. SCAPELLATI et al., Appellants, v. SECURITY FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. KK-5.
    District Court of Appeal of Florida, First District.
    Feb. 1, 1979.

      Angus W. Harriett of Harriett & Sproull, Palatka, for appellants.
    Harold C. Hubka of Black, Crotty & Sims, Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. Maryland Cas. Co. v. Krasnek, 174 So.2d 541 (Fla.1965). Appellee’s motion for attorneys’ fees is DENIED.

MILLS, Acting Chief Judge, SMITH, J. and MITCHELL, HENRY CLAY, Associate Judge, concur.


author: ERVIN, Judge.

text:
    Steven Eric LISTER by Lois B. Lister, his mother and next friend as guardian, Appellant, v. James CAMPBELL and the Insurance Company of North America, Appellees.
    No. KK-6.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1979.

      James B. Swearingen and Robert H. Wilson, III, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Donald H. Partington, of Clark, Parting-ton, Hart & Hart, Pensacola, for appellees.
   ERVIN, Judge.

An appeal from a final summary judgment in an action seeking damages resulting from injuries suffered by Lister caused by an alleged attractive nuisance.

Steven Lister, aged 14 years and 11 months, dove from two posts into an old gravel pit which had filled with water on property owned by Campbell in Escambia County, Florida. His head struck the bottom; his neck was broken and, as a result, he became paralyzed from the waist down. The posts from which appellant dove were approximately two feet from the water. The depth of the water where the accident occurred was nearly, according to Lister, chest high. Lister was on Campbell’s property without his permission or knowledge. The complaint alleged that Campbell had negligently and carelessly left the artificial lake unfenced, without any warnings of any kind, in violation of a special act of Escam-bia County, Chapter 57-1291, Laws of Florida, which declared that any such unfenced depression was a dangerous and attractive nuisance, and provided criminal sanctions for its violation.

The Court entered different grounds supporting its order granting summary judgment in favor of Campbell. One was that the minor plaintiff was a trespasser. It is difficult to determine from this finding whether the court concluded that simply due to Lister’s status as a trespasser, the attractive nuisance doctrine did not apply. The general rule is that a property owner owes no duty to a trespasser other than not to wilfully or wantonly injure him. McNulty v. Hurley, 97 So.2d 185 (Fla.1957); Crutchfield v. Adams, 152 So.2d 808 (Fla. 1st DCA 1963). On the other hand, if the attractive nuisance doctrine applies, it is presumed that the child is a trespasser and his status as such does not excuse the owner from liability. Indeed, the doctrine was created as an exception to the rule as to trespassers. Crutchfield v. Adams, supra. Section 339, Restatement (Second) of Torts (1965), adopted in Florida, e. g., Cockerham v. R. E. Vaughn, Inc., 82 So.2d 890 (Fla.1955); Ridgewood Groves, Inc. v. Dowell, 189 So.2d 188 (Fla. 2d DCA 1966), subjects the possessor of land to liability for physical harm to trespassing children if all the conditions of the section are satisfied.

We agree, however, with the lower court that there was no genuine issue of material fact that. Lister was unaware of the risk involved at the time he dove into the lake. An additional ground for the entry of summary judgment was that the violation of Chapter 57-1291 did not constitute actionable negligence because the “minor plaintiff was not of the class the statute intended to protect, not being a child of tender age, and the violation of statute was not the proximate cause of the injury suffered by the plaintiff; that the minor plaintiff was aware of the danger inherent in diving into the lake.” The violation of a statute which imposes upon a person the affirmative duty to take certain action, and provides penalties for the failure to do so is either negligence per se or prima facie evidence of negligence which may be overcome by proof of other circumstances, de Jesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198, 201 (Fla.1973); Allen v. Rucks, 121 So.2d 167 (Fla. 1st DCA 1960); Booth v. Mary Carter Paint Co., 182 So.2d 292 (Fla. 2d DCA 1966). The violation of a statute, in the ordinary case, would prevent summary judgment and require submission of all the facts to the jury — unless of course the violation could not have been the proximate cause of the injury. Booth v. Mary Carter Paint Co., supra. Stated differently, if there is not a genuine issue of material fact that the alleged negligence arising from the statute’s violation can be found to be the proximate or contributing cause of plaintiff’s injuries, the case may properly be disposed of by summary judgment.

Section 339 of the Restatement provides: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

In the comment to clause (b) of § 339, the standard of care is stated as follows:

The duty of the possessor, therefore, is only to exercise reasonable care to keep the part of the land upon which he should recognize the likelihood of children’s trespassing'free from those conditions which, though observable by adults, are likely not to be observed by children, or which contain the risks the full extent of which an adult would realize but which are beyond the imperfect realization of children. It does not extend to those conditions the existence of which is obvious even to children and the risk of which should be fully realized by them. Id. at 202.

The possessor’s liability is that of negligence — and the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances. See comment to clause (e) at 206.

It is questionable whether the testimony relating to Campbell’s knowledge of trespassers would have been sufficient to withstand a motion for summary judgment as to the requirements set forth in clauses (a) and (b). Campbell testified he was unaware that the lake had been used for swimming by children. Indeed, he did not know whether children had come into the area. He assumed, however, persons had wrongfully trespassed due to the presence of picnic litter and tire tracks near the lake.

We conclude, however, that the requirements of clause (c) were clearly not met. The solution to whether a child “discover[s] the condition or realize[s] the risk involved” depends upon a consideration of several factors — including age, maturity, intelligence and capacity — which consideration is “ordinarily reserved for the jury.” Fouraker v. Mullis, 120 So.2d 808, 810 (Fla. 1st DCA 1960) (emphasis supplied). See also Idzie v. Hobbs, 186 So.2d 20 (Fla.1966). While courts from other jurisdictions have set maximum age limits for the possible application of the rule, the great majority— including Florida — have rejected the concept of a fixed age limit, and have held there is no definite age beyond which the rule does not apply. See comment (c) to Restatement at 199. The comment continues, however, that as the child’s age increases, the conditions become fewer in which there can be recovery under the rule. Where the injured child understands or appreciates the peril, and is able to avoid the danger, it is generally held that the doctrine is inapplicable and there can be no recovery since the rule is intended for the protection of children who, because of their immaturity and inexperience, are unable to appreciate and avoid the danger or condition to which they are exposed. Thus “the possessor is not subject to liability to a child who in fact discovers a condition and appreciates the full risk involved, but none the less chooses to encounter it out of recklessness or bravado.” Comment to clause (c) at 204.

Often the child’s own testimony is the best evidence of whether he possessed sufficient intelligence and knowledge to understand or avoid the danger. In O’Keefe v. South End Rowing Club, 64 Cal.2d 729, 51 Cal.Rptr. 534, 414 P.2d 830 (1966), the California Supreme Court sustained a trial court’s judgment of non-suit entered at the end of plaintiff’s evidence. There the plaintiff, aged 15 years and 8 months, was injured following a dive into water, which he was aware was generally shallow. The plaintiff testified he knew “ ‘if you dove into shallow water that that was the wrong thing to do.’ ” The court observed that the plaintiff’s knowledge of the diving conditions at the pier was extensive; that he had dived from the same pier some ten or fifteen times over a period of three or four months. On the day of the accident he dived off the pier three or four times. Moreover the plaintiff was aware that the depth of the water was somewhere between five or six feet at that time. His intelligence appeared normal: He was in the second half of his sophomore year in high school, was performing satisfactorily in his studies, and was healthy, normal and active in every way.

The facts in O’Keefe are strikingly similar to those here. The deposition testimony of young Steven and his mother reveals him to be possessed of ordinary intelligence. At the time of the accident, on June 25, 1976, Steven had completed the ninth grade, although he was then making up two subjects in summer school. Steven testified that he had swum in the lake over a period of ten years; that he had dived from the same posts dozens of times before over a period of three years. As a matter of fact, on the very day of the accident, he twice dove from the posts before the occurrence of his injuries. Moreover, he was aware that the water was approximately chest deep. His appreciation of the danger was stated as follows:

Q. I believe you indicated that when you had jumped before, however, you had made an effort to make a shallow dive so you would not hit the bottom, is that true?
A. Yes: but, you know, I imagine it would have been deep enough, you know, to dive, but I didn’t want to take no chances, so you do a shallow dive.
Q. So as soon as you hit the water, you would curl up as quickly as you could?
A. Yes.
Q. So that you would not hit the bottom?
A. Yes.
Q. So you were aware that if you didn’t make that effort, you were liable to hit the bottom?
A. Yes, I guess.
Q. Well, actually you weren’t guessing at all, were you? You knew that, didn’t you?
A. Yes.

We conclude from the record that the combination of the various relevant factors: age, intelligence, and knowledge reveals that Steven possessed sufficient ability to understand and appreciate the danger involved. The doctrine of attractive nuisance, therefore, has no applicability to the facts before us and cannot be considered the proximate cause of the minor plaintiff’s injuries. As stated by Professor Prosser:

The one basic reason for a rule which distinguishes trespassing children from trespassing adults is the inability of the child to protect himself against the peril which he encounters. If that reason does not exist, it has been generally agreed that the whole policy of the special rule fails with it. The courts have been very firm in their insistence that if the child is in fact fully aware of the condition, understands and appreciates the danger which it carries, and is quite able to avoid it, he stands in no better position than any adult with similar knowledge and understanding. Prosser, Trespassing Children, 47 Cal.L.Rev. 427, 461 (1959). AFFIRMED.

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

      . This rule remains unchanged by later decisions. If, however, a plaintiff can demonstrate he was expressly or impliedly invited onto the premises either as a licensee or invitee, there is no need to resort to the doctrine and the owner’s duty is to exercise reasonable care to such persons. Wood v. Camp, 284 So.2d 691 (Fla.1973). The duty of care by the owner to the uninvited licensee remains the same as that owed to the trespasser: To refrain from wanton negligence or wilful misconduct which would injure him, or to refrain from intentionally exposing him to danger. McNulty v. Hurley, supra.


author: MILLS, Acting Chief Judge.

text:
    G & B OF JACKSONVILLE, INC., d/b/a The Harem, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Appellee.
    No. GG-311.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1979.
    Rehearing Denied April 11, 1979.
    Harry Katz, Jr., of Katz & Katz, Jacksonville, for appellant.
    Dennis E. LaRosa and David M. Maloney, Tallahassee, for appellee.
   MILLS, Acting Chief Judge.

G & B seeks review of an order of the Division of Beverage finding that two of G & B’s agents, servants or employees violated Section 798.02, Florida Statutes (1977), thereby violating Section 561.29, Florida Statutes (1977), and suspending G & B’s liquor license for ten days. We affirm.

Section 798.02 provides that a person who engages in open and gross lewdness and lascivious behavior shall be guilty of a misdemeanor of the second degree.

Section 561.29 gives the Division authority to suspend a beverage license when the Division finds upon sufficient cause that a licensee or its agents, officers, servants or employees, on the licensed premises, while in the scope of employment, has violated any law of this State.

We do not deem it necessary to recite the charges and findings of the Division. Suffice it to say that the charges were sufficient under Section 798.02 and the findings were supported by competent substantial evidence.

In this particular case, two agents, servants or employees engaged in similar but separate open and gross lewd acts with different patrons on the licensed premises on the same day. The persistent and practiced manner in which the violations were executed lead to the conclusion that G & B either cordoned or negligently overlooked the illegal activities. A licensee may not remove itself from responsibility by not being present on the premises or by claiming ignorance of the repeated violations. Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962).

The other issues presented by G & B have been considered but are without merit.

The order appealed is affirmed.

SMITH, J., and MITCHELL, Henry Clay, Associate Judge, concur.


author: MELVIN, Judge.

text:
    G & B OF JACKSONVILLE, INC., d/b/a Out Of Sight, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Respondent.
    No. GG-306.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1979.
    Rehearing Denied March 14, 1979.
    Harry Katz, Jr., of Katz & Katz, Jacksonville, for petitioner.
    Dennis E. LaRosa, Tallahassee, for respondent.
   MELVIN, Judge.

Petitioner seeks review and reversal of the order of the Director of the Division of Beverage suspending for a period of 60 days its license to sell alcoholic beverages at its place of business designated as “Out of Sight”, in Duval County.

The petition for revocation was based upon allegations that, on said licensed premises, on June 17, 1976, three female servant/employees of petitioner engaged in open, gross, lewd and lascivious behavior with male customers by dancing in front of male customers while the employee/servants were topless, engaging in a sexually suggestive type gyration and permitting the male customers to fondle them.

While the licensee is not an insurer that an agent or servant will not in any particular violate any law of the State of Florida, such licensee nevertheless has a duty to exercise reasonable care and diligence to see that the licensed place of business is conducted in a lawful manner and that its employees do not violate any of the laws of the State of Florida. We have here a record that presents several acts as charged on the part of three separate employee/servants of the licensee. We are not here presented with a single isolated occurrence. The evidence herein is sufficient to support the order entered. See Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962). If a licensee does not maintain sufficient intelligence with reference to activities at his or its licensed premises so as to know that two or more of its employees are engaged in such activity as was herein established, then such licensee must be held to have been lacking in reasonable diligence in the proper management of its licensed premises.

The order of suspension appealed from is AFFIRMED.

MILLS, Acting C. J., and MASON, ERNEST E., Associate Judge, concur.


text:
    G & B OF JACKSONVILLE, INC., d/b/a Out Of Sight, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Appellee.
    No. GG-305.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1979.
    Rehearing Denied April 11, 1979.
    Harry Katz, Jr., of Katz & Katz, Jacksonville, for appellant.

      Dennis E. LaRosa and David M. Maloney, Tallahassee, for appellee.
   MILLS, Acting Chief Judge.

G & B seeks review of an order of the Division of Beverage finding that six of G & B’s agents, servants or employees violated Section 798.02, Florida Statutes (1977), thereby violating Section 561.29, Florida Statutes (1977), and suspending G & B’s liquor license for thirty days. We affirm.

Section 798.02 provides that a person who engages in open and gross lewdness and lascivious behavior shall be guilty of a misdemeanor of the second degree.

Section 561.29 gives the Division authority to suspend a beverage license when the Division finds upon sufficient cause that a licensee or its agents, officers, servants or employees, on the licensed premises, while in the scope of employment, has violated any law of this State.

We do not deem it necessary to recite the charges and findings of the Division. Suffice it to say that the charges were sufficient under Section 798.02 and the findings were supported by competent substantial evidence.

In this particular case, six agents, servants or employees engaged in similar but separate open and gross lewd acts with different patrons on the licensed premises on two different days. The persistent and practiced manner in which the violations were executed lead to the conclusion that G & B either condoned or negligently overlooked the illegal activities. A licensee may not remove itself from responsibility by not being present on the premises or by claiming ignorance of the repeated violations. Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962).

The other issues presented by G & B have been considered but are without merit.

The order appealed is affirmed.

SMITH, J., and MITCHELL, HENRY CLAY, Associate Judge, concur.


author: PER CURIAM. MILLS, Judge,

text:
    Douglas NELSON, Appellant, v. Harold HERNDON and Linda Gail Herndon, his wife, Appellees.
    No. KK-459.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1979.
    Walter R. Carfora, Gainesville, for appellant.
    C. Valentine Bates of Bates & DeCarlis, Gainesville, for appellees.
   PER CURIAM.

Nelson appeals a judgment of adoption awarding his seven-year-old daughter to Harold Herndon and Linda Gail Herndon. The mother of the child is deceased. We reverse.

Under the evidence presented, the only legal basis upon which this adoption could be granted is by a showing of abandonment of the child by the natural father. It fails in this respect and the trial court so found. See Harden v. Thomas, 329 So.2d 389 (Fla. 1 DCA 1977); Turner v. Adoption of Turner, 352 So.2d 957 (Fla. 1 DCA 1977); § 63.072, Florida Statutes (1977).

REVERSED.

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

MILLS, J., specially concurring.

MILLS, Judge,

specially concurring:

Reluctantly, I concur with the majority.

Since the passage of Section 63.072, Florida Statutes, which became effective on 1 October 1973, the consent of a parent to an adoption may be excused by the court in certain specified circumstances. For the best interest of the child is not included among the circumstances.

In this case, the trial court did not find that the father had abandoned his child but did find that it was in the best interest of the child that she be adopted. The evidence clearly and convincingly supports this finding.

It is unfortunate that the Herndons who have been good parents to the child for more than half of her life and who the child looks upon as her parents may not become her legal parents. Particularly is this true where the father admits that the Herndons have done an excellent job in raising the child.

Because children will be faced with such circumstances as have arisen in this case in the future, I suggest that the Legislature consider amending Section 63.072 to include for the best interest of the child as a circumstance permitting the court to excuse the filing of a consent by a natural parent.

It is also clear that although the father did not legally abandon the child, his actions were worse. Abandonment would have been better for the child.


text:
    James R. KERNS and Nancy I. Kerns, his wife, Appellants, v. A. J. RYAN, Jr., Appellee.
    No. 77-1535.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Brumer, Moss, Cohen & Rodgers, Miami, for appellants.
    Joseph S. Kashi of Grimmett, Scherer & James, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from an order granting the defendant’s motion for a new trial on the issue of damages. In awarding the new trial the trial judge did not specify the specific grounds for the order but merely said the damages were excessive and the verdict was against the manifest weight of the evidence. Under Florida Rules of Civil Practice 1.530(f) jurisdiction is relinquished to the trial court for thirty days for the entry of an order setting out specifically the reasons for the granting of a new trial. The parties shall have thirty days from the filing in this court of the requisite order to file such additional briefs as are deemed necessary, one brief per party without reply-

JURISDICTION RELINQUISHED and REMANDED.

ANSTEAD and DAUKSCH, JJ., and SCHOONOVER, JACK R., Associate Judge, concur.


text:
    Denise GROSSMAN, Petitioner, v. Honorable Gordon A. DUNCAN, Jr., as Judge of the Fourth Judicial Circuit, In and For Duval County, Florida, and Judicial Referee, Chalermchai Punya, M. D., Panel Member for Mediation, and Earl M. Johnson, Esquire, Panel Member for Mediation, Respondents. Denise GROSSMAN, Appellant, v. MEMORIAL HOSPITAL OF JACKSONVILLE and Michael R. Malanga, M. D., Appellees.
    Nos. MM-236, MM-275.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Charles B. Lembcke of Datz, Jacobson & Lembcke, Jacksonville, for petitioner-appellant. (Nos. MM-236 and MM-275)
    Robert L. Shevin, Atty. Gen., for respondent. (No. MM - 236)
    Noah H. Jenerette, Jr. and Rutledge R. Liles, Jacksonville, for appellees. (No. MM 275)
   ERVIN, Judge.

The petitioner seeks a writ prohibiting the judicial referee of the medical mediation panel from commencing a hearing on her malpractice claim beyond the six-month statutory period in § 768.44(3) and Fla.R. Med.P. 20.190(c). The record shows that the petitioner filed her claim on April 7, 1978, and that, before the initial 120-day statutory time period had run, the judicial referee had extended the time for commencement of the hearing to October 7, 1978, the last date on which the hearing could be commenced before the panel lost jurisdiction. See Fla.R.Med.P. 20.190. On October 3, 1978, the judicial referee entered an order stating (1) the attorney and physician members of the panel and (2) that the mediation hearing would convene on October 5, 1978. The judicial referee did not notify the other panel members of their selection or that the hearing was to begin on October 5. The October 5 “hearing” was conducted before the judicial referee alone and, when respondents sought to introduce certain documents into the record, petitioner objected that the proceeding was not the mediation hearing contemplated by § 768.44 or the Medical Mediation Rules. The judicial referee overruled the objection, allowed the documents into evidence and scheduled the hearing to continue on January 22, 1979. Later, the judicial referee denied petitioner’s motion that he request the clerk to enter a notice of termination of the proceedings, and petitioner’s complaint on her claim, filed in Circuit Court, was dismissed without prejudice for failure to mediate.

We agree with the petitioner that the hearing was not commenced as required in § 768.44(3) and Fla.R.Med.P. 20.190(c). Section 768.44(2), Fla.Stat. (1977), states that “[ejach hearing . . . shall be before a three-member panel, hereinafter referred to as the ‘panel’, ‘mediation panel,’ or ‘hearing panel’ . . ..” (e. s.). Rule 20.030, Fla. R.Med.P., defines “panel” as “the judicial referee, licensed physician and attorney chosen ... to hear the claim.” We also agree that the “hearing on the claim before the hearing panel” was not commenced within six months of the date the complaint was filed, as required by § 768.-44(3).

The statutes and rules governing medical mediation proceedings must be strictly construed because they are in derogation of the common law and present “an impediment to the constitutional guarantee of access to the courts . . ..” Ballard v. Curatolo, 363 So.2d 864, 865 (Fla. 4th DCA 1978); see also Carter v. Sparkman, 335 So.2d 802 (Fla.1976); Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978); Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978); Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977).

The judicial referee’s reply to our order to show cause states that substantial compliance with the statutory procedures secured the panel’s continuing jurisdiction, citing Thames v. Melvin, 365 So.2d 813 (Fla. 1st DCA 1979). The Thames opinion was limited strictly to its facts. In that case we held that a written order of the judicial referee, after a pre-trial conference held within the 120-day period, setting the final hearing for a day outside the initial 120-day period, was an extension order under Fla.R. Med.P. 20.160(e), so that the panel did not lose jurisdiction. In Thames, however, neither the statute nor Fla.R.Med.P. 20.160(e) mandated a different result. Here, § 768.-44(3) expressly required the hearing be commenced before the panel within six months of the date petitioner filed her claim. Therefore, it is ordered that the writ of prohibition be issued.

MILLS, Acting C. J., concurs.

BOOTH, J., dissents without opinion.

      . Section 768.44(3) provides that “hearing on the claim before the hearing panel shall be held within 120 days of the date the claim was filed unless such time is extended. Such extension shall not exceed 6 months from the date the claim was filed.”

      . Section (e) of that rule simply states that “the judicial referee, by written order, may extend the time for commencing the hearing.”

      . The effect of our opinion is consistent with that of the Fourth District Court of Appeal in the recently decided case of Diggett v. Conkling, 368 So.2d 74 (1979).


text:
    STATE of Florida, Appellant, v. William L. ACKERMAN a/k/a William Ackerman, Appellee.
    No. 78-1510.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1979.
    David H. Bludworth, State’s Atty., and Robert M. Gross, Asst. State’s Atty., West Palm Beach, for appellant.
    Edward A. Garrison of Kohl, Springer, Springer & Garrison, Palm Springs, for ap-pellee.
   PER CURIAM.

REVERSED on the authority of State v. Allen, 362 So.2d 10 (Fla.1978).

CROSS, DAUKSCH and LETTS, JJ., concur.


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Peter P. MARCINOWSKI, Jr., Appellee.
    No. 78-23.
    District Court of Appeal of Florida, Second District.
    March 16, 1979.
    Rehearing Denied April 18, 1979.
    •' "Robert L. Shevin, Atty. Gen., Tallahassee and Mary Jo M. Gallay, Michael A. Palecki, Asst. Attys. Gen., Tampa, for appellant.
    Larry S. Hersch, Dade City, for appellee.
   DANAHY, Judge.

Defendant was charged with carrying a concealed firearm and with obstructing and opposing an officer without violence. The trial judge granted his motion to suppress the firearm as evidence and the state appeals. We reverse.

This is a stop and frisk case in which the stop was made on the basis of information received by law enforcement officers from known informants, not on the basis of suspicious activity observed by the officers. In State v. Hetland, 366 So.2d 831 (Fla.2d DCA, 1979), this court held that a stop based solely on information from informants may be valid in Florida notwithstanding that the Florida Stop and Frisk Law, Section 901.151, Florida Statutes (1977), indicates that the circumstances giving rise to a stop must be personally observed by the officer. We held in Hetland that the crucial issue is whether the information received, considering the source from which it was received, bears indicia of reliability.

In this case, law enforcement officers of Pasco County received information from known sources, including New York officials and a local resident, that defendant and two other men from New York were present in Pasco County and that they were usually armed. The local resident furnished descriptions of the three men, the name of the defendant, and the numbers of the license tags on the cars which the men were driving in the area. Another local resident advised that she had been in the company of two of these men and had seen guns on their persons.

We believe the information bore sufficient indicia of reliability. The record shows that the information was acted upon promptly by the issuance of a “BOLO” and that the stop was made in a reasonable manner when one of the vehicles was spotted as a result of that bulletin. Defendant, a passenger in the vehicle, was requested to get out. When he did so, the investigating officers observed a bulge under his left shoulder. They patted defendant down and found a revolver in a shoulder holster under his left arm. It is that revolver which the trial judge ordered suppressed. He did not, of course, have the benefit of our Hetland decision when he entered that order.

We hold that the stop and frisk in this case were valid. Accordingly, the revolver seized from the defendant as a result of that stop and frisk is admissible evidence against him.

Reversed and remanded for further proceedings not inconsistent with this opinion.

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


text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Laurence H. WILSON, Appellee.
    No. 78-809.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.

      High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, George P. Telepas, Miami, for appel-lee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The plaintiff, The Travelers Insurance Company, appeals a summary final judgment entered upon its complaint seeking a declaration that the insurance company was not liable for uninsured motorist coverage. The complaint prayed that the defendant, appellee here, Laurence H. Wilson, be “. . temporarily and permanently [enjoined] from proceeding with his claim against the Plaintiff and bringing it before the American Arbitration Association . . ” The summary judgment entered held that the plaintiff was not entitled to the injunction and ordered that the parties should proceed to arbitration.

Defendant Wilson is proceeding under the uninsured motorist provision of his automobile liability policy with The Travelers Insurance Company. Travelers’ complaint alleged that Wilson was injured when his car was rear-ended by Francisco Mora (not a party to this action). Mora had liability insurance with limits of $15,-000/$30,000, and Wilson had uninsured motorist coverage with Travelers in the same amount. Wilson sought arbitration under the uninsured motorist provision, contending that the tort-feasor was the driver of a phantom vehicle that made a sudden stop in front of him, causing his injuries. During discovery, Travelers made a request for admission that Mora’s negligence was at least, in part, responsible for the accident and for Wilson’s injuries. Wilson answered that both Mora and the phantom vehicle were negligent and responsible.

The plaintiff Company moved for summary judgment upon the ground that:

“. . . there is no genuine issue as to any material fact that the uninsured motorist coverage available to the Defendant is not greater than the liability limits provided under the State Farm policy issued to the third-party tort feasor, Mr. Francisco Mora and since the third-party tort feasor is a person jointly or severally liable together with the alleged uninsured phantom vehicle for the injuries allegedly sustained by the Defendant in the subject accident, the Defendant, is precluded from filing and maintaining an uninsured motorist claim or action against the Travelers Insurance Company . . .”

It is well established that once either party to an insurance contract is successful in pleading a complaint for declaratory relief, the court becomes fully empowered and should completely adjudicate all the rights of the parties relating to coverage, liability and damages in order that the rights of the parties not be determined in a piecemeal fashion. Cruger v. Allstate Insurance Company, 162 So.2d 690 (Fla. 3d DCA 1964). See also Travelers Insurance Company v. Lee, 358 So.2d 88 (Fla. 3d DCA 1978); Ta-vares v. Allstate Insurance Company, 342 So.2d 551 (Fla. 3d DCA 1977); Perez v. State Automobile Insurance Association, 270 So.2d 377 (Fla. 3d DCA 1972); and Zeagler v. Commercial Union Insurance Company of New York, 166 So.2d 616 (Fla. 3d DCA 1964). Thus, the question remains whether the determination of issues of fact are necessary in order to enter a declaration upon the coverage question.

The relevant portion of the statute in force at the time of the subject collision is:

“(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.
♦ * * * * *
“(3) For the purpose of this coverage, the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
“(a) Is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency; or “(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under uninsured motorist’s coverage applicable to the injured person.” Section 627.727, Florida Statutes (1977)

The plaintiff insurer relies for reversal upon an interpretation of section (1), above quoted, to provide that where one of two joint tort-feasors has liability insurance in the same amount as the liability limits of an insured’s uninsured motorist benefits, the insured may not recover uninsured motorist benefits even though the other tort-feasor is uninsured. For this interpretation, the plaintiff points to the language of the statute which is: “The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured . . . under any automobile liability ... or [from] any other person or organization jointly or severally liable . . . ” The plaintiff urges that it is admitted upon the facts of this case that there is coverage “available” from Mora, who is at least jointly liable.

Alternatively, the plaintiff maintains that if the liability or degree of liability of Mora is necessary for a determination of coverage, then the trial court should proceed to determine that issue under the rule that the fact issue is incidental to a determination of coverage.

The defendant’s position is that whether a second tort-feasor was, in part, guilty of causing the accident is a totally irrelevant consideration because the defendant had an accident with an uninsured tort-feasor (i. e., the phantom vehicle). He buttresses his position with those cases which hold that the uninsured motorist statute is to be interpreted to give broad protection to the citizens of this state against uninsured motorists. See Salas v. Liberty Mutual Fire Insurance Company, 272 So.2d 1 (Fla.1972).

We think that it is clear that the purpose of the legislature was to provide for broad coverage (i. e., not limited by special policy exclusions), but also carefully to exclude any duplication of benefits. Therefore, if the defendant recovers from Mora, whom he has already sued, he cannot recover under the uninsured motorist provision of his policy. In the posture of this case, the responsibility of Mora has not been determined.

The plaintiff insurer is not entitled to a judgment that coverage does not exist because there has been no determination of the fact that Mora is a tort-feasor. Although an interrogatory may properly seek an opinion concerning legal fault, the policy-holder’s legal conclusion that both Mora and the phantom vehicle were at fault is not a basis for summary judgment on the question of coverage.

There is no provision of the law which requires a plaintiff to maintain only one suit against only one tort-feasor at a time. See Dulman v. Seaboard Coast Line Railroad Company, 308 So.2d 53 (Fla. 4th DCA 1975). Therefore, in response to Traveler’s demand for a decision on the coverage question, he is entitled to show the existence of an uninsured vehicle which he claims caused the accident. The trial court may proceed to determine the factual question presented as an incident to the existence of coverage. If the trial court finds that there was no phantom vehicle, there would be no uninsured motorist coverage in this case. If the trial court finds that there was a phantom vehicle, it should abate this action pending the outcome of the previously-filed suit against Mora. If the plaintiff recovers the full amount of Mora’s policy limits in that suit, there would be no uninsured motorist coverage in this case. Only if the plaintiff recovers nothing or less than Mora’s policy limits in that suit would there be uninsured motorist coverage in this case; in any event, the plaintiff’s total recovery from Mora and Travelers could not exceed the policy limits of the uninsured motorist coverage. Accordingly, the summary judgment appealed is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

      . When the declaratory action was filed, Wilson had already brought a suit against Mora, the motorist whose car struck Wilson’s car in the rear.


author: ANSTEAD, Judge.

text:
    Ralph John GALLUCCI, Appellant, v. STATE of Florida, Appellee.
    No. 77-1213.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1979.
    Rehearing Denied May 2, 1979.

      John L. Sutton, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, John D. Cecilian and Benedict P. Kuehne, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from a judgment of conviction and sentence for receiving stolen property after a jury trial. Appellant has raised some fifteen issues on appeal, only one of which we believe has merit.

At the sentencing hearing, appellant’s counsel called the trial court’s attention to certain remarks of the prosecutor contained in the presentence investigation report which suggested that the appellant be sentenced to the maximum jail term because he had rejected a negotiated plea involving a one year jail term prior to trial. The prosecutor urged that once appellant had his jury trial: “He should not get a better deal from the judge, since he was found guilty.” Appellant’s counsel termed the prosecutor’s remarks “vindictive” and urged the court to place appellant on probation. The court denied the request for probation and in the course thereof made the following remarks:

THE COURT: I am a little concerned that defense counsel argues to the Court that after a person has gone to trial that now he’s got to — the Court has got to be vindictive and sentence him to prison, as opposed to giving him probation.
Now it is true that the defendant has got to face the music once he goes to trial, because that’s a sort of a necessity to prevent everybody from going to trial and then being placed on probation if they get convicted, or walking out the door scott free if they are not convicted. There is some truth to the argument. On the other hand, I think that the proper way to look at the matter is that when a defendant is charged with a crime and is offered some negotiations by the State’s attorney, that is admitting his guilt or pleading no contest to the charge, is a rehabilitative factor that the Court takes into consideration in making a determination of what the punishment should be. So then the only other thing is that, since we have got some rehabilitation, what deterrent should be placed before the public as a basis for causing other people not to commit the same type of crime. I don’t think that there is any need for a judge, if a person can go to trial and then come in and then expect to go on probation as a result of being convicted by a jury, because we are going to try every single case that comes down the pike, if that is the way it is.
And if the appellate court doesn’t like what I am saying, they can very well reverse me, but it is not my intention to try a case and then have the defendant come in and expect to be placed on probation, unless it is very, very odd and weird circumstances. You can call it punishment for going to trial, if you want to. I don’t look at it that way. (Emphasis added)

Sentencing is perhaps the most difficult of all of the trial court’s duties. For many reasons, not the least of which is a recognition that a sentencing judge is in a unique position to decide what sentence is appropriate to a particular case, a sentence imposed within the bounds established by statute is not subject to appellate review. The sentence imposed herein is well within those bounds. However, a trial court may not impose a greater sentence on a defendant because such defendant avails himself of his constitutional right to a trial by jury. Hankerson v. State, 326 So.2d 200 (Fla. 4th DCA 1976); Weatherington v. State, 262 So.2d 724 (Fla. 3d DCA 1972). It is true that in considering a sentence for a defendant who has pleaded guilty a trial court may consider the plea itself as a step toward rehabilitation. However, while it may seem entirely logical, it is not so easy to simply turn the coin over and conclude that a request for a trial is an indication that a defendant cannot be rehabilitated. Our system presumes innocence and rightfully holds in high esteem an individual’s right to trial by jury. And such right may be exercised freely by an individual, without fear that the choice to go to trial will be held against him.

We are quite certain that the remarks of the trial judge here were not meant to imply that probation was being withheld because the appellant chose to go to trial. Rather we think his remarks were in response to a rather vigorous claim by appellant who virtually demanded probation while at the same time continuing to staunchly defend his innocence. The trial court, no doubt, felt it was rather presumptuous of the appellant to be insisting on his innocence, in view of the jury’s verdict, and in addition, demanding probation.

However, in an abundance of caution and because all we have are the printed words of the court, we cannot overlook the court’s own statement that after a jury trial probation will be denied “unless it is very, very odd and weird circumstances.” On its face the statement implies that those that demand a trial will be treated differently than those that do not. Such different treatment is not permitted. Hanker-son, supra. For these reasons we think it best that the appellant’s sentence be vacated and that the appellant be resentenced by another judge to be assigned by the chief judge of the circuit.

Accordingly, the judgment of conviction is affirmed; and the sentence is vacated with directions for further proceedings in accordance with this opinion.

DAUKSCH, J., and SCHOONOVER, JACK R., Associate Judge, concur.

      . Interestingly, counsel for appellant in the trial court was the trial judge in the Hankerson case, supra.


text:
    Isham William ADAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. LL-185.
    District Court of Appeal of Florida, First District.
    March 22, 1979.

      Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant entered a plea of nolo conten-dere without expressly reserving the right to appeal. Rule 9.140, Fla.R.App.P., provides:

“A defendant may not appeal from a judgment entered upon a plea of guilty; nor may a defendant appeal from a judgment entered upon a plea of nolo conten-dere without an expressed reservation of the right of appeal from a prior order of the lower tribunal, identifying with particularity the point of law being reserved.”

See also Rule 3.172(c)(iv), Fla.R.Crim.P.

Though appellant does have the right to direct appeal from an illegal sentence, Rule 9.140(b)(1)(D), Fla.R.App.P., he raises no such issue here.

Accordingly, this appeal is dismissed.

MILLS, Acting C. J., BOOTH, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    James M. SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 78-804.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1979.
    Rehearing Denied May 16, 1979.
    Harry W. Carls, III, Public Defender, and Glenn M. Klausman, Asst. Public Defender, Orlando, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Petition denied. See Griffin v. State, 367 So.2d 736 (Fla. 4th DCA 1979).

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


text:
    Dr. William R. BORITZ, Petitioner, v. Winifred J. BOYD, Respondent.
    No. 78-2294.
    District Court of Appeal of Florida, Second District.
    April 6, 1979.
    Rehearing Denied May 14, 1979.

      James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.
    John W. Emerson, Jr., of Treadwell, Emerson & Elkins, P. A., Naples, for respondent.
   PER CURIAM.

Certiorari denied. See Whiteside v. Johnson, 351 So.2d 759 (Fla.2d DCA 1977).

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


text:
    PECK PLAZA CONDOMINIUM, Edwin W. Peck, Inc., Edwin W. Peck and Hilda W. Peck, Petitioners, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, DEPARTMENT OF BUSINESS REGULATION, State of Florida, and Claude Norris, Respondents.
    No. GG-440.
    District Court of Appeal of Florida, First District.
    April 11, 1979.
    Rehearing Denied May 11, 1979.
    Joseph C. Jacobs and Dean Bunch of Er-vin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioners.
    Dennis E. LaRosa, Edward S. Jaffry and Mallory E. Horne, of Horne, Rhodes, Jaffry, Stephens, Bryant, Horne & Chapman, Tallahassee, for respondents.
   MELVIN, Judge.

Petitioners, Peck Plaza Condominium, Edwin W. Peck, Inc., Edwin W. Peck and Hilda W. Peck, filed their petition seeking review of the final agency action of the Division of Florida Land Sales and Condominiums, Department of Business Regulation, wherein the petitioners were ordered to install a separate electricity meter for an elevator that served exclusively the 29th floor of the condominium, which 29th floor is owned by the petitioners.

The subject matter of disagreement between the petitioners and some owners of the condominium in question is whether or not the cost of electricity for servicing the elevator referred to was to be borne exclusively by the owners or lessees of the 29th floor, where there is located a restaurant, or whether or not such electricity is to be paid for’ and furnished by the association out of funds raised by assessments against all owners for the general purposes stated in the condominium declaration.

This is the first case that brings to test the Division’s enforcement powers respecting Chapter 718, Condominium Act. Its predecessor Chapter 711 was originally enacted in 1963 and has from that time undergone various revisions. Chapter 718, Florida Statutes (1977) represents the Legislature’s attempt to synthesize experiences gained over the preceding 13 years relating to the thriving condominium construction and operation in Florida. The hearing officer prepared a comprehensive recommended order and therein noted that the Division’s first regulatory statute was Section 711.801, Florida Statutes (1975), and that from such Section the Division derived the following powers:

“In addition to other powers and duties prescribed by Chapter 478, the Department of Business Regulation, Division of Florida Land Sales and Condominiums, shall have power to enforce and ensure compliance with the provisions of this chapter relating to the development, construction, sale, lease, ownership, operation, and management of residential condominiums and residential cooperative units.”

The hearing officer further noted the provisions of Section 711.805, Florida Statutes (1975), which are:

“Violations; enforcement. — N otwith-standing any remedies available to unit owners and associations, if the Division of Florida Land Sales and Condominiums has reasonable cause to believe that a violation of any provision of this chapter has occurred, the division is authorized to institute enforcement proceedings in its own name against any developer or association or their assignees or agents to secure compliance with the statutes as follows:
(1) The division may issue cease and desist orders pursuant to s. 478.171.
(2) The division may bring an action in the appropriate circuit court for declaratory relief, injunctive relief, or restitution on behalf of a class of unit owners or lessees.”

The hearing officer then concluded that the Director of the Division derives his authority to regulate the condominium industry from Section 718.501, etc., Florida Statutes (1976 Supplement). The provisions of this section, without substantial alteration, are a restatement of the basic law relating to condominiums that has been heretofore set forth. The whole controversy is whether the Division has the authority to render a valid interpretation of the articles, bylaws or declaration and determine the intent of the parties as to who should bear the cost of the operating expenses for the limited common element, namely the express elevator to the 29th floor. The hearing officer takes note of the ambiguity existing in the documents with reference to this subject matter but then, to his own satisfaction, settles the question of jurisdiction of the Department by stating:

“. Respondent admitted petitioner has jurisdiction over the development of condominiums in the State of Florida, and did not contest Respondent’s jurisdiction to resolve the issues joined. . .” (The proposed order of the hearing officer, page 6)

The hearing officer then reached the interesting conclusion on page 7 of his proposed order stated as follows:

. Probable cause having been alleged and not contested by Respondents, the Hearing Officer has jurisdiction over the parties and the issues.”

It is still the law of the State of Florida that government derives its power by consent of the governed. Under our state system of government the consent of the people is either granted or not granted by their legislative body. We find no provision in the condominium law that would grant to the respondent Division the authority to interpret and then to enforce its interpretation of the provisions of a condominium contract that is admittedly ambiguous. Jurisdiction to interpret such contracts is, under our system, vested solely in the judiciary. It is to the judiciary that the citizenry turns when their rights under a document are unclear and they desire an interpretation thereof.

In Florida Industrial Com’n v. National Trucking Co., 107 So.2d 397 (Fla. 1st DCA 1958), this Court held:

“Administrative boards, commissions and officers have no common-law powers; but are limited to such powers as may be granted, either expressly or by necessary or fair implication, by the statutes creating them. . . ”

Also, this Court held in Division of Family Services v. State, 319 So.2d 72 (Fla. 1st DCA 1975):

“It is a generally accepted principle of administrative law that an agency, being a creature of statute, has only those powers given to it by the legislature. . . ”

There being no statutory grant of power to the Division to interpret and enforce the conflicting and ambiguous provisions of a declaration relating to a condominium, it follows, as a matter of logic, that the Division may not supplement the absence of legislative authority by a case by case attempt at rule-making control in this area. Any such effort would clash with the Supreme Court’s decision in Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1976). There is no statute containing standards that would guide on the one hand and restrain on the other the agency in the creation and execution of any such rule or power. Such authority may not be brought into existence by agency ambition, insinuation or bureaucratic osmosis.

The Agency was without authority to adopt the order here reviewed, Being void, such order is hereby vacated and set aside.

SMITH, Acting C. J., and BOOTH, J., concur.


text:
    CITY OF BOCA RATON, Appellant, v. BOCA VILLAS CORPORATION, a Florida Corporation, and Samuel Fletcher, Trustee, and Keating-Meredith Properties, Inc., Appellees.
    No. 76-2322.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    Rehearing Denied May 25, 1979.
    Gerald F. Richman and Bertha Claire Lee of Frates, Floyd, Pearson, Stewart, Rich-man & Greer, Miami, for appellant.
    No appearance for appellees.
    Stephen W. Metz, Tallahassee, for amicus curiae-Florida Home Builders Ass’n.
    Duane Searles, Washington, D. C., for amicus curiae-National Ass’n of Home Builders.

      Ronald A. Zumbrun, Thomas E. Hookano and Donald M. Pach, Sacramento, Cal., and William L. Earl of Peebles, Earl & Blank, Miami, for amicus curiae-Pacific Legal Foundation.
    H. M. Madsen, of Mershon, Sawyer Johnston, Dunwody & Cole, Miami, for interve-nor-Arvida.
   PER CURIAM.

The City of Boca Raton amended its charter by the initiative and referendum method to establish a maximum number of dwelling units allowable within the city. This zoning device is commonly referred to as placing a “cap” on density, and the parties here refer to this amendment as the “cap”. This charter amendment was implemented by ordinances reducing the density in single and multi-family residential zoning classifications.

The charter amendment passed by the city electorate provided:

“The total number of dwelling units within the existing boundaries of the City is hereby limited to forty thousand (40,-000). No building permit shall be issued for the construction of a dwelling unit within the City which would permit the total number of dwelling units within the City to exceed forty thousand (40,000).”

After passage of this charter amendment the City Council approved a City Planning & Zoning Board recommendation for an across-the-board density reduction of 50% for all multi-family zoning categories. Single family zoning categories were reduced to conform to the average of what had been constructed in the city prior to the charter amendment. Both the charter amendment and the implementing multi-family zoning ordinances were attacked in this suit by two property owners. After some twenty-seven days of trial the court entered an exhaustive final judgment holding that the charter amendment violated due process provisions of the State and Federal Constitutions because the cap did not bear a rational relationship to a permissible municipal objective and that the ordinances in question violated both due process and equal protection of the law. The judgment also held the current zoning of the property in question was confiscatory and directed the properties be rezoned no more restrictive than the judgment designated.

The trial judge held that the City had the power to establish a “cap” or maximum number of dwelling units allowable within the city boundaries. However, he opined that, as with any other zoning restriction, the “cap” must bear a rational relationship to a permissible municipal purpose, i. e., it must promote the public health, morals, safety or welfare. As one would imagine in a case of this nature, numerous experts were called by each side and in many respects they disagreed. It is apparent from the final judgment that the judge was not impressed by the testimony of some of the experts called to support the City’s position that the “cap” and implementing ordinances were necessary to effectuate a valid municipal purpose. The judgment points to the testimony of the city Planning Director, city Engineering Director and engineering and planning consultants who contended that the City’s present and future planning was quite adequate for a number of years without the cap. For example, Walter Young, the City Director of Planning, described Boca Raton’s planning for the future “second to none,” and that characterization is generally supported by the other expert planning witnesses. Yet in the formulation of the “cap” the city planning department was never consulted. The bottom line of Mr. Young’s testimony was that, other than “community choice”, he knew of no compelling reason for imposing a permanent fixed limitation on population or dwelling units. There are numerous other critical references to the quality of the city’s proof to support its position, and the judgment contains specific findings of fact regarding “after-the-fact studies of the cap’s relationship to public welfare” which support the conclusion reached in the judgment.

Based upon the testimony covering some 21 volumes, the trial judge made, among others, the following findings of fact bearing upon the contention that the cap lacks any rational relationship to a permissible municipal objective:

“1. Boca Raton’s utility systems and services are presently adequate, were adequate prior to the Cap, and there are no present indications of undue strain as a result of further anticipated growth within densities allowed prior to the Cap.
“2. Boca Raton’s school facilities are presently overcrowded but the adequacy or inadequacy of those facilities is beyond jurisdictional control of the City and therefore unrelated to purported limited growth benefits of a Cap. The court has already spoken to this issue in holding unconstitutional a Boca Raton ordinance requiring developers of unp-latted subdivisions to obtain a letter of intent covering new school construction from the Palm Beach County, Florida School Board. Talmon v. City of Boca Raton, No. 75 4286 CA (L) 01 F (Fla. 15th Cir.Ct. 1976). Further because of Boca Ra-ton’s population distribution, the Cap is most likely counterproductive to the entire Palm Beach County public school system. Fiscal studies of both parties confirm Boca Raton now generates a surplus of revenue for schools over and above the cost of school expenditures (including cost of new school construction).
“3. Cost-Revenue Studies by both parties establish greater fiscal surplus will result to general and capital funds of the City without the Cap.
“4. Boca Roton’s water resources can abundantly withstand anticipated growth so long as proper management policies now in effect are maintained. One of the City’s major factual justifications for the Cap was rooted in the ‘water crop’ theory, which purports to limit population by a budget of rainwater falling within City limits. The theory may be useful regionally as a factor in water management decision making. However, its argued use as support for the Cap requires the court completely disregard regional water resources until the city is assured other responsible governmental agencies (U.S. Corps of Engineers, Central and Southern Flood Control District and Lake Worth Drainage District) will continue to protect the municipal interest. Neither the court nor the City can be assured, but there is no creditable evidence these authorities will fail to carry out the responsibilities delegated to them. It is not rational to completely disregard past efforts, future plans and abundant alternative water resources available to Boca Raton through these regional water-management bodies. The record establishes Boca Raton’s water resources can and will ultimately be managed regionally. Water resources will not depend upon a ‘budget’ which Boca Raton or other cities may impose, but rather will depend upon hard social choices involving agricultural priorities, environmental demands, quantity of water used in various sectors, and the cost which society is willing to pay. These are unresolved issues which directly relate to Southeastern Florida water demands and resources. A Cap predicated upon preservation of water resources is a preliminary and unnecessarily drastic solution to an area-water resource issue.
“5. Boca Raton’s air quality and noise levels are normal for a community of its size and are well within state and federal standards and regulations. Anticipated growth will not cause those standards and regulations to be exceeded. The Gerrish Study of air pollution and the Peterson Study of background noise lend no credibility to the Cap or the Ashley-Veri report. Other than the water crop theory and these urban environmental studies, the Ashley-Veri report does not completely support the Cap. In fact, the report’s final conclusion suggests as much when recommending (a) the Cap be raised and (b) that public funds be devoted to acquisition of vacant lands to reduce units.
“6. The City’s current comprehensive plan and zoning maps were essentially prepared prior to and outside the Cap. There is no showing those plans would be jeopardized or materially affected if the Cap were removed.
“7. Much of the defendant’s case hinged on expert opinion to the effect the Cap represents an important community goal. The case was largely presented in abstract and without specific factual showing of real necessity. Defendant argues unper-suasively that ‘necessity is not the test for a city’s right to amend its comprehensive plan’. Burritt v. Harris [Fla.1965, 172 So.2d 820], supra, Davis v. Sails [Fla.App.1975, 318 So.2d 214], supra. The Cap may well be a firm planning goal embodied in legislation. However, legislation as far reaching as this Cap should not be adopted by trial and error. The court is unpersuaded the City’s intended review by Ordinance No. 1966 adds present credence to the Cap. If the Cap is now irrational, a legislated • promise to later amend, modify or repeal it adds nothing to present validity.”

As we mentioned above the trial judge found the charter amendment (the Cap) and the implementing zoning ordinances did not bear a rational relationship to a valid municipal purpose and that the ordinances were confiscatory as applied to appellees’ property. Our study of the briefs and record convinces us that there is substantial competent evidence to support the finding of an absence of a rational relationship regarding the charter amendment and zoning ordinance. That being the case, we need not reach the question of confiscation vel non because the finding that there is no compelling need justifying an exercise of the police power burdening private property is sufficient to warrant striking down the legislative act. As the Supreme Court of Florida said in Burritt v. Harris, 172 So.2d 820 (Fla.1965),

“The constitutional right of the owner of property to make legitimate use of his lands may not be curtailed by unreasonable restrictions under the guise of police power. The owner will not be required to sacrifice his rights absent a substantial need for restrictions in the interest of public health, morals, safety or welfare. If the zoning restriction exceeds the bounds of necessity for the public welfare, as, in our opinion, do the restrictions controverted here, they must be stricken as an unconstitutional invasion of property rights.” 172 So.2d at 823 (Emphasis added.)

That is not to say there must be an absolute necessity requiring the enactment of certain zoning restrictions before they can be tolerated as a proper exercise of the police power. But, as here, an excessive restriction on the use of private property which does not contribute substantially to the public health, morals, safety and welfare is arbitrary and unreasonable and thus unconstitutional. Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975). The trial court found, and the record supports such finding, that the charter amendment and implementing ordinances bore no such rational relationship to the requisite purposes.

We would concede that most of the cases where judicial invalidation of zoning laws has been upheld have in some measure involved the issue of confiscation. Those cases hold that as applied to the property involved the zoning ordinance was unreasonable because it deprived a property owner of the beneficial use of his property. We suggest the reason that the confiscation issue is so pervasive in the case law on this subject is because someone’s ox is getting gored. Who is going to institute litigation but the person who feels his property rights infringed upon by excessive restrictions upon the use thereof?

There are cases, however, which support the principle that zoning which unnecessarily restricts property, zoning which bears no rational relationship to the public health, safety, morals and welfare is unconstitutional without raising the confiscation issue. In State v. DuBose, 99 Fla. 812, 128 So. 4 (1930), the County owned property within the City of Vero Beach and applied for a permit to construct a jail thereon. The permit was denied because the zoning ordinance applicable to this property did not authorize construction of a jail on said property and thus the County sought a Writ of Mandamus. The City contended the reason for prohibiting construction of a jail on said property was that it would increase taxes, increase traffic near a school, and it would diminish the value of school property nearby. Mandamus was denied by the trial court, but on appeal the Supreme Court found there was no support for the City’s reasons for denying the County’s proposed use of the property. Without a sound rational basis upon which to bottom the refusal, the court found the ordinance to be arbitrary and unreasonable as applied to this property. In a nutshell, there just was not any public need to prevent construction of the jail on the particular property. The court made the point that:

“The right of an owner to devote his land to any legitimate use is property within the terms of the Constitution, and the Legislature may not under the guise of the police power impose unnecessary or unreasonable restrictions upon such use.
“This court is committed to the doctrine that courts should not set aside the determination of public officers relative to municipal zoning ordinances, unless it is clear that their action has no foundation in reason and is a mere arbitrary exercise of power without reference to public health, morals, safety, or welfare.” 128 So. at 7.

As far as one can tell from the opinion, no claim of confiscation was made. The property owner simply maintained the absence of any reasonable relationship to a permissible municipal purpose was sufficient to invalidate the law as it applied to the complainant’s property.

In City of Sherman v. Simms, 143 Tex. 115, 183 S.W.2d 415 (1944), the City passed a comprehensive zoning ordinance which, among other things, excluded churches from dwelling and apartment districts. That provision was attacked by a church group which wanted to use a structure in a residential district for public worship. Their contention was that prohibiting the use of property in a residential zone for church purpose was arbitrary, discriminatory and violative of the Federal and State Constitutions, because the restriction had no real or tangible relation to the public health, safety, morals or general welfare. After examining various zoning authorities, the court adopted a quotation from another cited case to the effect that:

“ ‘ * * * And we further conclude that the administrative act of respondents in refusing a permit to erect a church in the residential district, there being no adequate showing that this exclusion of the church was in furtherance of the public health, safety, morals or the public welfare, was arbitrary and unreasonable and in violation of relator’s rights under the State and Federal Constitutions.’ ” 183 S.W.2d at 416.

The court went on to state:

“With this conclusion all the available authorities seem to agree. It must not be overlooked that the power to establish zones is a police power and its exercise cannot be extended beyond the accomplishment of purposes rightly within the scope of that power. To exclude churches from residential districts does not promote the health, the safety, the morals or the general welfare of the community, . . . ” Id. at 416-417.

Once again, the thrust of the attack upon the law was the absence of a reasonable relation to a legitimate municipal purpose; that absence being best demonstrated by the lack of any necessity for such restrictive provision.

In view of our conclusion that an otherwise valid attack may be made upon the charter amendment and implementing ordinances, we need not consider the trial judge’s findings that the cap and implementing ordinances are so drastic and restrictive as to be confiscatory as applied to appellees’ property.

We have not overlooked the rule that municipal legislative action is presumed to be constitutional. But, of course, the presumption is rebuttable and substantial competent evidence was adduced to prove invalidity of the legislative acts. The Supreme Court of Michigan, in Smith v. Building Inspector For the Township of Plymouth, 346 Mich. 57, 77 N.W.2d 332 (1956), cited with approval the following:

“Presumption of the existence of such relationship [the relationship between exercise of police power and the public health, safety, etc.], and hence of the validity of the ordinance is resorted to in the absence of proof on the subject, but not when there are proofs on which a judicial determination thereof may be made as when the contrary is shown by competent evidence or appears on the face of the enactment. Roman Catholic Archbishop of Detroit v. Village of Orchard Lake, supra [333 Mich. 389, 53 N.W.2d 308] and cases cited therein.” 77 N.W.2d at 335.

The appellant also contends that the fairly debatable rule controls this case, but we disagree. In view of our decision to affirm the trial court’s holding that the charter amendment and implementing ordinances bear no rational relationship to a valid municipal purpose, we do not reach the issue of confiscation. Thus, we have not found it necessary to consider the application of the various ordinances to specific parcels of property which would possibly bring the fairly debatable rule into play. The fairly debatable rule is a rule of procedure or application which can be simply stated as follows:

“If the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts. . . . The fairly debatable rule applies to the application of the ordinance and does not modify the requirement that the ordinance itself and the application thereof must have a reasonable relationship to the health, safety, morals or general welfare.” Davis v. Sails, 318 So.2d 214, at 217.

However, if it had become appropriate for us to consider the propriety of the trial court’s action in the light of the fairly debatable rule, we would affirm the judgment because, as we mentioned earlier, even though there was expert testimony adduced in supp'ort of the City’s case, that in and of itself does not mean the issue is fairly debatable. If it did, every zoning case would be fairly debatable and the City would prevail simply by submitting an expert who testified favorably to the City’s position. Of course that is not the case. The trial judge still must determine the weight and credibility factors to be attributed to the experts. Here the final judgment shows that the judge did not assign much weight or credibility to the City’s witnesses.

In conclusion, we have carefully considered all of the City’s contentions which have been well presented; however we fail to find an adequate demonstration of reversible error. In fact, “the able and patient trial judge” (as appellant characterizes him) did a commendable job in resolving the issues presented by this vast record. Accordingly, the final judgment under review is affirmed.

AFFIRMED.

DOWNEY, C. J., ANSTEAD, J., and SIL-VERTOOTH, LYNN N., Associate Judge, concur.

      . Huttig v. City of Richmond Heights, 372 S.W.2d 833 (Mo.1963); Franz v. Village of Morton Grove, 28 Ill.2d 246, 190 N.E.2d 790 (1963); City of Tulsa v. Swanson, 366 P.2d 629 (Okl. 1961); LaSalle National Bank of Chicago v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65 (1957).


text:
    CITY OF BOCA RATON, Appellant, v. ARVIDA CORPORATION, Appellee.
    No. 77-533.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    Rehearing Denied May 25, 1979.
    Gerald F. Richman and Bertha Claire Lee of Frates, Floyd, Pearson, Stewart, Rich-man & Greer, Miami, for appellant.
    H. Michael Madsen of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for ap-pellee.
   PER CURIAM.

The City of Boca Raton amended its City Charter to provide that no more than 40,000 dwelling units would be allowed in the City. In order to implement this charter amendment the City had to reduce the allowable number of dwelling units on undeveloped residential property. This was accomplished by reducing all multi-family zoning classifications by 50% and by reducing the dwelling units in single family categories to conform to the average of what had been constructed prior to the charter amendment.

Appellee, Arvida, owns a substantial amount of property in Boca Baton in single family zoning classifications and a small amount in multi-family zoning classifications. Being aggrieved by the enactment of the “cap” and implementing ordinances, Arvida brought suit to invalidate the “cap” and ordinances.

The constitutionality of the charter amendment and the multi-family zoning ordinance was decided in the companion case of Boca Raton v. Boca Villas Corporation, Fla.App., 371 So.2d 154, Case No. 76-2322, Opinion filed April 18, 1979. The trial in Boca Villas took twenty-seven days, after which the trial court held that the charter amendment placing a cap on the number of dwelling units allowable in the City and the multi-family zoning ordinances implementing said amendment bore no rational relationship to a valid municipal purpose and that as applied to the property in question there the ordinances were confiscatory, all of which resulted in a declaration of unconstitutionality. This court affirmed that judgment.

All of the evidence, findings of fact and conclusions of law from the Boca Villas case were admitted into evidence in this case subject to the stipulation that appellant did not admit that the findings of fact and conclusions were correct. In fact, appellant expressly contended the opposite and proposed to have them reviewed on appeal.

There are several major differences in the two cases: 1) In the Boca Villas case the trial court considered and found unconstitutional the cap and implementing ordinances applying to multi-family zoning classifications only; whereas, in this case the Arvida property is primarily located in a single family zoning classification. 2) In the Boca Villas case the property owners attempted to demonstrate that as applied to their property the implementing ordinances were confiscatory; whereas, in this case Arvida adduced no evidence vis-a-vis the effect of the legislation on the use and value of its property; Arvida relied either upon the proof of confiscation in the other case or upon the theory that proof that the cap and ordinances were irrational brought down the implementing ordinances without proof of confiscation. 3) In this case Arvi-da sought to have Ordinances 1744 and 1745 held valid, although it had attacked them, along with all other implementation ordinances, in its pleadings as being invalid.

In the Boca Villas case we affirmed the trial judge’s decision, holding the charter amendment and implementing ordinances to be arbitrary, because they bore no substantial relation to a permissible municipal purpose. What we said there is equally applicable here and need not be repeated. Since we found the attack upon the laws sufficient to demonstrate the inadequacy of any rational relationship between them and the public health, safety, morals and welfare, we found it there, as here, unnecessary to plumb the alleged confiscatory aspect of the ordinances as applied to appel-lee’s property.

Suffice to say that our holding in the Boca Villas case vis-a-vis the charter amendment and implementing ordinances compels an affirmance here. We have also considered appellee’s contentions regarding the validity of Ordinances 1744 and 1745 and find the trial judge’s disposition thereof appropriate.

Accordingly, the judgment appealed from is AFFIRMED.

DOWNEY, C. J., and ANSTEAD and BERANEK, JJ., concur.

      . The charter amendment passed by the city electorate provided:
      “The total number of dwelling units within the existing boundaries of the City is hereby limited to forty thousand (40,000). No building permit shall be issued for the construction of a dwelling unit within the City which would permit the total number of dwelling units within the City to exceed forty thousand (40,000).”
      This zoning device is commonly referred to as placing a “cap” on density, and the parties here refer to this amendment as the “cap.”


text:
    Francis BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1074.
    District Court of Appeal of Florida, Second District.
    April 18, 1979.
    Rehearing Denied May 30, 1979.

      Robert E. Jagger, Public Defender, and Richard M. Robbins, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Francis Brown appeals his convictions for vehicular homicide and manslaughter by the operation of a motor vehicle while he was intoxicated. We reverse.

On the night of the incident which gave rise to the charges against appellant a blood sample was taken from him for the purpose of determining the alcohol content of his blood. Appellant was conscious and verbally objected when the blood sample was taken by a doctor at the instruction of the investigating police officer. The blood level of the alcohol was .205. At a pretrial hearing on appellant’s motion to suppress the blood sample, the issue was whether Section 322.261, Florida Statutes (1977) (the “implied consent law”) allows law enforcement authorities to take a blood sample from a person suspected of driving while under the influence of alcohol when that person expressly objects to the taking thereof. The trial judge denied the motion to suppress and at trial the blood sample and the testimony about it were features of the state’s case before the jury.

For the reasons fully set out when this precise issue was recently decided in thorough opinions by this court and our sister court, we hold the trial court was in error when it denied appellant’s motion to suppress the blood sample, and upon consideration of the record before us find that a reversal of appellant’s convictions is therefore necessary. McDonald v. State, 364 So.2d 1241 (Fla. 2d DCA 1978); State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977); cert. dism. 362 So.2d 1056 (Fla.1978).

Reversed and remanded for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and RYDER and DANAHY, JJ., concur.

      . Sentence was imposed only on the conviction of manslaughter by the operation of a motor vehicle while intoxicated. The trial judge correctly recognized that only one sentence can be imposed for the one homicide although the information charged two separate offenses. Phillips v. State, 289 So.2d 769 (Fla. 2d DCA 1974). Causing the death of a person by the operation of a motor vehicle while intoxicated is a specific category of manslaughter. § 860.01(2), Fla. Stat. (1977). Vehicular homicide otherwise than from intoxication has been removed by the legislature from the manslaughter statute and made an offense subject to a lesser penalty than that imposed for manslaughter. §§ 782.07 and 782.071, Fla.Stat. (1977); State v. Young, 357 So.2d 416 (Fla. 2d DCA 1978).


text:
    Teddy Warren KELLY, Sr., Appellant, v. STATE of Florida, Appellee.
    No. JJ-43.
    District Court of Appeal of Florida, First District.
    April 19, 1979.
    Rehearing Denied June 15, 1979.

      Michael J. Minerva, Public Defender, and Janice G. Scott and John D. C. Newton, II, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant seeks reversal of his conviction for burglary and grand larceny, arguing six points on appeal. We find that the trial court committed error in the jury selection process and reverse on that ground.

The record reveals that several members of the jury venire from which the jury was chosen in this case had been present earlier in the week when a jury was chosen for an earlier trial of appellant on different charges. Appellant’s counsel moved prior to trial to strike the jury panel in this case on that basis. The court took the motion under advisement but nevertheless swore the panel. Subsequently during voir dire, appellant’s counsel asked the court’s permission to question certain of the jurors separately to minimize any knowledge of the previous trial against appellant, but the trial court denied that request. The record also indicates that a prospective jur- or independently approached the bench and told the court that he did not believe appellant could receive a fair trial in view of the panel’s familiarity with the previous trial.

It is fundamental that every defendant is entitled to be tried by a fair and impartial jury. In Marrero v. State, 343 So.2d 883 (Fla. 2d DCA 1977), the court reversed a conviction in an almost identical situation, finding that a jury is “bound to be unfairly prejudiced against the accused by reason of the knowledge of his arrest for another crime.” We concur with that reasoning here, and accordingly reverse the judgment with instructions to grant a new trial.

We have considered appellant’s other points and found them to be without merit or not properly preserved for appeal.

REVERSED and REMANDED.

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    John HUDGINS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-630.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.
    Rehearing Denied June 8, 1979.

      Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is not entitled to relief, the denial of his motion is affirmed.

Affirmed.