author: MELVIN, Judge. ERVIN, Judge,

text:
    Michael MANSUR and Marie Grigsby, Appellants, v. Mary G. EUBANKS, Jean M. Barnett, and Auto Owners Insurance Company, Appellees.
    Nos. HH-404, HH-405.
    District Court of Appeal of Florida, First District.
    March 20, 1979.
    O’Gwen L. King, of Reeves, Barfield & King, Pensacola, for appellants.
    Donald H. Partington, of Clark, Parting-ton, Hart & Hart, Pensacola, for appellees.
   MELVIN, Judge.

Appellants-plaintiffs appeal a final summary judgment entered in favor of appel-lees-defendants in the suit of each plaintiff against such defendant, seeking damages for burns each party-plaintiff claimed that he sustained when gas fumes were ignited in an apartment owned by Eubanks and Barnett and rented by appellant Grigsby.

Barnett showed the apartment to Grigsby in the summer of 1976, and discussed repairs to the refrigerator and painting walls that the owners would do. Occupancy was to begin as of August 1, 1976. Grigsby made a $25 deposit to the rental agency handling the transaction on July 11, and it was understood that such deposit would hold the apartment for her until August 1, at which time payment of the agreed rent was to be made. Grigsby asked for permission to return to the apartment and measure for drapes. She was given a key and was also given permission to move her things into the apartment on a Thursday or Friday prior to August 1. On July 31, Grigsby began the task of moving into the apartment and, in this, she had the assistance of a neighbor, Michael Mansur. Grigs-by decided to turn on the gas. She told Mansur she had. no experience with gas and asked for his assistance.

Prior to the time Grigsby moved into the apartment there had been no discussion concerning gas, but she knew that if she was going to have the gas turned on that would be her responsibility. Grigsby and Mansur went outside the apartment to the nozzle used to turn on the gas and, having turned on the gas, they walked back into the apartment. Neither claimant checked any of the appliances to make sure that they were turned off before they opened the gas valve to the apartment. They tried without success to light the stove, then decided to see if the hot water heater worked. Mansur struck a match near the bottom of the hot water heater and an explosion occurred. During the process of trying to light the stove, Grigsby smelled gas fumes and asked Mansur to check and see if he also smelled gas. Neither Mansur nor Grigsby notified the owners or checked about the stove prior to the explosion. Grigsby knew that it was her responsibility to make arrangements for the furnishing of the gas supply. Neither defendant ever made any representation to Grigsby or Mansur concerning the gas appliances.

There was a gap between a pipe coming from the back of the stove and a pipe coming into the house from a gas bottle. Gas escaping through such gap was the cause of the explosion. For some reason unknown to the owners prior to the explosion, the connecting length between these two pipes had been removed. At the time of the explosion the stove was in the same position that it occupied at the time the apartment was used by the last tenant. The owners had not authorized anyone to change stoves in the apartment or to move or disconnect any stoves. No tenant had complained that the stove had been disconnected or was not in operational order.

When considering a motion for the entry of a final summary judgment, the trial court must consider all of the agreed facts, as well as inferences properly arising therefrom in the light most favorable to the person against whom such judgment is sought. When equated by that formula, Grigsby was entitled to assume that, upon the delivery to her of the key to the apartment, she had possession of the apartment as a tenant, with rent yet to be paid. The owners did not reserve control over the appliances, however they did agree to fix the refrigerator. In the complaint filed by her in this cause, she identified herself as a tenant. In Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946), the Supreme Court of Florida settled the law relating to the duties of a landlord to a tenant, and the liability of a landlord to the tenant. The court ruled at pp. 206 and 207:

“It is established law that when a landlord delivers to the tenant possession and control of the demised premises, including the plumbing, drains, and appliances for heating, lighting, and power, the landlord is not liable for an injury to the property or person of the tenant or those on the premises in the right of the tenant, although such injuries are attributable to defects in such apparatus, appliances or fixtures. Thus a tenant may not hold a landlord liable for injuries caused by explosion of plumbing, or heating apparatus on premises, the possession and control of which have been surrendered to him in the absence of fraud or concealment. The landlord’s liability is based on his right of control over the appliances and he is not liable for injuries from defects in appliances located on the leased premises if he does not reserve control thereof, and accordingly it has been held that he is not liable for defects in water pipes in an apartment when the only purpose of such pipes is to supply and distribute water for the apartment. On the other hand, he is liable for defects in pipes on the leased premises if he retains control thereof.
Where the landlord surrenders possession and control of the leased premises to the tenant, in the absence of fraud or concealment, the tenant assumes the risk as to the condition of the premises, including the heating, lighting apparatus, plumbing, water pipes, sewers, etc. In other words, the rule of caveat emptor applies; hence the landlord is not- liable for any personal injuries or sickness of tenants, although attributable to the defects in the fixtures.” (cites omitted) (Emphasis supplied)

The plaintiffs urge that we follow the Third District Court of Appeal and adopt the rationale of its decision in Alexander v. Fiftieth Street Heights Co., 334 So.2d 161 (Fla. 3d DCA 1976). We have carefully examined that case, and are aware that the opinion here set forth is in direct conflict with the case mentioned. In arriving at the conclusion that the trial court is to be sustained in the entry of the summary judgments here reviewed, we follow that which we understand to be the law as mandated by the Supreme Court in Brooks v. Peters. If conflict now exists, so be it.

The summary judgments entered in favor of the defendants and against the appellants are each AFFIRMED.

MILLS, Acting C. J., concurs.

ERVIN, J., specially concurring.

ERVIN, Judge,

specially concurring.

In the absence of statute, I agree with the majority that the common law rule of caveat emptor, or more accurately, caveat lessee, as stated in Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946), immunizes a landlord from tort liability to his tenant. I also agree that the result reached by the majority is in direct conflict with that reached in Alexander v. Fiftieth Street Heights Co., 334 So.2d 161 (Fla. 3d DCA 1976), and the two cannot be logically distinguished. In Alexander, the tenant was injured by an explosion which resulted from the passage of gas through an uncapped pipe entering the tenant’s apartment. Summary judgment favoring the lessor was reversed, the court concluding that comparative negligence, adopted in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), controlled the facts. It rejected the lessor’s argument that the tenant had assumed the risk, stating that even though the tenant was aware of the condition which constituted the risk (an open ended gas pipe), she still must be aware of the danger and voluntarily expose herself to the risk. The Alexander opinion cannot be squared with the traditional concept of caveat lessee. No facts were recited in the opinion showing that the lessor had knowledge of the risk, which, as observed infra, is an essential prerequisite to a lessee’s right to recovery. Moreover, I think it incorrect to say, under the circumstances, the tenant did not voluntarily assume the risk — unless of course, caveat lessee, a category of implied assumption of risk, is no longer a viable defense.

The Third District Court of Appeal, in Rutecki v. Sorkin, 350 So.2d 486 (Fla. 3d DCA 1977), without expressly discussing caveat lessee, held the defense had been abolished by the Supreme Court’s opinion in Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), and reversed summary judgment for the landlord in an action for damages by a tenant injured in a fall on a common walkway on the apartment premises. It concluded that the question of whether the landlord owed a duty to the tenant was to be decided by the jury. While there is language in Blackburn, as quoted at page 487 of Sorkin, which appears to support the conclusion reached, I do not think the Blackburn opinion is authority for the position that the existence of a duty, when applied to landlord-tenant relations, is solely to be decided by a jury.

The specific holding in Blackburn was that the affirmative defense of implied assumption of risk had merged into the defense of contributory negligence and that principles of comparative negligence, as enunciated in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), applied in all cases where the defense was raised. Blackburn v. Dorta, supra at 293. The court’s decision was conditioned upon the effect of the Hoffman decision: “If assumption of risk is equivalent to contributory negligence, then Hoffman mandates that it can no longer operate as a complete bar to recovery. However, if it has a distinct purpose apart from contributory negligence, its continued existence remains unaffected by Hoffman.” Id. at 289. (e.s.) Assumption of risk, as the Blackburn decision observed, may or may not, depending on the circumstances, be equivalent to contributory negligence. While the two may, on occasions, overlap, or one may exist without the other, 1 Dooley, Modern Tort Law § 6.04 at 156 (1977), both have distinct meanings. Contributory negligence defeats recovery because the conduct of the plaintiff was the proximate cause of the injury, while assumption of the risk defeats recovery because it is an abandonment of the right to complain if an injury occurs. Id. at § 4.04, p. 80. Contributory negligence presumes the existence of a duty owed by a defendant, primary assumption of the risk does not. Primary assumption of risk, one of the defense’s categories, is “simply another means of stating that the defendant was not negligent, either because he owed no duty to the plaintiff in the first instance, or because he did not breach the duty owed.” Blackburn at 290. In its primary sense, it is, “[i]n actions against a landlord, . . ., an alternate means of expressing the doctrine of caveat lessee.” Love, Landlord’s Liability for Defective Premises: Caveat Lessee, Negligence, or Strict Liability? 1975 Wisc.L.Rev. 19, 88.

Caveat lessee is founded upon the principle that there is no duty owed by the landlord to the tenant for any injury received by the tenant on the property leased if the landlord did not know of the condition of the risk involved, and the lessee was so aware. See Restatement (Second) Torts § 358 (1965). Section 358 of the Restatement has been adopted in Florida. Cf. Butler v. Maney, 146 Fla. 33, 200 So. 226 (1941); Wilensky v. Perell, 72 So.2d 278 (Fla.1954); Feldman v. Jacobs, 148 So.2d 540 (Fla. 3d DCA 1963). The rule of tort immunity is based upon the common law concept which considered a lease a conveyance of land — - not a contract. As a result the same principles relevant to the sale of land were applied to leases; therefore, if the tenant failed to inspect the premises prior to entering them, the rule of caveat emptor was applied, and the tenant was considered to have assumed the risk of any personal injury or property damage caused by a defect in existence at the beginning of the, lease. Harkrider, Tort Liability of a Landlord, 26 Mich.L.Rev. 260, 262-63 (1928). Once the tenant acquired control of the premises, the landlord was deemed no longer liable to the tenant or other persons for any such defects. Id. at 263.

Here appellants did not allege in their complaints any facts showing knowledge by the lessor of the defective uncapped gas outlet. There was consequently no allegation of any duty owed by the landlord to the tenant. The complaints would clearly have been subject to a motion to dismiss for failure to state a cause of action. Cf. Butler v. Maney, supra. While assumption of the risk is an affirmative defense which may be pleaded affirmatively in a defendant’s answer, Fla.R.Civ.P. 1.110(d), it may also be asserted by motion to dismiss if the defense appears on the face of a prior pleading. Id.

From a realistic standpoint, it may be said that neither of the two appellants voluntarily exposed themselves to a known risk simply because the risk was to them unknown. The law, however, presumes volition resulting from the free association, or contract, between lessee and lessor. Primary assumption of risk, i. e., as a counterpart of defendant’s lack of duty, “refers to risks that are incidental to a relationship of free association between plaintiff and defendant, . . . one which either is at liberty to take or leave as he will.” 2 F. Harper & F. James, supra note 3, at 1163. Therefore, if a landlord and a tenant freely enter into a contract for the lease of property, and the landlord is without knowledge of the defective conditions on the property, “it is immaterial whether the risk [to which the tenant is exposed] is reasonable or not.” Id. at 1164. It is also irrelevant whether the defendant actually knows of the risk, voluntarily assumes it, or exercises unusual caution in meeting it, since he is presumed to have assumed it if he freely and voluntarily enters into a contract for the lease of property. Prosser on Torts, 451, 459-460 (3d ed. 1964).

If, as I conclude, caveat lessee has not been affected by either Hoffman v. Jones, supra, or Blackburn v. Dorta, supra, the Supreme Court may wish to consider whether a doctrine, which had its inception during the feudal years of rural England, Lesar, The Landlord-Tenant Relation in Perspective: From Status to Contract and Back in 900 Years? 9 Kan.L.Rev. 369, 3*71 (1961), should still be applied within the context of modern, urban conditions. In the past, the court has not been reticent in changing established principles of law when conditions for their continued application were deemed no longer relevant. The court reserves to itself the option of exercising a “ ‘broad discretion’ taking ‘into account the changes in our social and economic customs and present day conceptions of right and justice.’ ” Duval v. Thomas, 114 So.2d 791, 795 (Fla.1959).

In 16th century England, when a lease was first characterized as a conveyance of property, it typically involved a transfer of land for agricultural purposes to a tenant who paid the rent from the proceeds of tilling the soil. Often there were no physical structures on the land and, if such improvements existed, they were only of secondary importance to the conveyance of the realty. Lesar, supra at 371. There was no implied warranty of habitability or fitness of the premises which extended from the landlord to the tenant, and the tenant’s obligation to continue rental payments was independent of any defect which might render the premises uninhabitable. Quinn & Phillips, The Law of Landlord-Tenant: A Critical Evaluation of the Past With Guidelines for the Future, 38 Fordham L.Rev. 225, 230, 232-35 (1969). Moreover the tenant had no right to vacate the premises or remain in possession and withhold rental payments because of any defect. Ingalls v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892). The tenant’s only remedy was an action for damages. Id. The rule of caveat emptor also extended to bar a tenant from seeking an action in tort for damages resulting from defects in the premises.

It is possible our Supreme Court may wish to consider the approach followed by the New Hampshire Supreme Court in Sargent v. Ross, 113 N.H. 388, 308 A.2d 528, 64 A.L.R.3d 329 (1973), which, having previously applied the implied warranty of habitability to landlord-tenant contractual relationships, extended it to tort actions as well. The court, in rejecting the doctrine, stated that henceforth landlords, as other persons, must exercise reasonable care not to subject others to an unreasonable risk of harm, and a landlord must act as a reasonable person. 308 A.2d at 534. Moreover, it continued, questions of control, hidden defects, and common or public use, formerly employed to establish a prerequisite to a consideration of the negligence of the landlord, would be relevant only to a determination of the basic tort issues such as foreseeability and unreasonableness of the particular risk. Id. at 535. The court concluded that the focus of inquiry would be shifted from “the traditional question of ‘who had control?’ to a determination of whether the landlord, and the injured party, exercised due care under all the circumstances.” Id.

By analogy, the obviousness of the danger existing in machinery is now not an exception to liability in actions where recovery is sought against the manufacturer, but is rather a defense available to the manufacturer by which it may show the plaintiff did not exercise a reasonable degree of care under the circumstances. Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979). There appears to be little justification in continuing to apply a doctrine which would bar an action to a tenant whose only notice of the risk is implied by law simply because he acquired control of the premises, yet permit an action to a plaintiff who was injured by a product which is patently dangerous.

To summarize, I conclude that in the absence of statute, and other exceptions not relevant here, caveat lessee still applies to bar a tenant from recovering damages for personal injuries caused by defects on leased premises which the landlord was unaware existed. The wisdom of its continued application may judicially be determined only by the Florida Supreme Court. To that end, I suggest the following question be certified to the Florida Supreme Court pursuant to Art. V, § 3(b)(3), Fla. Const.:

If the doctrine of caveat lessee has not been overruled by Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), should it still be applied as an absolute bar to a tenant who, with the landlord, is actually unaware of any defects on the premises conveyed, or should tort liability now turn on whether the parties exercised due care under the circumstances of the particular case?

      . Appellants contend that Ch. 63-1326, Sp. Acts of Fla., abrogated the common law rule of caveat lessee because one of its provisions required, if an appliance is disconnected from an outlet and not used immediately afterward, that it be securely closed. See § 1.2.10.11 of the National Fuel Code, adopted by § 17 of the special act. The title to the act, however, states that it applies to areas of Escambia County lying outside of the incorporated municipalities. Appellants’ brief states that the apartment was located in Pensacola, Florida; therefore the act would not appear to have any effect.

      . The court could have based its reversal on one of the exceptions to caveat lessee, which subjects a landlord to liability when a tenant is injured on a common passageway in a multi-tenant building. See fn. 5.

      .As noted in 2 F. Harper & F. James, The Law of Torts § 21.1 at 1162 (1956), the term is confusing because it is often used to refer to at least two different concepts, which may overlap and produce the same legal result. Still, the treatise continues, the concepts involve different policies and different conditions for their application. The concepts are described as follows:
      (1) In its primary sense the plaintiffs assumption of a risk is only the counterpart of the defendant’s lack of duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it. Volenti non fit injuria. (2) A plaintiff may also be said to assume a risk created by defendant’s breach of duty towards him, when he deliberately chooses to encounter that risk. In such a case, except possibly in master and servant cases, plaintiff will be barred from recovery only if he was unreasonable in encountering the risk under the circumstances. This is a form of contributory negligence. Hereafter we shall call this “assumption of risk in a secondary sense.” Id., at 1162. (Footnotes omitted.)

      . “[Tjhere can be no apportionment of negligence where the negligence of the defendant is not directly a legal cause of the result complained of by the plaintiff.” Hoffman v. Jones, supra at 438.

      . The rule is subject to other exceptions permitting liability (1) where the landlord has negligently repaired the premises'after the lessee has entered, and (2) where the landlord has reserved a part of the premises leased for the common use of tenants. 20 Fla.Jur., Landlord and Tenant, §§ 114, 117 (1958).

      . Fla. Std. Jury Instr. (Civ) 3.5(i) is derived from the principle stated in the above cases.

      . To use the examples from Blackburn v. Dorta, supra at 291, under caveat lessee, the tenant who runs into his burning apartment to save his child, and the man who rushes in to retrieve his favorite fedora would be equally barred from recovering damages for injuries from the lessor — not because their actions were reasonable or unreasonable, but because, assuming lack of knowledge by the lessor or the nonexistence of any of the exceptions to the doctrine, the lessor owed no duty to either.

      . Dean Keeton criticizes the presumption as fictional, saying:
      [I]n most of the cases it cannot be said that there is any implied in fact promise made by plaintiff to the defendant that the latter is to be relieved of all responsibility. The so-called promise is fictional and the effect is simply to require by law acceptance of the risk because plaintiff elected to take a chance. Keeton, 22 La.L.Rev. 108, 117 (1961).

      . Whether the doctrine should be judicially abrogated is for the Florida Supreme Court to decide — not the district courts of appeal. The teachings of Hoffman v. Jones, supra, remind us that policy opinions overruling decisions of the Florida Supreme Court may be made only by that court.

      . E. g., Waller v. First Savings and Trust Co., 103 Fla. 1025, 138 So. 780 (1931) (abolished the common law principle that an action for personal injuries was abated upon the death of the tortfeasor); Hargrove v. Town of Cocoa Beach,
        96 So.2d 130 (Fla.1957) (holding a municipal corporation may be held liable for the torts of police officers under the doctrine of respondeat superior); Gates v. Foley, 247 So.2d 40 (Fla.1971) (permitting the right of a wife to recover for the loss of consortium as a result of her husband’s injuries); Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So.2d 313 (1944) (the relaxation of privity requirements involving food products, permitting an ultimate consumer to recover against a food manufacturer); West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976) (adoption of strict liability in products liability cases).

      . Florida has by statute adopted the implied warranty of habitability, § 83.51(1), Fla.Stat. (1977), which places the duty to repair on the landlord. When the landlord fails to keep the premises in good repair, the tenant is permitted after notice, either to terminate the rental agreement and vacate or remain in possession and deduct that portion of the rent caused by the landlord’s noncompliance. Section 83.-56(1). The Florida Residential Landlord and Tenant Act’s provisions impose contractual— not tort — liability upon the landlord. The express intention of the Law Revision Council in drafting the proposed act was to create an implied warranty of habitability which, when breached, relieved or diminished the tenant’s obligation to continue rental payments. See the Florida Law Revision Council Report and Recommendation on Florida Landlord-Tenant Law at p. 5 (March, 1973).


source: Caselaw Access Project

author: KEHOE, Judge.

license: Public Domain

text:
    Annie L. GIBBS, Appellant, v. FLORIDA DEPARTMENT OF COMMERCE, Division of Employment Security, and Dade County Public Schools, Appellees.

    No. 78-1579.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Barbara Green, Legal Services of Greater Miami, Inc., Miami, for appellant.
    James R. Parks and Ollie Evans, Miami; Frank A. Howard, Jr., Miami and Paul T. Dee, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.

        Editor’s Note: The opinion of the District Court of Appeal of Florida in Snead v. State, published in the advance sheets at this citation (368 So.2d 651) was withdrawn from the bound volume because rehearing is pending.

   KEHOE, Judge.

Appellant, petitioner below, brings this appeal from a decision of appellant Florida Department of Commerce, Division of Employment Security, Board of Review (Board), rejecting her claims for unemployment compensation. The decision appealed, as modified below, is affirmed.

Appellant was employed by appellee Dade County Public Schools (Dade) until June 16, 1977, when she was released from employment as an instructional aide at the end of the 1976-1977 school term due to personnel cutbacks. On July 14, 1977, appellant applied for unemployment compensation benefits. Thereafter, Dade offered appellant reemployment as a teacher’s aide at Tropical Elementary School. This offer of employment was made pursuant to the terms of a collective bargaining agreement between Dade and appellant’s collective bargaining unit, the U.T.D. Paraprofessional Employees’ Union (Union). Appellant refused acceptance of this job offer because it would have required her to work with mentally retarded students and because she felt that the school was located at too great a distance from her residence. Then, on November 29, 1977, Dade offered appellant another position as a teacher’s aide at the Howard Drive Elementary School. Appellant refused to accept this offer because of the area in which the school was located. Distance from her residence was not a factor in this rejection. This second offer was also made pursuant to the Union collective bargaining agreement.

Prior to both of these offers of employment, appellant had been receiving unemployment compensation benefits (benefits) from the date of her original application. On December 9, 1977, two notices of claims determination were mailed to appellant. The first stated that she was disqualified for benefits for the week ending November 5, 1977, for refusing an offer of suitable employment. See § 443.06(2), Fla.Stat. (1977). As a result of this determination, appellant was disqualified to receive benefits for the week ended November 5, 1977, plus five weeks and until she had earned at least $720. It was during the five weeks period after November 5, 1977, in which appellant refused the second offer of employment.

The first claims determination informed appellant that she was disqualified from the receipt of benefits for two reasons: (a) for refusing to accept an offer of work from a former employer as required by Section 443.06(2), Florida Statutes (1977); and (b) because she had restricted her availability for work by limiting the area in which she would accept employment, thereby removing herself from the labor market in violation of Section 443.05(l)(c), Florida Statutes (1977).

On appeal from this broad disqualification, the appeals referee found appellant was not available for work because she did not have a genuine attachment to the labor market due to her self imposed travel restrictions. The appeals referee further found in regard to the October 28, 1977, offer of employment that it was not suitable employment for her because it involved working with mentally retarded children and that she was justified in refusing to accept the offer. The referee then considered appellant’s refusal of the November 29, 1977, offer, and ruled that it was suitable work for her and that her refusal to accept such job was without good cause.

Appellant then appealed the appeals referee’s decision to the Board. The Board held that the appeals referee erred by finding that appellant did not have a genuine attachment to the labor market. The Board held that appellant’s self imposed travel restrictions, under the facts of her case, had not substantially restricted her availability for work. However, the Board affirmed the referee’s decision that appellant’s refusal to accept the November 29, 1977, offer was without good cause. From the Board’s decision, appellant brings the instant appeal.

We have carefully reviewed each of the points raised by appellant on appeal and find them to be without merit. The Board’s decision is supported by competent substantial evidence and comports with the criteria set forth in Chapter 443, Florida Statutes (1977). See, e. g., General Telephone Company of Florida v. Board of Review, 356 So.2d 1357 (Fla.2d DCA 1978); Hammett v. Florida Department of Commerce, Division of Employment Security, 352 So.2d 948 (Fla.2d DCA 1977); Eastern Air Lines, Inc. v. Florida Industrial Commission, 201 So.2d 604 (Fla.3d DCA 1967); and Chap. 433, Fla.Stat. (1977). However, the parties concede that it was error to withhold benefits in the amount of $216, for the period November 5 to November 29, 1977, from appellant. Accordingly, the decision appealed is affirmed, except it is modified to the extent that appellant is to be paid the $216 in wrongfully withheld benefits.

Affirmed in part, modified in part.


author: SMITH, Acting Chief Judge.

text:
    ALACHUA COUNTY, Appellant, v. James K. REDDICK and Annie Mae Reddick, his wife, Appellees.
    No. KK-191.
    District Court of Appeal of Florida, First District.
    March 20, 1979.

      George H. Nickerson, Jr. and Marilyn C. Wolf, Gainesville, for appellant.
    Philip A. DeLaney, of Andrews & DeLa-ney, Gainesville, for appellees.
   SMITH, Acting Chief Judge.

Alachua County appeals from a circuit court judgment enjoining the enforcement of a zoning classification of the Reddicks’ property more restrictive than commercial. The property is now zoned for low-density residential purposes. The board of county commissioners denied the Reddicks’ application for BH (Highway Oriented Services) zoning. After a trial, the circuit court ordered commercial zoning of an unspecified character, holding that the board’s decision

. . was not reasonably related to any valid public need, nor did it have a material bearing upon the public health, safety, morals or general welfare of the community, and was therefore not a valid exercise of the police power vested in the [county],

Alachua County contends on appeal that its zoning decision had a rational basis in the circumstances and the public welfare, that the basis for its action was at least fairly debatable, that the Reddicks’ property interests were not confiscated, and that the circuit court erred in issuing a mandatory injunction for commercial rezoning. We agree, and reverse.

Archer Road intersects Interstate Highway 75 southwest of Gainesville in an area previously devoted to agricultural, residential, and scattered industrial use. The interchange connecting the two roadways is the largest in Alachua County, indeed the largest in north Florida. Alachua County’s director of planning and development, the witness Lewis, described the interchange as “probably one of the most important . . . in the state of Florida.” By that interchange 1-75 motorists from the north and south turn east on Archer Roach to reach Gainesville’s large public medical complex and “sporting events and the conferences and so on going on at the university.” At the interchange 1-75 lies northwest and southeast and Archer Road lies northeast (six lanes through shopping area toward Gainesville) and southwest (four lanes now, two additional lanes proposed). Neighborhood circumstances are as shown in the appended sketch.

The zoning here questioned restricts automobile-oriented commercial development near the interchange to 109 acres of land lying in four roughly equivalent quadrants immediately surrounding the structure. Service roads to those quadrant properties minimize interference by their traffic with free passage on the interchange and on Archer Road. The Reddicks’ narrowly rectangular property, 5.7 heavily wooded acres fronting 210 feet on the south side of Archer Road, lies just beyond and southwest of the southwest quadrant and its service road, 1,000 feet from 1-75. The Reddick tract is separated from the southwest quadrant by a cleared 100 foot wide electrical transmission easement adjoining the Reddicks’ eastern boundary. At Archer Road the transmission lines turn west on an old 60 foot wide railroad right-of-way between Arch ?r Road and adjoining private properties.

The Reddicks’ tract is zoned R-1A (Single Family-Low Intensity), and they maintain their home there. The house is two to three hundred feet back from the frontage. Neighboring properties farther southwest on Archer Road are similarly zoned and used as residences. The Reddicks, desiring now to place a motel on their property, requested rezoning to commercial BH (Highway Oriented Services), and intensive commercial classification which permits motels, filling stations, and restaurants including fast food drive-ins. The county commission accepted professional advice to prevent strip commercial development along Archer Road southwest of the interchange, and denied the BH rezoning requested by the Reddicks.

The board of county commissioners denied the Reddicks’ application for BH zoning after repeated hearings and long study of this and other rezoning requests affecting property near the Archer Road interchange. Three years before the scope and design of the Archer Road interchange were fully developed, the commission had adopted a highly generalized color-coded land use planning map (exhibited in this record at 1' = 3,000 feet) which shows commercial usage surrounding the Archer interchange and including the northeast tip of the Reddicks’ tract. In 1975 and early 1976, the board of commissioners, the county director of planning and development, the county planning commission, and the North Central Florida Regional Planning Council, engaged as a consultant, proposed and debated several more carefully drawn approaches to the problem. The commission’s final decision in February 1976 endorsed the advice of planning and development director Lewis against strip commercial development southwest of the interchange on Archer Road; and, to that end, the commission denied the Reddicks’ and four other petitions for intensive commercial development. As the witness Lewis testified, the county commissioners had come to regard the strip commercial development on the Newberry Road approach to 1-75, approximately three miles to the north, as a “disaster.” The Newberry Road lesson was that the proliferation of automobile-oriented businesses on an interchange approach produces numerous driveways serving narrowly spaced establishments, a considerable volume of locally-bound traffic turning off and on the approach, left and right, and a resulting “glut” of traffic tending to make the highway “unusable.”

The testimony of Lewis and the written submissions to the board of county commissioners, during their deliberations, reveal also that the commission was concerned about striking a proper balance county-wide in the amount and locale of commercial and noncommercial properties. Of the 3,300 commercially-zoned acres in the Gainesville urban area, including the city, only 800 were in actual commercial use when the commissioners made their decision in this case. The underdevelopment of land already available for commercial use was another factor in the commission’s decision not to expand, in this particular place, the county’s inventory of such land.

Accepting the premise that strip commercial development should be restricted southwest of 1-75 on Archer Road, the commission turned to the task of drawing a line somewhere between the commercial usage to be permitted in the southwest quadrant of the interchange, on service roads, and the existing residential properties on the southwestern stretch of Archer Road. On that subject Mr. Lewis’ formal report advised the commission that the 100 foot wide electrical transmission easement which separates the Reddick property from the southwest quadrant and its service road was the best if not the only logical place to draw that line:

To the west of 1-75 on the south side of Archer Road there exists a 100-foot easement immediately west of the Brown’s Mobile Home Park, which provides a natural buffer between residential and nonresidential uses. This buffer also fronts at the point where the southwest quadrant access road intersects with Archer Road. Any intrusion of commercial uses of any kind beyond this buffer line, on either side of Archer Road, to the west in the residentially zoned and partially developed area would open the door for strip commercial zoning along this entire stretch. There would be no reasonable cause for stopping it. Yet, so far as local market business is concerned, there is a five-acre neighborhood shopping center planned and zoned on the north side of Archer Road approximately 1% miles west of the center line of 1-75. There will therefore be no need for local market businesses between that location and I-75, anyway.

In testimony before the circuit court the witness Lewis repeated the analysis he gave the county commission on the day of its decision:

[Ajbout any conclusion you could make on any of the properties on the [west] side of 1-75 along Archer Road can be said — if you make justification for [rezoning] one property, you can make the same justification for all others. The result could be strip commercial development all the way down at least to Tower Road and perhaps even beyond.
Q. In your opinion does this [100-foot wide easement] provide a boundary between commercial and residential use?
A. It provides a logical place to draw the line because there is no other logical place to the west.
Q. And why do you say that?
A. Well, because all the properties to the west are similar in nature. There are no open spaces as such that would service as a logical cutoff point. Once you get beyond to the west of that, there is no basis for saying there is where we are going to draw the line, because there’s nothing physical present to make that distinction.

There is no substantial evidence in the record that the Reddicks have been deprived of the beneficial use of their property by the county’s refusal to zone it for commercial development. Of course the tract is not the secluded country place it was when the Reddicks purchased it 30 years ago. The traffic on Archer Road is “more noisy” than before, though the house has some protection in its setback 200 feet from Archer Road. Other Archer Road residences, similarly situated, continue in use despite incursion of automobiles. The power poles and lines to the east, and extending westward along Archer Road on old railroad right-of-way, detract from the otherwise rustic appearance of the heavily wooded land. Traffic on 1-75 was described by Mr. Reddick as “quite noisy,” although the noise is muffled somewhat by the heavy woods surrounding the Reddicks’ house. Significantly, a mobile home park continues to operate on the tract immediately northeast, across the 100-foot transmission line easement and within the southwest quadrant of the interchange. Mr. Reddick testified that “nobody would buy [his] property for residential anymore,” but he has offered to sell it only as commercial property. The real estate salesperson who listed the property, and who wrote a contract to sell subject to BH rezoning, expressed the opinion that traffic anticipated within 20 years would make the property unsalable for a residence. A professional real estate appraiser, the Reddicks’ witness, conceded that the Reddick tract has “a value for single-family residence” purposes, although development costs on the narrow tract would make subdivision for several single-family residences problematic. He expressed the view that the “highest and best use” of the property in existing circumstances would be “a motel-restaurant type thing.” Thus, while there is significant evidence that the Reddicks would be able to sell their land for more if a motel and restaurant could be built upon it, that the residential character of the tract is less appealing than it was 30 years ago, and that Archer Road property will become less attractive as traffic increases over the next 20 years, there is no evidence that the Red-dicks’ and their neighbors’ heavily wooded residential tracts south of Archer Road are now so affected by highway construction that they have lost all utility as residences and have been confiscated.

The Reddick tract therefore retains value and utility as a single-family residence under its existing R-1A zoning classification. Beyond that, the Reddicks introduced no substantial competent evidence justifying the desired leap over several intervening and more permissive zoning classifications to the traffic-intense BH classification, or to the slightly less intense BR commercial classification. Those intervening classifications include R-1B, allowing more single-family dwellings; R-1C, including mobile homes; MR, including mobile home parks, R-2, R-2A and R-3, allowing progressively more intense multi-family units; AP, permitting low-profile office uses; and RP, allowing professional offices. The Red-dicks’ testimony did not exclude the reasonable possibility of a number of those usages, one of which has precedent even nearer 1-75 on Archer Road, and another — multifamily dwellings — has precedent near the Newberry Road interchange. None of these usages would burden Archer Road’s traffic capacity to the extent of BH or BR commercial zoning; none would so clearly be the first domino to fall in the westward reach of strip commercial development along Archer Road.

The county’s decision is justified both in its commitment to the nonproliferation of highway-oriented businesses on Archer Road and in its location of the boundary between residential and commercial usage. The decision was based on substantially demonstrated facts and sound policy related to the public safety and general welfare. It cannot reasonably be said that the elected county commission was arbitrary in concluding that erection of a motel and restaurant on the Reddicks’ property would increase locally-bound traffic on Archer Road, depreciate the residences of the neighbors to the west, drive out those homes by creeping commercialism, and consume prematurely the capacity of Archer Road to carry the through traffic for which it was designed and built at considerable expense. Nor can the commission’s decision fairly be termed confiscatory. The Reddicks’ real estate appraisal witness conceded, “I don’t say it will confiscate his property” to deny commercial rezoning. He said only that “I don’t think that [residential use] would be the highest and best use of his property.” A sales agent asked rhetorically “Who wants it [for residential use]?” and wished to sell the property for commercial usage, which is understandable, but she has not invited the market to answer her question. Moreover, her opinion was predicated on 1995 projections of traffic density on Archer Road northeast of 1-75, which indisputably will carry more traffic than southwest Archer Road. Ante fn. 1. Her opinion of traffic impact there in 1995 cannot be determinative of whether the commission’s decision confiscated, in 1976, land 1,000 feet southwest of 1-75. Discounting her opinion is a matter of rejecting its predicate, not a matter of retrying the facts. Arkin Const. Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957).

A zoning authority such as this board of county commissioners is not obliged in all events, and irrespective of the detrimental consequences to public facilities and neighboring properties, to rezone private property for its “highest and best use” or for its highest salability. S. A. Healy Co. v. Town of Highland Beach, 355 So.2d 813, 814 (Fla. 4th DCA 1978), and eases cited. Because substantial competent evidence supported the decision of the board of county commissioners, and the county commission’s purposes in denying commercial rezoning at least debatably serve the public welfare, without confiscating the Reddicks’ property, the circuit court erred in intervening to rezone the Reddicks’ property. Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So.2d 1082, 1091 (Fla.1978); Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959); Thomas v. City of West Palm Beach, 299 So.2d 11 (Fla.1974); Hillsborough County v. Twin Lakes Mobile Homes Village, 166 So.2d 191 (Fla. 2d DCA 1964), cert. disch., 170 So.2d 589; Dade County v. Yumbo, S. A., 348 So.2d 392 (Fla. 3d DCA 1977), cert. den., 354 So.2d 988; S. A. Healy Co. v. Town of Highland Beach, supra; Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975).

If the decision of the board of county commissioners were not otherwise sustainable, commercial zoning should not have been ordered without a showing by the Reddicks that all intervening zoning classifications were unconstitutionally restrictive. Board of County Commissioners v. Ralston, 284 So.2d 456 (Fla. 2d DCA 1973).

Somewhat inconsistently with their reliance on the real estate agent’s opinion of the future detriment to the property by 38,000 vehicles using northeast Archer Road in 1995, the Reddicks urge that the county commission erred as a matter of law in apprehending premature traffic saturation of southwest Archer Road as a result of strip commercial development there. That position rests on isolated dicta in Davis v. Sails, supra, 318 So.2d at 218:

The test as to the validity of a zoning ordinance is not whether it may on some future date bear the required relation to the public welfare, but rather whether it does so now. West Bloomfield, T. P. v. Chapman, 351 Mich. 606, 88 N.W.2d 377 [1958]; Gust v. Canton T. P., 342 Mich. 436, 70 N.W.2d 772 [1955]; Barney & Casey Co. v. Town of Milton, 324 Mass. 440, 87 N.E.2d 9 [1949].

The quoted language should not be read as forbidding zoning authorities to weigh the future impact of a zoning decision at hand. Planning for the future is of the essence of rational zoning. This court has on occasion required rezoning of neighboring properties when earlier rezoning decisions failed to assess future consequences. The Davis statement was drawn from judicial decisions holding that, when there is no other reason to deny the requested rezoning, denial cannot be predicated upon an anticipated conflict between the property as rezoned and future development around it which is speculative to predict. Gust, 342 Mich, at 439-40, 70 N.W.2d at 773; West Bloomfield, 351 Mich, at 617, 88 N.W.2d at 382; Barney, 324 Mass, at 446-47, 87 N.E.2d at 14. In the case before us, the board of county commissioners could reasonably have concluded that the BH rezoning of the Reddicks’ property would have a detrimental impact on substantial public and private interests “now,” both in the sense of immediate consequences and in the sense of an immediately discernable portent of certain future harm.

It is appropriate to add a word distinguishing the circumstances in this case from those in Stokes v. City of Jacksonville, 276 So.2d 200 (Fla. 1st DCA 1973), Davis v. Sails, supra, Olive v. City of Jacksonville, 328 So.2d 854 (Fla. 1st DCA 1976), and Dugan v. City of Jacksonville, 343 So.2d 103 (Fla. 1st DCA 1977), in all of which this court ordered, or sustained a trial court which ordered, less restrictive zoning than that imposed by the zoning authority. In the aftermath of such a string of decisions it may erroneously be supposed that this court has lessened the effect of the “fairly debatable” rule, and has admonished circuit courts to zone and rezone in accordance with their notions of what “rational” zoning schemes may be. That is not the case. In Stokes a residential property was faced from three corners by three gasoline service stations. In Davis there were intrusive public developments including a sludge field. Ante n. 2. In Olive the residential property was “a literal peninsula” in a sea of commercial usages. In Dugan the residence was confronted by convenience stores. Here, by contrast, the zoning authority separated commercial and noncommercial uses at a “physical barrier or other logical boundary,” Olive, 328 So.2d at 856, the penetration of which would tend to produce the results decried in each of the cited cases. We previously have affirmed the judiciary’s responsibility to ascertain the rationality of zoning classifications. We here reaffirm that the judicial task is not to determine proper zoning as a forum of first recourse, but is rather to determine, on the evidence before the court, whether the local authority’s zoning decision is fairly debatable. As Judge Boyer wrote in Davis,

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. [318 So.2d at 217.]

The trial court’s order for rezoning of the Reddick property displaces a thoughtful decision, on substantially debatable matters of local policy, by duly constituted local government. To sustain the judgment would be an unfortunate retrogression at a time when local governments are called on to act responsibly in restraining random development of land and other natural resources, or else give way to superseding power from the central executive or legislative branch of government. See Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977), affirmed (Fla.1978). All presumably would agree that the sensitivity of decisions affecting land use requires that those decisions be made, if possible, by local officials who are directly responsible to the local electorate. Absent arbitrariness, invidious discrimination, or confiscation in a constitutional sense, the judiciary should let those decisions stand. As our Supreme Court stated as recently as 1978, “zoning or rezoning is the function of the appropriate zoning authority and not the courts . . Skaggs-Albertson’s, supra, 363 So.2d at 1091.

Without prejudice to any application by the Reddicks to the board of county commissioners for more intensive noncommercial zoning than R-1A, the judgment is REVERSED and the cause DISMISSED.

ERVIN and MELVIN, JJ„ concur.

Illustration to follow.

      . She testified that the property could be sold for more if rezoned commercial BH and:
      [W]ho would want to live in a R-1A zoning on a road that has an interchange with 36,-000 cars on it[?] It’s impossible. It’s impossible. Who wants it?
      The witness’ reference to 36,000 cars evidently was drawn from preliminary traffic projections for 1995, estimating that more than 38,100 vehicles per day would use Archer Road northeast of the interchange in accessing Gaines-ville’s university and medical facilities.

      . Davis sustained a circuit court order which required rezoning from agricultural to a zoning “ ‘more liberal than single-family residential.’ ” 318 So.2d at 217. The acreage, which coincidentally was located on Tower Road in west Alachua county, was bounded on three sides by a school site, a mobile home subdivision development, and the site of a new sewage treatment plant with sludge field.

      . Stokes v. City of Jacksonville, 276 So.2d 200 (Fla. 1st DCA 1973); Olive v. City of Jacksonville, 328 So.2d 854 (Fla. 1st DCA 1976).


author: MELVIN, Judge.

text:
    FLORIDA STATE BOARD OF EDUCATION and Ralph D. Turlington, as Commissioner of Education of the State of Florida, Appellants, v. John F. BRADY and John G. Brady, Appellees and Cross-Appellants.
    No. KK-378.
    District Court of Appeal of Florida, First District.
    March 20, 1979.
    James D. Little and Judith A. Brechner, Tallahassee, for appellants.
    Jack McLean, Ralph Armstead and Anna Bryant Motter, Tallahassee, for appellees and cross-appellants.
   MELVIN, Judge.

The appellants have timely brought for review their challenge to that portion of the final order of date June 15,1978, entered by the hearing officer of the Division of Administrative Hearings wherein it was held and determined:

“3. The scoring criterion is a rule within the meaning of the APA, F.S. § 120.-52(14).
4. The scoring criterion by which mastery of the basic skills and satisfactory performance in functional literacy are determined is invalid for its failure to have been promulgated in accordance with the APA, specifically F.S. § 120.54.”

The order found and determined that Rule 6A-1.941, as promulgated by the State Board of Education, was a valid rule within the contemplation of Florida Statutes, Chapter 120, the Administrative Procedure Act. The sole question presented for determination here is whether or not, during the time here pertinent, the scoring criterion by which knowledge of the basic skills and satisfactory performance in functional literacy was measured was a rule within the contemplation of Chapter 120. It is stipulated that the scoring criterion referred to was not adopted as a rule pursuant to Chapter 120, but was set and determined by Ralph D. Turlington, as Commissioner of Education of the State of Florida, pursuant to Section 229.57(2)(b), Florida Statutes (1977).

John F. Brady, father of an 11th grade student, John G. Brady, brought this action. At the conclusion of the hearing, a motion was granted to add John G. Brady as a party to the cause. The basis for the Brady complaint was that John G. Brady had passed the functional literacy test but had failed two parts of the basic skills test, relating to apostrophe and noun capitalization. The local school board, pursuant to its obligation, provided young Brady with extra study in the areas in which he reflected deficiency in the test. The sole basis of the Brady complaint was that the scoring standard as determined by the Commissioner of Education of Florida is not valid because such criterion was not a part of the rule referred to nor was it adopted as a separate rule under Chapter 120. With this contention, we do not agree.

The test and the scoring was evenly applied to all students in Florida at grade levels 3, 5, 8 and 11. Young Brady did not have a right to be free from testing. While it is true that a student has a “substantial interest” in passing the various subjects in the various grades through which he progresses towards graduation, he does not have a right to pass any subject as to which he had not obtained the required proficiency. A high school diploma stands for something more than testimony to the fact that a student has attended that school for a given number of years. In order for those in the academic field to know that a student has obtained proficiency in any given subject, it would follow as a matter of logic that there would have to be, and traditionally there always have been, tests given to the students on the subjects on which they have received instruction.

Whether a student will be considered as having obtained proficiency in any subject is a matter peculiar to the field of education and is not one, in our view, that was intended by the legislature to be arrived at through promulgation of rules under the Administrative Procedure Act. It is our view that the Legislature of Florida had this very subject under consideration when it adopted Section 229.57(2)(b), Florida Statutes (1977), wherein the Commissioner of Education was required and directed to:

“Develop and administer in the public schools a uniform, statewide program of assessment to determine, periodically, educational status and progress and the degree of achievement of approved minimum performance standards. . . . ”
(Emphasis supplied)

Implicit in such direction to the Commissioner of Education is the granting to him of the authority to determine scoring criteria. We further note that no adverse effect has been visited upon young Brady because, following a testing procedure, he was required to gain a minimum knowledge with reference to the use of the apostrophe and the proper capitalization of nouns. According to the record, young Brady at the time of the hearing was in the 11th grade and had before him the 12th grade courses to pass before any determination could be made with reference to his entitlement to graduation. Graduation for him, as it is for all other students, will depend also upon his passing his 12th grade courses. There is no testimony to the effect that his graduation is in any way in peril by reason of his having first failed to demonstrate the . required knowledge and later having gained the required knowledge of the apostrophe and capitalization of proper nouns. He should appreciate rather than complain about the educational system in Florida that obviously has been of benefit to him.

Of interest in the consideration of this area of school law is Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978). In Horowitz, the Supreme Court of the United States considered the dismissal of a senior in a state medical school because of her failure to meet academic standards. The court considered the case utilizing the concept of liberty and property under the Fourteenth Amendment and examined the degree of due process that is required in academic dismissal matters. We perceive the reasoning employed by the court in disposing of the case to be of value in the area of school law. First, the court distinguished academic discipline from misconduct disciplinary proceedings and then observed that:

“Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to judicial and administrative fact-finding proceedings to which we have traditionally attached a full hearing requirement. * * * Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decision-making.
Under such circumstances, we decline to ignore the historic judgment of educators and thereby formalize the academic dismissal process by requiring a hearing. The educational process is not by nature adversarial; instead it centers around a continuing relationship between faculty and students, . . . ” (Emphasis supplied)

If one who is a senior in medical school may be dismissed for academic reasons (which necessarily were predicated upon testing) and such dismissal might be accomplished without the necessity of any hearing, we find the requirement that an 11th grade student submit to an evenly administered test to determine his knowledge of grammar, reading, arithmetic, and writing, and then furnished an opportunity to correct such deficiencies as may thus be revealed, is a proper exercise of the authority granted to the Commissioner of Education of the State of Florida by the provisions of Section 229.57(2)(b).

We do not have here a case of discrimination in which the test required of one student was not required of all others. We do not have a situation where one’s test papers were graded any differently than all the other students in the State of Florida similarly situated.

We hold that the scoring criterion complained of was a valid exercise of the authority granting by the Legislature to the Commissioner of Education of the State of Florida and that Rule 6A-1.941, Florida Administrative Code, is a valid rule. It follows that the order of the hearing officer of date June 15, 1978, the subject of this opinion, should be and is vacated and set aside to the extent it is not consistent with the views herein expressed.

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

      . Authority is now vested in State Board of Education. See Chapter 78-424 which was tiled in the Office of Secretary of State June 27, 1978, and was effective upon becoming a law.


author: BOOTH, Judge.

text:
    Joseph MOORE, Appellant, v. STATE of Florida, State Retirement Commission and Department of Administration, Division of Retirement, Appellees.
    No. LL-28.
    District Court of Appeal of Florida, First District.
    March 20, 1979.
    Joseph C. Segor, of Chonin & Segor, P.A., Miami, for appellant.
    L. Keith Pafford, Tallahassee, for the Division of Retirement, appellees.
   BOOTH, Judge.

Appellant Moore appeals the State Retirement Commission’s order denying him “in line of duty” disability retirement benefits. Although we recognize the limited standard of judicial review, we reverse and remand with directions to grant the enhanced benefits.

Appellant, a 51 year old school teacher in Dade County, had accrued some seven years of service under the Florida Retirement System when in June of 1976 he was attacked by a student in his classroom. The student, just informed by Moore that he was going to fail his class, picked up a metal pipe and hit him one or more times between the shoulder blades and in the low back. Subsequent tests revealed herniated discs in the cervical and lumbar areas. On several occasions after this beating, Moore’s legs collapsed on him as he walked. It was stipulated between the parties that after this incident Moore was “totally and permanently disabled” within the meaning of section 121.091(4)(b), Florida Statutes (1977). The only issue before the Commission was whether the 1976 student attack was the cause of the disability so as to entitle him to enhanced “in line of duty” disability retirement benefits under section 121.091(4)(d)l, Florida Statutes (1977).

At the hearing, Moore’s entire medical history was chronicled, and the following incidents were revealed: (1) injuries to a toe and left ankle and a cataract removal during his Air Force career, (2) a 1956 car accident in which he received neck injuries, (3) a 1972 attack at school in which he was slammed against a wall, picked up and thrown to the floor, receiving back and neck injuries, (4) a 1974 collision with a student in the school hallway in which he received minor back injuries, (5) various experiences of back pain throughout 1974-76, (6) a January, 1976, car accident in which he sustained neck injuries, (7) the June, 1976, student attack, and finally (8) a subsequent June, 1976, incident in which appellant experienced back pain while attempting to ride a bicycle and fell off of the bicycle.

The Commission in its “Findings of Fact” stated that appellant’s disability was caused by “certain episodes of trauma superimposed on long-standing moderately severe osteoarthritis” involving the cervical and lumbar areas of the spine. As to the cervical disability, the Commission found that the 1956 car accident, the 1974 student “attack,” and the January, 1976, car accident were responsible. The episodes of pain causing lumbar injury, were, according to the Commission: (1) back pain “sustained” while petitioner was getting out of a replin-ing chair in December, 1974, (2) “back pain while making up a bed in March 1976,” (3) the June, 1976, assault, and (4) the bicycle accident.

In its “Conclusions of Law” the Commission determined:

. Petitioner Moore was rendered totally and permanently disabled by reason of certain traumatic episodes superimposed on his degenerative arthritis, specifically: (a) an automobile accident in 1956 while Petitioner was in the Air Force; (b) an attack by a student in 1974 after which Petitioner was able to resume his teaching duties and continue flying airplanes; (c) an automobile accident in January of 1976 that resulted in increased neck pain .

We have reviewed the record and find that the Commission’s findings and conclusions are not supported by substantial evidence. The recitation of the Commission’s final Conclusions of Law does not even include the June, 1976, student attack as a cause of appellant’s ultimate disability. However, all three of the medical experts who had examined appellant stated that the 1976 student attack was a causative factor in both the lumbar and cervical disc injuries, and that the lumbar injury was a significant part of appellant’s overall disability-

The Commission’s conclusions overlook or ignore this important medical evidence. In a number of other respects the order is contradictory and misleading. For example, the Commission finds appellant “injured his back while getting out of a reclining chair at home,” but the actual testimony is that he had experienced pain while getting out of the chair. One of the Commission’s conclusions is that: “Petitioner demonstrated by withdrawing his disability application [in February of 1977] for the purpose of qualifying for an insurance policy, that he was capable of withholding significant and damaging information in order to qualify for a benefit.” Earlier, however, the Commission’s order expressly rejects the proposed finding that Moore withdrew his disability application for the purpose of qualifying for an insurance policy.

With regard to the February withdrawal of appellant’s application, our examination of the record does not support the Commission’s apparent discrediting of appellant, much less the denial of benefits, on this basis.

The uncontroverted facts are that appellant, whatever his prior physical condition, was able to, and did, perform his duties prior to the 1976 attack, and thereafter was permanently totally disabled by back injuries which are, as stated by the medical witnesses, related to the 1976 attack. We hold that the appellant proved the “in line of duty” injury he received was the substantial producing cause of his disability. See Bolinger v. Division of Retirement, 335 So.2d 568 (Fla. 1st DCA 1976).

Accordingly, the order is REVERSED and the case REMANDED to the Commission to award appellant the “in line of duty” disability retirement benefits to which he is entitled.

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


author: PER CURIAM. MASON, ERNEST E., Associate Judge,

text:
    The HAMMET COMPANY, INC., Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. LL-85.
    District Court of Appeal of Florida, First District.
    March 20, 1979.

      Daniel J. Wiser, of Roberts, Miller, Bag-gett & LaFace, Tallahassee, for appellant.
    Alan E. DeSerio and Jerrold K. Phillips, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

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

MASON, ERNEST E., Associate Judge, dissents.

MASON, ERNEST E., Associate Judge,

dissenting.

I respectfully dissent. The parties at the outset of the trial stipulated that if the jury should find for appellant (plaintiff below) on the issue of liability under its complaint the appellant “will be awarded a damage of one hundred thousand dollars against the Department of Transportation”, and “if the jury finds in favor of the Defendant on their counter-claim, then the Defendant will be awarded four thousand dollars from the Plaintiff counter-Defendant”. Further, the< stipulation, which was dictated into the record by plaintiff’s attorney and acceded to by DOT’s attorney, provided that such stipulation “does not preclude the jury finding in favor of the Defendant as to their defenses and against the defendant as to their counterclaim thereby rendering no judgment of any award or vice versa.” Still further, counsel for plaintiff stated: “So, in other words, we have stipulated if we are right on our claim in chief, we get one hundred thousand dollars damages. If they are right, they get four thousand dollars damages to the counterclaim”.

The trial court recognized the stipulation by directing immediately upon the recitation of the stipulation that the jury be brought in.

Thereafter the trial proceeded solely on the issue of liability. No evidence was presented on the issue of damages.

At the close of the presentation of the evidence and argument of counsel the trial court, after instructing the jury on the liability issues, instead of advising the jury that if the jury decided for the plaintiff the jury should award the plaintiff one hundred thousand dollars as stipulated by the parties, instructed them that the award could be any sum from zero to one hundred thousand dollars in the main suit; and if the jury should find for DOT on its counterclaim the latter’s award should be any sum from zero to four thousand dollars, instead of the four thousand as stipulated.

After deliberation the jury returned a two-part verdict, one for DOT under its counterclaim but for zero dollars damages; and two, for the plaintiff Hammet under its complaint, likewise in the sum of zero dollars.

Thereafter the court entered judgment based upon the verdict directing that neither party take anything by the suit.

I am of the opinion that the court erred in instructing the jury as to damages in the manner above indicated and that he should have instructed them to fix damages in the amounts stipulated by the parties in the event they found that liability existed. Such instruction as given misled the jury causing the jury to award damages contrary to the stipulation of the parties. I believe such instruction amounted to fundamental error demanding that this case be reversed and remanded for new trial.

Appellee’s argument that appellant has not preserved this error for appellate review is not, in my judgment, well taken, for a review of the record clearly shows that the trial court was of the opinion that the jury ought to be instructed in this breach of contract action on his conceived theory of shared responsibility or comparative negligence concept. In the interest of justice this court may take note of fundamental error apparent in the record whether or not an objection or exception was made or taken in the court below. See Jefferson v. City of West Palm Beach, 233 So.2d 206 (Fla. 4th DCA 1970); Pittman v. Roberts, 122 So.2d 333 (Fla. 2nd DCA 333); and American Home Assur. Co. v. Keller Industries, 347 So.2d 767 (Fla. 3rd DCA 1977) and cases therein cited.

I would reverse and remand for new trial because it is apparent that the jury was misled in the rendition of the verdict herein.


author: SCHWARTZ, Judge.

text:
    Anthony GIBSON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-1781, 77-1782.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.) and EZELL, BOYCE F., Jr., (Ret.), Associate Judges.
   SCHWARTZ, Judge.

The defendant Gibson appeals from judgments of guilt and concurrent sentences of six months in prison for possession of controlled substances and for grand larceny. The grand larceny judgment was entered after the defendant’s probation for that crime was revoked because of his having committed the substantive offense of possession. The sole issue concerns the lower court’s action in denying suppression of the contraband in question. We affirm.

Since we hold that, under the circumstances involved, the initial stop of the defendant was properly based upon the police officer’s “reasonable” or “founded suspicion” of criminal activity, State v. Stevens, 354 So.2d 1244 (Pla. 4th DCA 1978), the trial court correctly denied the motion to suppress the heroin which was found, without a “search,” where Gibson had left it in a pouch which the officer could plainly see as he was detaining the defendant. State v. Stevens, supra, at 1248. Gibson’s subsequent arrest was in turn founded upon probable cause to believe that he had committed the felony of the possession of that heroin; it was therefore lawfully effected notwithstanding the fact that the officer formally stated that he was arresting Gibson for loitering and prowling, rather than possession. Maddox v. State, 236 So.2d 469 (Fla. 1st DCA 1970); Hoskins v. State, 208 So.2d 145 (Fla. 3d DCA 1968), cert. denied, 214 So.2d 622 (Fla.1968). Hence, the court also rightly refused to suppress additional heroin and a quantity of cocaine which was discovered upon a search of the defendant’s person after and incident to the thus-lawful arrest. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).

Affirmed.

      . The defendant started to run when the officer approached him and three companions in front of an alley in a deserted area of Opa Locka at 5:00 in the morning.

      . Since we find the search and seizures to have been justified we need not discuss whether evidence which has been unconstitutionally secured may nevertheless be employed in a probation revocation proceeding. See Croteau v. State, 334 So.2d 577 (Fla.1976); Kinzer v. State, 366 So.2d 874 (Fla. 4th DCA 1979). Nor need we decide whether, if it may be so employed, the conviction of the substantive offense would be properly reviewable at all since the sentence imposed was only concurrent to that involved in the case in which Gibson’s probation was revoked. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1942); Mathis v. State, 348 So.2d 1221 (Fla. 3d DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978).


author: PER CURIAM.

text:
    Curtis RAINES, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2259.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.), and EZELL, BOYCE F., Jr., (Ret.), Associate Judges.
   PER CURIAM.

Affirmed on authority of State v. Jones, 327 So.2d 18 (Fla.1976).


author: BARKDULL, Judge.

text:
    John Thomas NOTT, Appellant, v. Benita Kay NOTT, Appellee.
    No. 78-788.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Mason & Meyerson and William John Mason, Miami, for appellee.
    Before BARKDULL, KEHOE and SCHWARTZ, JJ.
   BARKDULL, Judge.

The husband appeals a final judgment of dissolution of his marriage, particularly the award of alimony, custody, and attorney’s fees.

The marriage began in 1962, produced two daughters, and was dissolved by the trial court in 1977. The trial court referred the matter of the fitness of the parents to the Department of Health and Rehabilitative Services, which ultimately recommended that the children would be better off with the mother, with visitation rights to the father. The trial court then entered an order awarding custody to the wife, $800.00 monthly permanent alimony, $75.00 weekly for child support, and requiring the home (valued from $100,000.00 to $300,-000.00) to be held as tenants in common with use to the wife during the minority of the children. The trial court entered a later order, giving the wife’s attorney $10,-000.00 in fees.

The husband is a dentist, 40 years of age, who grosses about $40,000.00 per year ($28,-000.00 net). Under the present award, he will have to pay $17,400.00 per year in alimony and child support. He has expenses of about $1,200.00 per month over and above these payments. The husband shows the court that his wife is in excellent health, has previously taught school (during the first two years of marriage, earning $5,300.00 per year); she has a college degree and a broker’s license. During the marriage, she worked part time at a real estate office, earning $3,500.00 from such part time employment in 1975. The two children are 8 and 10 years of age; the wife is 36.

The appellant contends that the testimony regarding the husband’s financial situation and the wife’s earning capacity does not support an award of $800.00 monthly permanent alimony. See: Rosenberg v. Rosenberg, 352 So.2d 867 (Fla. 3d DCA 1977) where, under similar facts, this court rejected an award of $300.00 per month alimony. We agree. Alimony, under the facts as found, should only have been rehabilitative.

Therefore, this cause will be remanded to the trial court to ascertain the length of time the rehabilitative alimony should continue.

Secondly, appellant contends the wife should not have custody of the children. We find no merit in this contention. See: Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975); Brock v. Brock, 349 So.2d 782 (Fla. 1st DCA 1977).

Lastly, appellant contends the award of $10,000.00 in attorney’s fees was excessive. In view of the fact that this matter will be returned to the trial court and that this opinion reverses as to permanent alimony, the trial judge may consider the amount of fees in this case because, obviously, the amount awarded was based on a recovery for the wife of permanent alimony, whereas now she will receive rehabilitative alimony. An essential ingredient of an award of attorney’s fees is the benefit to the client. The original award having been based on a greater recovery for the wife than she will ultimately receive, the trial judge may be desirous of reconsidering his award.

Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby reversed and remanded, with directions.

Reversed and remanded, with directions.

KEHOE, J., dissents.

      . The trial judge made several findings during the course of these proceedings that indicated the wife was capable of rehabilitation. See: Beard v. Beard, 262 So.2d 269 (Fla. 1st DCA 1972); Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973); Rosenberg v. Rosenberg, supra. He also, by his final judgment, attempted to make an award of permanent alimony in the nature of rehabilitative alimony, wherein he said:
      * * * * * Hi

      “1. The Court finds the Wife to be mentally competent and physically able to obtain employment and the award of $800.00 monthly Alimony, made permanent, subject to ‘revision in light of any change in circumstances which may occur in the future’ is not intended by the Court to give the Wife a vested interest in Husband’s earnings for life. It is the Court’s intention that during these next years the Wife will use her industry and skills to ultimately make her own way, if possible, while also exercising her first obligation as mother and custodian of the parties’ two minor children.”
      ******


text:
    Ray Walter THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1049.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    J. Edward Worton, Key West, for appellant.

      Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.) and EZELL, BOYCE F., Jr., (Ret.), Associate Judges.
   SCHWARTZ, Judge.

On the authority of Wilson v. State, 359 So.2d 901 (Fla. 3d DCA 1978), we reject the defendant-appellant’s contention that he was privileged to trespass into the trailer where his wife was staying with a male friend.

Because he made no objections below either to the court’s instructions or to the pertinent verdict form, we do not consider his alternative claim, raised for the first time on appeal, that the elements of the lesser included crime of which he was convicted were not alleged in the information. Under the circumstances of this case, which are very similar to those involved in Andrews v. State, 309 So.2d 576, 577 (Fla. 1st DCA 1975) (specially concurring opinion), the alleged error was not a fundamental one which may be reviewed notwithstanding the defendant’s failure to preserve the point below. Andrews v. State, supra; see also Smith v. State, 344 So.2d 905 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 678 (Fla.1977); McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971); compare Minor v. State, 329 So.2d 30, 31 (Fla. 2d DCA 1976), and cases cited.

Affirmed.


text:
    Harry I. KOFFLER, Appellant, v. NEW YORK LIFE INSURANCE COMPANY, Appellee.
    Nos. 78-1159, 78-1467.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Gladson & Sullivan and Daniel J. Sullivan, Miami, for appellant.
    Shutts & Bowen and Richard M. Leslie, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See, Garwood v. Equitable Life Assurance Society of the United States, 299 So.2d 163 (Fla. 3d DCA 1974); New York Life Insurance v. Nespereira, 366 So.2d 859 (Fla. 3d DCA, 1979); and Section 57.041, Florida Statutes (1967).


text:
    Felio CRUZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-452.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Felio Cruz, in pro. per.
    Jim Smith, Atty. Gen., for appellee.

      Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: PER CURIAM. MITCHELL, HENRY CLAY, Jr., Associate Judge,

text:
    Ralph PARHIALA, Appellant, v. STATE of Florida, Appellee.
    No. KK-270.
    District Court of Appeal of Florida, First District.
    March 22, 1979.
    John Edrington Futch of Fore, Meffert & Futch, P. A., Ocala, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant was convicted and sentenced to a ten-year probationary term for a violation of Section 627.7375(l)(a)(l), Florida Statutes (1977). That offense is a third degree felony punishable by a maximum imprisonment of five years. Section 775.082, Florida Statutes (1977). Therefore, as conceded by the State, appellant’s sentence is illegal. Accordingly it is modified to reduce the period of probation from ten years to five years. We have examined appellant’s other points on appeal and find them to be without merit.

Therefore the judgment is affirmed and the sentence is affirmed as modified.

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

MITCHELL, HENRY CLAY, Jr., Associate Judge, dissents.

MITCHELL, HENRY CLAY, Jr., Associate Judge,

dissenting.

I think the judgment should be reversed.

The question presented is whether an attorney’s admissions written in the form of a letter are admissible into evidence against his client in the client’s criminal case.

The Appellant was convicted of insurance fraud under Florida Statute 627.7375.

During the trial, the State introduced, over the Appellant’s objection, a letter written by Appellant’s previous attorney to Appellant’s insurance company in which payment on the claim was demanded. The attorney admitted writing the letter, but stated that he had no authority from the Appellant to write the letter or make the claim on the Appellant’s behalf.

To support a conviction, the State must prove, as one of the essential elements, that the Appellant presented a claim for payment under his insurance policy. The letter written by Appellant’s attorney is the only evidence that a claim for payment was made.

An attorney may make admissions or statements which will affect his client provided that the statement is made during the performance of duties of his employment within his authority. See, generally, as to admissions by attorneys, 31A C.J.S. Evidence § 361, 7 Am.Jur.2d, Attorneys at Law, Section 122 and 97 A.L.R. 374.

In order to resolve this issue, one must turn to the law of agency. The answer is clear. An attorney is a mere agent and as a mere agent his authority to bind his principal by his admissions or statements depends upon the scope of his agency. See Laird v. Air Carrier Engine Service, 263 F.2d 948 (5th Cir. 1959). In order for an extra judicial statement or admission to be binding on the client, it must appear that the attorney was specially authorized in this respect and that the admission properly fell within the scope of this authorization. Carroll v. Pratt, 247 Minn. 198, 76 N.W.2d 693 (1956).

Here there was no showing that the attorney had authority to write the letter in question. Consequently, the letter should not have been admitted into evidence.

Without the letter, the State cannot prove that the Appellant made any statement in support of a false claim because there was no proof that a claim for payment was, in fact, made.

Therefore, since the evidence was not sufficient to sustain Appellant’s conviction, I would reverse the conviction with directions that Appellant be discharged.


text:
    W. S. McLELLAND, Appellant, v. STATE of Florida, Appellee.
    No. MM-219.
    District Court of Appeal of Florida, First District.
    March 22, 1979.
    W. S. McLelland, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Appellant, a patient at Florida State Hospital, filed a Petition for Writ of Habeas Corpus to the Circuit .Court for Gadsden County. The trial judge denied the petition on the ground that since the petitioner was committed by the Circuit Court of Leon County jurisdiction did not lie in Gadsden County in the habeas action. We reverse.

Section 394.459(10), Florida Statutes (1977), provides that a patient may file a Petition for Writ of Habeas Corpus “in the circuit court in the county where the patient is hospitalized . . . .” Since appellant is a patient at Florida State Hospital and that hospital is in Gadsden County, jurisdiction for the Petition for Writ of Habeas Corpus is in Gadsden County.

Accordingly, this cause is reversed and remanded with directions that the petition be considered on the merits.

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


text:
    James GARDNER, Appellant, v. STATE of Florida, Appellee.
    No. MM-220.
    District Court of Appeal of Florida, First District.
    March 22, 1979.
    James Gardner, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Appellant, a patient at Florida State Hospital, filed a Petition for a Writ of Habeas Corpus to the Circuit Court for Gadsden County. The trial judge denied the petition on the ground that since the petitioner was committed by the Circuit Court of Leon County, jurisdiction did not lie in Gadsden County in the habeas action. We reverse.

Section 394.459(10), Florida Statutes (1977), provides that a patient may file a Petition for Writ of Habeas Corpus “in the circuit court in the county where the patient is hospitalized . . .” Since appellant is a patient at Florida State Hospital and that hospital is in Gadsden County, jurisdiction for the Petition for Writ of Habeas Corpus is in Gadsden County.

Accordingly, this cause is reversed and remanded with directions that the petition be considered on the merits.

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


text:
    Ernest ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. KK-66.
    District Court of Appeal of Florida, First District.
    March 23, 1979.

      Michael J. Minerva, Public Defender, Margaret C. Good, Asst. Public Defender, and Kathleen P. Dekker, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Robinson seeks review of his conviction for aggravated battery contending he was deprived of his constitutional right to counsel without a voluntary, intelligent, and knowing waiver of this right. We agree and reverse.

Prior to trial, the public defender was appointed to represent Robinson. One week prior to trial, a hearing was held to relieve the public defender from representing Robinson because Robinson had expressed a desire to proceed as his own attorney. Although a defendant has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), when a defendant, prior to trial, requests permission to represent himself, an inquiry must be conducted by the court to determine whether the defendant is making an intelligent and voluntary decision and is knowingly waiving his right to counsel. Ausby v. State, 358 So.2d 562 (Fla. 1st DCA 1978). The trial court should also determine whether unusual circumstances exist which would preclude the defendant from representing himself. In this regard, the court should determine whether the accused, by reason of his age, mental derangement, lack of knowledge, or education, or inexperience in criminal proceedings would be deprived of a fair trial if allowed to conduct his own defense. Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA 1968).

The inquiry, sub judice, was totally inadequate to reflect a knowing and intelligent waiver by Robinson of his constitutional right to counsel. The record fails to establish that Robinson, in seeking self-representation, “[knew] what he [was] doing and that his choice [was] made with [his] eyes open.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. Accordingly, Robinson’s conviction is reversed and the cause is remanded for a new trial.

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


text:
    Will Otis POPE, Appellant, v. STATE of Florida, Appellee.
    No. KK-216.
    District Court of Appeal of Florida, First District.
    March 23, 1979.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Pope appeals from his conviction of burglary and grand larceny with sentence imposed of five years and three years probation, respectively. As a condition of probation, the appellant, previously adjudicated insolvent, was required to pay restitution, court costs, and police academy costs. This action was proper. Arnold v. State, 356 So.2d 862 at 863 (Fla. 1st DCA 1978). Appellant also alleges that he was not provided notice and an opportunity to be heard regarding the amount of restitution in accordance with Fresneda v. State, 347 So.2d 1021 (Fla.1977). However, appellant and his counsel were present when restitution was imposed but they failed to object or otherwise present the issue to the trial court. As a consequence, it is impossible to determine from the record that notice was not given. Accordingly, the judgment is affirmed.

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


text:
    In re the MARRIAGE OF Robert M. GOFF and Beverly Ann Goff.
    No. KK-364.
    District Court of Appeal of Florida, First District.
    March 23, 1979.

      John L. Pearce, Tallahassee, for appellant.
   PER CURIAM.

Appellants, contestants below, join in this appeal to urge that the trial court improperly assessed costs against them. We agree and reverse.

In the absence of statutory authority or agreement between the parties, the trial court had no authority to assess costs against them.

REVERSED.

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


author: McCORD, Chief Judge.

text:
    Isidor ESTANISLAO, Jr., Appellant, v. STATE of Florida, DEPT. OF HRS, on Behalf of Dianna Lynn HULL, Appellee.
    No. LL-245.
    District Court of Appeal of Florida, First District.
    March 23, 1979.
    Joseph F. Duszlak, Jacksonville, for appellant.
    Joseph W. Howard, Jacksonville, for ap-pellee.
   McCORD, Chief Judge.

This is an interlocutory appeal from an order of the trial court denying a motion to dismiss appellee’s second amended complaint. By his motion to dismiss, he contended that he is residing outside the State of Florida and has been continuously residing in Alameda, California; that appellee failed to allege sufficient jurisdictional facts to bring appellant within the jurisdiction of the Florida courts.

This is a paternity suit brought under Chapter 742, Florida Statutes (1977), seeking to establish that appellant is the father of the child of Dianna Lynn Hull and seeking an order requiring appellant to support the child. The action was begun by filing a complaint on July 20, 1977. The amended complaint alleges that on or about May 1, 1976, in Jacksonville, Duval County, Florida, appellant and Hull lived together as husband and wife for a period of four to five months, became intimate with each other, had sexual intercourse with each other in Jacksonville, Duval County, Florida, and as a result of this sexual intercourse, Hull has been delivered of a child born February 1, 1977; that appellant was stationed in the U.S. Navy in Jacksonville, Florida, at the time of the sexual intercourse.

Appellant was personally served with process pursuant to § 48.193, Fla.Stat. (1977), which provides in pertinent part as follows:

“(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) * * *
(b) * * *
(c) * * *
(d) * * *
(e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. . . . ”

Appellant contends that § 48.193(l)(e) does not reach appellant because this is a suit to establish paternity and is not an independent action for support of dependents; that it is a two-stage proceeding in which there must first be a determination of paternity before there can be a decision as to the amount of support to be paid by the father. We disagree that jurisdiction of the court has not been acquired over appellant. This suit is one to establish both paternity and support. It is an “independent action for support of dependents.” That phrase is used in the statute to distinguish an action such as this from an action “with respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage.” While this suit is an action to determine paternity, it is also an action for support of a dependent. § 742.10 provides as follows:

“This chapter shall be in lieu of any other proceedings provided by law for the determination of paternity and support of children born out of wedlock.” (Emphasis supplied.)

AFFIRMED.

MELVIN and BOOTH, JJ., concur.