text:
    JORDAN CHAPEL FREEWILL BAPTIST CHURCH, a Florida Corporation, et al., Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 75-1275.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied July 29, 1976.

      Joel Hirschhorn, Angus M. Stephens, Miami, for appellants.
    Stuart Simon, County Atty., and Richard Dunn, Asst. County Atty., for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

By this appeal, we are called upon to review the following order confirmed by final judgment entered by the trial court. In said order, the court made certain findings of fact and conclusions of law in denying a permanent injunction. Said order reads in part as follows:

“This is an action for declaratory decree and injunctive relief brought by plaintiff, Jordan Chapel Freewill Baptist Church, Inc., and joined in by thirty-six (36) plaintiff-intervenors (hereinafter referred to along with plaintiff as ‘plaintiffs’), which challenges the constitutionality of Dade County Ordinance No. 75-50 (hereinafter referred to as the ‘Bingo Ordinance’). This Court has jurisdiction pursuant to 86.011, Florida Statutes. Pursuant to stipulation of counsel, at least one plaintiff or plaintiff-intervenor has standing to challenge the constitutionality of the ordinance in question. The plaintiff filed a Motion for Temporary Injunction and at a hearing on the motion, Dade County agreed to withhold enforcement of the ordinance in question pending final hearing in this cause.

“The plaintiffs base their claim for relief upon the following grounds among others: that Dade County lacks the legal authority to enact the ordinance; that the ordinance conflicts with and is preempted by state law; that the ordinance was not properly enacted; that the ordinance violates the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution; that the ordinance violates the Due Process Clause of the aforesaid Fourteenth Amendment; and that the ordinance was not a valid exercise of the County police power.

“I. THE ORDINANCE

“The ordinance in question was enacted after the Board of County Commissioners of Dade County determined that:

‘ . . . present laws governing the operation of bingo games as provided for in Section 849.093, Florida Statutes, are inadequate to ensure that the various charitable, civic, community, benevolent, religious and scholastic organizations receive all the proceeds to which they are entitled under state law; and
‘ . . . since monies from bingo games are frequently retained illegally or taken out for non-charitable purposes through such ruses as abnormally high rentals and salaries; and
‘ . . . The Board of County Commissioners wishes to ensure effective enforcement of the above-quoted laws regarding “bingo games” and to see that the proceeds from such garnes pass into the hands of legitimate charitable organizations to be used for legitimate charitable purposes, . . . ’

“The ordinance begins with a section defining some of the more significant terms used therein. It also requires:

“1. All operators of bingo games to obtain a valid permit. Several specific items of information regarding the organization and its bingo operations are required to be disclosed prior to receiving the permit.

“2. Owners of premises and/or lessors who provide space to a bingo operator to obtain a permit. Similar information regarding the organization and benefits received from bingo operations must be supplied prior to issuance of the permit.

“3. Operators to maintain records regarding bingo receipts, prizes, expenses and proceeds.

“4. Certain information regarding identification of the charity, gross receipts, and prize money to be awarded to be posted during each session of bingo.

“5. Specified types of playing materials to be used in bingo games and records of material purchases to be maintained.

“II. DADE COUNTY’S POWER TO ENACT THE ORDINANCE

“Dade County is a constitutional home rule county. Article VIII, Section 11, Florida Constitution. Under this constitutional provision, the electors of Dade County are granted the power to adopt a home rule charter of government for Dade County. “Dade County’s Charter, at Section 1.01A, provides in relevant part:

‘The Board of County Commissioners shall be the legislative and governing body of the county and shall have the power to carry on a central metropolitan government. This power shall include but shall not be restricted to the power to:
******
‘21. Exercise all powers and privileges granted to municipalities counties, and county officers by the Constitution and laws of the state, and all powers not prohibited by the Constitution or by this Charter.
‘22. Adopt such ordinances and resolutions as may be required in the exercise of its powers, and prescribe fines and penalities for the violation of ordinances.
‘23. Perform any other acts consistent with law which are required by this Charter or which are in the common interest of the people of the county.’

“In addition to the above grants of power, Section 1.01B of the Dade County Home Rule Charter provides that enumerated powers include all implied powers necessary and proper to carrying them out. These provisions of the Dade County Charter were expressly validated in Article VIII, Section 6(e) of the 1968 Florida Constitution. There is clear authority in the above-cited sections for Dade County to enact Ordinance No. 75-50.

“There are also other authorities available which authorized Dade County to enact of the bingo ordinance. Section 125.01, Florida Statutes, which establishes the power of legislative bodies in counties, provides that a county shall have the power to:

‘(h) Establish, coordinate, and enforce zoning and such business regulations as are necessary for the protection of the public;
* * *
‘(t) Adopt ordinances and resolutions necessary for the exercise of its power and prescribe fines and penalities for the violation of ordinances in accordance with law.
* * *
‘(w) Perform any other acts not inconsistent with law which are in the common interest of the people of the county, and exercise all powers and privileges not specifically prohibited by law.’

“Further, pursuant to Article VIII, Section 6(f), Metropolitan Dade County is permitted to exercise all powers conferred upon municipalities by general law. Chapter 166.021 (1) provides:

‘As provided in § 2(b), Art. VIII of the state constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.’

“The allegation in the plaintiffs’ complaint which contends that Dade County is without the power to enact the ordinance regulating bingo is unsubstantiated and without merit. Pursuant to the Florida Constitution, the Dade County Home Rule Charter and the Florida Statutes, cited above, Dade County has the power to enact an ordinance regulating the operation of bingo games.

“HI. CONFLICT WITH STATE LAW “The plaintiffs contend that Dade County lacks the authority to enact an ordinance relating to bingo since the state had passed Section 849.093, Florida Statutes, and had thereby preempted the field.

“It is clear that, pursuant to the Florida Constitution, Article VIII, Section 11(5), Dade County has the power to enact legislation, so long as such legislation does not conflict with the Constitution or any applicable general law. Plaintiffs cite Section 849.093, Florida Statutes, a section entitled ‘Charitable, nonprofit organizations; certain endeavors permitted’ and claim that the Dade County Bingo Ordinance is in conflict with the state statute.

“The word ‘conflict’ in Article VIII, Section 11(5) has been construed to mean ‘contradictory in the sense of legislative provisions which cannot co-exist’. E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141, 1150 (5th Cir. 1970). State ex rel. Dade County v. Brautigam, 224 So.2d 688 (Fla.1969). Legislative provisions are inconsistent if, in order to comply with one provision, a violation of the other is required. In the E. B. Elliott Advertising Co. case, the sole test of conflict for purposes of preemption is the impossibility of co-existence of the two laws. Courts are therefore concerned with whether compliance with a County ordinance requires a violation of a state statute or renders compliance with a state statute impossible. In Elliott, a federal court, applying state law, found no conflict between a state statute and a more stringent Dade County ordinance both of which regulated the distance an outdoor sign must be set back from a highway. In Elliott, state law required at least a 15 foot set back and the County ordinance required at least a 200 foot set back. The test to be met in that case was whether it was possible to comply with the County ordinance without violating the state statute.

“A similar situation is presented in the case before the Court. The state law permits certain charitable, nonprofit or other organizations to conduct bingo games only if certain conditions set forth in the section are met. The purpose and effect of Section 849.093 ‘is merely to eliminate bingo from the gambling chapter when played within the limits of the statute’. Perlman v. State, 269 So.2d 385, 387 (Fla. 4th Dist. 1972). The regulations provided by the state constitute minimum regulations. This Court has not found, and the plaintiff has not cited any language in the statute which can be deemed a prohibition on additional stricter regulations by local government agencies, such as are contained in the Dade County ordinance.

“The Dade County Bingo Ordinance merely supplements the state statute. As in Elliott, supra, it is evident that compliance with the County ordinance is possible without violating state law.

“The Court finds that the ordinance and the statute can co-exist; that there is no conflict between the two enactments; and that the ordinance is, therefore, not unconstitutional under Article VIII, Section 11 (5), Florida Constitution.

“IV. PROPER ENACTMENT OF THE ORDINANCE

“The plaintiffs have alleged that the ordinance and its amendments were not enacted in compliance with Florida Statute 166.-041. Dade County contends that Section 166.041 provides a minimum standard to be followed by municipalities when enacting ordinances and it is therefore inapplicable. Dade County also maintains that Section 1.02 in its own Charter constitutes its controlling procedural requirements.

“Regardless of which contention is correct, it is not necessary for the Court to determine exactly which procedural requirements must be followed since the plaintiffs have not established any violation of the requirements of Section 166.041, Florida Statutes. This Court, therefore, finds that no such violation occurred in the enactment of Ordinance No. 75-50 by the Board of County Commissions of Dade County.

“V. FOURTH AMENDMENT

“Plaintiffs allege that the record inspection provisions of the bingo ordinance violate the Fourth Amendment requirement of reasonable searches. The Court finds the plaintiffs’ contention without merit.

“In Florida, there is authority to support inspections of licensed premises without warrant. Section 465.131, Florida Statutes, a section of the Florida Pharmacy Act, states:

‘The Florida board of pharmacy and its duly authorized agents, members and employees . . . shall have the power to inspect in a lawful manner at all reasonable hours any retail drug establishment or other place in the state in which drugs or medical supplies are manufactured, packaged, made, stored, sold, offered for sale, exposed for sale or kept for sale for the purpose:
‘(1) Of determining if any of the provisions of this chapter or any regulation promulgated under its authority, is being violated . . . ’

This statute was held a reasonable exercise of police power in the case of State v. Olson, 267 So.2d 878, (Fla. 2d Dist.1970), Olson v. State, 287 So.2d 313 (Fla.1973), reversed on other grounds. The Olson Court distinguished the cases (See v. City of Seattle, 387 U.S. 541, [87 S.Ct. 1737, 18 L. Ed.2d 943] (1967) and Camara v. Municipal Court, 387 U.S. 523, [87 S.Ct. 1727, 18 L.Ed.2d 930] (1967) relied upon by the plaintiff therein and held that in Section 465.131, Florida Statutes, there was:

‘[n]othing unreasonable in terms of Fourth Amendment sanctions in permitting officers to enter, without a warrant, a licensed premises for purposes of inspecting all aspects of the licensed activity and to seize any evidence of illegal exercise thereof.’ State v. Olson at 880.

“In Colonnade Catering Corp. v. United States, 397 U.S. 72, [90 S.Ct. 774, 25 L.Ed.2d 60] (1970) cited- as controlling in Olson, the U. S. Supreme Court held that Congress had broad powers to design inspection laws to regulate the liquor industry. Both Olson and Colonnade are cases dealing with inspections for purposes of regulation in the industries (drug and liquor respectively) ‘historically and properly subject to strict governmental scrutiny’. Olson at 880. This Court finds authorized gambling to be in the same category.

“Gambling (or authorized gambling in the case of bingo) is an exceptional situation which has always been closely controlled in Florida for the protection of the public. Rodriguez v. Jones, 64 So.2d 278 (Fla.1953); Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, 37 So.2d 692 (Fla.1948). This Court is convinced that the area sought to be regulated by the Bingo Ordinance is one in which regulation may be lawfully imposed. The Dade County Grand Jury Report submitted in evidence by the defendant herein states:

‘We wish to warn the people of Dade County that Bingo Activities have reached alarming proportions, that charities are being defrauded and that Bingo is not merely a harmless game, but is worthy of serious consideration.’
Final Report of the Dade County Grand Jury, November 12, 1974, at page 205.

“Further, testimony as reflected in the Official Minutes of the Dade County Commission Meeting of March 4, 1975, which were admitted in evidence in this case, point out the need for law enforcement officers to be empowered to inspect records in order to provide effective and protective regulation. In light of the evidence presented, the Court finds that the inspection authorized in the Bingo Ordinance is necessary and proper to protect the public health, safety, welfare and morals in Dade County.

“The County ordinance under scrutiny provides for the inspection of certain specified records. A general search is by no means authorized. The ordinance also contains a proviso that such inspections may be made only at reasonable times during normal business hours as well as a mandate that officers shall not interrupt an actual bingo game in progress unless absolutely necessary for proper inspection.

“The Court therefore holds the provisions of the ordinance whereby officers are permitted to inspect records at reasonable times, not to be in violation of the Fourth Amendment to the United States Constitution. In support of this contention, the plaintiffs suggested to the Court that under the ordinance many different types of law enforcement officers could descend simultaneously upon a bingo parlor and demand to inspect records. This Court is of the opinion that virtually all statutes and ordinances may potentially be abused, but the existence of a mere potentiality for abuse is not a valid basis for a Court to hold a statute unconstitutional. Our society must operate upon the assumption that such abuses will not occur and that if they do, the judiciary remains available to those abused for appropriate reddress.

“VI. FIFTH AMENDMENT

“The plaintiffs further maintain that the record keeping provisions of the ordinance violate their privilege against self-incrimination under the Fifth Amendment to the U. S. Constitution. They rely upon the cases of Marchetti v. U. S., 390 U.S. 39 [, 88 S.C. 697, 19 L.Ed.2d 889] (1968), Grosso v. U. S., 390 U.S. 62 [, 88 S.Ct. 709, 19 L.Ed.2d 906] (1968), and Haynes v. U. S., 390 U.S. 85 [, 88 S.Ct. 722, 19 L.Ed.2d 923] (1968), which they contend provide a legal basis upon which this Court should declare the Bingo Ordinance unconstitutional on Fifth Amendment grounds.

“However, the above cases are inapplicable to the case at bar. The case of Shapiro v. U. S., 335 U.S. 1 [, 68 S.Ct. 1375, 92 L.Ed. 1787] (1948), which is relied upon by the County is controlling in the case at bar. It holds that the Fifth Amendment privilege against self-incrimination does not apply to:

‘. . . records required by law to be kept in order that there may be suitable information of transactions which are appropriate subjects of governmental regulation, and the enforcement of restrictions validly established.’ Shapiro v. United States, 335 U.S. 1, 17 [, 68 S.Ct. 1375, 92 L.Ed. 1787] (1948); Wilson v. United States, 221 U.S. 361, 380 [, 31 S. Ct. 538, 55 L.Ed. 771] (1911); Davis v. United States, 328 U.S. 582, 589 [, 66 S. Ct. 1256, 90 L.Ed. 1453] (1946).

“The privilege against self-incrimination which exists as to private papers cannot be claimed with regard to documents required to be kept by law. Even the dissent in the Davis case, supra, stated that ‘there is an important difference in the constitutional protection afforded their possessors between papers exclusively private and documents having public aspects’.

“The Marchetti, Grosso and Haynes cases involved instances where the production of records required to be kept by statute would automatically result in a criminal conviction. In the ordinance involved in this cause production will not automatically result in conviction. Based upon the Courts’ review of the ordinance and the evidence presented, the Court finds the records to be of the type normally kept in a business and may be inspected in order to carry out effective regulation. The ordinance does not fall within the exceptions of the Shapiro rule argued by the plaintiffs.

“The records required to be maintained under the bingo ordinance are necessary as an appropriate regulation, since gambling is an appropriate subject of governmental regulation. The Dade County Commission determined that the maintenance of the records was required for effective regulation of bingo activities. The Court finds that the records required to be maintained under the ordinance may be inspected without violation of the Fifth Amendment privilege against self-incrimination.

“VII. POLICE POWER AND DUE PROCESS

“In their Amendment to the Complaint, plaintiffs allege that the Dade County Commission did not take any testimony or other evidence to justify the legislative findings contained in the ordinance. Therefore, plaintiffs argue that Dade County arbitrarily, capriciously and irrationally exercised its police power.

“It is clear that local government may, under the police power, regulate and restrain activities which threaten the public health, safety and welfare. Carter v. Town of Palm Beach, 237 So.2d 130 (Fla.1970); Perry Trading Company v. City of Tallahassee [128 Fla. 424,] 174 So. 854 (Fla.1937)

“In enacting the bingo ordinance the County Commission found that:

‘. . . present laws governing the operation of bingo games . . . are inadequate to insure the various charitable, civic, communicy, benevolent, religious and scholastic organizations receive all the proceeds to which they are entitled under state law.’ Ordinance No. 75-50 at 2.

“Further, the Commission found that:

‘. . . monies from bingo games are frequently retained illegally or taken out for non-charitable purposes through such ruses as abnormally high rentals and salaries . . .’

Ordinance No. 75-50 at 2.

“As a result of these findings the Commission enacted the bin go ordinance to ensure effective regulation pursuant to the State Bingo Laws and to make certain that the proceeds from bingo games appropriately pass into the hands of legitimate charitable organizations.

“The Court finds that the purpose of the Bingo Ordinance is to protect legitimate, charitable organizations from profit seekers who are or may be reaping the benefits from supposedly charitable bingo operations. The testimony taken by the Dade County Commission clearly documents the purpose of the ordinance and the Court finds that there exists a rational relationship between the purpose of the ordinance and the public health, safety, welfare and morals.

“The Florida Supreme Court has ruled that the police power may:

‘. . .be exercised to protect the public against loss from fraudulent or unscrupulous practices in commercial and financial transactions particularly where the thing dealt with, or the method of dealing with it adapts itself to, deception or fraudulent impositions on the public.’ Adams v. Miami Beach Hotel Association, 77 So.2d 465, 467 (Fla.1955).

“Based upon evidence presented the Court concludes that substantial evidence exists that money which is paid by bingo players, in the belief that they are helping legitimate charities, is being skimmed off by persons through such devices as high salaries and high rents for their own purposes. However, irrespective of whether skimming is taking place, this Court is of the opinion that the operation of bingo games vitally involves the public interest and requires close governmental scrutiny and regulation. Historically, the regulation of authorized gambling has been closely and carefully controlled in Florida. The need for protection of the public gives the governmental entity the authority to ‘exercise greater control and exercise its police power in a more arbitrary manner’ in the case of gambling regulations. Rodrigues v. Jones, 64 So.2d 278, 279 (Fla.1953); Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, 37 So.2d 692, 694 (Fla.1948). The Court in Hialeah Race Course, Inc., supra, has taken the position that authorized gambling is affected with a public interest and consequently the exercise of the police power in that sector is essential to the public welfare. Based upon the evidence received and the previously cited authorities, this Court finds the Bingo Ordinance to be a reasonable exercise of Dade County’s police power.

“The plaintiffs also raised the arguments that the ordinance constitutes an improper delegation of power to police and that the ordinance bestows unfettered discretion on police. Both issues are similar and a discussion of the basic issue raised by these contentions were previously discussed in the Fourth Amendment section. However, to the extent that both argments involve an allegation by the plaintiff that Dade County has arbitrarily exercised its police power, the Court finds these contentions lack merit in the context of this case.

“Next the plaintiffs raise the objection that the ordinance violates the Due Process Clause of the Fourteenth Amendment because it provides for automatic revocation of the permit to operate bingo without notice or administrative hearing.

“The ordinance in question establishes no regulatory structure to make rules, hand down orders or generally administer the ordinance. No existing County department is assigned any administrative duties, except for the Tax Collector who merely receives applications for permits, checks to see if the required documents are filed with the applications and issues the permits upon payment of the required fee.

“The Bingo Ordinance before the Court provides for the revocation of a permit upon one and only one event — a criminal conviction for a violation of the ordinance. Such a procedure provides the best possible due process available in our judicial system, since the person must be proved guilty of violating the ordinance beyond a reasonable doubt instead of by a mere preponderance of the evidence, as is the standard in civil cases. The person charged will also have the right to choose whether he will be tried by a jury of his peers or by a judge. This Court holds the view that the due process provision of the ordinance are fair and constitutionally valid.

“VIII. EQUAL PROTECTION

“The plantiffs’ equal protection attack is directed against two alleged discriminatory provisions:

“1. that the ordinance ‘discriminates against newly organized charities and charitable organization’. Plaintiffs’ Complaint, Paragraph 15; and

“2. that the ordinance ‘discriminates against operators of bingo games operated on premises not owned by a charity or leased from a charity’. Plaintiffs’ Complaint, Paragraph 16.

“With regard to the plaintiff’s first argument of discrimination, it is clear from the evidence received at trial and the memoran-da and arguments of counsel that the plaintiffs have not reasserted this contention after it appeared in the complaint. The Court will therefore regard the point as having been abandoned.

“Next, with regard to plaintiffs’ second discrimination contention, Dade County admitted that there were distinctions in the ordinance between the requirements for operators of bingo games on premises owned by charities and operators of games on other premises.

“Equal protection of the laws guaranteed by Federal and State Constitutions, does not forbid reasonable classification for the purpose of local legislation. Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934). In so classifying, the legislative authority may give groups of persons certain rights or burdens that are not given to others so long as there is a reasonable basis for the dichotomy. See State ex rel. Watson v. Lee, 157 Fla. 62, 24 So.2d 793 [798] (1946).

“The Fourteenth Amendment is violated only if the classification rests on grounds wholly irrelevant to the achievement of the government’s objective. McGowan v. Maryland, 366 U.S. 420 [, 81 S.Ct. 1101, 6 L. Ed.2d 393] (1961). Under Florida Law:

‘. . . if a classification made has a reasonable basis in real differences of practical conditions with reference to the subject regulated and is not merely arbitrary, it will not be regarded as unjustly discriminatory and will not of itself be a denial of the equal protection of the laws.’ Goldstein v. Maloney [62 Fla. 198,] 57 So. 342 (Fla.1911).

Therefore, when there is a reasonable and practical basis for classification in establishing legislative regulations, such classifications should be upheld. Davis v. Florida Power and Light Co. [64 Fla. 246,] 60 So. 759 (Fla.1913).

“In construing legislative classifications pursuant to the police power, the Florida Supreme Court has stated:

‘Classifications for police regulation . . . should be sustained by the courts for enforcement if there is any conceivable reason and legal basis therefor. .’ State ex rel Lawson v. Woodruff [134 Fla. 437,] 184 So. 81, 84 (Fla.1938).

“Based upon the evidence heard at trial the Court finds that the Board of County Commissioners of Dade County has established a reasonable classification which is related to a legitimate government objective, and there is no basis for plaintiffs’ contention that the ordinance is discriminatory and violative of the equal protection clause. While many provisions of the ordinance are uniformly applicable, [sic] the distinctions that have been made occur in three areas. Operators of games on premises owned by a charity are not required:

“1. to post at the bingo hall the gross receipts, prizes and net receipts of bingo games, but they must make such information available within 48 hours;

“2. to use bingo cards only once and to use only a certain type of card (however, this exemption is valid only if bingo is played no more than three days per week) ; and

“3. to sell the bingo cards to players at a fixed price and without a quantity discount, however, they must adhere to a published sale price and use color coded admission tickets so that cards may be easily accounted for. The Court is of the opinion that there is a reasonable basis under the police power for these classifications.

“First, the Court finds that the minutes of the Dade County Commission meeting of March 4, 1975 (concerning an earlier version of what was ultimately enacted as the bingo ordinance) confirm that the Commission specifically intended to exempt in-house bingo games (games on property owned by a charity) from certain provisions of the ordinance.

“Second, the Court finds that the legislative findings of the Commission clearly establish that the main purpose of the ordinance was to ensure that the proceeds from bingo games passed into the hands of legitimate charitable organizations to be used for legitimate charitable purposes.

“Third, based upon testimony adduced at trial, the Court finds that the danger of removal of bingo money from legitimate charities is not nearly so great in a game played on charity-owned premises as it is on premises owned by some wholly profit-making venture.

“The classification in the Dade County bingo ordinance recognizes that games on charity-owned premises are not as likely to be utilized by outsiders for illegal profit, and that such premises are subject to greater control by the charitable organization than commercial halls. This classification meets the standards set forth in the cases previously cited — it is not arbitrary, and it has a reasonable basis founded on real differences in practical conditions. The Court therefore holds that the ordinance does not violate the Equal Protection Clause of the Fourteenth Amendment.

“IX. OTHER ISSUES

“In their complaint the plaintiffs have raised a plethora of constitutional issues in addition to those already discussed. However, each of the following issues were not argued orally or by memorandum to the Court: that the ordinance is vague, that the ordinance interferes with the right of association under the First Amendment, that the ordinance regulates areas beyond the scope of legitimate licensing authority, that the ordinance contains penal sanctions without the requisite intent requirement, and that the ordinance has no relevancy to the permissible taxing power of the County. The Court finds that the above contentions are without merit.

“In addition, for the first time in a memorandum submitted just prior to final argument, the plaintiffs raised two new issues which were not included in their complaint or the amendment to their complaint: that the ordinance creates an undue burden on interstate commerce and that the ordinance violates the Impairment of Contract Clause in the U. S. Constitution. These issues were not properly or timely raised before the Court, however, had they been properly raised, the Court would have found neither point valid. After receiving testimony in this case the Court is convinced that the ordinance places no unconstitutional burden on interstate commerce and that it does not impair any contract.

“X. CONCLUSION

“This Court holds that Ordinance No. 75-50 represents a constitutional exercise of police power by the Board of County Commissioners of Dade County, Florida. The Court is of the opinion that the area sought to be regulated is one that requires close government scrutiny to protect both the public and legitimate charitable organizations from those who would use them to run profit making businesses in violation of Florida law. The ordinance enacted by Dade County places bingo operations in the sunshine where the public may view its operations.

“The final hearing in this cause having been held and the agreement to withhold enforcement of the ordinance having expired, Dade County may proceed upon entry of this order to enforce the ordinance.” [emphases supplied]

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We find the evidence in the record to support the trial judge’s findings of fact and no error in his application of the law; therefore, the final judgment confirming same be and it is hereby affirmed.

Affirmed.

      “ 1. The Board of County Commissioners of Dade County, Florida, passed and adopted Dade County Ordinance No. 75-50 on July 2, 1975.”

      "2. The quoted ‘Whereas’ clauses contained in Dade County Ordinance No. 75-60, page 2.’

      “3. Dade County Ordinance No. 75-50 provides in part that:
      ‘These records (referring- to records required to be maintained on bingo operations) shall be made available on demand for immediate inspection by any law enforcement officer at reasonable times during normal business hours and whenever bingo games are in progress, but all law enforcement officers shall not interrupt an actual bingo game in progress or interfere with the operation of the premises where bingo is played unless necessary in order to make an inspection.’

      “5. For example, the following provisions are applicable to all operators:
      1. All types of ‘operators’, as defined in the ordinance, must obtain a permit.
      2. All types of ‘owners’, as defined, must obtain a permit.
      3. All operators must maintain certain records and those records are subject to being inspected by law enforcement officers under the law.
      4. All persons operating games must wear identification tags.


source: Caselaw Access Project

author: ALDERMAN, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Donald L. LUNDY, Appellee.
    No. 76-666.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1976.

      David H. Bludworth, States Atty., and Jerome Davis, Asst. States Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Steven H. Parton, Sp. Asst. Public Defender, West Palm Beach, for appellee.
   ALDERMAN, Judge.

This is an interlocutory appeal from the trial court’s order granting defendant’s pre-trial motion to suppress.

Police officers, answering a call, entered a bar in West Palm Beach. They approached the bartender, who advised them that several individuals had been smoking marijuana in the bar. One of the officers recognized the odor of marijuana smoke. The officers asked the bartender to identify the persons who had been smoking the marijuana. In response, the bartender pointed to the defendant, who was seated alone in the rear of the bar drinking beer. As the officers approached the defendant, they noticed a package of pink cigarette papers on the floor. The officers requested the defendant to follow them outside. There the defendant identified himself, and when asked if he had been smoking marijuana, answered negatively. He was then asked to empty his pockets and place the contents on the police car. The items which the defendant produced did not include any marijuana. Without consent, the officers then searched the defendant, finding a package in his left front pocket which contained two marijuana cigarettes.

After finding the two marijuana cigarettes, the police arrested the defendant for possession of less than five grams of marijuana, placed him in the police car and took him to jail. While the defendant was being booked, one of the officers checked the back seat of the police car and found five additional packages containing marijuana. Defendant was then charged with the felony offense of possession of more than five grams of marijuana.

The state contends that the search of defendant’s person may be justified as a search “incident to a lawful detention.” We respectfully disagree.

The search of the defendant’s person was not incident to a lawful arrest, because at the time of the search defendant had not been arrested. The defendant was however “lawfully detained” under Fla.Stat. § 901.151 (1975), which allows law enforcement officers to detain temporarily any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws. The circumstances in this case could have reasonably indicated to the officers that the defendant had committed a violation of the criminal law. This was sufficient to justify temporarily detaining the defendant for the purpose of ascertaining his identity and investigating the circumstances surrounding his presence in the bar which led the officers to believe that he had committed a crime.

But detention authorized by § 901.-151 is limited and is not the same as an arrest. A person may be temporarily detained no longer than is reasonably necessary to effect the purposes of the detention and such temporary detention may not extend beyond the place where it was first effected or the immediate vicinity thereof. Fla.Stat. § 901.151(3) (1975). If during the temporary detention, probable cause for arrest of the person shall appear, the person may be arrested; however, if after inquiry into the circumstances which prompted the temporary detention no probable cause for the arrest of the person shall appear, he must be released. Fla.Stat. § 901.-151(4) (1975).

There is no general or absolute right to search a person who has been temporarily detained. A very limited right of search is allowed if the law enforcement officer has probable cause to believe that the person temporarily detained, or about to be detained, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person. Fla.Stat. § 901.151(5) (1975). In such circumstances the officer may search the person temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such search discloses a weapon or any evidence of a criminal offense it may be seized. Fla.Stat. § 901.151(5) (1975). But no evidence seized is admissible, unless the search which disclosed its existence was only to the extent necessary to disclose, and for the purpose of disclosing, the presence of a dangerous weapon. Fla.Stat. §901.151(6) (1975).

In the present case, the officers testified that they had no reason to believe that the defendant was carrying a weapon. The sole purpose of the search was to find marijuana which would then give them probable cause to arrest the defendant. This clearly was an unauthorized search and the trial judge correctly granted the defendant’s motion to suppress.

The marijuana found in the police car after the defendant was taken to jail was also properly suppressed. Except for the arrest defendant would not have been placed in the police car. The marijuana from the police car, obtained as a direct result of the illegal arrest, is also inadmissible.

Affirmed.

MAGER, C. J., and WALDEN, J., concur.

      . Fla.Stat. § 901.151 (1975). Stop and frisk law.
      (1) This section may be known and cited as the “Florida stop and frisk law.”
      (2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
      (3) No person shall be temporarily detained under the provisions of subsection (2) longer than is reasonably necessary to effect the purposes of that subsection. Such temporary detention shall not extend beyond the place where it was first effected or the immediate vicinity thereof.
      (4) If at any time after the onset of the temporary detention authorized by subsection (2), probable cause for arrest of person shall appear, the person shall be arrested. If, after an inquiry into the circumstances which prompted the temporary detention, no probable cause for the arrest of the person shall appear, he shall be released.
      (5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.
      (6) No evidence seized by a law enforcement officer in any search under this section shall be admissible against any person in any court of this state or political subdivision thereof unless the search which disclosed its existence was authorized by and conducted in compliance with the provisions of subsections (2)-(5).


author: McNULTY, Chief Judge.

text:
    STATE of Florida, Appellant, v. Isaac HARRIS, Jr., Appellee.
    No. 76-430.
    District Court of Appeal of Florida, Second District.
    July 2, 1976.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, and Dennis P. Maloney, Asst. Public Defender, Bartow, for appellee.
   McNULTY, Chief Judge.

Appellee Harris was charged by information with auto theft in violation of § 814.03(1), F.S.1973, a felony, in that with the intent permanently to deprive the owner of his property he “willfully and without authority took possession” of a certain automobile belonging to Rent-A-Nichols Car, Inc. He filed a motion to dismiss the charge, apparently under the criminal law version of the summary judgment rule, viz. Rule 3.190(c)(4), in which it undisputedly appears that he had lawfully rented a car from Nichols for one week on May 27, 1973. On June 3 he timely returned and paid for an additional week. He did not, however, return the car on the due date of June 10 and was thereafter arrested on the instant charge on June 16, 1973, while still in possession of the car. The court granted his motion and dismissed the information. This appeal ensued.

Harris argued to the trial court and argues here, that the undisputed facts show that he was guilty only of the offense of failure to return a rented car, a misdemeanor, as specifically proscribed by § 817.52(3). The trial court agreed and determined that since the offense committed was covered by the specific “failure to return” statute, rather than the general “auto theft” statute, due process “notice” requirements mandate that the state elect to prosecute under the less severe “specific” statute.

We must affirm the trial court’s dismissal of the charges herein but for reasons other than those stated. We think he was in error when he held that the state was required to prosecute under the specific, less punitive of two separate statutes proscribing essentially the same conduct but providing differing penalties. In a similar situation involving the receiving stolen property statute vis-a-vis the fraudulent credit card statute, our supreme court has most recently stated in Fayerweather v. State.

“It is not unusual for a course of criminal conduct to violate laws that overlap yet vary in their penalties. Multiple sentences are even allowed for conduct arising from the same incident. [Citations omitted.] Traditionally, the legislature has left to the prosecutor’s discretion which violations to prosecute and hence which range of penalties to visit upon the offender.”

Prosecution exclusively under the less severe statute is not therefore compelled.

The trial court was correct in dismissing the information, however, but for the reason that the undisputed facts patently establish a fatal variance between the charge and the proof. As noted, the charge specifically alleged that Harris “did willfully and without authority” take possession of the subject automobile. The undisputed proof shows that he in fact took possession with authority. This, we think, is a fatal variance. Nevertheless, that very proof, furnished by Harris himself, establishes that while he may have been in “rightful” possession, he may still have been guilty of “criminal conversion” of the automobile within the contemplation of Florida’s omnibus larceny statute, § 811.-021, F.S.1973, which among other things provides that one “ . . . who with intent to deprive or defraud the true owner of his ... property or of the use and benefit thereof, . . . (b) having in his possession . . . as a person authorized by agreement . . . appropriates the same to his own use shall, upon conviction, be guilty of larceny.” If the value of the property, of course, is of the value of $100 or more the larceny is a felony.

Now, in dismissing the information filed herein the trial court did give the state leave to prosecute for the misdemeanor of failing to return a leased vehicle. But lest it be misunderstood, the state’s options in the premises ought not exclusively be limited to prosecution for the misdemeanor. As noted above, it may well be able to charge and establish a felony criminal conversion under the omnibus larceny statute.

In view whereof the order appealed from should be, and it is hereby, affirmed; but the cause is remanded with leave to the state to pursue its options in accordance with this opinion.

BOARDMAN and GRIMES, JJ., concur.

      . Repealed by c. 74-383, Daws of Florida, 1974.

      . (Fla.1976), 332 So.2d 21.

      . Id. Cf. also State v. McCurdy (Fla.App.2d, 1972), 257 So.2d 92.


author: PER CURIAM.

text:
    GATOR UTILITIES SERVICE, INC., Appellant, v. TRAFFORD PINE ESTATES, INC., a Florida Corporation, Appellee.
    No. 75-1539.
    District Court of Appeal of Florida, Second District.
    June 30, 1976.
    Joseph R. Locker, Jr., of Taylor & Locker, Naples, for appellant.
    John C. Dick and Owen C. McLaughlin, Law Offices of John C. Dick, Coral Gables, for appellee.
   PER CURIAM.

Appellant brings for review a summary judgment in favor of appellee on appellant’s counterclaim to foreclose its mechanic’s lien.

The trial court found that there was no genuine issue of a material fact as to appellant’s claim of lien having been filed more than 90 days subsequent to the last furnishing of labor and services by appellant. The deposition of Caesar Castella shows that there is a genuine issue of material fact as to the last date of labor and services performed by appellant.

Therefore, the summary judgment is reversed and the cause remanded.

McNULTY, C. J., and HOBSON and BOARDMAN, JJ., concur.


author: WALKER, Justice, for the Court.

text:
    STATE of Mississippi v. Lewis McCLINTON. STATE of Mississippi v. Harvey UNDERWOOD. STATE of Mississippi v. Franklin SLAY. STATE of Mississippi v. Billy KEMP.
    Nos. 49029-49032.
    Supreme Court of Mississippi.
    June 1, 1976.
    Rehearing Denied July 13, 1976.
    Joe Clay Hamilton, Dist. Atty., Meridian, for appellant.
    Bourdeaux & Jones, William C. Ham-mack, Self, Bailey & Jordan, Meridian, for appellees.
    Before INZER, SUGG and WALKER, JJ.
   WALKER, Justice, for the Court.

This is an appeal on behalf of the State of Mississippi by Joe Clay Hamilton, District Attorney of the Tenth Circuit Court District from an order of the Circuit Court of Clarke County sustaining demurrers to indictments against the four defendants. The cases were consolidated for purpose of appeal only.

The defendants, Franklin Slay and Lewis McClinton, were, on April 6, 1973, aider-men of the Town of Quitman, Mississippi.

Harvey Underwood and Billy Kemp were, on the eighth day of May, 1974, employees of the Town of Quitman, Mississippi.

The indictments against Underwood and Kemp are identical except for the names of the defendants and charge that “. . . on the 8th day of May, A.D., 1974 did wil-fully and unlawfully, while an employee of the Town of Quitman, Miss., a municipali ty, did own and share an interest in a certain contract made by the governing authorities of the Town of Quitman for certain construction work, to-wit: building manholes labor and furnishing materials and . . . did receive a portion or share of Two Thousand Two Hundred Twenty Five Dollars ($2,225.00) paid for said construction work, contrary to Section 21-39-1 of the Miss.Code of 1972, Ann. . . .” (Emphasis added).

The indictment against Lewis McClin-ton charges that “. . .on the 6th day of April, A.D., 1973 [he] wilfully and unlawfully then and there a duly elected and serving alderman for the Town of Quit-man, Mississippi, a municipality, and while at the same time owing an interest in Lewis McClinton’s Store, did while owning an interest in Lewis McClinton’s Store have a direct interest in a sale contract made by the governing authorities of the Town of Quitman for the purchase of certain supplies to-wit: clothing, and the said Lewis McClinton did in fact knowingly sell said merchandise to the Town of Quitman for which he received the sum of $7.49 all contrary to Section 21-39-1 of the Miss.Code of 1972, Ann. . . . ” (Emphasis added).

The indictment against Franklin Slay charged that “. . . on the 6th day of April, A.D., 1973 [he] did wilfully and unlawfully while then and there a duly elected and serving alderman for the Town of Quit-man, Mississippi, a municipality, and while at the same time was doing business as Slay’s Grocery, did as the owner of Slay’s Grocery, have a direct interest in a sale contract made by the governing authorities of the Town of Quitman for the purchase of certain supplies, to-wit: food stuffs, and the said Franklin Slay did in fact knowingly sell said merchandise to the Town of Quitman for which he received the sum of $8.64, contrary to Section 21-39-1 of the Miss.Code of 1972, Ann. ...” (Emphasis added).

The indictments against Kemp and Underwood, employees, fall squarely within the prohibitions of Mississippi Code Annotated section 21-39-1 (1972) which provides : “It shall be unlawful for any . . . employee of any municipality to enter into or to have . . . any interest ... in any contract made or let by the governing authorities of such municipality for the construction or doing of any public work, . . . or to receive, either directly or indirectly, any portion or share of any money . . . for the construction or doing of any public work. . . .” (Emphasis added).

The indictments against McClinton and Slay, aldermen, also fall squarely within the prohibitions of section 21-39-1 which provides in part that: “It shall be unlawful for any officer ... of any municipality to enter into or to have or to own any interest . . . either directly or indirectly, in any contract made or let by the governing authorities of such municipality . . . for the sale or purchase of any materials, supplies, . . or to receive, either directly or indirectly, any portion or share of any money . . . for . . . the sale or purchase of any property. . . (Emphasis added).

The penalty provision of the first paragraph of section 21-39-1 (which covers the offenses charged in the indictments) provides : “In addition to the penalties prescribed by law, any person violating the provisions of this paragraph shall be removed from the office or employment then held by him, and shall not be eligible to succeed himself.” (Emphasis added).

The lower court interpreted McMullan v. State, 298 So.2d 708 (Miss.1974) to mean that the penalties imposed by Mississippi Code Annotated section 97-11-19 (1972) are applicable to a violation of section 21-39-1; and, then found section 97-11-19 to be violative of the equal protection clause of the constitution by having alternate — ex-elusive civil and criminal penalties and for that reason sustained the demurrers to the indictments.

It is not necessary that we decide the constitutionality of section 97-11-19 as the holding’ in McMullan, supra, has been misinterpreted. In McMullan, J. E. McMul-lan was removed from his position as may- or of the City of Newton by judgment of the circuit court. The suit was one of quo warranto on the relation of Robert A. Weir, Jr., who had been defeated by Mc-Mullan in the Democratic primary as a candidate for the office. The circuit court directed that a special election be held to fill the vacancy in office created by the mayor’s removal. The petition had sought to have Mayor McMullan removed from office and Weir installed due to the former’s alleged malfeasance in purchasing city supplies from his hardware business. Mc-Mullan had neither been indicted for, nor convicted of the charges. This Court found, after comparing sections 21-39-1, 97-11-19 and section 175 of the Mississippi Constitution of 1890, that it was the clear intent of the law that in the absence of a conviction, the penalty of removal from office of an accused officeholder could not be invoked. McMullan does not hold that the penalty provision of section 97-11-19 is applicable to a violation of section 21-39-1, nor was that question before the Court in that case. It just so happened that the proof against McMullan would have brought him within the prohibition of section 97-11-19. Moreover, those two sections refer to separate and distinct offenses. Before an accused may be convicted under section 97 — 11—19 , it must be charged and the proof must show (1) that the defendant was a public officer or member of the legislature or any officer on any purchasing board of public contracts; (2) that the accused was interested directly or indirectly in a contract with the state, or a district, county, city, town, or village thereof; (3) that the contract was authorized by a law passed or order made by a board of which he may be or may have been a member, (4) during the term for which he shall have been chosen or within one year after the expiration of such term. The indictments against McClinton and Slay do not charge that the purchases allegedly made by the town from them were authorized by an order made by the board during the term for which the defendants were chosen or within one year after the expiration of such term; and, therefore, do not fall within the prohibitions of section 97-11-19. Such an allegation would not be necessary in an indictment against them under section 21-39-1.

Section 21-39-1 differs from sections 97-11-19 in three material respects: (1) under section 21-39-1 it is immaterial to a violation of that statute whether an officer of a municipality [who may be charged] is a member of the board authorizing the contract of sale, etc., it might very well be that he is a police justice, marshal, chief of police, tax collector, tax assessor or town clerk whose election is provided for under section 21-3-3 and who would not necessarily be a member of such board; (2) it is not essential that the contract be made during the term for which he was chosen— he may not even obtain an interest in an existing contract; and (3) section 21-39-1 applies to employees as well as municipal officers while section 97-11-19 only applies to public officers, members of the legislature, or any officer on any purchasing board of public contracts.

Furthermore, the penalty provision of section 21-39-1 which states, “In addition to the penalties prescribed by law, any person violating the provisions of this paragraph shall be removed from the office or employment then held by him, and shall not be eligible to succeed himself,” refers to Mississippi Code Annotated section 99-19-31 (1972) which provides: “Offenses for which a penalty is not provided elsewhere by statute, and offenses indictable at common law, and for which a statutory penalty is not elsewhere prescribed, shall be punished by fine of not more than five hundred dollars and imprisonment in the county jail not more than six months, or either.” (Emphasis added).

We are therefore of the opinion that the lower court erred in sustaining demurrers to the indictments and that this cause should be and is hereby reversed and remanded to the lower court.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ„ and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.

APPENDIX

1 § 97-11-19. If any public officer or member of the legislature, or any officer, on any purchasing board of public contracts, shall be interested, directy or indirectly, in any contract with the state, or a district, county, city, town, or village thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term, he shall be guilty of a misdemeanor, and shall be fined a sum equal to double the value of the contract, or imprisoned in the county jail not less than one month nor more than one year, provided, however, that said inhibition and penalty shall not apply to members of the state depository commission and boards of supervisors of counties, or to members of the governing boards of municipalities, who are officers or stockholders of banks bidding for the privilege of keeping as depositories the public funds of said State, counties and municipalities, respectively, or to said bidding banks, where the bids of such banks for the privilege of keeping said public funds as the depositories of the said state, the counties and municipalities, respectively, are the equal of the highest and best bids offerd for said privilege, or in case of counties and municipalities, where there is no other bank in the said counties or municipalities bidding for said privilege of keeping said public funds as depositories, or offering to qualify as said depositories.

Instead of a criminal procedure against the officer or members of the board, committing the offense above defined, a civil proceeding may be instituted against any officer or officers, or members of any board, or boards, so offending for double the value of the contract, by or on behalf of the state, county, municipality, or district so affected, as the case may be. These remedies are alternative, not cumulative, and for double the amount of the contract, so made; and the remedy in any case first instituted, whether civil or criminal, shall be exclusive, barring, if civil, any criminal prosecution; and if criminal proceeding, then any civil suit for same transaction.

2 Missisippi Constitution of 1890, Article 4, Section 109.

No public officer or member of the legislature shall be interested directly or indirectly in any contract with the State, or any district, county, city, or town thereof, authorized by any law passed, or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term.

      . See appendix.

      . This section has its origin in Mississippi Constitution of 1890, Article 4, Section 109— See appendix.


author: MADDOX, Justice.

text:
    Charles C. KINDIG v. Carolyn Kindig REA and William A. Rea.
    SC 1732.
    Supreme Court of Alabama.
    July 2, 1976.
    Pitts & Hamby, Sheffield, for appellant.
    Bedford & Bedford, Russellville, for ap-pellees.
   MADDOX, Justice.

Husband, Charles Kindig, and wife, Elizabeth Kindig, jointly owned property which originally belonged to wife’s father A. W. Smith. In this action, Charles Kin-dig sought to set aside a deed purportedly executed by him to his late wife in 1953. He claimed that 'his signature on the deed was a forgery.

The trial judge, after hearing oral testimony, including that of a handwriting expert, concluded that the signature on the 1953 deed was not a forgery.

Kindig appeals, claiming that we can review the evidence anew under the provisions of Title 13, § 17, Code of Alabama 1940. Appellant is obviously mistaken. It is settled that “findings of fact shall not be set aside unless erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Rule 52, ARCP.

Kindig also claims the trial court erred in refusing to permit him to testify concerning a conversation he had with his late wife’s father, A. W. Smith, now deceased, which Kindig says would show Smith was in financial need and that he, Kindig, paid for the land. This was not error. Assuming, without deciding, that the Dead Man’s Statute was applicable, and that the testimony would be inadmissible, the testimony was nevertheless inadmissible because it was too remote and irrelevant to the issue presented—the forgery of Kindig’s signature on the 1953 deed.

Kindig further claims that the trial court erred in admitting into evidence records of the Russellville Production Credit Association showing Kindig’s signature on or about the time of the alleged forgery. This was not error. Kindig admitted that the signatures on several of the documents were his. Properly authenticated records are admissible. Rule 44, ARCP.

Kindig further claims that the trial judge should be reversed because he permitted cross-examination of him, as follows :

“Q. You knew about it far more than ten months ago, because you were talking to Mr. Guin, far more than ten months ago. Did you ask Mr. Guin, to have your handwriting analyzed by an expert in Memphis ?
“A. Certainly did.
“Q. Did it come back as your handwriting?
“MR. GRAHAM: I object to that.
“THE COURT: Overruled.
“Q. Did it come back the signature was genuine ?
“MR. GRAHAM: We object to that, Your Honor.
“THE COURT: Overruled.
“A. It came back the first time, it was not my signature by 18 points, then, . . he came back and made the statement that he probably thought it might be mine.”

There was no error here. Wide latitude is allowed on cross-examination. See McElroy, The Law of Evidence in Alabama, Vol. 1, p. 327.

Lastly, Kindig claims that the trial judge should have permitted him to introduce into evidence a letter dated February 27, 1973, written by his attorney to a handwriting expert in Memphis. We have examined the record and determined that the trial court properly disallowed the introduction of the letter into evidence because it was hearsay.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

JONES, SHORES, EMBRY and BEAT-TY, JJ., concur.


author: SHORES, Justice.

text:
    The STATE of Alabama v. E. R. ELLIOTT et al.
    SC 1415.
    Supreme Court of Alabama.
    July 2, 1976.

      Ralph E. Coleman, Sp. Asst. Atty. Gen., Birmingham, for the State.
    Harrison & Conwill, Columbiana, for appellees.
   SHORES, Justice.

This appeal, by the State, is from a judgment entered on a jury verdict in a condemnation case. The State condemned 5.59 acres of the Elliott land for the construction of new U. S. Highway 280 and a county road leading to Old Highway 280. The only issue submitted to the jury was the amount to which the landowner was entitled for the property taken. Evidence of value ranged from $3,200 to $12,000. The jury awarded $10,000. We affirm.

The State argues, first, that the trial court erred in allowing testimony to go to the jury to the effect that the county road built on part of the property taken led to a sanitary landfill. Several witnesses testified without objection that the new road, shown on a map introduced by the State, led to a sanitary landfill located about a quarter of a mile from the Elliott land. We need not decide whether evidence regarding the landfill was properly admitted under the facts of this case, since the trial court, in its oral charge, instructed the jury:

“Now, there is evidence in this case, and The Court allowed it to come to you, and it is undisputed that the Highway and its Spur road, all of which are part of this project and this condemnation proceeding, are presently being used as an access road to a Sanitary Landfill. There is no evidence in this case, that the Plaintiff, The State of Alabama, either located, constructed, or is presently operating a sanitary landfill. Therefore, that may not be used by you as a measure of damages in this case. Now, this compensation is to be assessed or fixed, as of August 6th, 1973; this being the date on which the property was being condemned for public use. The sum fixed by you should represent, in your enlightened judgment, the fair cash-market-value of the property taken and the damage to the tract remaining by the condemnation as of the 6th day of August, 1973. .” (Emphasis Added)

Error, if any, in allowing testimony regarding the sanitary landfill was error without injury, since the court instructed the jury to disregard it in arriving at the damage or compensation due the landowner, the only issue before the jury. The State could not have been prejudiced by such evidence. See: DeKalb County v. McClain, 201 Ala. 565, 78 So. 961 (1918); Pate v. Hall, 220 Ala. 411, 125 So. 650 (1930); Hunt v. Murdock, 229 Ala. 277, 156 So. 841 (1934).

The only other argument advanced by the State concerns the testimony of an expert witness who testified that he knew the reasonable market value of the land involved in these proceedings. During the course of his testimony, he referred to at least three sales of comparable lands. His testimony was that one 8-acre parcel had sold for $1,725.00 per acre for a total price of $13,800.00. The State introduced the deed to this parcel which showed a consideration of $10,500.00. The State contends this effectively impeached this witness, and that the court erred in permitting him to testify that he had rechecked his testimony and that $1,725.00 per acre was correct. The witness had said previously, in response to a question asking how much it sold for an acre: “I have a note here that tells me exactly.”

Again, without conceding that the trial court erred, if it did, it was harmless error. This witness was qualified as an expert. He testified that he had an opinion as to the reasonable market value of the Elliott land. He also gave testimony regarding the sale price of comparable lands in the vicinity. There is no reversible error in allowing him to restate his version of what the sale price was on one of these parcels. The consideration recited in the deed is not conclusive evidence of the sale price. Branch Bank of Decatur v. Kinsey, 5 Ala. 9 (1843).

We have carefully reviewed the record in this case. There is ample evidence to support the jury verdict of $10,-000.00 as damages and compensation to the landowner for the State’s taking 5.59 acres of his land. We find no reversible error.

AFFIRMED.

HEFLIN, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: HOLMES, Judge.

text:
    D. W. SEGARS v. LeNeta W. SEGARS.
    Civ. 739.
    Court of Civil Appeals of Alabama.
    June 30, 1976.

      Gary P. Smith, Birmingham, for appellant.
    Robert E. Paden, Bessemer, for appellee.
   HOLMES, Judge.

This is a divorce case. The Circuit Court of Jefferson County, on petition of appel-lee-wife, divorced the parties on the ground of incompatibility of temperament. The trial court also effected a property settlement and awarded alimony in gross. Appellant-husband appeals from that decree of the trial court.

The husband assigns as error the property settlement and award of alimony in gross made by the trial court. The issue for our determination is thus whether the learned trial judge erred to reversal in this regard. We find no error to reversal, and affirm.

The following pertinent facts are revealed by the record:

The parties, D. W. Segars and LeNeta W. Segars, were married in 1947 and divorced in 1975. Three children were born of the marriage, all of whom were over the age of 21 years at the time of the divorce proceedings.

The husband is 51 years of age and owns and operates a hardware store and a building and supply company. He also owns a realty company and owns a considerable amount of real property. The wife is 46 years old with a high school education, has only worked in the family business, has no separate estate, and apparently has but limited marketable employment skills.

As noted earlier, the wife initiated the divorce action, and the trial court granted the divorce on the ground of incompatibility. While the granting of the divorce is not an issue on this appeal, we have noted certain facts concerning the parties’ conduct during the marriage which are pertinent to the property settlement and award of alimony. It would serve no useful purpose to detail these facts, and it suffices to note simply that the trial judge could reasonably have concluded that the husband was at “fault” to some extent in the breakdown of the parties’ marriage.

The learned trial judge made no grant of periodic alimony in his decree, but as property settlement and alimony in gross awarded certain real property owned by the husband to the wife. The order required the wife to satisfy mortgage indebtedness existing on the property. An allowance of attorney’s fee to the wife was included in this award of real property. The wife also received an automobile subject to certain indebtedness which she was ordered to pay. The husband was awarded the parties’ homeplace and all the household goods contained therein.

The real property awarded to the wife consists of six parcels of land out of sixteen owned by the husband. Fifteen of these parcels are heavily mortgaged. A considerable amount of other realty is owned by the husband jointly with other individuals.

Widely disparate valuations were given for the realty in question. The valuation of the six parcels awarded to the wife was from $139,500 to approximately $264,000. The land remaining with the husband, which includes his places of business, was valued from $342,300 to over $600,000.

It is noted that virtually all of the property remaining with the husband is mortgaged. Additionally, this property produces little income, with the exception of the business properties. The amount of income generated by these businesses is unclear, but the building and supply company apparently showed a net profit of approximately $13,000 for 1974. The husband’s income for the years 1971-74 as shown on his federal income tax returns ranged from approximately $3,000 to $8,000. Financial statements executed by the husband showed his salary for those years to be approximately $18,000.

It is well-established that where the trial judge in a divorce case hears evidence ore tenus, his findings are presumed correct and will not be disturbed on appeal save for plainly apparent and egregious error. As this court stated through our Presiding Judge Wright in Berggren v. Berggren, 52 Ala.App. 118, 120, 290 So.2d 178, 190:

“In divorce cases where the witnesses are heard orally by the trial court, the finding and conclusions of fact embodied in the decree have the standing of a jury verdict and are presumed correct on appeal. Such findings will only be reversed on appeal, if unsupported by the evidence, amount to an abuse of discretion, or are plainly wrong and unjust. Wilkes v. Wilkes, 270 Ala. 341, 118 So. 2d 906. ...”

Property division and alimony awards are within the sound discretion of the trial court, and each case must stand on its own facts. Colombaro v. Colombaro, 54 Ala.App. 157, 306 So.2d 23; Hicks v. Hicks, 52 Ala.App. 586, 296 So.2d 180; Hallman v. Hallman, 51 Ala.App. 460, 286 So.2d 863. In alimony cases, the court may properly consider the earning ability of the parties; their future prospects; their age, sex and station in life; the duration of the marriage; and the conduct of the parties relative to the causes of the divorce. Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794.

Bearing in mind the above principles, we can discern no error to reversal in the property settlement and alimony award made by the learned trial judge. The relative positions of the parties as a result of the trial court’s decree have previously been described. The husband is a man of some means, the owner of several businesses and, even after the decree of divorce, of considerable property. However, the wife has for her maintenance only the property given to her, inasmuch as no periodic alimony was awarded. The rents from the property exceed mortgage payments thereon, which the wife is required to make, only to the extent of approximately $375 per month, the rents being roughly $1,160 monthly and mortgage payments $790. This is apparently the wife’s sole source of income, and does not take into consideration the sums which she will have to expend for maintenance and upkeep on the rental properties.

These and other previously noted facts being considered, we find no abuse of discretion or other reversible error.

The case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: DENNIS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Roosevelt RANDOLPH.
    No. 57422.
    Supreme Court of Louisiana.
    June 21, 1976.

      George Spencer, Tallulah, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles R. Brackin, Lake Providence, Thomas W. Bishop, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant was charged by bill of information with perjury, a violation of La.R. S. 14:123, and convicted by a jury. A sentence of eighteen months was imposed and suspended, and he was placed on active probation conditioned on his serving 60 days on the parish prison farm. On appeal, he relies upon five assignments of error for reversal of his conviction and sentence.

At the outset, we are obliged to consider the sufficiency of the bill of information which is not in the proper form. La.C.Cr.P. art. 920(2). It charges that defendant did “commit perjury by giving a false statement in open Court during a preliminary examination ... . contrary to . R.S. 14:123.” In addition to these allegations, the short form requires that the indictment set forth the false testimony with particularity. La.C.Cr.P. art. 465(36). Thus, the bill of information omits one of the necessary averments of the specific indictment forms; and neither does it track the language of the statute. In the past, the failure to state all the essential facts would have constituted an error patent on the face of the record, obliging this Court to reverse and dismiss the prosecution. See State v. James, 305 So.2d 514 (La.1974).

However, under the recent case law such a defect is not automatically fatal. This Court previously held the indictment to strict requirements and judged it with a hyper-technical eye in order to safeguard the accused’s constitutional right to “be informed of the nature and cause of the accusation against him.” Art. I, § 13, La. Const, of 1974; Art. 1, § 10, La.Const. of 1921. But as we said in State v. James, supra, the defendant’s right to learn before the trial of the particulars of the offense for which he is to be tried can be adequately protected by the bill of particulars and other discovery devices. The constitutional provision should not be restricted to meaning that the defendant must be informed by indictment of the nature and cause of the accusation against him. See Justice Tate’s concurring opinion in State v. Clark, 288 So.2d 612 (La.1974). We therefore concluded in State v. James, 305 So.2d 514, at pp. 516-517, that:

“ * * * [Wjhere in fact an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here, no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.”

As in the James case, the issue of this indictment’s validity was raised for the first time at the appellate level when this Court in its sua sponte inspection of the pleadings and proceedings noticed the defect. Defendant has not complained that he was prejudiced by surprise or lack of notice. The precise content of the testimony alleged to have been perjured could have been easily discovered through the bill of particulars, although the record does not reveal whether defendant availed himself of this discovery device. Accordingly, we find that the deficiency in the bill of information did not constitute reversible error patent on the face of the record.

ASSIGNMENT OF ERROR NO. 1

This assignment of error was abandoned by defendant’s failure to discuss it either in his brief or in oral argument before this Court.

ASSIGNMENT OF ERROR NO. 2

Defendant complains that the district attorney violated La.C.Cr.P. art.-767 by adverting in his opening statement to an inculpatory statement made by defendant. Because any mention of a confession to the jury has some prejudicial effect, Article 767 prohibits any reference to a confession before a jury until it is actually introduced. Official Revision Comment (c), La.C.Cr.P. art. 769.

Prior to trial, the State gave defense counsel notice that it intended to introduce into evidence the transcript of the preliminary hearing at which defendant had perjured himself as an inculpatory statement. Then, in his opening remarks to the jury, the district attorney named the transcript of the preliminary examination as part of the evidence by which he planned to prove his case:

“ * * * We will then have the Clerk of Court sworn as a witness to testify that the transcript of testimony taken in a preliminary examination on February 28, 1974 is a true and correct copy, and then we will have him read the pertinent portion of that transcript. * * * ”

At defense counsel’s request, the jury was removed from the courtroom, and counsel argued that the State had made a prohibited reference to an inculpatory statement. The court found that the transcript was not in the nature of an inculpatory statement or confession, and ruled that reference to it was permissible. However, the district attorney made no further mention of the transcript in his opening statement.

Both the State and defense counsel have demonstrated some confusion as to the nature of an “inculpatory statement.” We find that the transcript of the preliminary examination contains material statements under oath which the State alleged were falsely and intentionally made by the defendant but no admissions by defendant, direct or indirect, that the statements were perjured. The transcript, then, although supplying evidence of the crime itself, does not include any self-incriminating statements by defendant. The State relied instead on evidence extrinsic of the preliminary examination to prove that defendant’s statements therein constituted perjured testimony.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant complains of the trial court’s acceptance of a State witness as an expert in the analysis of marijuana.

The witness was employed as a criminalist by the North Delta Crime Lab in West Monroe. After earning a degree in medical technology at Northeast Louisiana University, she worked in a hospital chemical laboratory for two years, then received special training in the identification of controlled dangerous substances. She had worked as a criminalist for over a year, during which time she had run approximately two thousand tests on marijuana. The trial judge correctly concluded that this witness was qualified to testify on this question. La.R.S. 15:466.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 4

At the trial, a sheriff’s deputy testified that in his presence defendant’s co-defendant had been given forty dollars by the sheriff to purchase marijuana and “acid” from a suspected dealer. In connection with this testimony, the State offered into evidence an expense voucher signed by the co-defendant which indicated that a forty dollar check had been issued to him for this purpose. Defense counsel objected on the ground that the voucher was not “the best evidence of whether this was for the purchasing of anything” and also complained that a proper foundation had not been laid. The court allowed the introduction of the voucher for the limited purpose of showing what was intended to be done with the check, and it cautioned the jury that this was not proof that the money was actually put to such use. Defendant assigns this ruling as error.

The only foundation laid for the introduction of the voucher was the deputy sheriff’s testimony that he recognized it as that which was signed by the co-defendant in his presence. However, the identification of demonstrative evidence may be visual, State v. Dotson, 260 La. 471, 2S6 So.2d 594 (1972), and connexity is ultimately a matter for the jury to decide so long as the evidence is shown to have some relevance which the trial judge considers sufficient to warrant its introduction, State v. Warren, 271 So.2d 527 (La.1973); State v. Jackson, 309 So.2d 318 (La.1975). The trial judge was correct in limiting the purpose for which this evidence might be offered, and in finding it relevant to this issue. La.R.S. 15:442.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant and his co-defendant, Jimmy McDonald, had been the State’s chief witnesses in the prosecution of two suspected marijuana dealers. As a result of their false testimony at the preliminary examination the State was unable to establish probable cause and the prosecution against those defendants was dismissed. Subsequently, one of the defendants who had been discharged instituted a civil action against the deputy sheriff and Jimmy McDonald on the basis of unlawful prosecution. Defense counsel theorized that this suit had prompted the sheriff to prosecute these defendants, and on cross-examination he questioned the deputy about the civil suit. The State objected to this line of questioning, and defense counsel argued that it was pertinent to show “any possible motive” that the sheriff might have had “in having Jimmy McDonald prosecuted.” The court rebuked counsel for suggesting that the power to prosecute might lie with anyone other than a district attorney or that the district attorney’s office might initiate a prosecution for any reason other than a genuine belief in the guilt of the defendant. The court added that since the witness had already admitted his hostility toward defendants and his belief in their guilt, reference to the civil suit would be irrelevant.

La.R.S. 15:492 provides:

“When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admits such fact, any other witness may be examined to establish the same.”

Although the trial judge apparently resented the inference which counsel tried to raise by offering evidence of the civil suit, this was a matter which La.R.S. 15:492 would nevertheless submit to the jury for consideration. However, we fail to see what prejudice could have resulted to defendant Randolph from the court’s refusal to admit this evidence, for it had no relevance as to him. The civil suit was brought against his co-defendant, Jimmy McDonald, and the deputy sheriff, and any prejudice which this might have excited in the deputy would logically have been directed toward Jimmy McDonald. As noted above, counsel argued before the trial court that this evidence was relevant to show that the deputy might have an ulteri- or motive “in having Jimmy McDonald prosecuted.” (Emphasis added.) Consequently, insofar as this defendant is concerned, there was no reversible error in excluding the evidence.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that the State did not establish the continuity of possession of two bags of marijuana offered into evidence, and that the trial judge erred in admitting this material at trial.

The deputy sheriff testified that each defendant had delivered a package of marijuana to him which he had labelled and placed in a locker in his office. He stated that to the best of his knowledge he had the only key to that locker and he was the only person to handle the evidence. We think this testimony established that it was more probable than not that the evidence was that connected with the case, and therefore it was properly admitted by the trial court. See State v. Dotson, 260 La. 471, 256 So.2d 594, 609 (1972).

This assignment is without merit.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

SUMMERS, J., dissents for the reasons assigned.

CALOGERO, J., concurs, having reservations, not as to the merit, but as to the treatment of the bill number 5.

SUMMERS, Justice

(dissenting).

The Constitution requires that the indictment inform defendant of the nature and cause of the accusation. La.Const. art. I, § 13 (1974). This mandate cannot be fulfilled by a bill of particulars, or by other means than the indictment.