author: BOOTH, Judge. BOYER, Acting Chief Judge,

text:
    COUCH CONSTRUCTION COMPANY, INC., Petitioner, v. DEPARTMENT OF TRANSPORTATION, State of Florida, Respondent, and White Construction Company, Inc., Intervenor.
    No. KK-100.
    District Court of Appeal of Florida, First District.
    June 16, 1978.
    Rehearing Denied June 26, 1978.

      Robert R. Feagin, III, F. Alan Cummings and John Radey of Holland & Knight, Tallahassee, for petitioner.
    H. Reynolds Sampson, Tallahassee, for respondent.
    John S. Rawls and Elaine N. Duggar, Tallahassee, for intervenor.
   BOOTH, Judge.

This cause is before us on Petition for Review of final agency action by order dated June 2,1978, dismissing the complaint of Couch Construction Company [Couch] for failure to state a cause of action. This case was briefed and argued with its companion case, 11-314, in which a separate opinion of this Court has been filed. The controversy in both cases involves the bidding for, and award of, the asphalt paving contract for the last link of 1-10, known as the Flat Creek Project. In Case 11-314, the specific issue was the validity of DOT’s action rejecting all bids at the first, December, 1977, bidding on the contract due to failure of the apparent low bidder, Couch, to attend the mandatory pre-bid conference. The issues in this case are the qualification and responsibility of White Construction Company [White] which were challenged by Couch following White’s apparent low bid at the second bidding on the contract in January of 1978.

Complaint by Couch was filed February 21, 1978, against DOT requesting proceedings under Florida Statute § 120.57 and Chapter 14-6, Rules of the Department of Transportation, for the following relief:

“[T]hat Respondent [DOT] find, under section 337.16, Florida Statutes, and section 8-8 of the Standard Specifications that White Construction Company, Inc., was disqualified from submitting bids on December 21,1977, and January 12,1978, on the basis of its status as delinquent in the performance of Contracts held by it with Respondent; or, in the alternative, that White Construction Company, Inc., was not the lowest responsible bidder that submitted bids at the January 12, 1978, bid letting; and that Respondent immediately award the contract for the Project to Petitioner . . . ” (emphasis supplied)

Respondents White and DOT moved to dismiss the complaint on grounds: (1) That Couch lacked standing to challenge White’s contract rights with DOT and (2) That the complaint failed to state a cause of action in that White had never been declared delinquent by DOT.

On the standing issue, the hearing officer held that Couch had standing to challenge the qualifications of other bidders, stating:

“[T]he right of a bidder for a public contract to a fair consideration of his bid and his right to an award of the contract if his is the lowest, responsible bid are matters of ‘substantial interest’ to him, thus entitling him to a hearing pursuant to § 120.57 ...”

The foregoing holding is correct and supported by this Court’s decision in Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971). On the claim that White be disqualified under § 337.16, the recommended order, as adopted by DOT, holds:

“[T]he statute in question, F.S. § 337.-16(1), seems to clearly provide that a contractor who is delinquent on a previously awarded contract, as disclosed by an investigation by the highway engineer, is disqualified from bidding. However, the undersigned Hearing Officer considers herself bound by the Florida Supreme Court White case cited above. That case, while dealing specifically with a suspension for cause of a certificate of qualification, clearly recognizes the DOT’s procedures for disqualification due to delinquency. And, its holding is that if such procedures are not complied with, the bid must be opened and given all consideration to which it is legally entitled. Applying the White case to the facts alleged in the petition herein, it is clear that the respondent White Construction Co., Inc., was not disqualified from bidding at either bid letting, and therefore the petitioner’s complaint fails to state a cause of action for which relief can be granted. The harshness of the result of this dismissal is recognized by the undersigned. It would seem that if indeed a contractor were delinquent on previously awarded contracts, the failure of the DOT to properly act on such delinquency should not defeat the rights of another contractor to be awarded a bid if it is otherwise the lowest responsible bidder.”

Couch’s petition for review was filed May 25, 1978 and sought “review of the inaction and refusal [of DOT] to take timely final agency action with respect to petitioner’s complaint of February 21,1978.” Thereafter, on June 2, 1978, DOT acted by dismissing Couch’s complaint. Prior to that final agency action, however, briefs had been filed and arguments held in this Court, on May 30, 1978, in this case and the companion case. This expedited procedure was adopted by the Court in the interest of facilitating early disposition of the cases. The parties agreed to waive exceptions to the recommended order of the hearing examiner in this case and no renewed petition for review has been filed which contests the merits of the agency order dismissing the complaint. Time has not expired for the filing of such renewed petition, however, we dispense with the need for it in the interest of avoiding further delay and proceed to the merits.

The recommended and the final orders correctly hold that White is not disqualified to bid, and that Couch’s first alternative ground of attack on White’s low January bid must fail. However, there is no ruling except by implication on Couch’s second alternative ground, that White “was not the lowest responsible bidder.” The DOT’s implied holding, that that ground, too, was foreclosed by the Supreme Court decision in White Construction Company v. Division of Administration, 281 So.2d 194 (Fla. 1973), is erroneous.

Neither § 337.16 nor the Supreme Court’s White case has eliminated the traditional competitive bidding requirement that the contract be awarded to the lowest responsible bidder. That requirement is codified in Florida Statute § 337.11. Delinquency in fact in work progress is evidence to be considered on the question of whether White was a responsible bidder to whom the contract could be awarded. The term “responsible” as used in bidding statutes such as § 337.11, has been defined as follows:

“The term ‘responsible’ ... is not limited in its meaning to financial resources and ability. What the public desires is a well-constructed work, for which a lawsuit even against a responsible defendant is a poor substitute; and authorizations of this kind are held to invest public authorities with discretionary power to pass upon the honesty and integrity of the bidder necessary to a faithful performance of the contract— upon his skill and business judgment, his experience and his facilities for carrying out the contract, his previous conduct under other contracts, and the quality of his previous work — as well as to pass upon his pecuniary ability, and when that discretion is properly exercised, the courts will not interfere.” (emphasis supplied)

See also, Kelling v. Edwards, 116 Minn. 484, 134 N.W. 221 (1912)(one contractor was “in default in time upon other ditch contracts with the county,” other contractor “had duly, expeditiously and satisfactorily completed a former ditch contract with the county.”); Schulte v. Salt Lake City, 79 Utah 292, 10 P.2d 625 (1932)(successful bidder had previously performed twenty-nine contracts for Salt Lake City with very satisfactory results); Wilson v. City of New Castle, 301 Pa. 358, 152 A. 102 (1930) (low bidder was “slow in its completion” of prior jobs). In Culpepper v. Moore, 40 So.2d 366 (Fla. 1949) the effect of demands of other jobs already undertaken by the bidder was held a proper consideration in determining the bidder’s ability to promptly perform the new job being bid, particularly since time was a material factor.

We note that the concluding paragraph of the Supreme Court’s White decision recognizes that, although the contractor there was not disqualified as a matter of law under § 337.16, its “responsibility” remained a factor to be considered by the DOT prior to the award of the contract stating (281 So.2d at 197):

“However, although the Department of Transportation must open the bid submitted by White Construction Company, Inc., we recognize the application of Florida Statutes, Section 337.11(3), F.S.A. which provides,
‘The department may, at its discretion award the proposed work to the lowest responsible bidder, or it may reject all bids and proceed to readvertise or perform the work with convict labor or free labor.’ ”

The following chronology of events is essentially without dispute:

October 12, 1977:

DOT issued White a preliminary notice of delinquency on the progress of two contracts for highway construction work on 1-10, adjacent to the Flat Creek Project.

November 1:

There being no response from White, DOT issued final notice of delinquency suspending White’s qualification to bid.

November 2:

DOT rescinded final notice of delinquency, restoring White’s qualification to bid, but left the preliminary delinquency notice outstanding.

November 24:

DOT advertised for bids on Flat Creek Project.

December 14:

Mandatory pre-bid conference on Flat Creek Project which White attended, but Couch did not.

December 16:

Letter from Federal Highway Administrator to DOT stating that White’s progress on other 1-10 contracts was unsatisfactory.

December 21:

Bids received on the Flat Creek Project with Couch apparent low bidder and White second low bidder.

December 22:

All bids rejected due to Couch’s failure to attend pre-bid conference.

January 6, 1978:

DOT’s letter to Federal Highway Administrator explaining its failure to suspend White’s qualification.

January 12:

Rebidding on Flat Creek Project with White low bidder, and Couch second low bidder.

February 14:

DOT issued White a final notice of delinquency.

March 27:

White for first time requested an extension of time on delinquency determination. (The matter is presently pending in an intra-agency proceeding for determination of delinquency.)

May 23:

White and DOT entered into a contract for the Flat Creek Project.

In briefs and arguments to this Court, White gives plausible explanations for its apparent delinquency in the progress of work on other contracts, including delay by the prior contractor on the job, inclement weather, and difficulty in obtaining essential materials. The matter of White’s responsibility to perform may ultimately be resolved favorably to White, but that is a factual determination requiring § 120.57 proceedings which afford Couch and White opportunity to be heard.

The DOT for its part plainly admits it routinely uses the delinquency provisions of Florida Statute § 337.16 and its own amplifying rules for “arm twisting,” without following through by éither determining final delinquency and suspending qualification to bid, or by rescinding the preliminary notice of delinquency. This questionable use of power, coupled with a failure of DOT to follow its established procedures with regard to delinquency notices, has resulted in the controversy here and caused the private litigants, as well as the public, to suffer delay and expense.

Accordingly, the order of the DOT dated June 2,1978, is AFFIRMED IN PART and REVERSED IN PART and, dependent on the rejection of all bids submitted in December (Case # 11-314), this proceeding is REMANDED with directions that the alternative prayer of the complaint be considered with such further proceedings as are necessary to determine the lowest responsible bidder at the January rebidding.

SMITH, J., concurs.

BOYER, Acting C. J., dissents.

BOYER, Acting Chief Judge,

dissenting.

I agree that the remedies provided by Florida Statute 337.16 are not exclusive and do not encompass the traditional competitive bidding requirement that the contract be awarded to the lowest responsible bidder. I do not agree with the proposition articulated by the DOAH hearing officer, as found in that portion of the recommended order quoted in the foregoing opinion, that F.S. 337.16 “seems to clearly provide that a contractor who is delinquent on a previously awarded contract * * * is disqualified from bidding.” It is clear from a reading of the entire statute that the legislature did not contemplate that immediately upon a contractor becoming delinquent on a previously awarded contract its certificate of qualification be immediately suspended or revoked. Subsections (1), (2) and (3) must be read in para materia. As so read, the statute contemplates an investigation and hearing. The record reveals that White and DOT are now, and for a substantial period of time have been, involved in those procedures.

I cannot and do not agree with the majority opinion insofar as it expands the issues presented by the parties themselves.

The law has long been established that an appellate court will not review nor consider matters neither previously presented to, considered by, nor ruled upon the tribunal whose order or judgment is sought to be reviewed. (City of Pensacola v. Kirby, 47 So.2d 533 (Fla.1950)). It is an equally well established principle of law that a court will only consider those issues framed by the pleadings or tried by consent.

While it is certainly true, as recited in the majority opinion, that the complaint filed by Couch with DOT contained the verbiage quoted in the second paragraph of that opinion, not one scintilla of evidence nor a single allegation of fact appears any place in the record, nor even in the briefs, touching upon White’s responsibility except in so far as the alleged delinquency on á prior contract may be so construed: That alleged delinquency clearly falls within the ambit of F.S. 337.16 and, as such, is barred by White Construction Co. v. Division of Admin., 281 So.2d 194 (Fla. 1973). Further, while agreeing, as aforesaid, that there is a distinction between a disqualification pursuant to F.S. 337.16 and the traditional competitive bidding requirement that the contract be awarded to the lowest responsible bidder, I do not construe the concluding paragraph of the Supreme Court’s opinion in White Construction Co. v. Division of Admin., supra, as recognizing that although a contractor may not be disqualified under the statute its “responsibility” remains a factor to be considered by DOT prior to award of a contract. That portion of the opinion, in my view, relates only to the right of DOT to reject all bids and to proceed to readvertise or perform the work with convict labor or free labor.

It is important to observe, I urge, that the issue of White’s responsibility, whether under the statute (F.S. 337.16) or under the traditional competitive bidding requirement that the contract be awarded to the lowest responsible bidder, is beyond the issues sought by Couch to be reviewed here. The Petition for Review filed by Couch requests this court to review “the inaction and refusal of the Department of Transportation, State of Florida, to take timely final agency action with respect to the petitioner’s complaint and the recommended order of the Division of Administrative Hearings.” DOT has now taken final agency action with respect to Couch’s complaint and the recommended order of the hearing officer. It necessarily follows therefore that there is no longer any “inaction or refusal” to take final agency action. Accordingly, the subject matter of the Petition for Review has become moot.

Nevertheless, the majority insist upon giving more than has even been asked for. But even affording the ultra liberal construction placed by my colleagues upon the pleadings on the laudable ground of attempting to facilitate “early disposition of the case” so that the taxpayers will not further suffer as inflation escalates costs and the traveling public will be less longer deprived of use of the badly needed highway, I yet question the purpose of ordering a factual determination by a F.S. 120.57 proceeding to determine “the matter of White’s responsibility to perform” when, as already stated, no issue has been made and no evidence adduced nor allegations made touching upon responsibility except as to the alleged delinquency which is barred by the principle of White Construction Co. v. Division of Admin., supra.

The relief requested has been achieved. The petition is moot. I would affirm the order of dismissal.

Whether dismissal be affirmed or not, all relief to which Couch could be entitled under the pleadings, record, and even the allegations of its briefs, is barred by White Construction Co. v. Division of Admin., supra.

I dissent from the majority.

      . 361 So.2d 172, Case # II-314, Opinion filed June 16th, 1978.

      . Florida Statute § 337.16:
      (1)No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked.
      (2) The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification.
      (3) Any person found delinquent on a contract or whose certificate is revoked or suspended shall be given the same benefit of hearing as provided in the case of a person refused an original certificate.

      . 64 Am.Jur.2d Public Works and Contracts, § 70, at 927-28.

      . “Your attention is directed to Finding Number 1 of the report in which it is noted that this office considers the contractor’s [White] progress on this project to be unsatisfactory. In accordance with Article 8-8.3 of the Standard Specifications, it has been determined that the contractor should be declared delinquent and disqualified from bidding on future jobs until completion of this project.”

      . “[A] factor to consider is this project cannot be opened to traffic at this time so an early completion would be of no benefit to the Department or the public. Furthermore, it obviously would be advantageous to both the Department and the public not to have this contractor suspended from the qualified bidding list at a time when bids are due to be received on the adjacent paving project. In order for bids on the forthcoming project to be as competitive as possible it is highly desirable that this contractor be allowed to bid.”

      .Chapter 14-23, Rules of State of Florida, Department of Transportation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BLUE CROSS OF FLORIDA, INC., and Blue Shield of Florida, Inc., Appellants, v. Lutgardo HERNANDEZ, Appellee.
    Nos. 77-1887, 77-1888.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Rehearings Denied Aug. 25, 1978.
    Pallot, Stern, Proby & Adkins and Adolfo Podrecca, Miami, for appellants.
    Lawrence J. Spiegel, and Peter Slavis, Hialeah, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

These appeals by Blue Cross of Florida and Blue Shield of Florida are from awards of attorney’s fees and court costs in an action by Lutgardo Hernandez for failure to pay medical and hospital bills pursuant to a group contract. The issues presented are: (1) whether the court erred in awarding court fees and costs because the plaintiff did not file proper proof of loss; (2) whether the court erred because the defendant acted in good faith; (3) whether the court lacked jurisdiction to award fees and costs when a settlement was effected prior to trial.

The factual background of the claim and the failure to pay is long and complicated by the fact that there was confusion as to whether the claim was covered by workmen’s compensation insurance or major medical insurance. The facts were heard by the court prior to the negotiated settlement. It was stipulated that the court would determine the applicability of Section 627.428, Florida Statutes (1977).

We hold that there was evidence before the court upon which it could find the statute applicable. It was his determination that the lawsuit was necessary to effect collection. Cf. Cincinnati Insurance Company v. Palmer, 297 So.2d 96, 98 (Fla. 4th DCA 1974). The trial court had jurisdiction to award the fee upon settlement and post-judgment. Wabash Life Insurance Company v. Rosenberg, 189 So.2d 209 (Fla. 3d DCA 1966).

Affirmed.


author: PEARSON, Judge.

text:
    JERRY LAMPERT REAL ESTATE, INC., a Florida Corporation, and Leonard Davidson, d/b/a Security Real Estate, Appellants, v. GROWTH EQUITIES, LTD., a Florida limited partnership, Appellee.
    No. 76-2270.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Rehearing Denied Aug. 25, 1978.
    Sidney B. Shapiro, Coral Gables, for appellants.
    Friedman & Britton and J. Robert Olian, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

The appellants are real estate brokers. They sued the appellee, Growth Industries, Inc., and others to recover a commission, claiming that they were the procuring cause of a sale by the appellee to Jerome D. Franklin, Trustee. The appellants also alleged a conspiracy between the appellee-seller and the purchaser to deprive the appellants of a commission. After extensive depositions and the filing of an affidavit by the appellee-seller, the trial judge entered a summary final judgment for the seller. This appeal is from that judgment.

It appears without genuine issue of material fact that appellants were not the procuring cause of the sale, as they were unable to sell the property to one Anne Dreck-sler. Negotiations concluded, and thereafter, another broker effected a sale to the purchaser, Jerome D. Franklin, Trustee. The fact that Anne Drecksler was an investor in the trust and participated in some of the negotiations to effect the sale is not enough to show that the appellants were the procuring cause of the sale. The allegation of a conspiracy was disposed of by an affidavit of the appellee, which was not controverted by any fact in the record. Cf. Burbridge v. Berk, 77 So.2d 785 (Fla.1955); Shuler v. Allen, 76 So.2d 879 (Fla.1955); Judson v. Mobley, 62 So.2d 730 (Fla.1953); and Wilkins v. W. B. Tilton Real Estate and Insurance, Inc., 257 So.2d 573 (Fla. 4th DCA 1971).

Affirmed.

      . A previous appeal from a summary final judgment for the purchasers is reported at Jerry Lampert Real Estate, Inc. v. Franklin, 349 So.2d 825 (Fla. 3d DCA 1977). This court reversed the summary judgment. At that time, there had been no determination of the issue of whether appellants were the procuring cause of the sale.


text:
    Daniel Lopez PINO, Appellant, v. Robert A. LOPEZ et al., Appellees.
    Nos. 77-1847, 77-2231.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Rehearings Denied Aug. 25, 1978.

      Heller & Kaplan and Seymour Kaplan, Miami, for appellant.
    Sinclair, Louis, Siegel & Heath and Bay-ard E. Heath, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

These appeals are from the same summary final judgment for the defendants. This issue involved was whether a check issued and cashed in “Full and final payment for all goods, services and claims to date” was an accord and satisfaction. Plaintiff’s affidavit in opposition to the motion for summary judgment was insufficient as a matter of law because it alleged conclusions of law without supporting facts. Cf. Freeman v. Equilease Corporation, 346 So.2d 619 (Fla. 3d DCA 1977); and Sherman v. Weintraub, 132 So.2d 421 (Fla. 3d DCA 1961). The defendant was entitled to a judgment as a matter of law. See Miller-Dunn Co. v. Green, 154 Fla. 72, 16 So.2d 637 (1944).

Affirmed.


text:
    Aileen RIVERA, a minor, by and through her father and next friend, Domingo Rivera, and Domingo Rivera, Individually, Appellants, v. SOUTHERN AMERICAN FIRE INSURANCE COMPANY and Florida Insurance Guaranty Association, Inc., Appellees.
    No. 77-1852.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Rehearing Denied Aug. 25, 1978.
    Freidin & Goldfarb and Philip Freidin, Miami, for appellants.
    Preddy, Kutner & Hardy and Stephen T. Brown, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The appellants, Rivera, obtained a $53,-000.00 judgment against Southern American Fire Insurance Company and its insured. Southern American thereafter became insolvent, and the Riveras sought to recover the excess over the policy limits of $25,000.00 from Florida Insurance Guaranty Association, Inc. (FIGA), alleging Southern American had dealt in bad faith with the plaintiffs-appellants. The trial court dismissed the complaint. We affirm.

The trial court was correct, because FIGA is not liable for any amounts in excess of policy limits and is not vicariously liable for tortious acts of members’ insurers. Section 631.57(lXa)3 Florida Statutes (1975).

The appellants rely heavily upon the case of Zinke-Smith, Inc. v. Florida Insurance Guaranty Association, Inc., 304 So.2d 507 (Fla. 4th DCA 1974). We find this not to be persuasive because the attorney’s fee recovery therein was permitted by another statute.

Therefore, the final order of dismissal here under review be and the same is hereby affirmed.


text:
    Sterrett T. TALBOT, Appellant, v. Barbara L. TALBOT, Appellee.
    No. 77-1959.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Rehearing Denied Aug. 25, 1978.
    L. J. Cushman, Miami, for appellant.
    Redfearn & Simon and Edwin 0. Simon, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The appellant, as plaintiff, filed a petition for dissolution of marriage. Therein, he set forth that the parties had acquired certain properties and requested the court to make an equitable division thereof. The appellee, as respondent in the trial court, filed an answer, admitted the acquisition of properties and, likewise, requested the trial court to make a disposition thereof.

After the chancellor made such a division of the properties and awarded the wife alimony, the appellant appeals and contends first, that the trial court erred in dividing the property and, second, that he erred in the award of alimony. We find no merit in either contention. See: Baker v. Baker, 271 So.2d 796 (Fla. 3d DCA 1973); Walton v. Walton, 290 So.2d 110 (Fla. 3d DCA 1974); Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975); Mosher v. Mosher, 321 So.2d 450 (Fla. 2d DCA 1975); Messer v. Messer, 342 So.2d 1076 (Fla. 2nd DCA 1975); Gratton v. Gratton, 358 So.2d 262 (Fla. 3d DCA 1978).

Therefore, the final judgment here under review be and the same is hereby affirmed.


author: MILLS, Judge.

text:
    Oscar J. LUCAS, Appellant, v. KOCH MARKETING COMPANY, a corporation, Appellee.
    No. BB-455.
    District Court of Appeal of Florida, First District.
    July 7, 1978.
    Rehearing Denied Aug. 29, 1978.

      Jere D. McWinn, Jacksonville, for appellant.
    Albert J. Hadeed, of Mahoney, Hadlow & Adams, Jacksonville, for appellee.
   MILLS, Judge.

Lucas brought suit against Koch to recover minimum wages and overtime compensation under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Section 201 et seq. Koch answered denying liability and asserting that Lucas was exempt from the overtime provisions of the Act because he was employed in a bona fide executive capacity. A jury found in favor of Koch and Lucas appeals from the adverse judgment contending the trial court erred in denying his motion for a directed verdict and in denying his motion for judgment notwithstanding the verdict.

Lucas was employed by Koch as a service station manager from 2 January 1973 to 22 August 1975 at a weekly salary of $172.89 to $209.10. Cash shortages, improper credit card charges and bank deposit errors were deducted from his salary. The shortages were deducted in accordance with a “Shortage Agreement” entered into by Lucas and Koch at the time of his employment. The agreement provided that:

“In consideration of the individual and mutual promises and agreements involved in the employment agreement between the Employee and Company, I agree that if any shortage of money or merchandise occurs during my period of employment for which I am responsible or which is caused by me, I will immediately repay to the Company the amount of such money or value of such merchandise, and failing to do so, I hereby authorize the Company to deduct such money or the value of merchandise from my next paycheck or paychecks until it is fully paid. If any shortage cannot be traced by Company to the responsible individual, I hereby agree to share responsibility with the other employees on my shift and authorize the Company to deduct a pro rata share from my paycheck or paychecks.”

The evidence was conflicting as to whether Lucas was reimbursed by fellow employees for their shortages. Cash overages were credited to his salary.

Lucas regularly worked over 40 hours a week, usually working about 51 hours. He was never paid overtime compensation.

Lucas was in sole charge of the service station to which he was assigned. His primary duty was management. He received his weekly compensation without regard to the number of hours he worked. He usually directed the work of two or more employees and had authority to hire and fire employees under his management. Lucas was in charge of the service station activities and was not subject to direct supervision.

At the conclusion of all the evidence, Lucas moved for a directed verdict on the grounds that the evidence showed that Koch did not guarantee Lucas the minimum weekly salary required by the Code of Federal Regulations and that the “Shortage Agreement” subjected Lucas’ salary to deductions which violated the Code. Lucas’ motion for judgment notwithstanding the verdict alleged that the evidence did not show that Lucas was an executive employee. The trial court denied both motions.

Pursuant to a pretrial stipulation, it was agreed that Koch was an enterprise covered by the Act and that Lucas, unless an exempt executive employee, would be entitled to overtime pay and minimum wages.

An executive employee is an employee whose primary duty consists of the management of the enterprise in which he is employed or a customarily recognized department thereof; and who customarily and regularly directs the work of two or more employees therein; and who has the authority to hire or fire other employees; and who customarily and regularly exercises discretionary powers; and who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours of work in the work week to activities which are hot directly and closely related to the performance of the work described above; and through March 1975 was compensated for his services on a salary basis of not less than $125 per week and thereafter was compensated for his services on a salary basis of not less than $155 per week. Title 29, Code of Federal Regulations, Section 541.1.

Through March 1975, compensation on a salary basis at a rate of not less than $125 per week, and thereafter compensation on a salary basis at a rate of not less than $155 per week, were required for exemption as an executive. Title 29, Code of Federal Regulations, Section 541.117(a).

An employee is considered paid on a salary basis if under his employment agreement he regularly receives each pay period on a weekly basis a predetermined amount constituting his compensation which is not subject to reductions because of variations in the quality or quantity of the work performed. Title 29, Code of Federal Regulations, Section 541.118(a). Subsections (1) through (5) set forth when deductions may and may not be made. Subsection (6) provides that the effect of making a deduction which is not permitted depends upon the facts in the particular case. Where a deduction not permitted is inadvertent, the exemption will not be lost if the employer reimburses the employee for such deductions and promises to comply in the future.

Lucas contends that the deductions Koch made from his salary were impermissible, that Koch did not reimburse him for the deductions and that his salary was subject to reduction because of variations in the quality of his work, therefore, Koch lost its executive employee exemption.

Subsections (1) through (5) of Section 541.117 set forth deductions that may and may not be made. Deductions for cash shortages, improper credit card charges and bank deposit errors are not listed as permissible or impermissible. The deductions mentioned in subsections (1) through (5) as permissible or impermissible are not intended to be all inclusive. This is supported by subsection (6) which provides that the effect of making a deduction which is not permitted under subsections (1) and (5) will depend upon the facts in the particular case. Under the facts in this case, the trial court properly submitted this issue to the jury.

In making his motions for a directed verdict and for judgment notwithstanding the verdict, Lucas did not urge as a ground that Koch did not reimburse him for the deductions. Nor has Lucas urged before us that the trial court erred in giving the jury an instruction which stated:

“If you believe that the plaintiff obtained funds from his employees to recover the deduction made against the plaintiff, then may you not consider the deduction as affecting the gross weekly payment received by the plaintiff.”

Under these circumstances, Lucas’ contention is without merit.

Lucas contends that as a matter of law his salary was subject to reduction because of variations in the quality of his work. He argues that his salary was subject to reduction by the “Shortage Agreement” and that his salary was reduced by deductions Koch made because of cash shortages of other employees. Koch responds that it paid Lucas a predetermined amount, that Lucas recouped from the responsible employees the deductions it made from his salary and that the deductions had nothing to do with the quality of Lucas’ work. In our judgment, these facts raise a dispute which was properly submitted to the jury. In this posture, the trial court, without objection, instructed the jury:

“You are instructed that an employee will be considered to be paid on a salary basis if under his employment agreement he regularly receives each payday a predetermined amount which is not subject to reduction because of variations in the quality or the quantity of the work performed.”

On motion for a directed verdict, as well as on motion for judgment notwithstanding the verdict, the truth of all the facts in evidence most favorable to the party moved against must be admitted, as well as every conclusion or inference that can be reasonably drawn from those facts. On motion for a directed verdict, if the evidence is conflicting or if different conclusions or inferences can be drawn, the motion must be denied. On motion for judgment notwithstanding the verdict, if there is room for differences among reasonable men as to the existence of a material fact sought to be established or as to a material inference which might be drawn from established facts, the verdict for the party moved against must be affirmed. Smith v. Peninsular Ins. Co., 181 So.2d 212 (Fla. 1st DCA 1965).

The judgment appealed is affirmed. Appellant’s petition for attorney’s fees is denied.

BOYER, J., and WALLACE M. JOP-LING, Associate Judge, concur.


author: BOOTH, Judge.

text:
    EXXON CORPORATION, Appellant, v. Anthony J. McNICHOLAS et al., Appellees.
    Nos. HH-89, HH-267.
    District Court of Appeal of Florida, First District.
    July 18, 1978.
    Rehearings Denied Aug. 22, 1978.

      Thomas A. Clark and Sylvia H. Walbolt of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    Hume F. Coleman and Robert R. Feagin, III of Holland & Knight, Lakeland, Kil-lough K. Smith, Jr. of Hudson, Keltner, Smith & Cunningham, Fort Worth, Tex., Alphonse G. Condon, Jr. of Holsberry, Emmanuel, Sheppard, Mitchell & Condon, Pensacola, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from the final judgment of the Circuit Court, Santa Rosa County, entering summary judgment against the plaintiff as to all claims against defendants, but reserving for trial the counter-claim of defendant Anthony J. McNicholas, ancillary administrator of the estate of Edna Hill Meeker, against the plaintiff for conversion.

The complaint of plaintiff Exxon, appellant herein, sought, Count I, declaratory judgment as to the continuing validity of an oil, gas and mineral lease on land in Santa Rosa County owned by Edna Hill Meeker. Edna Meeker was for many years prior to her death on September 5, 1974, incompetent. The lease was executed on November 4,1969 by Mrs. Meeker’s son and guardian, L. H. Meeker, in favor of Humble Oil and Refining Company, Exxon’s predecessor, and shortly thereafter oil was found on the property.

Count II of the complaint sought damages against L. H. Meeker individually based on alleged tortious misrepresentations, breaches of warranty and failure to obtain court approval of the lease. In the alternative, plaintiff sought to be relieved from making any payments under the lease which would inure to the benefit of L. H. Meeker, individually.

The trial court, by amended order dated September 2, 1976, granted the motions of L. H. Meeker individually to dismiss the complaint and to quash all process against him because neither Florida Statute Chapter 48, nor any other statute was applicable to give in personam jurisdiction of Meeker, a resident of Texas. Motion of L. H. Meeker as independent executor of the estate of Edna Hill Meeker to quash service was granted but motion of L. H. Meeker as testamentary trustee under the will to quash service was denied.

Thereafter, the cause proceeded with entry on June 23, 1977, of final judgment against plaintiff on the grounds that the lease was void because the provisions of the Florida Guardianship Law, Florida Statute § 745.02 (1973) were not complied with.

On appeal to this Court, defendant L. H. Meeker has moved to dismiss the appeal as to him on the grounds that the order entered September 22,1976, was final judgment and this appeal, taken more than 30 days from entry of that order, is untimely. We disagree and deny the motion. L. H. Meeker continued in the suit below in one of the three capacities in which he was originally sued. The order of September 2 was an appealable interlocutory order under Rule 4.2, Florida Appellate Rules, since it dealt with jurisdiction over the person, but was not a final judgment from which appeal was required to be taken at that time. The final judgment in this case was entered almost a year later in June of 1977 and the appeal from that judgment brings up for review the order of September 2.

Turning to the merits, we have reviewed the briefs, appendix and the record before us in the light of appellant’s contentions that the alleged inequitable conduct of L. H. Meeker with regard to the lease should operate as an estoppel against the heirs, including Meeker, preventing their assertion that the lease is void, or, in the alternative, that the lease be construed as a contract to make a lease, as well as the contentions that the trial court had sufficient jurisdiction over L. H. Meeker individually, in order to adjudicate the claims against him, and find these contentions to be without merit.

Accordingly, the judgment below is AFFIRMED.

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


author: ERVIN, Judge.

text:
    Raymond O. McDONALD, Jr., Robert E. Prentice, Thomas F. Clark, Jr., William H. Boyce and Melvin C. Scher, Petitioners. v. DEPARTMENT OF BANKING AND FINANCE, State of Florida, Respondent.
    No. HH-179.
    District Court of Appeal of Florida, First District.
    July 18, 1978.
    Rehearing Denied Aug. 24, 1978.

      J. Riley Davis, Wilbur E. Brewton and Clyde M. Taylor, Jr., of Taylor, Brion, Buker & Greene, Tallahassee, for petitioners.
    S. Craig Kiser, Tallahassee and William L. Lyman, St. Petersburg, for respondent.
   ERVIN, Judge.

We previously remanded this case to the Department of Banking and Finance for explication of its policy decision denying a charter to petitioners. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The Department’s order discarded without explanation the findings of fact of the hearing examiner’s order recommending that the charter be issued, and held that petitioners’ application failed to comply with the requirements of Section 659.03(2)(b), Florida Statutes (1977), that the proposed bank show a reasonable promise of success. We found the Department’s final order insufficient in two areas: 1. In failing to explain the apparent inconsistency in the Department’s 1975 decisions granting applications to banks in counties having less favorable deposit rates than Pasco County banks. 2. In failing to explain its reasons for disregarding the testimony of a former bank examiner who had concluded that conditions in Pasco County in 1975 would produce a reasonable promise of profit for the proposed bank.

Having reviewed the Department’s revised order following remand, we find that it now sufficiently explicates “policy within the agency’s delegated discretion.” Section 120.68(7), Florida Statutes (1977). As to the Department’s apparent inconsistent policy in granting bank charters in other areas having smaller percentage rates of deposit growth, the revised order stated:

The Hearing Officer gave weight to the finding that Pasco County reported a higher rate of increase in deposits than the rates reported in three counties where bank charters had been granted by the Department. Respondent duly noted this finding but, while Respondent agrees it should be considered, this finding represents only one of many economic indicators and therefore cannot and should not be used as the only basis for charter approval. Furthermore, the finding may be determined to be misleading under close scrutiny. The increases are expressed as percentage rates of growth. Pasco County with a much smaller population and bank deposit base than Duval, Polk or Hillsborough counties will show a larger percentile increase when actually reporting an identical increase in dollar amounts. Because the deposit base for the increase is correspondingly smaller in Pasco County, it would take less in the way of deposit growth there to show a larger percentile increase than it would in the more populous counties mentioned above. Another point worth noting is that the comparison on which the finding was based was an intra-county comparison of county-wide statistics. The results of such a comparison do not necessarily apply to limited trade areas even within the same county, let alone within different counties.

As to the failure of the Department to take into consideration the testimony of the former bank examiner, a Mr. Hieronymus, that the applicant’s projected figures demonstrate that local conditions could possibly produce a reasonable promise of profit, the Department stated that Mr. Hieronymus’ opinion did not state, as required by Section 659.03(2)(b), that the proposed bank would be assured a reasonable promise of successful operation. In the Department’s opinion it was quite possible for a bank to operate “on marginal profits without assuring an overall successful operation, . . and the Department must look to the total picture to determine the proposed bank’s chances for successful operation. The revised order then gave a very detailed explanation of its reasons why local conditions did not assure the applicants a reasonable promise of successful operation. They include (1) that the applicants failed to present satisfactory evidence that operating income by the end of the third year would be no less than 1% of return on total assets, a banking industry norm of long standing; (2) that the evidence, as reflected in the hearing examiner’s recommended order, indicated a projected return at the end of the third year’s operation of $37,023, less than half that of the industry norm, or a return lower than 2.5% on the original capital invested, which, in the Department’s opinion, did not comply with the statutory standard; (3) that the proposed trade area was populated largely by retirees, who tend to use demand deposits less and time deposits more than the remainder of the population, thereby affecting the time deposit — demand deposit ratio a bank with such clientele might generate as well as the expenses which attend a high ratio of savings to demand deposits.

We recognize it is our “responsibility . to allow the agency full statutory range for its putative expertise and specialized experience.” McDonald v. Dept. of Banking and Finance, supra at 583. We also perceive that the statutory criterion under consideration “is less one of fact than of opinion which is highly charged with policy considerations for which the Department is responsible, . . .” McDonald at 584. We conclude, as we recently did in Fraser et al. v. Lewis, 360 So.2d 1116, No. GG-329 (Fla. 1st DCA, July 10, 1978), that the Department’s final revised order sufficiently explains its policy within its exercise of delegated discretion.

Petition for review is DENIED.

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


text:
    Danilo CRESPO, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2520.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Rehearing Denied Aug. 25, 1978.
    Engel, Aronson, Fried & Cohn and Don S. Cohn, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976). Cf. Thomas v. State, 250 So.2d 15 (Fla. 1st DCA 1971); Phillips v. State, 284 So.2d 485 (Fla. 3d DCA 1973).


text:
    Jote GORNITZ, Appellant, v. NATIONAL AIRLINES, INC., a Florida Corporation, and United States Fidelity and Guaranty Company, a Foreign Corporation, Appellees.
    No. 77-241.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Rehearing Denied Aug. 25, 1978.

      Ira M. Seidler, St. Petersburg, for appellant.
    Barwick & McClure and David L. Wills, Miami Shores, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The plaintiff in the trial court appeals an adverse final judgment after the granting of a directed verdict at the close of his case.

Appellant was injured by a fellow-passenger on a National Airlines flight when the fellow-passenger threw a garment bag over the back of the seat in which he was sitting and struck the plaintiff.

We affirm. No negligence has been demonstrated on the part of the airline or its employees. The appellant contends that the flight attendant violated certain regulations of the airline and, therefore, the airline was responsible. We disagree. First, assuming [which we do not find] that the airline personnel violated the regulations of the airline, this was not the cause of the injury and therefore the plaintiff failed to make a prima facie case. Secondly, even if the flight attendant had violated a regulation, this was not the proximate cause of the plaintiff’s injury. Therefore, the trial court was correct in directing a verdict. Smith’s Bakery, Incorporated v. Jernigan, 134 So.2d 519 (Fla. 1st DCA 1961); Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2nd DCA 1976).

The final judgment here under review be and the same is hereby affirmed.

      . Appellant has called to our attention the recent case of Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla. 3d DCA 1978) which, in light of our disposition of this appeal, does not require a consideration thereof.


text:
    Ira REAMER, Appellant, v. Cecilia D. REAMER, Appellee.
    Nos. 77-2241, 77-2242, 77-2281 and, 77-2282.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Rehearings Denied Aug. 25, 1978.

      Fogle, Connelly & Cook and Philip Cook, Miami, for appellant.
    Hacker, Phelps & Matters and Michael S. Hacker, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

After a hotly-contested divorce suit, the parties having agreed to a division of their property but being unable to agree as to price, the trial judge [on July 14, 1977] appointed an appraiser and a listing broker to sell the residence of the parties. After the report of the appraiser was returned, the trial court ordered the husband to execute the listing agreement for the price stated in the appraisal. These appeals ensued, contesting the right of the trial court to appoint the appraiser in the first instance. We affirm.

The time for taking an appeal from the order of July 14, 1977 appointing the appraiser had expired. The only question that would have remained for consideration might have been the reasonableness of the value affixed on the property. No such attack was made on the appraisal, the order of the trial judge requiring a sale in compliance with the previous property settlement Agreement of the parties is hereby affirmed: Edwards v. Edwards, 144 Fla. 374, 198 So. 14 (1940); Herman A. Thomas, Inc. v. Sharpe, 309 So.2d 592 (Fla.3d DCA 1975).

Affirmed.


author: MILLS, Acting Chief Judge.

text:
    Ruby Anderson FISHER, Appellant, v. STATE of Florida, Appellee.
    No. GG-148.
    District Court of Appeal of Florida, First District.
    July 20, 1978.
    Rehearing Denied Aug. 23, 1978.
    Robert Stuart Willis, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   MILLS, Acting Chief Judge.

The issue determinative of this appeal is whether the trial court erred in allowing a medical examiner to testify for the State, over the defendant’s objection, that in his opinion the knife wounds found on the victim’s body were inflicted by a woman.

Mrs. Fisher and her husband were charged by indictment with first degree murder and grand larceny. In return for a statement implicating his wife in the death of the victim, Fisher was permitted to plead guilty to second degree murder with an understanding that he would receive a sentence of no more than ten years in prison. A jury found Mrs. Fisher guilty of third degree murder and grand larceny. She was sentenced to fifteen years imprisonment for the murder conviction and five years imprisonment for the larceny conviction, the sentences to be served consecutively. She appeals.

At the trial, Fisher testified that his wife, who was seated on the rear seat of the victim’s car, began arguing with the victim, who was seated on the passenger side of the front seat, got a knife from somewhere and began stabbing the victim.

The medical examiner, a forensic pathologist, described the stab wounds and over objection stated that the knife wounds were more characteristic of those made by a woman than those made by a man. On cross-examination, the medical examiner admitted that he didn’t know whether it was true that men were more handy with a knife than women and that his opinion that the knife wounds were more characteristic of those made by a woman was not based on scientific evidence but was merely his general belief.

We reverse. The medical examiner admitted that he had no knowledge of a scientific nature from which he could justify the opinion he offered. He acknowledged that his assumption that the stab wounds were inflicted by a woman was not based on any scientific evidence or established fact. He admitted that he had no knowledge of the individual strength and capacity of Mrs. Fisher and her husband. He agreed that his opinion was simply based on vague notions of stereotyped characteristics of the men and the women in our culture and it bore no relationship to Mrs. Fisher other than she was a woman.

The witness was not qualified by knowledge, skill, experience, training or education to express the opinion stated. Nor were there facts adduced at trial to support the opinion. Under the facts of this case, many unstated here because unnecessary to this decision, the opinion was damaging and prejudicial to Mrs. Fisher.

Mrs. Fisher contends the trial court made other errors. We have considered her arguments, both oral and written, and do not find substantial merit in them. A recitation of the reasons here would add nothing to the law of our State or to this decision.

The issue resolved by this appeal has nothing to do with the larceny conviction. We, therefore, affirm the judgment adjudicating Mrs. Fisher guilty of larceny.

We reverse the judgment adjudicating her guilty of third degree murder and remand this case for a new trial on this issue.

BOYER and ERVIN, JJ., concur.


text:
    Mary Toole BAILEY, Appellant, v. Oswald Samuel BAILEY, Appellee.
    No. II-383.
    District Court of Appeal of Florida, First District.
    July 20, 1978.
    Rehearing Denied Aug. 24, 1978.

      M. Stephen Turner and Joseph P. Maw-hinney of Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, and Carroll L. McCauley, Panama City, for appellant.
    Robert B. Staats, Panama City, for appel-lee.
   PER CURIAM.

Appellant/wife contends on this appeal that the trial court erred in awarding the custody of the parties’ minor son to the appellee/husband. After careful consideration of the transcript, the briefs, and the oral argument, we have found no abuse of discretion in the trial court’s judgment that the best interests of the child would be served by this award.

We do find merit, however, in the point raised by husband on cross-appeal. He contends that the trial court erred in limiting his use and possession of the marital home to a period of approximately one year. We agree that he as the custodial parent should have the use and possession of the home until the child’s majority or his remarriage. See McNaughton v. McNaughton, 332 So.2d 673 (Fla.3d D.C.A.1976).

The judgment is affirmed in part and reversed in part, and the case remanded for the entry of a judgment consistent with this opinion.

McCORD, C. J., and MILLS and ERVIN, JJ., concur.


author: MELVIN, Judge.

text:
    Luther RICHTER, Appellant, v. CITY OF TALLAHASSEE et al., Appellees.
    No. GG-446.
    District Court of Appeal of Florida, First District.
    July 21, 1978.
    Rehearing Denied Aug. 24, 1978.

      Ben R. Patterson of Patterson & Trayn-ham, Tallahassee, for appellant.
    Bryan W. Henry and James R. English, Tallahassee, for appellees.
   MELVIN, Judge.

Appellant was employed by the City of Tallahassee as a fireman. After a period of years of acceptable service, he was dismissed because of his involvement in the attempt to smuggle ashore 20 to 25,000 pounds of marijuana into the State of Georgia from boats that apparently had brought the contraband in from the ocean.

Upon the charge placed against him, defendant had a hearing before the grievance committee, and that committee concluded that the appellant had been guilty of “conduct below the standard which can reasonably be expected for the position held”, contrary to the provisions of the manual of conduct applicable to the employment which the appellant held. The appellant urges that the charge of which he was found to be guilty is so vague and indefinite that it has no legal meaning and, therefore, the same is unconstitutionally vague.

We note that in the order of the trial court denying petition for writ of certiorari, the court made reference to previous communications from the City to the employee, and also reference to information available to the employee Richter by reason of litigation between the plaintiff Luther Richter and the City of Tallahassee. The trial court took judicial notice of its own records of litigation involving the same parties, which was presently pending before the court and concluded that, from the entirety of the information available to Luther Richter, it could not be said that the notice given to Luther Richter concerning the scheduled hearing for April 1,1976, was so inadequate as to adversely affect his preparation for such hearing.

In denying the petition for writ of certio-rari, the trial court further held that the grievance committee had before it competent substantial evidence to support its findings that the appellant was knowingly and willfully involved in the criminal activity of importing a large quantity of illegal drugs into this country. The record sustains the finding of the trial court that the manner in which the hearing before the grievance committee was conducted complied with the essential requirements of law. The trial court also correctly held that as applied to the case of Luther Richter, Section Q, No. 4, Item J of the Personnel Policies and Procedures Manual of the City of Tallahassee (the item upon which the proceedings of the City of Tallahassee against Luther Richter was based) was not void because of vagueness. The ruling is amply supported by Herzbrun v. Milwaukee County, 504 F.2d 1189 (7th Cir. 1974). In Herzbrun, a county welfare worker had been suspended for sabotaging the telephone system in her office. Removal proceedings against her were bottomed upon the civil service rule that provided:

“ ‘k. [I]s guilty of acts or omissions unbecoming an incumbent of the particular office or position held, which render his suspension, demotion, or discharge necessary or desirable for the economical or efficient conduct of the business of the county or for the best interest of the county government.’ ” (at p. 1192)

In rejecting the challenge that the civil service rule was unconstitutionally vague, the court observed that the employee’s actions were:

. . conduct which any reasonable person must know would be cause for discipline or dismissal from employment whether described in a rule or not. . . ” (at p. 1193)

and concluded that the dismissed employee did not have a standing to challenge the rule for vagueness “. . . in ordinary due process terms”.

In Aiello v. City of Wilmington, Del., 426 F.Supp. 1272 (D.Del. 1976), the court considered the challenged suspension of a fireman. The fireman had been suspended after being arrested on the charge of burglary. The fireman was suspended under a rule that read as follows:

“ ‘169. Under penalty of suspension, fine, overtime, reprimand, or dismissal, every member of the Bureau of Fire is ordered to perform all of the following Rules and Regulations:
* * * * * *
16. To refrain from conduct unbecoming a fireman and a gentleman whether on or off duty.
* * * * * *
23. Be governed by the customary rules of good behavior observed by law-abiding and self-respecting citizens. Regardless of the time or place, whether in uniform or not, members shall conduct themselves in a manner that will not bring discredit to themselves or to the Department.’ ” (at p. 1276)

The court observed that while the regulations complained of might be imprecise, the fireman’s conduct fell:

“. . . [W]ithin the narrow category of acts so egregious that, despite any protestations to the contrary, he could have had no doubt that they were proscribed. . . . ” (at p. 1293)

In Allen v. City of Greensboro, North Carolina, 452 F.2d 489 (4th Cir. 1971), a police officer was demoted upon a showing of his admission that he had made improper advances to a female in the course of an investigation. He challenged the regulation under which he was demoted. The regulation prohibited conduct “ ‘unbecoming an officer and a gentleman’ ”. This regulation was challenged as being so vague as to provide no guidelines to police officers in ascertaining a proper standard of conduct. In rejecting this contention, the Fourth Circuit held: “. . . Without any regulation whatsoever plaintiff’s conduct here could have been properly subjected to departmental disciplinary action.” (Emphasis supplied) (at p. 491)

In Kennett v. Barber, 159 Fla. 81, 31 So.2d 44 (1947), the Supreme Court of Florida considered a challenge to public employer-employee regulations with reference to “conduct unbecoming” or “conduct below the standards of a public employee” clauses in public employment cases. The court, speaking through Mr. Justice Terrell, held at p. 47:

“ ‘Conduct unbecoming an employee’ is not susceptible of a definition that would serve the purpose every time a court is confronted with the charge. There must be some stability to the rule by which it is determined. At the same time it must be fluid enough to accommodate itself to the social aspirations of those who impose it. Perhaps the most delicate task of the juristic craftsman is that of reshaping old rules of law to constant changes in social structure. . . . ”

In Jones v. City of Hialeah, 294 So.2d 686 (Fla. 3d DCA 1974), the court there dealt with the dismissal of a police officer for “conduct unbecoming” a pqlice officer resulting from alleged sexual misconduct with a woman while on duty on or about a stated date. In dismissing the contention that the regulation upon which the officer’s dismissal was based was vague and indefinite, the court stated:

“Nor do we think the provisions of civil service and police rules and regulations with which appellants were accused of violating are so amorphous that men of common intelligence must guess at their meaning. . . . ” (at p. 688)

See also Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla. 3d DCA 1976).

Appellant cites authority for his position in the opinion of the Supreme Court in D’Alemberte v. Anderson, 349 So.2d 164 (Fla. 1977). In D’Alemberte, the Supreme Court found a statute to be unconstitutional that prohibited public employees from accepting . . any gift, favor, or service, of value to the recipient, that would cause a reasonably prudent person to be influenced in the discharge of official duties'.” The court ruled that the language of the statute did not convey a sufficient definition or warning of what was prohibited and, likewise, there was no common usage for the language applied. The court concluded that the statute did not measure conduct but instead attempted to gauge one’s mental processes.

We agree with the able trial judge in his conclusion that under the facts in the case Item J of the Personnel Policies complained of is not void because of vagueness or uncertainty as to meaning.

Any fireman with intelligence enough to recognize the presence of smoke rising from the roof of a building as indicating that the building was ignited would know that if he was found to be involved in the smuggling of marijuana into the United States, he would be subject to dismissal for conduct unbecoming one in his official position.

The order of the trial court denying Petition for Writ of Certiorari is AFFIRMED.

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


author: SMITH, Judge.

text:
    Billy H. SHEPARD, Appellant, v. DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.
    No. II-356.
    District Court of Appeal of Florida, First District.
    July 25, 1978.
    Rehearing Denied Aug. 28, 1978.
    Roderic G. Magie of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Stephen S. Mathues and Nancy G. Lin-nan, Arthur R. Shell, Jr., Tallahassee, for appellee.
   SMITH, Judge.

Shepard, whose employment by the Santa Rosa County sheriff was terminated in February 1977, petitions for review of an order of the Retirement Commission denying him disability retirement benefits. The question before the Commission, was whether Shepard was “totally and permanently disabled,” Section 121.091(4)(a), Florida Statutes (1977), that is to say, whether he was then “prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee.” Section 121.091(4)(b).

Shepard was a 40 year-old deputy sheriff with 2.4 years of creditable service. His employment was terminated because a cervical injury, received in subduing a criminal suspect, made it dangerous for him to engage in physical combat. There was no medical or other evidence suggesting that Shepard was, in the ordinary sense of the words, “totally and permanently disabled.” Though Shepard was disabled to perform the particular combative duties to which he had previously been assigned, he remains able to perform other duties of public employment within the Retirement System. That his particular employer required all employees to perform combat duties does not qualify Shepard for disability retirement benefits. It is not his physical condition but his former employer’s job description which prevents Shepard from rendering useful and efficient service in that employment.

Reversal of the Retirement Commission’s decision would result in Shepard receiving disability benefits while remaining eligible for other employment as an “officer or employee” member of the Retirement System. Thus, while earning a salary for other useful and efficient service, thereby gaining additional years of creditable service toward another pension from the same system, Shepard would be paid benefits as one disabled. We will not attribute such a purpose to the legislature. An applicant for disability retirement benefits need not prove that his medically determinable disability prevents him from undertaking the most menial or insignificant job within the system far distant from his home; but Shepard, having no medically determinable disability rendering him unfit for decent work available to one of his qualifications at a reasonably convenient place, does not qualify for these extraordinary benefits. See Amico v. Division of Retirement, 352 So.2d 556 (Fla. 1st DCA 1977).

AFFIRMED.

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


text:
    CITY OF JACKSONVILLE, a municipal corporation, and the Travelers Insurance Company, a corporation, Appellants, v. Virginia J. FRANCO, as Administratrix of the Estate of Maurice Charles Franco, Jr., Deceased and Seaboard Coast Line Railroad Company, a corporation, Appellees. SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. CITY OF JACKSONVILLE and Travelers Insurance Company, Appellees.
    Nos. EE-488, EE-499.
    District Court of Appeal of Florida, First District.
    Aug. 2, 1978.
    Rehearing Denied Aug. 28, 1978.

      George Stelljes, Jr., of Marks, Gray, Con-roy & Gibbs, Jacksonville, for City of Jacksonville.
    William C. Gentry, Joseph P. Milton, Jacksonville, Hugh C. Griffin of Lord, Bis-sell & Brook, Chicago, Ill., E. Dale Joyner of Toole, Taylor, Moseley, Milton & Joyner, Jacksonville, for Virginia J. Franco et al.
    E. Dale Joyner of Toole, Taylor, Moseley, Milton & Joyner, Jacksonville, Hugh C. Griffin of Lord, Bissell & Brook, Chicago, Ill., for Seaboard Coastline R. Co.
   MELVIN, Judge.

Defendant-appellant, the City of Jacksonville, and the defendant, appellee and cross-appellant Seaboard Coast Line Railroad Company appeal from final judgments entered against them in litigation that arose out of a collision between an automobile driven by plaintiff’s decedent, Maurice Charles Franco, Jr., and a Seaboard train at a crossing near the intersection of Lane Avenue and Beaver Street in the City of Jacksonville, Florida. The appellant, City of Jacksonville, seeks to reverse an indemnity judgment entered in favor of Seaboard Coast Line Railroad for a portion of plaintiff’s judgment, and the appellee and cross-appellant Seaboard Coast Line Railroad Company seeks reversal of a judgment entered by the trial court, the effect of which was to refuse to grant to the railroad full indemnity from the City for the total amount of plaintiff’s judgment. These cases have been consolidated for the purpose of appellate review. Plaintiff Franco’s judgment is not here for review.

At all times material, the City of Jacksonville and Duval County were merged into a single governmental unit. The City of Jacksonville will be referred to as the City and Seaboard Coast Line Railroad Company will be referred to as Seaboard. Plaintiff and her decedent will be referred to as Franco.

Franco sued Seaboard alleging that it was negligent in the maintenance of the crossing and the operation of its train at the time and place of the accident. Seaboard filed a third party complaint against the City alleging that if the accident was due to any cause other than decedent’s own negligence, it was caused by the City’s failure to abide by its contractual obligation with Seaboard to maintain its traffic signal and traffic signal interconnection system at the Lane-Beaver intersection and alleged further that said indemnity contract obligated the City to indemnify Seaboard from all liability and damage that was a result of the accident.

Franco filed a separate cause of action against the City alleging that the City’s traffic signal interconnection system at the Lane and Beaver intersection did not operate so as to allow northbound motor vehicular traffic on Lane Avenue time to clear the tracks when the railroad signals were activated, all of which forced Franco to stop on the tracks. It was established that he was faced with and trapped by a red light blocking him and the cars ahead of him on Lane Avenue from entering the Beaver Street intersection.

Beaver Street and Seaboard tracks, separated by a distance of 40 feet, run in an east-west direction and Lane Avenue runs in a north-south direction across the tracks to intersect Beaver Street.

The record reveals that by reason of an indemnity agreement entered into between the City and Seaboard, Seaboard allowed the City to connect a traffic signal interconnection system controlling the City’s traffic light at the Lane Avenue-Beaver Street intersection to Seaboard’s warning system so that when an approaching train would activate Seaboard’s flashing red lights and bells at the crossing warning of the train’s approach, the City’s interconnect system would also cause the traffic light at said intersection to turn to and remain green, thus guaranteeing track clearance of traffic going north on Lane Avenue. Some years before this tragic accident, a city engineer decided to disconnect this interconnect system located within the traffic control box owned by the City and such system was not thereafter reconnected. This action was known by other responsible traffic engineers of the City and County. When this accident occurred, the railroad crossing was protected by flashing lights, warning bells and gates, all in conformity with maximum safety regulations. All such safety warning signals were operating in proper fashion. The record further reflects that the train had its headlights on and its whistle was blowing. The speed of the train was within the range set for that area.

Following a lengthy trial, the jury returned its verdict in the sum of $171,000 for the plaintiff individually and the sum of $25,000 for the decedent’s estate. The verdict further found that the conduct of plaintiff’s decedent amounted to two percent of the total negligence that was the legal cause of the accident. The verdict was against both the City and Seaboard and found that 90 percent of the total negligence was caused by the City and eight percent was caused by Seaboard. The trial court then entered a judgment against the City and Seaboard for $196,000 and submitted to the jury the third party contract indemnity claim of Seaboard against the City. The jury returned its separate verdict on such claim finding that Seaboard was not entitled to indemnity for the entire amount of the judgment, but that it was entitled to be indemnified “to the extent that the negligence of the City of Jacksonville contributed to the decedent’s death”. As between the City and Seaboard, that amounted to 90 percent of the total negligence involved.

The trial court, based upon such verdict, entered judgment in favor of Seaboard and against the City for an amount in excess of $15,680 (eight percent of $196,000) which Seaboard may pay to Franco by reason of the stated total judgment entered against the City and Seaboard.

The issues of merit presented here are whether Seaboard is entitled to contractual indemnity from the City for the entire amount of the judgment against it or whether such contractual indemnity is limited to the amount of the judgment attributable solely to the City’s negligence and breach of contract.

The indemnity contract entered into between The City and Seaboard provides:

“6. Railroad shall have no responsibility or liability for any loss of life or injury to person, or loss of or damage to property, growing out of or arising from the irregular operation of the traffic signals of County and/or the railroad train approach warning signals resulting from or in any manner attributable to the interconnection of County’s traffic signals with the said railroad train approach warning signals, and County insofar as it lawfully may, agrees to indemnify and save Railroad harmless from all such loss, injury or damage; PROVIDED, HOWEVER, AND IT IS DISTINCTLY UNDERSTOOD AND AGREED that the provisions of this article shall have no application to any loss, injury or damage growing out of or resulting from the failure or improper operation of the railroad train approach warning signals when such failure or improper operation is not attributable to the presence or existence of County’s interconnection with the warning signals of the Railroad; it being the intention of the parties that Railroad shall have and assume the same responsibilities and obligations with respect to the railroad train approach warning signals and the operation thereof that it had prior to the installation of the interconnection of County’s traffic signals with said railroad train approach warning signals and no others, and that County shall have and assume sole responsibility for its interconnection with the said railroad train approach warning signal and the operation or functioning thereof.” (Emphasis supplied)

It is our view that this indemnity contract is written in “clear and unequivocal language” and was so worded as to place with the City the sole responsibility for any and all damages arising out of or attributable to the irregular operation of the traffic signals by the county that resulted from or was in any way attributable to the interconnection of the county’s traffic signals with the Seaboard approach warning signals. See Leonard L. Farber Company, Inc. v. Jaksch, 335 So.2d 847 (Fla.4th DCA 1976). The indemnity contract did not reveal an intention to indemnify Seaboard as to an injury or damage arising solely from its own negligence. Thus, it is that if the jury concluded that Seaboard was, in the degree of negligence assigned to it, derelict in not taking some action to require the City to conform to its contract and to keep the City’s warning interconnect system in operational order, or because of some other kindred type logic, we note that such nonaction related to, and was directly attributable to, the failure of the City to maintain the interconnect warning system in accordance with its contract. This tragedy was a direct outgrowth of the action of the city engineer in disconnecting from the City’s traffic control box the interconnect warning system and the failure of the City over a period of years to cause the same to be reconnected. The City failed in its duty to protect northbound traffic on Lane Avenue against a traffic trap which the interconnect warning system was designed to prevent.

We hold that by its indemnity contract the City had obligated itself to pay or indemnify Seaboard for the total sum of the judgment, regardless of indemnitee’s contributing negligence, if any there be. The parties have so contracted. The contract is to be abided by. See also Springs Lock Scaffolding, etc. v. Chas. Poe Masonry, Inc., 358 So.2d 84 (Fla.3d DCA 1978).

■ The final judgment for partial indemnity entered for Seaboard is hereby REVERSED with directions to enter an indemnity judgment in favor of Seaboard for the total amount of its judgment exposure to Franco.

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


text:
    Earl M. ALEXANDER, Appellant, v. GATEWAY INSURANCE COMPANY, Paul Rice, Jr., American Mutual Insurance Company of Boston and American Mutual Liability Insurance Company, Appellees.
    No. 77-854.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.
    John W. Boult, Tampa, for appellant.
    William M. Schneikart, of Miller, McKen-dree & Somers, Tampa, for appellees.
   PER CURIAM.

Affirmed. See Johnson v. Government Employees Insurance Co., 333 So.2d 542 (Fla.3d DCA 1976).

GRIMES, C. J., and HOBSON and DAN-AHY, JJ., concur.


author: SCHEB, Acting Chief Judge.

text:
    Barbara L. DOUGLAS, Appellant, v. John H. DOUGLAS, Appellee.
    No. 77-1691.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.
    Rehearing Denied Aug. 23, 1978.

      George N. Meros and John M. Edman, of Meros, Coit, Edman & Meros, St. Peters-burg, for appellant.
    Wayne O. Smith, of Wallace & Smith, St. Petersburg, for appellee.
   SCHEB, Acting Chief Judge.

Appellant wife challenges the financial provisions of the final judgment of dissolution of marriage. We focus primarily upon her contention that the trial court erred in failing to award her periodic permanent alimony.

In Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975), we held that when a long-term marriage is dissolved, a wife, if she demonstrates a need, is eligible to receive permanent (and not merely rehabilitative) alimony from a husband who has the demonstrated ability to pay. Here, as in Lash, we hold the trial court’s failure to award permanent alimony was an abuse of discretion.

The Douglases were married in 1951. At the time of the final hearing husband was 46; wife 44. Wife testified that she has a degenerative disc in her back that causes some health problems; husband apparently enjoys good health.

The parties have four children, two of whom are grown. The two minor children, a 15-year-old daughter and a 12-year-old son, have some degree of learning disabilities which require professional attention. The daughter attends public school, but receives psychological counseling on the side. The son attends a special school which apparently caters to children with special educational needs.

During the marriage the parties maintained a high standard of living. They belonged to two country clubs, entertained often and traveled extensively.

Husband, a college graduate, is an officer and director of an automobile dealership in St. Petersburg, and receives a base salary of $28,800 per year. He receives substantial fringe benefits which include hospitalization insurance, use of a car, pension benefits, etc. In addition, he owns 18% of the dealership, a source from which he receives substantial profits. In 1976 he reported a total income of $104,000. However, husband’s testimony and that of the other stockholder in the dealership indicated the profits from the business declined during the first half of 1977, and could not be expected to produce such profits in the future.

During the litigation husband submitted a financial affidavit showing a net worth of $150,000; however, several months before he had submitted a financial statement to a bank reflecting a net worth of approximately $450,000. While husband’s actual net worth is somewhat unclear, his assets coupled with his income demonstrate a sufficient ability on his part to pay permanent alimony.

The wife, in contrast, has been a homemaker since the first child was born a few years after the marriage. She attended college for one year, and currently holds a license to sell real estate. She has apparently done some modeling in the past, but has never realized any substantial income from her various avocations.

At the time of the final hearing husband and wife jointly owned the marital home and a condominium. The home had an appraised value of $45,000, but was encumbered by a mortgage of some $11,000. The condominium had been appraised at $52,000, but was subject to a $39,000 mortgage. They also jointly owned a one-third interest in twenty acres of unimproved real estate in Lee County, the value of which is not determinable from the record. Wife’s only other assets were her car (which was heavily encumbered), a small amount of stock, and her interest in the furniture of the home and condominium.

In the final judgment of dissolution the wife was awarded the husband’s interest in the marital home and a pick-up truck as lump-sum alimony. Husband was ordered to pay $550 per month for three years to wife as rehabilitative alimony. As mentioned previously, no periodic permanent alimony was awarded.

The judgment granted the wife custody of the two minor children, and ordered husband to pay $200 per month child support for each child. Husband was also ordered to pay the children’s medical and dental expenses, as well as the cost of their special schooling and counseling. Finally, husband was required to maintain insurance on his life with the two minor children as beneficiaries until they attain their majority.

Wife is dissatisfied with the financial provisions of the judgment. She contends the child support and lump-sum alimony awards were both inadequate, and that the trial court should have granted her periodic permanent alimony. Wife’s contentions all fall within an area where the trial judge has a great deal of discretion, and we think that except for its failure to award periodic permanent alimony the trial court’s rulings were within the bounds of permissible discretion. These awards must, therefore, be affirmed. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). However, we agree with wife that the trial court should have awarded her permanent alimony.

The facts of Lash v. Lash, supra, are quite similar to those of this case. There the parties had been married for 26 years, and their only child was grown. Their only substantial asset was their home, in which they had an equity of between $35,000 and $40,000. The wife was 44 years old, and had little training past high school. She had some physical complaints, and had never earned a substantial amount during the marriage. The husband was an executive earning $29,000 per year. Under these circumstances we held that the trial court erred in not awarding the wife permanent alimony. We recognized that marital partners are to be treated on an equal basis; however, we noted that in a long-term marriage the trial court should consider the extent to which the wife has sacrificed her opportunity to pursue a career in order to care for the home and family, thereby aiding the husband in advancement of his career. We further recognized that the career opportunities for a woman in her forties who has been a homemaker all her married life are not nearly as promising as those of a man of comparable age who has been involved in a business career. Under similar factual situations other district courts of appeal have utilized similar reasoning. See, e. g., Hawkesworth v. Hawkesworth, 345 So.2d 359 (Fla. 3d DCA 1977); Palmer v. Palmer, 338 So.2d 86 (Fla. 1st DCA 1976); Yohem v. Yohem, 324 So.2d 160 (Fla. 4th DCA 1975).

Only recently we reiterated the holding of Lash in Messer v. Messer, 342 So.2d 1076 (Fla. 2d DCA 1977), where the parties had been married for 31 years. There the husband was a successful physician with a substantial income and a sizable net worth. The wife had been a homemaker for most of the marriage, though she had been trained as a nurse. While emphasizing the wife’s need for permanent alimony we noted, “[E]ven if she rehabilitates herself as a nurse her standard of living obviously, on this record, cannot rise to that of a successful physician’s wife.” 342 So.2d at 1077.

In the instant case the wife’s financial outlook somewhat parallels that of the wife in Lash. Additionally, the wife in the instant case bears the primary responsibility of caring for two teenage children. Even if the wife were to successfully re-enter the job market, she could not hope to support herself in anywhere near the manner she has become accustomed to during the marriage. Of course, if husband’s ability to pay were to be reduced or if wife were to become able to adequately support herself, husband would be entitled to petition the trial court for modification. Section 61.14, Florida Statutes (1975); Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973).

The trial court’s award of rehabilitative alimony is reversed, and this cause is remanded with directions that the court enter an adequate award of periodic permanent alimony in accordance with the principles set forth herein. In all other respects, the judgment is affirmed.

RYDER and DANAHY, JJ., concur.


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. David W. DALBY, Appellee.
    No. 77-1563.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender and Michael C. Cheek, Sp. Asst. Public Defender, Clearwater, for appellee.
   RYDER, Judge.

Section 810.02, Florida Statutes (1977) defines burglary as “entering or remaining in a structure or a conveyance with the intent to commit an offense therein . ” This case presents the novel question of whether the State may charge a defendant with burglary of a conveyance when the offense referred to in the statute is the grand larceny of the same conveyance. After long and careful consideration of this question, we have decided that the answer thereto is yes.

On July 21,1977, the State filed an information in which it is alleged that appellee unlawfully entered a vehicle with intent to commit grand larceny in violation of Section 810.02. Subsequently appellee filed a motion to dismiss in which he alleged that the grand larceny mentioned in the information was grand larceny of the sariie vehicle which he supposedly burglarized. The State failed to traverse the motion, thereby admitting this allegation.

At the hearing on the motion, appellee argued that the word “therein” in Section 810.02 required that the offense which a person has the intent to commit must be capable of being committed within the vehicle. He also argued that it was impossible to commit the offense of grand larceny of a conveyance from within that conveyance since larceny requires asportation of the entire vehicle. The trial court agreed with appellee and dismissed the information.

We believe the court’s ruling was erroneous. While we agree that the word “therein” requires that the offense must be capable of being committed within the vehicle, we also think that a defendant can commit grand larceny of a vehicle in this fashion. The fact that the entire vehicle must move for the larceny to occur is irrelevant. It is not the vehicle which is committing the crime but rather the defendant, and the defendant causes the movement of the vehicle by sitting within the vehicle’s passenger compartment and pressing the accelerator.

Appellee contends that even if we cannot accept the trial court’s ruling, we should affirm the result contained therein because the legislature did not intend for Section 810.02 to cover the factual situation presented by this case. We reject this argument. In Thayer v. State, 335 So.2d 815, 817 (1976), the supreme court said,

“The law clearly requires that the legislative intent be determined primarily from the language of the statute because a statute is to be taken, construed and applied in the form enacted. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918); Vocelle v. Knight Bros. Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960). The reason for this rule is that the Legislature must be assumed to know the meaning of words and to have expressed its intent by the use of the words found in the statute.”

Here there is no ambiguity in the language of the statute. Burglary occurs when there is entering with intent to commit any offense. Consequently, we must assume that the legislature intended for a person to be guilty of burglary of a conveyance when he enters the conveyance with the intent to steal it.

In view of what we have said, we reversed the order granting the motion to dismiss and remand the case for proceedings consistent with this opinion.

GRIMES, C. J., and SCHEB, J., concur.

      . As far as we are able to discern from our research, no court in this state or in any of our sister states has ever faced this issue.


author: PER CURIAM. McCORD, Chief Judge,

text:
    STATE of Florida, Appellant, v. Alva Wesley COLEMAN, Appellee.
    No. JJ-140.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1978.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellant.
    John Paul Howard, Jacksonville, for ap-pellee.
   PER CURIAM.

By this interlocutory appeal, the State seeks review of an order of the trial court granting a motion to suppress filed by the defendant, who was charged with possession of a firearm by a convicted felon contrary to F.S. 790.23.

The facts are not in dispute. While investigating a report that two men had pushed another through the plate glass window of a neighboring establishment, officer Eddy, in the company of two other officers, entered the Dutch Inn Tavern. Officer Eddy found a five dollar bill on the floor on the patrons’ side of the bar. The defendant, who was the bartender and who was in charge of the establishment, claimed ownership. The officer insisted on taking the bill to the police property room. Although voices were raised in a loud debate there were no threats nor overt movements by either the bartender or the officer. Then the officer walked to the end of the bar to an open space which was the entrance to the area occupied by the bartender behind the bar. As he entered the open space at the end of the bar the bartender (defendant) took a long stride toward a drawer in the wall behind him (as distinguished from the customer bar, which was in front of the defendant). The officer grabbed the hand of the defendant and did not permit him to open the drawer. Holding the defendant’s arm, the officer opened the drawer himself and there found, among other things, a pistol in a holster. He asked the defendant “are you a convicted felon?” to which the defendant responded affirmatively. Appellant was then arrested on a charge of possession of a firearm by a convicted felon. After the arrest the officer gave defendant his Miranda warnings. The officer testified that until he was told by defendant that he was a convicted felon he (the officer) had not planned to place him under arrest because he had violated no law to his knowledge.

The record reveals no valid reason for the officer having attempted to enter the private area occupied by the defendant behind the bar. The officer, by his own testimony, admitted that he had no reason to believe that any law was being violated or had been violated in the tavern nor by the defendant. The officer’s presence in the tavern was to investigate an episode which had occurred next door.

The learned trial judge explained his order of suppression in a thorough and well reasoned written order in which he cited cases from this court, the Supreme Court of Florida and the Supreme Court of the United States. The record and the law support his conclusion.

AFFIRMED.

BOYER and MILLS, JJ., concur.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissenting.

In my view, the search was reasonable and suppression of the evidence was, therefore, error. The evidence shows that before Officer Eddy went to the open area at the end of the bar, he and appellee had raised their voices in argument over the five dollar bill. The officer went to the end of the bar to discuss the matter quietly out of the hearing of the bar’s patrons. When he did this, appellant took a long stride to open a drawer under the cash register. To protect himself, the officer then restrained appellant from opening the drawer and opened it. himself, revealing the pistol which appellant was apparently trying to obtain. The search was for the officer’s protection and entirely reasonable. Under these circumstances, it was as reasonable to search the drawer as it would have been to search appellant’s person had he made a move for his pocket in such manner as to give the appearance that he was going for a weapon.


text:
    Averil POWELL, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2364.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Pickman v. State, 155 So.2d 646 (Fla. 3d DCA 1963).


text:
    The STATE of Florida, Appellant, v. Daisy Ruth MAYCOCK, Appellee.
    No. 77-2527.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.

      Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, G. P. Della Fera and Paul Morris, Asst. Public Defenders, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

The defendant filed a motion entitled “Motion to Dismiss” by which she sought an order dismissing count two of the charges against her upon the basis that “ . the Information in Count II fails to state a crime.” At the hearing on this motion, the defendant was allowed to file an affidavit which purported to proceed under Fla.R. Crim.P. 3.190(c)(4). The court then determined the factual basis for defendant’s position that the State was estopped to prosecute her for the particular crime charged in count two and, thereafter, the judge entered an order dismissing count two of the information.

We hold that this proceeding was too informal in that it did not give the State an opportunity to traverse the matters of fact alleged in the affidavit. The procedure set out in Fla.R.Crim.P. 3.190(c)(4) is a distinct remedy and in order to avoid results which are not supported by the record, the rule must be followed in particularity. Cf. the rule in Weinstein v. General Accident Fire & Life Assurance Company Limited, 141 So.2d 318, 321-322 (Fla. 1st DCA 1962). Therefore, the order dismissing count two is reversed without prejudice to the plaintiff to proceed under Rule 3.190(c)(4), if such is applicable.

Reversed and remanded.


text:
    Leotis THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-63.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 1978.
    Bennett H. Brummer, Public Defender and Elliott H. Scherker, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Hines v. State, 358 So.2d 183 (Fla.1978).


author: BOYER, Judge.

text:
    Hugh B. C. FORRESTER, Petitioner, v. CAREER SERVICE COMMISSION of Florida, and the Florida Department of Health and Rehabilitative Services, Respondent.
    No. GG-189.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1978.
    Jerry G. Traynham, of Patterson & Traynham, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen, and David J. Baron, David K. Miller, Asst. Attys. Gen., Douglas E. Whitney, Tallahassee, and Anthony N. DeLuccia, Jr., Ft. Myers, for appellee.
   BOYER, Judge.

Petitioner seeks review of a decision of the Career Service Commission upholding his dismissal from employment by the Department of Health and Rehabilitative Services.

Petitioner raises as error the Commission’s practice of rendering a final order at the conclusion of a hearing without allowing the parties to submit proposed findings of fact and orders.

Pursuant to F.S. 120.57, a party has the right to raise pertinent factual issues for administrative determination, to submit proposed findings on those issues and to receive a ruling on each pertinent proposed finding. See Stuckey’s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119, 120 (Fla. 1st DCA 1976). However, in so holding we stress that an agency head is not required to make explicit rulings on subordinate, cumulative, immaterial or unnecessary proposed facts. Those proposed findings which fall in such a category may be rejected by a simple statement that they are immaterial or irrelevant. Nor is a party entitled to more than a reasonable period of time within which to make such submissions. If the time permitted is not so short as to violate the spirit of the statute or to deny due process under the circumstances of the particular case it will not be disturbed on review here.

The other points raised by petitioner are without merit and will not be discussed.

Therefore, without regards to the merits of petitioner’s dismissal, this court relinquishes jurisdiction for a short but reasonable period of time (but not in excess of thirty days) so that the Commission may comply with the statute and this opinion. See Perry v. Career Service Commission, 351 So.2d 730 (Fla. 1st DCA 1977).

It is so ordered.

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