author: PEARSON, Judge.

text:
    SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Florida Audubon Society and Tropical Audubon Society, Inc., Appellants, v. Nat RATNER, Appellee.
    Nos. 77-479, 77-488 and 77-511.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 19, 1978.

      Thomas J. Schwartz, Robert Grafton and Stephen A. Walker, West Palm Beach, Fleming & Neuman, Miami, for appellants.
    Horton, Perse & Ginsberg, A. Jay Cristol and Steven Mishan, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

These appeals are from a single order entitled “Amended Summary Judgment and Order on Motion for Summary Judgment.” The appellants are the Central and Southern Florida Flood Control District, the Tropical Audubon Society, Inc., and the Florida Audubon Society. The District was the defendant and the Societies were granted leave by the trial court to intervene as parties defendant. The result of the partial summary judgment appealed is that the District must provide the appellee, plaintiff Nat Ratner, with a means of access to his lands. The operative portion of the order is as follows:

“1. Plaintiff’s Motion for Partial Summary Judgment as to its demand that Defendant provide him with reasonable access to his property be and the same is hereby granted, and the Defendant is hereby directed to provide at its own expense and as quickly as possible, a means of access to the RATNER LAND, spanning Levee L-30 and L-30 Borrow Canal, such means to be sufficient to enable Plaintiff to engage in those activities which are specifically reserved to him in the EASEMENT DEEDS at such time as he may be authorized to exercise them in accordance with the provisions of said EASEMENT DEEDS. Plaintiff shall not be required to request or obtain a permit to make use of the RATNER LAND, or any part thereof, prior to, or as a condition precedent to, Defendant’s being required to fulfill its obligation to provide access to Plaintiff pursuant to this Judgment. The Court reserves and retains jurisdiction over this cause in order to determine the question of the adequacy of such access, if the parties hereto are unable to reach an amicable agreement as to the method and type of access to be provided by the Defendant and the time within which such access shall be provided, and to determine such other issues as may properly be brought before the Court.
“2. Defendant’s Motion for Summary Judgment as to the reversion of the easement is granted.”

During the latter part of 1950 and January, 1951, the Central and Southern Flood Control District entered into certain easement agreements or flood contracts with Ratner’s predecessors in title. At the time, the subject property had been platted. The easement agreements, prepared by the District, gave the District the right to construct, operate and maintain a project in the interest of flood control, reclamation and conservation on the lands owned in fee by the grantors. These Flood Easement Deeds provide that the District had the right, inter alia, to the:

“. . . use and easement in and to the lands hereinafter described for any and all purposes necessary to the construction, maintenance and operation of any project in the interest of flood control, reclamation, conservation and allied purposes now or that may hereafter be conducted by the Grantee herein, its successors [the South Florida Water Management District], or assigns, including the right to permanently or intermittently flood all or any part of the area covered hereby as a result of the said construction, maintenance, or operation, in carrying out the purposes and intents of the statutes of the State of Florida relating to Central and Southern Florida Flood Control District [now the South Florida Water Management District] presently existing or that may be enacted in the future pertaining thereto. Any part of the whole thereof of the right, privilege, use and easement herein granted may be assigned for the public purposes contemplated herein by the grantee [South Florida Water Management District] at its own option and sound discretion without approval of the grantor herein.”

The grantors retained substantial rights in and to their property which were enumerated in the documents:

“It is specifically understood and agreed that the foregoing grant of the uses, rights and privileges aforesaid shall in no wise prohibit or interfere with the right of the parties of the first part (the plaintiff’s predecessors in interest), their heirs, administrators, assigns or lessees, to: (a) lease or conduct operations on the premises herein described, for the exploration or drilling for, or the developing, producing, storing, or removing of oil, gas or other minerals in or under the aforesaid premises, (b) remove topsoil, muck, etc., from the surface, (c) make such further use as will not conflict with the purposes for which this grant is given.”

The foregoing provisions in each of the Easement Deeds are followed by the following reservation of rights to the grantor:

“To exercise these rights, [(a), (b) and (c) above], the Grantor (plaintiff’s predecessor in interest), their heirs, administrators, assigns or lessees, and agents and employees, shall have such right of ingress and egress to and from said lands as may be necessary.
“It being further specifically understood and agreed that the rights retained under the provisions of this paragraph shall be exercised by the Grantor, their heirs, administrators, assigns or lessees, subject to any reasonable rules and regulations which the Governing Board of Flood Control District may prescribe for the efficient maintenance and operation of a public project in the interest of flood control reclamation, conservation and allied purposes, but which shall permit the reserved rights to exercise so that oil, gas and minerals may be developed, extracted and removed from the District in accordance with sound engineering principles.”

Beginning in 1952, the District under its rights granted in the easement agreements constructed a system of levees and borrow canals which virtually surrounded the Rat-ner land. Levee 30 and Borrow Canal 30 physically separate the Ratner land from other lands to. the east and from Krome Avenue. Levee 30 has an average height of approximately thirteen feet above natural ground level and has a width of some seventy feet. The adjacent borrow canal is approximately eighty feet in width and twenty feet deep. The system of levees and canals in which the Ratner land is located is known as Conservation Area 3, which is divided into Areas 3A and 3B. Area 3B lies west of Levee 30 and is the site designated for the development of the South Florida Airport Site (Jetport).

In February and March, 1972, Ratner purchased the subject property. Prior to purchase, Ratner visited the property traveling over Levees 30 and 67A by car. Access across Levee 30 Borrow Canal was possible by existing culvert rock crossings spanning the canal located north and south of the Ratner property.

Shortly after Ratner’s purchase of the property, the District erected locked gates across the access points leading to the levees and crossings of canals. The District issued keys to the gates to those persons approved by the staff or governing board under “district policy.” Ratner applied for a key to the gates leading to the levees (30, 67-A and 67-C) to gain access to his land.' The District denied Ratner’s application for a key. Thereafter, Ratner appeared before the governing board and demanded the access to his lands which had been guaranteed in the easement agreements. Again, the District denied Ratner the right of access, although conceding that Ratner could, at his own expense, construct a bridge.

The trial judge made the following findings:

“6. Subsequent to the dates on which the EASEMENT DEEDS were executed, in approximately 1952, the Defendant commenced excavation work on the RAT-NER LAND, and on other lands contiguous and adjacent thereto. The result of the excavation work was the creation of a series of levees and canals including Levee L-30 and L-30 Borrow Canal. The levees and canals virtually surround the RATNER LAND.
“7. That proper demand for access to his property has been made by Plaintiff to Defendant; and that with regard to access the only issue to be determined by this Court is who is to bear the expense of overcoming the obstruction to access to the Ratner property resulting from the creation of Levee L-30 and L-30 Borrow Canal.
“8. The Affidavits of DALY and KATHRYN HIGHLEYMAN, Plaintiff’s predecessors in interest and the original Grantors of one of the Easement Deeds offered by the Plaintiff in support of his Motion for Summary Judgment reflects that it was the intention of the Grantors at the time the EASEMENT DEEDS were granted that if the Defendant ever built any canals and levees, or took any other action which would impede or interfere with the right of access which had been promised to the Grantors in the EASEMENT DEEDS, the Defendant would provide, at its own expense, a means of overcoming the obstacle to access which it had created, otherwise they would not have given the EASEMENT DEEDS to the Defendant. Under the express terms of the easement grants the benefits of the retained rights flow to the successors and assigns of the Grantors. Plaintiff is such a successor. This affidavit is unrefuted by the Defendant.
“9. The affidavit of the Plaintiff states that at the time he purchased the RATNER LAND he was aware of the language in the EASEMENT DEEDS which instruments were prepared by or on behalf of the Defendant, stating that the use of the easement granted therein would in no way prohibit or interfere with Plaintiff’s use of the land for the purposes stated in the Deeds and the language granting the right of ingress and egress to and from the property, and Plaintiff strongly relied on said language in determining to purchase the property. This statement under oath by Plaintiff is not refuted by the Defendant.”

At oral argument, it was suggested that the circuit court was without jurisdiction to enter the mandatory injunction order requiring the District to construct a bridge. See State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977). The record in this case does not support the assertion that administrative remedies were available and adequate.

The trial court stated in its findings (paragraph “7,” supra) that . . the only issue to be determined by this Court is who is to bear the expense of overcoming the obstruction to access . . The District has met this issue in its brief by a point maintaining that the proper construction of the instruments themselves makes it clear that the grantors and their successors (plaintiff Ratner) must bear the cost of exercising rights reserved to the servient estate. There is logic to this argument and it might well prevail in an ordinary case. The instant case is distinguished by the fact that the District has created the impediment to the exercise of the right reserved. We find no error upon the court’s decision that the District must pay for a reasonable exercise of the reserved rights.

The only remaining question is whether the circuit court lawfully required the District to construct a particular bridge for Mr. Ratner at a particular time and place. The circuit court having jurisdiction of the dispute and having determined that Mr. Ratner had a right of access for the purposes set forth in the reservation, had jurisdiction to proceed to a settlement of the controversy and to enforce its order. See City of Miami v. Keton, 115 So.2d 547 (Fla.1959). Nevertheless, it is apparent that the land owner is entitled to access but not to a particular bridge. He owns lands within the flood control areas which are not contiguous.

If Mr. Ratner is entitled to a bridge, does it follow that each of the other land owners in the flood control area is entitled to a bridge? If the question is answered in the affirmative, is Mr. Ratner entitled to a bridge for each area in which he has reserved rights? These questions arise from the appellee Societies’ brief, contending that summary judgment was not proper because there existed genuine questions of material fact. Affidavits submitted by the District claim that it is not necessary to provide the type of access sought by Rat-ner’s complaint and that access is possible without the bridge. It is pointed out that Mr. Ratner has not shown that he is in any way attempting to engage in any use which requires a particular access.

The objection is well taken. The complaint, in four counts, alleged that the District had failed “. . . to provide Plaintiff with a reasonable method of obtaining access to his property . . .” The prayer of Count 1 sought an order enjoining the District from interfering with the plaintiff’s right of ingress and egress to his land, and . requiring the Defendant to provide the Plaintiff with reasonable access . . [Emphasis supplied] Count 2 sought a rescission of the flood control contracts. Count 3 sought a declaration of a common law “way of necessity.” Count 4 sought a declaration that the Ratner lands were not within the “required area” and should be excluded from the flood control area. It is readily seen that the trial court has gone well beyond the relief requested. A review of the record convinces us that the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, do not support the full extent of the relief granted. Cf. Wells v. Thomas, 89 So.2d 259 (Fla.1956).

We have considered the other points raised by the parties and hold that none presents reversible error.

We, therefore, affirm the judgment entered so far as it determines plaintiff’s rights to reasonable access, and the District’s obligation to provide that access. We reverse that portion of the judgment which requires the District to provide a bridge at a certain time and place. We remand the cause for further proceedings in accordance with the views herein expressed and with directions that the court consider the necessity for action by the District to provide access to all owners when it has been demonstrated to the court that there is a need for that access.

Affirmed in part, reversed in part and remanded with directions.

      . Now known as the South Florida Water Management District.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    Jerry WOOD, Appellant, v. STATE of Florida, Appellee.
    No. HH-49.
    District Court of Appeal of Florida, First District.
    April 21, 1978.

      Judith J. Dougherty, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

Wood appeals from a judgment and sentence of the Leon County Circuit Court, entered on his plea of guilty to a charge of possession of cocaine. Section 893.13(l)(e), Florida Statutes (1977). The issue is whether the five-year sentence was lawfully made to run consecutively with a five-year sentence Wood was then serving as a result of his conviction for willfully failing to appear for proceedings in this very case, after having been admitted to bail. Section 843.15, Florida Statutes (1977). We find that the State Attorney violated his plea bargain agreement to recommend a concurrent sentence, that Wood’s guilty plea was vitiated, and that the trial court was without authority to impose a consecutive sentence without first having given Wood an opportunity to withdraw his plea.

After plea discussions between Assistant Public Defender Judith Dougherty, Wood’s counsel, and Assistant State Attorney James White, Wood appeared before Judge Miner on June 13, 1977, to offer a plea of guilty “with the understanding that there will be a joint recommendation by the State and Defense that the time given on this charge would run concurrently” with his sentence for willful failure to appear. Mr. White confirmed that recommendation in behalf of the state. Judge Miner accepted the plea after inquiring:

THE COURT: You understand that while the Court puts considerable weight on the recommendations of counsel, there is nothing in the law that requires it to follow those recommendations. Do you understand that?
MR. WOOD: Yes, sir.
THE COURT: It is totally a matter for the prerogative of the Court.
MR. WOOD: I understand.
THE COURT: And with that understanding, this is what you wish to do?
MR. WOOD: Yes, sir.

The court then ordered a presentence investigation and directed Mr. Mercer, a parole and probation officer who was present, to provide a report within three weeks.

On June 29, parole and probation officer Fred Ingley completed a two-part report of his presentence investigation. His six-page report of “factual material” was disclosed by the court to Wood and his counsel; his five-page “confidential evaluation” was not. Fla.R.Crim.P. 3.713(a), (b). Mr. Ingley’s factual report included the following representations concerning recommendations by court and law enforcement officers:

Judy Dougherty [Wood’s counsel] stated that there was a co-recommendation between the prosecution and the defense that the subject receive a concurrent sentence to the Failure to Appear case in which he was recently sentenced in the Leon circuit court.
As of the date of dictating this PSI, 6-24-77, this writer has been unable to contact Assistant State’s Attorney Jim White reference his recommendations on this instant offense.

Mr. Ingley’s recitation of factual material concluded with his certificate that

The above is true and correct to the best of my knowledge and belief.

On July 11, Wood appeared again before Judge Miner for sentencing in the presence of Assistant Public Defender Dougherty and Assistant State Attorney White. Lawyer Dougherty stated:

Your Honor, I hope that under the circumstances the Court feels that it can go along with the recommendation by the state and defense that this sentence . run concurrently to the failure to appear sentence, which was for the same offense as he’s now before the Court on.
THE COURT: Is there a recommendation to that effect, Mr. White?
MR. WHITE: The State said it would not oppose her recommendation for concurrent time [for] the failure to appear and possession of cocaine. We would not speak in opposition to that.
THE COURT: Do I hear an affirmative recommendation from the State of Florida that there be_, Was there any kind of affirmative recommendation?
MR. WHITE: No, sir. We just agreed to remain silent as to that aspect.
THE COURT: Well, I do not agree.
MRS. DOUGHERTY: I had a note of this. Well, that’s all right, your Honor. We will go along with what the State says. We’re recommending a concurrent sentence and they do not oppose it.

Wood attempted to explain to Judge Miner some of the offenses described in the factual section of Mr. Ingley’s presentence report. The court then adjudicated Wood guilty of possession of cocaine and sentenced him to a five-year term to run consecutively with the term he was then serving.

Lawyer Dougherty filed, on August 10, a notice of appeal in Wood’s behalf, and only then sought an order for transcripts of the plea and sentence proceedings, which were filed in September. Briefs were submitted in this court on the question of whether the consecutive sentence was vitiated by Assistant State Attorney White’s failure or refusal, at the sentencing on July 11, to verify his prior recommendation of a concurrent sentence. The state here argued, among other things, that Assistant Public Defender Dougherty acquiesced at sentencing in the state’s change of position.

In the meantime, with the transcripts in hand, lawyer Dougherty went to Judge Miner. He revealed to her, for the first time, the “confidential evaluation” section of Mr. Ingley’s presentence report, which thereafter was made a part of this record. There Mr. Ingley had reported, over a similar certificate, that it was “true and correct to the best of my knowledge and belief,” that:

In addition to the prosecuting attorney Jim White, another State Attorney, Tony Bajoczky, indicated that he felt this was probably one of the worst individuals he has ever dealt with and hoped the Court would see fit to incarcerate him for as long as is possible for this and any other offense for which the subject might have been or be found guilty.

We can only hope that Mr. Ingley’s confidential report was in error in reciting that Assistant State Attorney James White joined Assistant State Attorney Tony Ba-joczky’s recommendation that Wood be incarcerated “for as long as is possible.” Conceivably Mr. Ingley gained an erroneous impression of lawyer White’s views through his colleague Mr. Bajoczky, or through other hearsay. But, even assuming that to be true, and reading this incomplete evidence in a light most favorable to the prosecuting authorities and Mr. Ingley, it appears beyond question that Wood’s plea of guilty on June 13 was induced by Assistant State Attorney White’s recommendation of a concurrent sentence; that lawyer White reneged on his recommendation at the sentencing hearing and refused to do more than stand silent in the face of a direct inquiry concerning his recommendation; that Assistant State Attorney Bajoczky, who knew or should have known of the plea bargain, strongly recommended to Mr. Ing-ley that Judge Miner be urged to incarcerate Wood for as long as possible; that Mr. Ingley knew or should have known from his colleague Mr. Mercer that Assistant State Attorney White had recommended a concurrent sentence on June 13; that Mr. Ing-ley nevertheless represented in his factual report that he had been unable to reach Assistant State Attorney White to confirm the joint recommendation for a concurrent sentence, of which lawyer Dougherty advised him; that Mr. Ingley’s factual report, which he knew would be furnished Wood’s counsel in compliance with Rule 3.713, was therefore calculated to lead the defense to believe that the state’s prior recommendation was not withdrawn but was merely unconfirmed by Mr. Ingley; and that Mr. Ingley, knowing that his confidential evaluation would not be furnished to Wood and his counsel, simultaneously conveyed to the court through that device a damning recommendation by Assistant State Attorneys White and Bajoczky that Wood be imprisoned for as long as possible, that is to say, consecutively.

We recognize that Assistant State Attorney White, Assistant State Attorney Ba-joczky, Parole and Probation Officers Ing-ley and Mercer have not had an opportunity to explain their individual roles in this debacle, to challenge the implications of our recital, and to confront and cross-examine each other as sworn witnesses. Yet the picture arising from this record is that the state, through these public officials, deceitfully took an affirmative and conciliatory position to induce Wood’s plea of guilty, an inconsistent but ostensibly neutral position when the plea was in hand, and a hostile position through a covert communication to the court. The judgment and sentence will of course be vacated. Crossin v. State, 262 So.2d 250 (Fla.4th DCA 1972).

In these circumstances we need not pause to inquire whether lawyer Dougherty’s momentary lapse, in acquiescing in lawyer White’s conduct at sentencing without consulting her client, would in other circumstances have validated the result. Neither do we inquire what Judge Miner’s duty was when, with Mr. Ingley’s confidential report in hand, he heard Mr. White announce at sentencing that the state had no recommendation. It is evident that Judge Miner was troubled by the announcement (“Well, I do not agree”); he apparently broke off further inquiry because lawyer Dougherty acquiesced in Mr. White’s retreat from his prior recommendation; and it may well be that, considering Wood’s apparent contempt for law and society, Judge Miner would have determined to impose a consecutive sentence regardless of recommendations by the state. But Wood’s apparent contempt for the law and its servants does not excuse our deserving it. We can only rejoice that lawyerly persistence by Ms. Dougherty and fair judgment by Judge Miner ultimately prevailed, resulting in the revelation to us of Mr. Ingley’s report.

It is apparent that the truth in this case, or so much of the truth as we know, surfaced only through an extraordinary conversation between defense counsel and the trial judge, after he had lost jurisdiction and this case was well on its way toward decision in this court. That is too problematic a shield against the repetition of this kind of conduct by the state; and, to provide more , appropriate protection of the accused who has been induced to plead guilty by a prosecutor’s utterance of a certain recommendation, we are obliged to address again the very slippery problems attending such plea bargains.

In Adams v. State, 328 So.2d 48 (Fla.1st DCA 1976), we vacated a twenty-year sentence imposed after a plea of guilty was induced by the prosecutor’s recommendation of at most a ten-year sentence. Because the trial court did not give the accused an opportunity to withdraw the guilty plea when the judge determined not to abide by the inducing recommendation, we held that the trial court did not comply with the standard we perceived in former Rule 3.171(c), Fla.R.Crim.P., providing:

After an agreement on a plea has been reached, the trial judge may, with the consent of the parties, have made known to him the agreement and reasons therefor prior to the acceptance of the plea. The terms of the agreement shall be placed in the record. He shall thereafter advise the parties of whether other factors (unknown at the time) may make his concurrence impossible. Should such other factors make ultimate judicial concurrence impossible, any plea of guilty or nolo contendere entered based upon such agreement may thereafter be withdrawn.

The same rule provisions are now distributed in Rules 3.171(d) and 3.172(g).

We held in Adams that, however emphatically the sentencing judge might advise the accused on plea day that the court is not bound to sentence in accord with the prosecutor’s recommendation, the court remains under a duty to grant the accused an opportunity to withdraw the plea should ultimate judicial concurrence with the recommended sentence be impossible. We considered that the applicability of Rule 3.171, and the trial court’s duty to allow a bargained plea to be withdrawn if the recommended sentence is unsatisfactory, should not be made to depend on the fine distinction, not expressed in Rule 3.171, between a bargain for the prosecutor’s recommendation of a certain sentence and a bargain for a certain sentence in accord with the prosecutor’s recommendation. We thought the distinction rendered bargains too far subject to misunderstanding in private dealings between counsel, on plea day, at sentencing, and in the appellate court, to be permitted such power over the fate of the accused. We felt that any confusion is masked, not clarified, by the trial judge’s conventional response that the court is not bound by the bargain struck, which is true in either case.

A unanimous Supreme Court reversed our decision in State v. Adams, 342 So.2d 818 (Fla.1977). The Court held that there is a difference between a plea bargain for the prosecutor’s recommendation of a certain sentence and a plea bargain for a sentence in accordance with the prosecutor’s recommendation. The Court held that, in the former instance, the agreement inducing the plea is completely fulfilled when the prosecutor makes his recommendation as agreed; and that the sentencing judge, having suitably cautioned the accused that the court is not bound by the recommendation, may accept the plea and thereafter sentence the accused more severely than recommended, without granting him an opportunity to withdraw the plea induced by the bargain.

This case is but a particularly shocking illustration of the jeopardy the accused may unwittingly encounter in an Adams-type bargain for a prosecutor’s recommendation of a certain sentence, as distinguished from a rule-type bargain for a certain sentence in accord with the prosecutor’s recommendation. As we suggested in Adams, 328 So.2d at 48, and as the Supreme Court’s action in that case confirmed, the criminal rules are finessed by a bargain perceived as gaining only the prosecutor’s recommendation, irrespective of whether the sentencing judge expresses an intention, as did Judge Miner, of placing “considerable weight” on the recommendation. Since Adams, we have cautioned counsel who wish to' preserve the rule’s benefits to bargain for “agreement by the trial court that if it determines that it will not make the recommended disposition, it will then allow the defendant to withdraw his plea.” Peterson v. State, 350 So.2d 565, 567 (Fla.1st DCA 1977).

In deference to a superior ruling, we can no longer be concerned with the innate slipperiness of words expressing plea bargains, and with the consequences to the accused of a bargain expressed and understood without precision. We are here concerned with another, graver, aspect of the Adams distinction between a bargain for a prosecutor’s recommendation and a bargain for a sentence. In the latter case, the bargain is memorialized on a cold record and Rules 3.171(d) and 3.172(g) protect the accused from its violation. But when the bargain is perceived as for a prosecutor’s recommendation only, the accused’s only legitimate expectation from the bargain is that the prosecutor’s recommendation will in some measure be persuasive. That factor, problematic enough by nature, subjects the bargain to corroding influences that cannot be recorded in a transcript, and which may have their effect at any time between plea and sentence, and under informal or otherwise uncontrolled circumstances. A prosecutor with the best of intentions may seem enthusiastic when discussing a recommendation in private conference with defense counsel, but less so when fulfilling the bargain on plea day before the sentencing judge. The prosecutor’s manner of presenting the recommendation may speak to the sentencing judge more eloquently than his words. And, as we see so clearly in this case, the prosecutor’s memory of his recommendation may lapse before sentencing. Even when his memory of the recommendation doesn’t fade, his approval of it may.

Even in the regular presentence processes of the court, opportunities are abundant for the state, whose prosecuting agent has made a favorable recommendation to induce a guilty plea, to withdraw that recommendation or to blunt its persuasiveness by means overt and covert. The prosecutor who made the recommendation may remain faultlessly true, but his colleague in the same office may convey to the parole and probation officer, as in this case, an earnest recommendation for maximum incarceration. Or the state attorney’s more punitive recommendation may be conveyed to the parole or probation officer, innocently or not, by investigators or police officers who were not privy to the bargain which induced the plea. We need not consider in this case, and we do not consider, whether an independent recommendation of another state law enforcement officer for more punitive action should be held to vitiate an assistant state attorney’s recommendation and his tacit agreement not to undermine any persuasiveness his recommendation in court may have had.

Given the Adams exemption of this type of bargain from the protective effects of Rules 3.171(d) and 3.172(g), we cannot prescribe protection against the relatively more ineffable influences which the state’s agents may thoughtlessly bring to bear against the prosecutor’s recommendation. But we can and must offer protection against such influences of a more direct and tangible nature. When the sentencing court has received and approved a plea of guilty entered upon an Adams-type bargain for a prosecutor’s recommendation of a certain or maximum sentence, the State Attorney and his assistants should thereafter make no utterance tending to compromise whatever persuasive effect the in-court recommendation may have had. Representatives of that office shall, when requested by the court- or its officers charged with the presentence investigation, repeat that recommendation with like effect as when it was originally made on plea day. All written communications by state agents to the court on the subject of sentencing shall be exhibited to defense counsel before sentencing, so that he or she may assure that no deliberate or inadvertent prosecuto-rial undermining of the recommendation has occurred. Inasmuch as conversations between the parole and probation officer and the prosecuting state attorney are natural and desirable in any presentence investigation, and those conversations may surface in the confidential evaluation portion of the presentence report, the report in its entirety, including the confidential portion, shall on request be furnished to defense counsel. That access is necessary to assure that the report neither repeats nor reflects the influence of prosecutorial recommendations contrary to those stated in open court.

The trial court has discretion under Rule 3.713 to disclose the otherwise confidential evaluation of a presentence report. That discretion must be exercised to permit its revelation to defense counsel when the accused is held to have pleaded guilty in reliance on so vaporous a benefit as the prosecutor’s recommendation of a certain disposition.

In the alternative, of course, the sentencing judge may reject a guilty plea tendered pursuant to an Adams-type bargain; or the court may consider the bargained plea as having been tendered in reliance on a particular disposition and on the protective benefits of Rules 3.171(d) and 3.172(g). So announcing when the plea is entered, the court will sentence the accused in accord with the recommendation or, finding concurrence impossible, permit the accused to withdraw his plea. In that event, the plea bargain is not subject to abuse, and there is no need for the court’s revelation of the confidential section of the presentence investigation report, or of other communications which in the court’s discretion may be considered confidential.

To facilitate the Supreme Court’s review of this decision, we certify that it passes on a question of great public interest. Article V, Section 3(b), Florida Constitution.

REVERSED.

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

      . “(a) The trial judge may disclose any of the contents of the presentence investigation to the parties prior to sentencing. Any information so disclosed to one party shall be disclosed to the opposing party.
      “(b) The trial judge shall disclose all factual material, including but not limited to the defendant’s education, prior occupation, pri- or arrests, prior convictions, military service and the like, to the defendant and the State a reasonable time prior to sentencing. If any physical or mental evaluations of the defendant have been made and are to be considered for the purposes of sentencing or release, such reports shall be disclosed to counsel for both parties.”


text:
    RALSTON, INC., William R. Ralston and Alfred J. Anton, Appellants, v. Elliot L. MILLER, Appellee.
    No. 77-764.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.

      Alfred J. Anton, Miami, for appellants.
    Elliot L. Miller, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   CRAWFORD, GRADY L. (Ret.), Associate Judge.

Appellants appeal from a judgment of the trial court, dated July 13, 1976, dismissing their counterclaim, and a judgment dated March 29, 1977 in favor of the appellee on the complaint. The appellee first urges that this court has no jurisdiction to entertain the appeal on the judgment dated July 13, 1974, on the ground that the notice of appeal was filed late.

The Supreme Court of Florida has stated that:

“Piecemeal appeals will not be permitted where claims are inter related and involve the same transaction and the same parties remain in the suit. .
Generally, the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.” (S.L.T. Warehouse Company v. Webb, 304 So.2d 97, 99).

The rule of inter-relationship of the parties and of the claims is clearly applicable in this cause. The complaint and the countercomplaint are grounded on the lease between the parties and the alleged breaches thereof. The trial court’s judgment, dismissing the appellant’s counterclaim, did not constitute an end to the judicial labor between the same parties relating to the lease and issues of liabilities under provisions of the lease which were in conflict. The trial court heard continuing testimony and arguments from both sides until entry of the last judgment dated March 29, 1977.

This cause originated when the appellee, plaintiff below, filed an amended complaint as the owner of the Opa Locka Hotel, claiming rent due, attorneys’ fees, an accounting, balance due on a promissory note, and damages. The appellants, defendants below, filed an amended compulsory counterclaim, alleging that the appellee, as lessor, had violated a specially written provision in the lease, namely paragraph 23, which provided:

“TWENTY THIRD — The lessor shall be responsible for maintaining the roof, exterior of the premises, and for maintaining the structure in good repair and condition. The parties acknowledge that the building in which the leased premises is located is old and the requirement for maintenance of walls, ceilings and roof can reasonably be expected, which repairs shall be made by the lessor at the lessor’s expense. In the event lessor fails to make the repairs within a reasonable time after written notice, the lessees may cause repairs to be made and may deduct the costs thereof from the next ensuing rental payments.”

The appellants alleged that the appellee failed to maintain the roof and exterior of the premises and failed to maintain the structure in good repair and condition;. that the building and the leased premises were permitted to fall into such a state of disrepair that the City of Opa Locka declared the building unsafe and ordered the tenants to remove themselves; that the appellants were evicted by the City by reason of the failure of the appellee to maintain the structure. Damages were claimed for loss of value of improvements, loss of profits, loss of leasehold rights, and other damages resulting from the breach. The appellee asserted that he, as lessor, was absolved and exculpated from any liability from water damage, albeit resulting from defective roof and collapsing dome by reason of standard printed provisions of the lease, namely, the Second and Thirteenth, which provided:

“SECOND — All personal property placed or moved in the premises above described shall be at the risk of the lessee or owner thereof, and lessor shall not be liable for any damage to said personal property, or to the lessee arising from the bursting or leaking of water pipes, or from any act of negligence of any co-tenant or occupants of the building or of any other person whomsoever.
THIRTEENTH — It is expressly agreed and understood by and between the parties to this agreement, that the landlord shall not be liable for any damage or injury by water, which may be sustained by the said tenant or other person or for any other damage or injury resulting from the carelessness, negligence, or improper conduct on the part of any other tenant or agents, or employees, or by reason of the breakage, leakage or obstruction of the water, sewer or soil pipes, or other leakage in or about the said building.”

During the course of the trial, the court observed that the pivotal question was the legal interpretation of paragraph 23 of the lease placing the burden on the lessor/appellee to maintain the roof and the building in good repair as it conflicted with paragraphs 2 and 13 thereof, purportedly absolving the landlord from liability. The Court, observing that it was a situation not unlike a summary judgment question, received the oral stipulation as to the pivotal facts, and thereafter, entered a judgment dated July 13, 1976, dismissing the appellants’ counterclaim.

On subsequent trial of the appellants’ complaint, the court entered judgment dated March 29, 1977 against the appellants, for:

Rent for April, May, June and July, 1975,
Rent from July 25, 1975 through February, 1976, when the writ of possession was served;
Attorneys’ fees for action involving breach of the lease and the promissory note;
Judgment for $100.00 against the defendant, Ralston, for rents collected; and
Personalty removed from the premises by appellants after eviction and declaration of condemnation by the City of Opa Locka.

Subsequently, by leave of court, the parties filed affidavits and depositions in order to supplement the record for appeal.

When confronted with the facts of this case, and the provisions of paragraphs 2,13, and 23 of the lease, the lower court found that there was no conflict between these paragraphs, and, in effect, found that there was no obligation or duty on the landlord under paragraph 23, by reason of the fact that the damage sustained from the breaches of paragraph 23 resulted in water flowing into the premises, and that paragraphs 2 and 13 absolved the lessor from any claim for water damage.

Paragraph 23 of the lease, especially written and inserted in the lease by the parties, is clear and unambiguous.

The lessor is required to maintain the roof and exterior of the premises and the structure in good repair and condition. It is uncontroverted that the lessor failed to comply with these obligations. For a period of six (6) months, the lessor permitted the dome to deteriorate after the first sinking and cracking of the dome had occurred. The lessor did not shore up the dome; did not cover the cracks from top to bottom of the large areas at the bottom of the dome which had crumbled; did nothing to provide cover on the roof where the dome had fallen through; and did nothing to restore the parapets where the landlord had caused holes to be made. The first fissures in the dome permitting water to pour through occurred in January, 1975. The sinking of the dome, the leakage of rainwater into the premises, and all of the resulting damages from the leakage caused Dade County authorities to declare the upstairs portion (over which Dade County had jurisdiction) to be declared unsafe for human habitation. For the succeeding five (5) months, the landlord did nothing with regard to the condition and the continuing deterioration resulting in larger and increased orifices in the dome and roof through which rainwater continued to come into the building and into the leased premises in question, until July, 1975, when the City of Opa Locka declared the leased premises in question to be unsafe for human habitation and, by emergency order, locked out the appellants.

The rule in Florida is that any disturbance of the possession of a tenant by the landlord that renders the premises unfit for occupancy, for the purposes for which they were demised or that deprives the tenant of the beneficial enjoyment of the premises, amounts to a constructive eviction. (20 Fla.Jur. 322). A constructive eviction has the effect of essentially depriving the tenant of the beneficial enjoyment of the leased premises as where they are rendered unsafe, unfit, or unsuitable for occupancy in whole or in substantial part for the purposes for which leased. Hankins v. Smith, 103 Fla. 892, 138 So. 494.

The obvious contradictions between paragraph 23 on one hand, and paragraphs 2 and 13 on the other hand, are manifest. In respect to this type of contradiction, the law is well settled. In Allegheny Mutual Casualty Co. v. State, 176 So.2d 362, Fla. App., the court held:

“There is the rule, applicable and directly controlling here, that where a part of a contract is written or typed and part is printed, and the written or typed and the printed part are apparently inconsistent or there is reasonable doubt as to the sense and meaning of the total instrument, the words in writing or typing will control. The reason for the according of greater effect to the written or typed part as against the printed portion if they are inconsistent, is that the written or typed words are the immediate language and terms selected by the parties themselves to express their meaning, while the printed form is intended for general use without reference to particular objects and aims.”

In Nat Harrison Associates, Inc. v. Florida Power & Light, 162 So.2d 298, Fla.App., construction of an agreement with a typewritten portion and a stamped portion, the Court said:

“This portion was typewritten, whereas the former was printed or made with a rubber stamp, which was obviously prepared for general use and not specifically for the purchase order in question. Therefore, the typewritten paragraph should control over the printed matter.”

The court continued in the judgment, dismissing the counterclaim, to find that in the event of the lessor’s failure to make the repairs required under paragraph 23, the appellants “shall make such repairs and charge same to the lessor by deduction from future rent.” The court then concluded that in the event of the failure by the lessor to make the required repairs, the lessee’s remedy was to make the repairs itself.

Paragraph 23 provided in part:

“In the event lessor fails to make the repairs within a reasonable time after written notice the lessees may cause repairs to be made and may deduct the cost thereof from the next ensuing rental payments.” (emphasis added).

The word “may”, when given its ordinary meaning, denotes a permissive term rather than the mandatory connotation of the word “shall” 30 Fla.Jur. Supplement, Statute, Section 8. There is no law which supports the lower court’s finding that the lessee was obligated to make the repairs in the absence of the lessor’s so doing.

After entering a judgment, dismissing the counterclaim of the appellants for damages, for failure to maintain the premises and for constructive and actual eviction, the court then entered a judgment against the appellants for rent for the period April, 1975 through February, 1976, in the sum of $3,850.

The evidence reflects that beginning in January, 1975, the intrusions of water by reason of rain and ever increasing holes in the roof, seriously interfered with the possession and use of the premises and with the operation of a viable business by the appellants; that in July, 1975, the City of Opa Locka declared the premises unsafe and unfit and, by fiat, ordered the appellants out of the premises and caused the building to be secured against any further entrance for any purpose.

The lower court failed to find any constructive eviction for the period of April through July, when no rent was paid, and the court failed to find actual eviction and termination of the lease by reason of the City’s declaration that the building was unsafe and the City’s action in dispossessing the appellants, the sole remaining tenant.

A constructive eviction may occur if the landlord does any wrongful act or is guilty of any default or neglect whereby the leased premises are rendered unsafe, unfit, or unsuitable for occupancy in whole or in substantial part, for the purposes for which they were leased. Berwick Corp. v. Kleinginna Investment Corp., 143 So.2d 684 (Fla.3d DCA 1962). In said case, the Appellate Court found the evidence sufficient to constitute a constructive eviction even though the damages then were not permanent in nature.

As in the matter before this court, the landlord in Berwick sought to avoid damages by the defense of a provision of the lease that the lessee was required to take the risk of damage to the property by reason of water, bursting pipes, gas leaks, water system or sewerage leaking, etc. The Appellate Court held:

“This provision of the lease cannot be construed to destroy the effect of the requirement that the landlord keep the roof sound and watertight. In construing a lease, as in other contracts, it is necessary for the Court to gather • the meaning of the parties from the whole instrument and not from a few lines taken here and there. Lalow v. Codomo, Fla.1958, 101 So.2d 390; Proser v. Berger, Fla.App.1961, 132 So.2d 439. Further, it is the duty of the Court wherever possible to construe apparently conflicting provisions of a contract so that the provisions do not conflict.”

The facts in the instant case are strikingly similar to the aforesaid case, with the exception that in the instant case, the Appellants were, after a six (6) month period of constructive eviction, then, actually evicted by order of the City premised on the lessor’s failure to maintain the premises in a safe, suitable, and useable condition.

The judgment, dismissing counterclaim, entered July 13, 1976, as well as the judgment in favor of the appellee, entered March 29,1977, are hereby reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


author: GRIMES, Acting Chief Judge.

text:
    EMERALD EQUITIES, INC., Appellant, v. Billie J. HUTTON, Betty J. Murrell, Dorathea J. Chisholm, Carolyn J. Blood, Robert R. Bugbee, as Administrator of Estate of Martha Sue J. Bugbee, and Polk County, a political subdivision, Appellees.
    No. 77-1443.
    District Court of Appeal of Florida, Second District.
    April 26, 1978.
    J. Hardin Peterson, Jr., of Peterson, Myers, Curtis, Craig & Crews, Lakeland, for appellant.
    Thomas C. Floyd, of Wheeler, Traviss & Floyd, P. A., Winter Haven, for appellees Hutton, Murrell, Chisholm, Blood and Bug-bee.
    Monte J. Tillis, Jr., Asst. County Atty., Bartow, for appellee Polk County.
   GRIMES, Acting Chief Judge.

This is an appeal from a final summary judgment determining the appellees to be the fee simple owners of the entire right of way of an abandoned county road. We affirm.

In 1963 the appellees’ predecessor in interest, Janssen Dairy, Inc., conveyed the west fifty feet of its land to Polk County for no compensation. The deed contained no reservation or reverter, but it is undisputed that the land was conveyed to enable the county to construct King Road along the fifty foot strip. Appellant’s land lies immediately to the west of the fifty foot strip. Twelve years later, the county decided to reroute King Road toward the northwest so as to run across the appellant’s property. The appellant conveyed a right of way to the county for this purpose on the condition that appellant would receive the west half of the King Road right of way which was to be abandoned.

On June 6, 1976, Polk County Board of County Commissioners adopted a resolution officially closing the portion of King Road no longer needed and abandoning all rights of the county and the public therein. Immediately thereafter, appellees filed suit for declaratory judgment against the appellant and the county seeking to have their right to the entire portion of the abandoned roadway confirmed. The claims of the parties are illustrated by the following diagram.

Both sides moved for summary judgment. The court ruled that upon abandonment, the county had nothing left to convey, and that under Section 336.12, Florida Statutes (1975), title to the abandoned roadway reverted to the appellees just as if their predecessor had reserved the fee and granted only an easement to the county. Appellant’s cross-claim against the county remains pending.

Section 336.12 reads as follows:

336.12 Closing and abandonment of roads; termination of easement; conveyance of fee. The act of any commissioners in closing or abandoning any such road, or in renouncing or disclaiming any rights in any land delineated on any recorded map as a road, shall abrogate the easement theretofore owned, held, claimed or used by or on behalf of the public and the title of fee owners shall be freed and released therefrom; and if the fee of road space has been vested in the county, same will be thereby surrendered and will vest in the abutting fee owners to the extent and in the same manner as in case of termination of an easement for road purposes.

Under the statute, if a county’s interest in a road consists of an easement, when the road is abandoned the fee owner’s title to the land is simply released from the easement. If the county owns fee title in the road, the statutory intent is not so clear. On the one hand, the statute provides that title will vest in the same manner as when an easement is terminated, which implies that the title will revert to the former owner. On the other hand, the statutory reference to abutting fee owners suggests that they have an interest in the vacated land by virtue of their proximity even though they may have never owned any of the land within the roadway. Significantly, however, the statute provides that abutting fee owners share in the title only “to the extent and in the same manner as in case of termination of an easement.” Thus, we construe the statute to mean that an abutting fee owner obtains title only to the extent that he or his predecessor in title owned the land when the county obtained it for road purposes. In other words, the fee in the abandoned roadway reverts to the abutting estates in the same proportion that these estates were reduced in order to create the roadway.

Had appellees’ predecessor merely granted an easement to the county and retained the fee, it could not be disputed that the appellees would now hold the entire roadway in fee unburdened by the easement. The effect of Section 336.12 is to require that upon the abandonment of a road owned by the county in fee simple, title shall pass in the same manner as if an easement for road purposes were located thereon. Since the county obtained the entire roadway from the appellees’ predecessor, if title is to pass in the same manner and to the same extent as if there were an easement, the appellees must take the entire portion of the abandoned road.

An examination of the origins of Section 336.12 lends some support to our conclusion. This section was first enacted in 1947 and subsequently codified as Section 343.46, Florida Statutes (1951). In 1947 the legislature also enacted Section 343.39, Florida Statutes (1951), which read as follows:

343.39 Conveyance of abandoned roadway. — In event the fee simple title to the land constituting the street, road or highway described in, and affected by, the resolution adopted pursuant to subsection (1) of § 343.38, is owned by the county, then in that event the board of county commissioners shall convey to each owner of land abutting upon said vacated street or roadway, that portion of the road or highway lying between the center line of the road or highway and within extensions of the boundary lines of the property of the abutting owner.

Thus, it appears that in the same year the legislature passed two somewhat contradictory sections pertaining to the disposal of abandoned roadways held by the county in fee simple.

Several years later the legislature enacted the Florida Highway Code of 1955. As part of that act the legislature repealed Chapter 343 which contained both statutes noted above. However, as part of the new highway code the legislature chose to re-enact Section 343.46 as Section 336.12 but did not re-enact any portion of former Section 343.39. By re-enacting one section and omitting the other, it is logical to assume that the legislature elected not to have the fee title to abandoned roadways pass in equal proportions as mandated under former Section 343.39.

Appellant argues that an interpretation of Section 336.12 which allows the original grantor of the roadway to take the entire roadway upon abandonment is contrary to Florida decisional law as reflected in United States v. 16.33 Acres of Land, 342 So.2d 476 (Fla.1977), and the cases cited therein. However, those cases dealt with a situation in which a roadway was created by a single grantor who later conveyed the abutting lots to separate owners. Thus, the abutting fee owners had a common grantor, and the question was not whether the fee reverted to the abutting lot owners because they were abutting owners, but whether the fee was conveyed to the abutting owners because the grantor had failed to reserve any interest in the roadway in his deeds to the abutting owners. The cases cited by appellant hold that when a grantor subdivides his property, dedicates streets to the public, and then conveys lots which abut those streets to various parties without a specific reservation of a reversionary interest in the streets, he has conveyed any interest he has in the streets to the abutting owners. Under those circumstances, when the streets are vacated the abutting owners on each side become the fee owners out to the center line.

In the instant case there was no common grantor, no subdivision by the grantor, and no conveyance of lots on either side of the roadway. Had the appellees’ predecessor conveyed to the appellant any property abutting the road subsequent to the creation of the road, then the case would turn on whether the appellees had reserved any interest in the twenty five feet of the roadway abutting appellant’s land.

We hasten to add that we express no opinion on the outcome if the county had conveyed the disputed portion of the road to the appellant before the road was abandoned. See Section 125.37, Florida Statutes (1975).

AFFIRMED.

RYDER and DANAHY, JJ., concur.


text:
    HEMISPHERES CONDOMINIUM ASSOCIATION, INC., and Public Service Mutual Insurance Company, a New York Corporation, Appellants, v. Sally CORBIN, as Personal Representative of the Estate of Sidney Russell Corbin, Appellee.
    No. 77-789.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Goodwin, Ryskamp, Welcher & Carrier, Miami, for appellants.
    Snyder, Young, Stern, Barrett & Tan-nenbaum and William L. Rogers, North Miami Beach, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The principal question presented by this appeal is whether the facts in evidence before the jury were sufficient as a matter of law to establish negligence. The complaint sought damages arising out of the claimed negligence of the defendant, a condominium association, in the operation of a swimming pool in which Mr. Corbin (the appel-lee’s deceased) drowned. The action was brought by appellee Sally Corbin, as the personal representative of the estate of Sidney Russell Corbin, and as an individual. Defendant’s answer denied negligence.

Following instructions, the jury initially returned a verdict finding for the estate in the amount of $100,000. Because the parties had stipulated that in event a verdict was returned for the estate, the damages to the estate were to be $6,212.50, the court declined to enter the verdict returned and reinstructed the jury. The jury then returned with a verdict in the estate action in the amount of $75,000 and in the wrongful death action in the amount of $25,000. The court discharged the jury and, thereafter, denied plaintiff’s motion to amend and correct the verdict and interrogate the jury. The court also denied defendant’s motion for judgment notwithstanding the verdict. Upon motion for new trial and remittitur, the plaintiff was required to remit $68,-787.50 in the estate action as the excess over the stipulated damages to the estate. Final judgment was entered on the verdict and the defendant has appealed the judgment, assigning as error the denial of its motions for directed verdict and its motion for judgment notwithstanding the verdict. The plaintiff has filed cross-assignments of error directed to the court’s denial of her motion to amend and correct the verdict.

Mr. and Mrs. Corbin rented an apartment in the condominium complex from the owner of that apartment. The Hemispheres Condominium had two pools managed by a pool manager, who, in the course of his job, would circulate back and forth between the two pools during the day. Although there were four attendants working under the manager, there was only one attendant on duty at the pool where Mr. Corbin drowned at the time of the incident. This attendant had the lifesaving responsibilities. In addition, his duties included attending to the lounge chairs, enforcing the rules and regulations of the pool deck and maintaining the pool. He also took tennis reservations, but he testified that he maintained constant surveillance of the pool.

The pool attendant was not a “lifeguard.” He had been trained by the pool manager in the use of all the lifesaving equipment, which consisted of a shepherd’s hook, life ring with life line attached, oxygen tank and the communication system for the rescue squad. He was not trained in the administration of artificial respiration. The association had posted signs at the pool, “Swim at your own risk.”

Mr. Corbin was sixty-three years old. He was a strong swimmer and was swimming alone (to the extent that he had not gone to the pool with a companion). Many other persons were in the pool at the time. Mr. Corbin had suffered for some time from epilepsy, although all indications were that the incidents were usually nocturnal. No one saw Mr. Corbin in trouble and the record is devoid of any reason that he sank in the water. At the time of the incident, the attendant testified that he was “[sjtraight-ening lounges at the northeast corner of the pool.” He first became aware that there was a problem when a small girl informed him that “[tjhere was a man at the bottom of the pool.” He ran to the pool, jumped in and pulled Mr. Corbin to the surface. He was then assisted by others in getting Mr. Corbin out of the pool. At the time, Mr. Corbin was not conscious and the color of his skin was blue. After laying Mr. Corbin down on the pool deck, the attendant ran to the pool office for a breathing apparatus and notified the paramedics on the property. He then returned with the breathing apparatus and found that another residence was giving Mr. Corbin artificial respiration. He set up the oxygen equipment and immediately placed it to Mr. Corbin’s face. Very soon thereafter, the paramedics came with a fully-equipped ambulance, which is provided by the condominium association. Mr. Corbin was immediately taken to a hospital, where he died a few days later. An autopsy was performed by a pathologist who testified that “. . . the cause of death was complications of drowning.” The pathologist further testified that based upon reasonable medical probability, there was no other cause of death. It was concluded by the doctor that the period of submersion “. . . was probably in the range of three to five minutes.”

It is not suggested that the association was an insurer of Mr. Corbin’s safety. Further, we think that it is clear that the association did not have the same duty of guarding persons from harm that would be applicable to a place providing public entertainment or amusement for profit. See Rainbow Enterprises, Inc. v. Thompson, 81 So.2d 208 (Fla.1955). The duty owed to Mr. Corbin, as a user of the pool provided by the defendant association for its members, was the same duty the association owed to its own members. Also, as a renter from an individual owner-member of the association, the deceased was owed a duty of care no higher than that owed to an association member. In effect, a member of the association is suing the association for the alleged inadequacy of its method of operation of the pool maintained by the owners for their own use.

The plaintiff has described this duty in her brief as “. . .a duty ... to take such precautions as to reasonably provide for his safety while swimming . ., or to provide for his rescue and medical attention within those critical few minutes necessary to prevent death.” This duty is further described as a . duty to exercise ordinary or reasonable care to see that its recreation area was reasonably safe for its residents and guests use,” citing Manassa v. New Hampshire Insurance Company, 332 So.2d 34, 36 (Fla.1st DCA 1976). In that case, the court held that there was a question for the jury on the issue of the negligence of the owner of an apartment complex where an invited guest slipped and fell while playing tennis on a court maintained by the owner because of a dangerous condition of leaves on the court. While the cited case is not applicable on the facts, we think that a duty to exercise ordinary care is applicable. In Smith v. Jung, 241 So.2d 874 (Fla.3d DCA 1970), that standard was applied where the estate and the survivors of a tenant’s son sued the landlord for negligence in failing to have lifesaving equipment or personnel for rescue and resuscitation.

As mentioned above, the plaintiff’s case for negligence depends upon a failure of the defendant to take reasonable precautions to provide for the safety of swimmers or to provide the deceased reasonable rescue and medical attention. It is urged that the attendant should have been a professional lifeguard and that his ancillary duties may have prevented his prompt attention. We know of no case in this or any other jurisdiction that holds that a failure to provide a professional lifeguard is a failure to exercise ordinary care in the operation of a private swimming pool. In Smith v. Jung, supra, it was held that a complaint stated a cause of action when, in a drowning case, the complaint alleged the absence of lifesaving equipment and any supervisory personnel. The instant case does not come within the purview of that holding.

The plaintiff offered into evidence the following “rule” of the Department of Health and Rehabilitative Services:

“10D-5.51 Safety Recommendations. It is strongly recommended that a swimming instructor or other qualified attendant should be on duty at the poolside at all times when a pool is open to use by bathers. The attendant should be in full charge of bathing and have authority to enforce all rules of safety and sanitation and he should be trained in first aid and the use of lifesaving apparatus. Additional personnel should be provided to supervise the bathhouse facilities and inspect bathers for skin diseases, open lesions, etc., prior to entering the pool area.
“(1) Lifesaving apparatus — All swimming pools should be provided with a shepherd’s hook and at least a fifteen (15) inch life saving ring with sufficient rope to reach all parts of the pool.”

It is clear that this rule does not call for the presence of a person other than a “qualified attendant.” We find nothing in this record, together with the inferences that a jury might, legally draw, that would support a holding that the attendant’s lack of “lifeguard” status was a proximate cause of Mr. Corbin’s death.

The relationship of the attendant’s other duties to Mr. Corbin’s drowning is equally nonexistent. It cannot be said that an attendant’s duty is to keep each swimmer under constant surveillance. Cf. Bolduc v. Coffin, 133 Vt. 67, 329 A.2d 655 (1974).

The plaintiff has totally failed to show any action or lack of action by the defendant which can be said to be the proximate cause of Mr. Corbin’s death. Cf. Schulte v. Graff, 481 S.W.2d 596 (Mo.Ct.App.1972). Plaintiff relies upon the right of the jury to find that there was a lack of reasonable care by the defendant to “. . . provide for his [Mr. Corbin’s] safety while swimming in Defendant’s pool, or to provide for his rescue and medical attention within those critical few minutes necessary to prevent death.” We think that such a finding by a jury upon this record could be based only upon conjecture and speculation. A jury verdict may not be based solely upon conjecture and speculation. See Ephrem v. Phillips, 99 So.2d 257, 261 (Fla.1st DCA 1957), and cases cited thereat.

Having found that the court erred in failing to direct a verdict for the defendant, we need not consider plaintiff's cross-assignments of error raising the question of the court’s failure to amend or correct the verdict.

Accordingly, we reverse and remand this cause with directions to enter judgment for defendant Hemispheres Condominium Association, Inc., and its insurer, defendant Public Service Mutual Insurance Company.

Reversed and remanded.

CHARLES CARROLL (Ret.), Associate Judge, dissents.


author: CALOGERO, Justice. PER CURIAM.

text:
    CITY OF SHREVEPORT v. Lewis C. CURRY. CITY OF SHREVEPORT v. James H. BURKETT.
    Nos. 60483 and 60484.
    Supreme Court of Louisiana.
    March 27, 1978.
    Rehearing Denied on Modification of Judgment May 19, 1978.

      John Gallagher, City Atty., Charles C. Grubb, Asst. City Atty., for plaintiff-appellant.
    Claudius E. Whitmeyer, Neil T. Erwin, Shreveport, for defendants-appellees.
   CALOGERO, Justice.

Defendants Lewis Curry and James Burkett were charged by separate affidavits in the City Court of Shreveport with violating Section 14-19 of the Shreveport City Code by frog gigging on Cross Lake out of season. At trial, defendants admitted that they did frog gig on Cross Lake in the month of August, but contended that the city ordinance under which they were being prosecuted was unconstitutional. The judge held the ordinance unconstitutional, the city appealed directly to this Court, and the cases were consolidated for our review. La.Const. art. 5, § 5(D)(1).

The ordinance in question, Section 14-19 of the Shreveport City Code, provides in pertinent part as to activities on Cross Lake:

“BE IT FURTHER ORDAINED, That the following recreational activities being dealt with in this section are fishing, boating, water skiing, hunting and frog gigging. Each activity mentioned above is subject to regulations as follows:
* * * * * %
D. HUNTING
* * sk * * *
4. Frog gigging will be permitted within the 172 foot contour line mean gulf level from June 1 through June 30 using only approved mechanical devices and in accordance with existing State laws. Frog gigging will not be permitted where it conflicts with the exclusive right to use of property within the 172 foot contour line mean gulf level by the abutting property owners.
******
[A]ny person who shall violate the provisions of this ordinance shall upon conviction be fined not less than $10.00 nor more than $200.00, or be imprisoned not less than 10 days, nor more than 60 days, or shall suffer both fine and imprisonment at the discretion of the court.”

Defendants argue that the ordinance is unconstitutional in that the city may not legislate in the area of frog gigging because the state has preempted that field, the ordinance expressly conflicts with state law on the subject, and the ordinance is not a reasonable exercise of the police power. The trial judge found the ordinance to be an unreasonable exercise of the city’s police power and held it unconstitutional.

At the outset we note that while the ordinance provides a penalty for violation of its provisions, and while it reflects that the activity of frog gigging is subject to the regulation that it will be permitted during June, the ordinance does not pronounce that frog gigging during months other than June is prohibited. Normally in interpreting a criminal statute it is not appropriate to apply an inference that conduct not covered by the terms of the statute is criminal. See La.R.S. 14:3; State v. Gyles, 313 So.2d 799 (La.1975); In re Buquet, 184 So.2d 288 (La.App. 1st Cir. 1966). While the city must have intended to prohibit frog gigging except during June, the ordinance does not unmistakably so declare. In light of our findings hereinafter, however, we find it unnecessary to resolve in this instance whether the statute fails to proscribe the conduct with which these defendants are charged.

Defendants argue that the statute is invalid because it conflicts with state law on the taking of frogs and because the state has preempted the field. That statute, Revised Statute 56:330, essentially provides that frogs may not be taken during April and May, frogs may be taken in open season, and frogs may be taken by means of mechanical devices so long as these do not puncture the frog’s skin or redden its meat. Although that statute does not specifically delineate the closed season, a general definitional statute, R.S. 56:311(6), defines closed season as “that period of time of a calendar year not specifically included in the open season.” Although there is no express statutory definition of the term open season, the obvious import of the state statutory scheme is that during the months of April and May there is a closed season bn frogs, while during the other ten months of the year there is an open season on frogs. Because the Shreveport ordinance purports to allow the taking of frogs by mechanical device in June but disallows taking them in this manner during the other eleven months of the year, there is a very substantial argument that the city ordinance, because it would disallow the taking of frogs by mechanical device January through March and July through December, conflicts with the state statute which would allow the activity during those months.

Central to the resolution of this issue is the principle that a municipal ordinance which goes farther in its prohibitions than a state statute is valid so long as it does not forbid what the state legislature has expressly or implicitly authorized. National Food Stores of Louisiana, Inc. v. Cefalu, 280 So.2d 903 (La.1973); Broussard v. Ketchens, 231 La. 508, 91 So.2d 775 (1956). Consistent with this principle, we held in City of Shreveport v. Kaufman, 353 So.2d 995 (La.1978), that the Shreveport city charter may not, without offense to the Louisiana Constitution of 1974, grant authority to the municipality to punish conduct which is not proscribed by the State Legislature’s definition of the same crime.

Therefore, if we believed that the ordinance in question were one which was intended to regulate the taking of frogs, we would be inclined to hold that the Shreveport ordinance proscribes what the state statute would permit (frog gigging with a mechanical device which does not puncture the frog’s skin from January through March, and July through December) and we would find, therefore, that the area had been preempted by state law on the subject. We believe, however, that the thrust of the Shreveport ordinance is not to prohibit the taking of frogs but to prohibit people from operating a frog gig, the apparent intent of the city being to discourage this type of human activity upon or near the edge of Cross Lake. We have this belief because the city makes no argument at all that the ordinance attempts to protect the frog or regulate the proliferation of frogs, and we can find no logical relationship between frog gigging as regulated by the ordinance and the life cycle or activity of frogs. For this reason we conclude that the question in this case is not one of preemption or conflict with a state statute, and we decline to make a holding on this issue.

As we see it, the real issue in the case is whether the municipal ordinance in question is a reasonable use of the police power. The trial judge held that it was not, and we agree with his ruling.

Police power is the power of a governmental body to regulate reasonably the actions of its individual citizens in order to protect or promote the public health, safety, morals, peace or general welfare. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887); City of Lafayette v. Justus, 245 La. 867, 161 So.2d 747 (1964); LaFave and Scott, Criminal Law § 17, p. 117 (Hornbook series, 1972).

The power of the federal government or of a state to pass laws regulating persons and property within its boundaries is an inherent power which stems from the theory that when persons choose to live in groups they must give up some individual freedom for the good of the group. However, the government does not have unlimited authority to regulate the lives of its citizens, but may pass only those laws which are reasonably related to protection or promotion of a public good such as health, safety, or welfare. A law which exceeds the bounds of reasonableness violates due process of law. Mugler v. Kansas, supra; Nomey v. State, 315 So.2d 709 (La.1975); Louisiana State Bd. of Optom. Exam. v. Pearle Optical, 248 La. 1062, 184 So.2d 10 (1966); City of Lafayette v. Justus, supra; LaFave and Scott, supra, at §§ 18, 20.

The City of Shreveport has the authority under its constitutionally authorized home rule charter to exercise the police power over activities upon Cross Lake. See City of Shreveport v. Kaufman, supra. The issue is whether the frog gigging ordinance which has been passed in the exercise of that authority has for its object the prevention of some offensive conduct or the preservation of the public health, safety, morals, peace, or general welfare. The test to be applied in determining whether a particular ordinance is a reasonable exercise of a city’s police power is whether the regulation is really designed to accomplish one of these purposes properly falling within the scope of the police power. Nomey v. State, supra; State v. Birdsell, 235 La. 396, 104 So.2d 148 (1958); Schwegmann Bros. v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So.2d 248 (1949); State v. Blake, 170 La. 175, 127 So. 592 (1930). Stated another way, the test of reasonableness is whether there is a real and substantial relationship between the regulation imposed and the prevention of injury to the public or the promotion of the general welfare. Reynolds v. Louisiana Board of Alcoholic Beverage Control, 248 La. 639, 181 So.2d 377 (1965); City of Lafayette v. Jus tus, supra. Enforcement of the law must clearly and appropriately promote the public welfare in a degree that is perceptible and clear. Schwegmann Bros. v. Louisiana Board of Alcoholic Beverage Control, supra. While a city ordinance, like a state statute, is presumed to be constitutional and the party who attacks the law’s validity has the burden of proving that the ordinance is unconstitutional, the fact remains that when the ordinance is examined it will fall if there is no real and substantial relationship between the regulation and the protection or promotion of the general welfare. Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400 (1969); Reynolds v. Louisiana Board of Alcoholic Beverage Control, supra; Hi-Lo Company v. City of Crowley, 274 So.2d 757 (La.App. 3rd Cir. 1973).

When we examine the Shreveport ordinance in light of these principles, we note that the provision regulating the frog gigging does not have city wide application. It applies only within the 172 foot contour line mean gulf level in and around Cross Lake water reservoir. It does not proscribe frog taking generally but only frog gigging, a specific means of taking frogs by a mechanical device. Frogs are frequently taken by hand by experienced frog hunters, often with the use of an immobilizing bright light. Thus the ordinance attempts to proscribe frog taking in only one area of the city, and even in that area, the law purports to restrict only one method of such frog taking.

Although Cross Lake is the source of Shreveport’s major water supply, there is no argument that the limitation on frog gigging in any way protects the water supply. In fact, one of the announced purposes of the city ordinance at issue here is to allow recreational use of the lake. Section 5 of the ordinance relates this councilmanic determination, as follows:

“BE IT FURTHER ORDAINED, That the City of Shreveport, Louisiana, having determined that the use of the Cross Lake reservoir by the general public for boating, fishing, hunting and other recreational activities will not be in conflict with the operation and maintenance of the reservoir for its primary purpose. . ."

In that regard, Section 6 permits fishing from daylight to 10 p. m. daily from April 1 to September 30, with fishing daylight to dark other times during the year, boating during these same times as relate to fishing, water skiing generally during daylight hours from May 15th to September 30th, hunting on the waters of Cross Lake “in accordance with federal and state laws,” and duck hunting and construction of duck blinds within certain limitations.

Just what purpose relative to the public health, morals, peace or general welfare is served by prohibiting frog gigging eleven months during the year is not made apparent by the barren record before us. Moreover the ordinance itself offers no suggestion for the eleven months proscription of frog gigging, although the preamble to the ordinance does relate that one of the purposes of the ordinance is to prevent the commission of nuisances upon the lake and in the buildings along its shoreline. The record does not show that frog takers or frog giggers who use mechanical devices constitute a nuisance, and we are not convinced that there is a sufficient distinction between this type of nocturnal activity and other allowed nocturnal activities to warrant proscription of frog gigging eleven months of the year.

The sole basis of the city’s argument that the ordinance is reasonable is that the sport of frog gigging is done in small boats at night near the shoreline. These nocturnal activities on Cross Lake, it is urged, are legitimately forbidden by the city because the city has full and plenary power over the lake and its environs, the ordinance is presumed constitutional, and local concerns prompted the passage of the ordinance. But there is no argument advanced, and we can conceive of none, to differentiate the nocturnal activity of frog giggers in and around the lake as opposed to the activity of other boaters and hunters who can permissibly under the ordinance enjoy their sport at night and near the shoreline under certain conditions. Boating is permitted from daylight to dark every month and to as late as 10:00 p. m. during some months, without limitations near the shoreline. Fishing is prohibited within one hundred feet of boat houses, but allowed along the shoreline. Water skiing is permitted on the lake. Hunting is permitted on the lake in accordance with federal and state laws. No suggestion is made by the city which demonstrates the reasonableness of prohibiting frog gigging while other recreational activities such as those mentioned above are permitted at nighttime (until 10 p. m. in some cases) along the shoreline.

For these reasons, we find that the Shreveport ordinance which proscribes frog gigging bears no real and substantial relationship to the prevention of injury to the public or the promotion of the general welfare. Reynolds v. Louisiana Board of Alcoholic Beverage Control, supra; City of Lafayette v. Justus, supra. The frog gigging ordinance does not have for its object the preservation of the public health, safety, peace or general welfare. Nomey v. State, supra. Thus we conclude that the ordinance in question is not a reasonable exercise of the police power, and as such it violates defendants’ right to due process of law.

We affirm the action of the trial judge in holding Section 6(D)(4) of Ordinance No. 40 of 1964, a portion of Section 14-19 of the Shreveport City Code, unconstitutional. We note that the judge in making his ruling actually declared invalid the entire section of the city code which deals with Cross Lake, Section 14-19. Thus, his ruling was inadvertently overbroad since only that part of the ordinance relating to frog gigging was at issue in the case. Thus, we reverse his judgment as to all other parts of Section 14-19 of the Shreveport City Code.

Decree

Accordingly, we affirm the judgment of the trial court which held unconstitutional Section 6(D)(4) of Ordinance No. 40 of 1964 of the Shreveport City Code, but we reverse his judgment as all other portions of Section 14-19 of the Shreveport City Code.

AFFIRMED AS AMENDED.

SANDERS, C. J, and MARCUS and DENNIS, JJ., dissent.

ON MODIFICATION OF JUDGMENT

PER CURIAM.

The City of Shreveport has applied for a modification of judgment relating to the code and ordinance numbers in the statute.

The trial judge had declared unconstitutional all of Section 6 of Ordinance No. 40 of 1964, although only a portion of that ordinance, namely Section 6(D)(4), was actually at issue in the case. Only Section 6(D)(4), which is the frog gigging portion of the ordinance, has been codified as Section 14-19 of the Shreveport City Code.

The City correctly points out that our opinion mistakenly uses incorrect numbers to refer to the frog gigging provision. We intended to reverse the ruling of the trial judge as to subsections of the ordinance which did not deal with frog gigging, but to affirm his ruling as to the unconstitutionality of the frog gigging provision. Therefore, our decree is modified to read as follows:

Decree

Accordingly, we reverse the judgment of the trial court in that it declared unconstitutional all portions of Section 6 of Ordinance No. 40 of 1964 of the City of Shreveport other than Section 6(D)(4). We affirm the judgment of the trial court in that it declared unconstitutional Section 6(D)(4) of Ordinance No. 40 of 1964 (codified as Section 14-19 of the Shreveport City Code).

AFFIRMED AS AMENDED AND MODIFIED.

SANDERS, C. J., having dissented from the judgment, concurs in this Per Curiam since the motion for rehearing was limited to this modification.

      . Frog gigging is a method of taking frogs with a mechanical device, an activity accomplished, pertinent to the case under consideration, while in a boat close to the shore line. The device is essentially a grabber triggered by a spring lever. It grabs or “gigs” the frog but does hot puncture the frog’s skin or redden its meat.

      . Cross Lake was annexed by the City of Shreveport by Ordinance No. 108 of 1963. Previously, by Act 31 of 1910, the State Legislature had granted to the city title of the bed of Cross Lake for the purpose of enabling the city to provide a wholesome water supply.

      .The frog gigging provision was originally enacted as Ordinance No. 40 of 1964, section 6(D)(4). That provision is a part of Section 14-19 of the Shreveport City Code which regulates activities upon and around Cross Lake.

      . Louisiana Revised Statute 56:330 provides in full as follows:
      “Bullfrogs and lagoon frogs may not be taken during the months of April and May. Frogs may be taken in open season with the aid of a jacklight or any other visible light and by means of mechanical devices known as frog catchers, provided these do not puncture the skin or redden the meat of the frog. No person shall take frogs by means of spears or other devices which puncture the skin or redden the meat of the frog. No person shall carry or have in his possession any shotgun, rifle, or firearm while taking or hunting frogs during the nighttime. A person may take any species of small frogs known variously as greenfrogs, grassfrogs, leopardfrogs, springfrogs, etc., for scientific, educational or for propagating purposes regardless of size, but not for food or sale. Selling of bullfrogs and lagoon frogs is permissible during any part of the year.”

      . The Kaufman case dealt with a Shreveport gambling ordinance which would punish gambling not conducted as a' business. The State Legislature, acting pursuant to Article 12, Section 6 of the 1974 Constitution which states that gambling shall be defined by the legislature, proscribes gambling only when it is conducted as a business. R.S. 14:90; Ordinance of the City of Shreveport, Section 21-30.

      . The home rule charter of the City of Shreveport was first authorized by Article 14, § 37 of the Louisiana Constitution of 1921, and was continued in existence by Article 6, § 4 of the Louisiana Constitution of 1974. The city thus can exercise the police power over all its territory, including Cross Lake. The specific charter provision which purportedly authorizes the ordinance in question, Section 2.03(u), grants the city the power
      “To make all necessary regulations to protect the water supply of the city from pollution and other damage, and to exercise full and unlimited police power over the bed and waters of Cross Lake and for a distance of five thousand feet from the meander contour line which extends to the one hundred and seventy-two foot mean gulf level line as well as over the streams and tributaries of said lake for the same distance, and to pass any and all rules, regulations and ordinances deemed to be necessary for these purposes; and the city shall have the right and authority through its board of health, public safety department, public utilities department or otherwise, to inspect all of said property and the drainage area of said Cross Lake, and to enforce its ordinances and regulations by fine or imprisonment through the proper courts of the state.” (emphasis supplied)

      . We assume only for purposes of this discussion that the ordinance validly proscribes frog gigging in all months except June, without so holding. See our discussion infra.