author: ALDERMAN, Justice. BOYD, Justice,

text:
    Albert R. McCREARY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 52605.
    Supreme Court of Florida.
    May 10, 1979.
    Rehearing Denied July 9, 1979.

      Chester Bedell and Peter D. Webster of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, and Dayton Logue of Welch, Bennett, Logue & Burke, Panama City, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ALDERMAN, Justice.

We have jurisdiction of this direct appeal from a final judgment of the Circuit Court for Bay County because that court upheld the constitutionality of section 782.071, Florida Statutes (1975), against a challenge of vagueness.

The issues before us are whether section 782.071, Florida Statutes (1975), is unconstitutionally vague; whether the trial court erred in denying defendant’s motions for judgment of acquittal; and whether the information failed to charge an offense. The response to these questions depends upon whether the legislature, by enacting section 782.071, intended only to reduce the crime of manslaughter by culpable negligence in the operation of a motor vehicle to a third-degree felony or whether the legislature intended and did create a lesser included offense with a lesser standard of proof required for conviction. We find that the legislature intended to accomplish the latter, and we, therefore, conclude that the trial court did not err in denying defendant’s motion for judgment of acquittal and defendant’s motion to dismiss the information. We also hold that section 782.071 as construed is not unconstitutionally vague.

The defendant was driving with several companions when he ran a stop sign and struck another vehicle, causing the death of one of the passengers in that vehicle. He was charged by information with unlawfully killing a human being by operation of a motor vehicle in a reckless manner likely to cause death or bodily harm to another. The evidence shows that the stop sign was clearly visible from a distance of three hundred to four hundred feet away, that the defendant had consumed several glasses of beer just prior to the accident although there is no evidence that he was intoxicated, and that the defendant drove into the intersection at or near the maximum speed prescribed without slowing down.

Presuming that the standard of proof in the manslaughter statute, section 782.07, was carried over into the vehicular homicide statute, section 782.071, and that these two statutes charge the same crime, the defendant contends that the evidence introduced was insufficient to prove culpable negligence and to support his conviction. We do not agree, however, with the defendant’s underlying presumption that the same degree of proof is required for vehicular homicide as is required for manslaughter by culpable negligence in the operation of a motor vehicle.

The legislature, by enacting section 782.071, Florida Statutes (1975), did not intend only to reduce the crime of manslaughter by culpable negligence in the operation of a motor vehicle to a third-degree felony identified as vehicular homicide, but rather intended and did create a lesser included offense with a lesser standard of proof required for conviction.

Manslaughter is the killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification. § 782.07, Fla.Stat. (1975). We have repeatedly said that the culpable conduct necessary to sustain proof of manslaughter under section 782.07 must be of a gross and flagrant character, evincing reckless disregard of human life, or of the safe-; ty of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them. Filmon v. State, 336 So.2d 586 (Fla. 1976); Miller v. State, 75 So.2d 312 (Fla. 1954); Preston v. State, 56 So.2d 543 (Fla. 1952).

Section 782.071 provides:

“Vehicular homicide” is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.

The legislature did not mtend the word “reckless” used in the vehicular homicide statute to mean the same thing as the word “culpable” used in the manslaughter statute. Had the legislature intended that vehicular homicide and manslaughter be the same offense with the same standard of proof and only that there be a reduced penalty for the former, then it simply could have provided that vehicular homicide is the killing of a human being by the operation of a motor vehicle in a culpably negligent manner.

Certainly, it is within the authority of the legislature to make punishable as a third-degree felony reckless driving which results in the killing of a human being where the degree of negligence falls short of culpable negligence but where the degree of negligence is more than a mere failure to use ordinary care. The present case is a good example of why the legislature would enact such a law. The State’s evidence in the present case is not sufficient to establish that the defendant’s conduct was of such a gross and flagrant character as to support a finding of culpability sufficient to sustain a conviction for manslaughter. The evidence, however, does show that the defendant killed another human being by the operation of a motor vehicle in “a reckless manner likely to cause the death of, or great bodily harm to, another” and is sufficient to support a conviction for vehicular homicide. In' this case the State proved:

1. The intersection is a safe intersection which meets all applicable federal and state safety regulations.

2. The traffic through the intersection is heavy.

3. The intersection and stop sign can be clearly seen from 400 feet.

4. Defendant imbibed of alcohol immediately prior to the accident.

5. Defendant drove into the intersection, at or near the maximum speed prescribed by law, without reducing speed.

6. Defendant did not apply brakes until he had passed the stop sign.

7. Defendant’s automobile struck the victim’s vehicle with sufficient force to knock it across three lanes of traffic and cause it to completely flip over.

8. Defendant killed James L. Sanders in the collision.

It is not unreasonable for the legislature to create a lesser included offense to cover the hiatus between section 782.071 manslaughter and the traffic offense of reckless driving created by section 316.029, Florida Statutes (1975). If the facts had been different, the State might have elected to charge the defendant with the higher offense of manslaughter. For example, if the defendant had raced through the stop sign at an excessive rate of speed in a deliberate effort, to beat another motor vehicle that he saw approaching the intersection or if the defendant was playing “chicken” with another vehicle, these facts might have justified the State’s charging and the jury’s convicting the defendant of manslaughter. In the present ease, the State properly charged and the jury convicted the defendant of the lesser offense of vehicular homicide.

We also find that the trial court did not err in denying defendant’s motion to dismiss the information. Florida Rule of Criminal Procedure 3.140(o) provides:

Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

The information—charging that the defendant, on or about June 26, 1977, while operating his vehicle in a reckless manner likely to cause death or great bodily harm to another, did kill one James Sanders in Bay County, Florida—is legally sufficient to inform the defendant of the nature of the accusation against which he must defend. We conclude that the information did not mislead or embarrass him in the preparation of his defense.

Furthermore, we find that section 782.071 is not unconstitutionally vague or indefinite. It gives sufficient warning as to what is proscribed when measured by common understanding and practice. The conduct prohibited by this statutory provision is reckless driving, likely to cause death or great bodily harm, which results in the killing of another human being.

Concluding that vehicular homicide is a lesser included offense of manslaughter with a lesser standard of proof, that section 782.071 is constitutional, and that the evidence in this case is sufficient to support the jury’s verdict, we affirm.

It is so ordered.

ENGLAND, C. J., and ADKINS and HATCHETT, JJ., concur.

BOYD, J., dissents with an opinion with which OVERTON and SUNDBERG, JJ., concur.

BOYD, Justice,

dissenting.

The question presented in this appeal is: what degree of failure to exercise care is required in order to impose criminal liability for vehicular homicide? This crime is defined as follows:

“Vehicular homicide” is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.

§ 782.071, Fla.Stat. (1975).

The evidence showed that McCreary was driving with several companions when he ran a stop sign and struck another vehicle, causing the death of one of the passengers. The stop sign was clearly visible from a distance of 300 to 400 feet away. McCreary had consumed several glasses of beer before the accident but there is no evidence that he was intoxicated. Prior to reaching the intersection, McCreary was not driving recklessly or at an unsafe speed, but he entered the intersection without slowing down. None of the passengers in appellant’s automobile were any more aware of the intersection and stop sign than he was. The evidence showed that there was negligence, based on this complete lapse of attention.

Prior to the enactment of the vehicular homicide statute, cases involving death caused by culpable negligence in the operation of a motor vehicle were prosecuted under the manslaughter statute, section 782.07, Florida Statutes (1973). The appellant contends that the degree of proof required by the decisional law of this state for conviction under the general manslaughter statute should be required in cases of vehicular homicide. The state, on the other hand, points out that the crime created by the vehicular homicide statute is a felony of the third degree, whereas manslaughter is a felony of the second degree, and argues that therefore we should conclude that a different standard of proof was intended. The enactment of the vehicular homicide statute, the state contends, demonstrates a legislative intent to make criminal conduct which would not be sufficient for conviction under the general manslaughter statute.

I believe that the intention of the legislature in creating the crime of vehicular homicide was to decrease the possible penalty for manslaughter caused by the operation of a motor vehicle but not to change the standard of proof required for conviction. The reasoning of the district court of appeal in State v. Young, 357 So.2d 416, 419 (Fla. 2d DCA 1978), is correct on this point:

The vehicular homicide statute was originally enacted as Chapter 74-383, Section 16, Laws of Florida. Prior to its enactment, prosecution of those negligently causing the death of another by operation of a motor vehicle was possible only under the manslaughter statute. Therefore, the courts of Florida were called upon on numerous occasions to further define and elaborate on the meaning of “culpable negligence” in the manslaughter statute as related to the operation of a motor vehicle. As far back as 1926, when automobiles were beginning to become common on our streets, the Supreme Court of Florida in Cannon v. State, 91 Fla. 214, 221-22, 107 So. 360, 363 (1926), said that culpable negligence meant negligence “of ‘a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons.’ ” Over the years the courts of this state have continued to define culpable negligence within the context of manslaughter resulting from operation of a motor vehicle as conduct evincing a reckless disregard for human life. See, e. g., Fulton v. State, 108 So.2d 473 (Fla.1959); Miller v. State, 75 So.2d 312 (Fla.1954); Phillips v. State, 289 So.2d 769 (Fla. 2d DCA 1974); McCullers v. State, 206 So.2d 30 (Fla. 4th DCA 1968); Jackson v. State, 100 So.2d 839 (Fla. 1st DCA 1958).
We must presume the legislature had knowledge of these court interpretations when it enacted the vehicular homicide statute in 1974. In so doing, the legislature used language in the new statute which effectively encompasses the judicial definition of culpable negligence in the manslaughter statute. Thus it appears the standard of proof under the manslaughter statute was carried over into the vehicular homicide statute. By its new enactment the legislature apparently intented [sic] to punish those negligently causing the death of another by operation of a motor vehicle less severely than those doing so otherwise.

While it might well be argued that the legislature intended to overrule the decisions of Florida’s appellate courts on the question of what degree of negligence can be criminally punished, we should not give effect to such a purported legislative intent unless it is made clearly to appear. By using language which “encompasses the judicial definition of culpable negligence,” the legislature has not made clear an intent to create a crime having a lower standard of proof than manslaughter.

There was insufficient evidence to establish that appellant’s conduct was of a gross and flagrant character, evincing reckless disregard of human life

“ . . . or of the safety of persons exposed to its dangerous effects, or that there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.” ’ ”

Filmon v. State, 336 So.2d 586, 589-90 (Fla. 1976) (quoting Miller v. State, 75 So.2d 312, 313-14 (Fla.1954)). The facts shown simply do not constitute substantial evidence that the appellant’s conduct reached this degree of culpability. Peel v. State, 291 So.2d 226 (Fla. 1st DCA), cert. denied, 298 So.2d 164 (Fla.1974). The appellant’s motion for judgment of acquittal should have been granted.

OVERTON and SUNDBERG, JJ., concur.

      . Reckless driving is defined in section 316.029, Florida Statutes (1975), as follows:
      (1) Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

      . The general manslaughter statute classifies the offense therein as a second-degree felony, while vehicular homicide constitutes a third-degree felony. The former is punishable by a maximum penalty of 15 years’ imprisonment or a $10,000 fine or both. §§ 775.-082(3)(c), ,083(l)(b), Fla.Stat. (1975). The latter carries a maximum sentence of 5 years or $5,000 or both. Id. §§ 775.082(3)(d), ,083(l)(c).


source: Caselaw Access Project

author:
ALDERMAN, Justice.
      BOYD, Justice,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. James Benny YOUNG, Respondent.
    No. 53829.
    Supreme Court of Florida.
    May 10, 1979.
    Rehearing Denied July 9, 1979.
    Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for petitioner.

      M. David Alexander, III, of Boswell, Boswell, Conner & Alexander, Bartow, for respondent.
   ALDERMAN, Justice.

The District Court of Appeal, Second District, has certified to us its decision in State v. Young, 357 So.2d 416 (Fla. 2d DCA 1978), as passing upon a question of great public interest.

The question presented is whether the vehicular homicide statute, section 782.-071, Florida Statutes (1975), is the only statute under which a person who negligently causes the death of another by operation of a motor vehicle may be prosecuted or whether that person may be charged with violation of the manslaughter statute, section 782.07, Florida Statutes (1975). This issue turns on whether the legislature, in promulgating the vehicular homicide statute, intended and did create a lesser included offense to manslaughter with a lesser standard of proof required for conviction. We find that the legislature did create a separate offense for vehicular homicide with a lesser standard of proof than is required for conviction under the manslaughter statute and that, therefore, the State may properly charge a defendant under the manslaughter statute for operating a motor vehicle in a culpably negligent manner which causes the death of a human being.

The defendant in the present case was charged with manslaughter in that by his own act, procurement, and culpable negligence and without lawful justification he killed another human being while operating his tractor-trailer in such a manner as to cause it to collide with the victim’s automobile. The trial court dismissed the information for the crime of manslaughter with leave to the State to file another information alleging a violation of section 782.071. The district court agreed with the trial court that the State was required to proceed under the vehicular homicide statute and explained that, although the manslaughter statute has been construed to include negligent operation of an automobile resulting in death, the subsequently enacted vehicular homicide statute deals specifically with deaths resulting from negligent operation of automobiles. The district court rejected the argument that vehicular homicide is a lesser included offense of manslaughter with a lesser standard of proof and held that the standard of proof under the manslaughter statute was carried over into the vehicular homicide statute. For the reasons stated in our opinion in McCreary v. State, 371 So.2d 1024 (Fla. 1979), we conclude that vehicular homicide is a lesser included offense of manslaughter resulting from the operation of a motor vehicle, with a lower standard of proof. We, therefore, hold that in a prosecution for homicide arising out of the negligent operation of a motor vehicle, the State may elect to charge the defendant under the manslaughter statute. Accordingly, we quash the decision of the district court and remand for further proceedings consistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS and HATCHETT, JJ., concur.

BOYD, J., dissents with an opinion with which OVERTON and SUNDBERG, JJ., concur.

BOYD, Justice,

dissenting.

The respondent was charged with manslaughter under section 782.07, Florida Statutes (1975), as a result of a collision between his tractor-trailer and a passenger car. Following the dismissal of its amended information, the state appealed to the district court. The trial court had held that the state was required to proceed under section 782.071, Florida Statutes (1975), the “vehicular homicide” statute, and the appellate court agreed.

The district court cited the principle of statutory construction that while statutes dealing with the same subject matter should be harmonized whenever possible, if a statute of general application conflicts with a statute of more specific application, the latter should prevail. Adams v. Culver, 111 So.2d 665 (Fla.1959); Marston v. Gainesville Sun Publishing Co., 341 So.2d 783 (Fla. 1st DCA 1976). The court also correctly noted that an earlier penal statute must yield to a later one dealing with the same criminal activity yet providing a different penalty.

The court stated its conclusion that part of the impetus for the enactment of the vehicular homicide statute was the reluctance of juries to return verdicts of guilt against defendants charged with manslaughter arising out of the operation of a motor vehicle. The state concedes that this consideration influenced the legislature but argues that the intent was for prosecuting authorities to be able to proceed under either statute, in their discretion, as the circumstances might require. I agree with the district court, which concluded that “[sjince our legislature has determined a specific category of offense for vehicular homicide, we think this determination must govern and the state should be precluded from exercising prosecutorial discretion to charge a defendant under the general manslaughter statute.”

On rehearing, the district court rejected the state’s arguments that vehicular homicide should be regarded as a lesser included offense of manslaughter, with a lower standard of proof. As the court below stated:

Despite the semantic differences between our two Florida statutes, we find no articulable difference in the elements of proof required to establish guilt of the crimes therein proscribed. . . . We think that in enacting Section 782.071 the legislature intented [sic ] to create a separate offense which requires the same standard of proof as is required under Section 782.07, but to impose a lesser penalty on those convicted for vehicular homicide.

The opinion of the court below should be approved and the decision affirmed.

OVERTON and SUNDBERG, JJ., concur.

      . Section 782.071, Fla.Stat. (1975), provides: “Vehicular homicide” is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

      . Section 782.07, Fia.Stat. (1975), provides:
      The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

      .The general manslaughter statute classifies the offense therein as a second-degree felony, while vehicular homicide constitutes a third-degree felony. The former is punishable by a maximum penalty of 15 years’ imprisonment or a $10,000 fine or both. §§ 775.-082(3)(c), ,083(l)(b), Fla.Stat. (1975). The latter carries a maximum sentence of 5 years or $5,000 or both. Id. §§ 775.082(3)(d), ,083(l)(c).

      . State v. Young, 357 So.2d 416, 418 (Fla. 2d DCA 1978).

      . Id. at 420.


author: MELVIN, Judge. SMITH, Acting Chief Judge,

text:
    4245 CORPORATION, Mother’s Lounge, Inc. and Cheetah, III, Inc., Petitioners, v. DIVISION OF BEVERAGE, Respondent.
    No. FF-381.
    District Court of Appeal of Florida, First District.
    July 18, 1978.
    See also, Fla.App., 348 So.2d 934.

      Jennifer Hurst of Tobias Simon, P. A., Miami, for petitioners.
    Dennis E. LaRosa, Tallahassee, for respondent.
   MELVIN, Judge.

Petitioners, 4245 Corporation, Mother’s Lounge, Inc., and Cheetah, III, Inc., bring their petition seeking to overturn the final order of the Division of Administrative Hearings that upheld the validity of a proposed rule of the Division of Beverage. The challenged Rule No. 7A-3.44 relates to' “Entertainers, Attire and Conduct” in places of business licensed under the provisions of the beverage law, Division of Beverage. We have jurisdiction. See 4245 Corp., Mother’s Lounge v. Div. of Beverage, 348 So.2d 934 (Fla. 1st DCA 1977).

In summary, the proposed rule would forbid any licensee, holding a license under the Division of Beverage, to permit any person on the licensed premises to engage in certain sexual activity or to appear or entertain in a nude or semi-nude state. The proposed rule is set forth in an appendix to this opinion.

Petitioners urge this Court to cast aside the proposed rule as being in violation of their rights under the Constitution of the United States. The petitioners further urge that the proposed rule is invalid in that it exceeds the authority delegated by the Legislature of Florida to the Division of Beverage.

We do not reach the question of the constitutionality of the proposed rule. The proposed rule is invalid as being beyond the scope of authority that the Legislature has granted to the Division of Beverage.

The necessity for, or the desirability of, an administrative rule does not, of itself, bring into existence authority to promulgate such rule. While the Division may well be lauded for its effort to curb the type of gross immoral conduct such proposed rule would prohibit, the Division must first be vested with a valid legislative delegation of regulatory power accompanied by identifiable standards for its exercise. The Division of Beverage is an arm of the executive branch of our State. It may not, therefore, exercise any power properly belonging to the legislative branch unless it is first, by the legislature, duly authorized to do so.

1 Fla.Jur.2d Administrative Law, § 48, relating to rulemaking power provides, in part:

“The rulemaking power which the legislature may validly delegate to administrative agencies must be and is limited by the statute conferring the power. Administrative agencies, when empowered to do so, may make and enforce regulations to carry out powers definitely conferred on them, but they are not permitted to do more. The legislature cannot clothe them with more, and neither may they assume to do more. While an administrative agency may regulate, it may not legislate unless so authorized by the Constitution. Its power to adopt rules and regulations is limited to the yardstick laid down by the legislature. Moreover, the rules and regulations enacted by administrative agencies must be reasonable.” (Emphasis supplied)

Thus, it is necessary to examine the statutory authority of the Division to enact the proposed rule.

The Division correctly states that it is empowered with rulemaking authority pursuant to Section 561.11, Florida Statutes (1975), which provides:

“(1) The division shall have full power and authority to make, adopt, amend or repeal rules, regulations, or administrative orders to carry out the purposes of the beverage law.”

The Division further cites as authority Section 561.02, Florida Statutes (1975), which provides, in pertinent part that the Division of Beverage shall:

“. . supervise the conduct, management, and operation of the manufacturing, packaging, distribution, and sale within the state of all alcoholic beverages and shall enforce the provisions of the Beverage Law and rules and regulations of the division in connection therewith.” (Emphasis supplied)

An examination of the Beverage Law: Chapter 561 (Administration); Chapter 562 (Enforcement); Chapter 563 (Beer); Chapter 564 (Wine) and Chapter 565 (Liquor) reveals a comprehensive series of statutes relating to the Division’s authority to issue, approve transfers of, renew, revoke and suspend beverage licenses. Further, the statutes provide for the prohibition of the sale of alcoholic beverages to minors, regulation of the hours of sale, penalties for the possession of untaxed alcoholic beverages and penalties for adulterating liquor. A thorough examination of the Beverage Law, however, does not reveal any statute of the requisite specificity remotely granting the Division the authority to regulate dress, or lack thereof, as an incident to supervising the conduct or management of licensed establishments. Absent such authority, the Division, by adoption of the proposed rule, would invade the field of the legislature, which it is proscribed from doing. The Florida Supreme Court has pronounced the rule:

“The legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.” State v. Atlantic Coast Line Ry. Co., 56 Fla. 617, 47 So. 969, at 976 (1908). (Emphasis supplied)

Should the legislature desire to grant to the Division of Beverage the authority to regulate the subject of conduct and dress of entertainers on licensed premises, it may do so by legislation, containing ascertainable standards, directing the Division to oversee such areas. See Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977). Absent such authority, the Division may not, by rule, require licensed employees to wear tuxedos, evening gowns, casual or sport clothes, or any type of dress, or by rule measure the quantity, or lack thereof, of dress, or specify the color scheme of the exterior or interior of the licensed premises.

We note that the activities the proposed rule would forbid are among those that the Legislature of Florida has already condemned as violative of the criminal laws of this State.

In summary, we decline to rule on the constitutionality of proposed Rule 7A-3.44 having determined that the same was promulgated without valid legislative authority-

Accordingly, the prayer of the petition for review is GRANTED and Rule 7A-3.44 purporting to regulate entertainers, attire and conduct is QUASHED.

ERVIN, J., concurs.

SMITH, Acting C. J., dissents with an opinion.

APPENDIX

7A-3.44 ENTERTAINERS, ATTIRE AND CONDUCT

(1) No licensee shall permit any person to perform acts of or acts which simulate:

(a) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.

(b) The touching, caressing or fondling of the anus, vulva or genitals.

(2) No licensee shall permit any person to use artificial devices or inanimate objects to depict any of the prohibited activities described above.

(3) No licensee shall permit the displaying of films, still pictures, electronic reproduction or other visual reproduction depicting acts of a live performance of which is prohibited by this rule.

(4) The encouraging or permitting of any person on the licensed premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any entertainer, employee, servant, or agent of the licensee is prohibited. The encourageing (sic) or permitting of any entertainer, employee, servant, or agent of the licensee by any such person to touch, caress, or fondle the breasts, buttocks, anus, or genitals of any other person on the licensed premises is prohibited.

(5) It is prohibited to employ or use any person in or upon a licensed premises while such person is unclothed or in such attire, costume or clothing, as to expose to view any portion of the pubic hair, anus, vulva, or genitals.

(6) No entertainer, employee, servant or agent of the licensee, while not performing or entertaining as prescribed by this rule, shall mingle or perform services for or with patrons as any host, hostess, waiter, or waitress unless clothed as to cover from view the pubic hair, anus, vulva and genitals.

(7) The prohibitions contained in this rule are not intended to permit or encourage activities that are not otherwise permitted by the law or under local community standards.

(8) If any provision of this rule or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect the other provisions or application of the rule which can be given effect without the invalid provision or application and, to this end, provisions of this rule are severable.

Specific Authority 561.11 FS. Law Implemented 561.02, 561.07, 561.08, 561.11, 561.-29(l)(a) FS. History-New — 76.

SMITH, Acting Chief Judge,

dissenting:

I cannot equate the Division’s proposed rule 7A-3.44 to a hypothetical one requiring licensees’ employees to wear tuxedos and evening gowns, or specifying the color scheme of the licensed premises. This rule deters entertainers and other licensees’ employees from sexual intercourse, masturbation, and other actual or simulated-sexual conduct with each other or with patrons. This rule advises licensees that their licenses will be revoked for permitting employees to expose their sexual organs while entertaining or serving alcoholic drinks to patrons. Though the rule in certain parts is susceptible to an overbroad interpretation, which conceivably could prohibit dancing by fully clothed patrons, the rule’s title and other provisions restrict its application to entertainers and other employees in their relations with patrons. The Division of Beverage so reads the rule, as evidenced by the hearing officer’s order and by Division submissions to this court. The Division does not claim for itself authority to apply the rule absurdly; and, if it should later do so in license revocation proceedings, the district courts of appeal will no doubt intervene. Section 120.68, Florida Statutes (1977).

The majority have not reached the constitutional issues. Nor do I, except to say that Florida has a constitutionally legitimate interest in regulating sexual conduct on premises where the sale of alcoholic beverages is licensed, California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), and that any rule which unlawfully impinges First Amendment or other constitutional rights may, like any overbroad statute, be judicially narrowed in application. See White v. State, 330 So.2d 3 (Fla.1976).

What the majority finds wanting is legislative authority for this kind of regulation. I find such authority in Sections 561.02 and 561.11, Florida Statutes (1977), quoted in the majority opinion, and more particularly in Section 561.29, which the majority opinion does not mention. The latter statute authorizes the Division to revoke or suspend the license of any licensee for

(a) Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, ... or engaging in or permitting disorderly conduct on the licensed premises

If subject to constitutional limitations the state has power to prohibit and criminally punish disorderly conduct on the public streets, see White v. State, supra, it assuredly has authority to prohibit that conduct by alcoholic beverage licensees. In my view the legislature has done precisely that, and has authorized the Division, its enforcement agent, to promulgate more specific standards by rulemaking. That, clearly, is what the Division has sought to accomplish. We have repeatedly held that rulemaking such as this, providing notice of how an agency proposes to apply particularly a broad statutory standard, is a priority goal for all state agencies. Chapter 120, Florida Statutes (1977); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). By invalidating this rule as without legislative authority, notwithstanding its relationship to Section 561.29, the court casts doubt on whether the Division may apply the “disorderly conduct” standard in the other, less preferable, fashion, by case-to-case adjudication. Sections 120.-57, 120.60, Florida Statutes (1977).

I do not think Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977) is authority for the majority’s decision. On the contrary, Cross Key stated, concerning general legislative standards far less susceptible to administrative and judicial application than “disorderly conduct,” that

Such approximations of the threshold of legislative concern are meaningful in common parlance; they are a practical necessity in legislation regulating complex subjects; and, above all, they are now susceptible to refinement by policy statements adopted as rules under the 1974 Administrative Procedure Act, Chapter 120, and as so refined are judicially ascertainable and enforceable. [351 So.2d at 1069.]

I therefore dissent.


author: PER CURIAM. PER CURIAM. DAUKSCH, Judge,

text:
    Ford HAUSMAN, as Orange County Property Appraiser et al., Appellants, v. Albert G. HARTOG, as Trustee, Appellee.
    No. 76-2051.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Rehearing Denied June 27, 1979.
    Gaylord A. Wood, Jr., Fort Lauderdale, and Steven R. Bechtel, Orlando, for appellants.
    Albert G. Hartog, Orlando, for appellee.
   PER CURIAM.

This is an appeal from a final judgment reinstating the classification of 80 acres of appellee’s property as agricultural. We find no error in the final judgment as to the classification of a 25 acre orange grove located on the appellee’s property. Roden v. K & K Land Management, Inc., 368 So.2d 588 (Fla. 1978). However, there is no evidence to support an agricultural classification for the remaining 55 acres of vacant land owned by the appellee. Accordingly, the judgment is affirmed in part and reversed in part with directions that further proceedings be conducted in accordance with this opinion.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Petition for Rehearing is DENIED.

CROSS and ANSTEAD, JJ., concur.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

Because this case was controlled by Roden v. K & K Land Management, Inc., 368 So.2d 588 (Fla.S.Ct. Case No. 51,954, Opinion filed March 22, 1979), I reluctantly joined in the majority opinion notwithstanding my interpretation of the applicable tax laws as I expressed in First National Bank of Hollywood v. Markham, 342 So.2d 1016 (Fla. 4 DCA 1977). It is noted a portion of my expression in First National Bank of Hollywood v. Markham, supra, was disapproved in Roden v. K & K Land Management, Inc., 368 So.2d 588 (Fla.S.Ct. Case No. 51,954, Opinion filed July 20, 1978).

Now that a most substantial minority of our Supreme Court have set out their dissent in the order on rehearing in Roden, I say that I must obey the majority opinion of our Supreme Court but I should much rather see right, as that mentioned minority saw it, prevail.

In my opinion the entire tract was bought and is held as a speculative investment and should be taxed as such, not as agricultural land.


author: BOYER, Acting Chief Judge.

text:
    Robert J. ROGERS, M. D., Petitioner, v. STATE BOARD OF MEDICAL EXAMINERS of Florida, Respondent.
    No. EE-454.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1979.
    Rehearing Denied Jan. 31, 1979.

      Andrew A. Graham, Cocoa, for petitioner.
    Michael Schwartz, of Slepin & Schwartz, Tallahassee, for respondent.
   BOYER, Acting Chief Judge.

By this proceeding review is sought of an order of the State Board of Medical Examiners of Florida (the Board) approving and effectuating a recommended order of a duly appointed hearing officer. The question presented is relatively narrow, viz: To what extent does the State of Florida have constitutional authority to prohibit a non-harmful mode of medical treatment by a licensed physician after full disclosure to, and election by, a patient? Petitioner also seeks a declaration of invalidity of F.S. 458.1201(l)(p).

Petitioner is, and at all material times has been, a practicing physician in Brevard County, Florida. In June of 1974 a nonresident daughter of one of petitioner’s patients wrote a letter to the Brevard County Medical Association (BCMA) inquiring about a medical procedure or methodology known as chelation therapy, as a result of which correspondence BCMA commenced an inquiry into chelation therapy and its use by petitioner. Several hearings were held and ultimately the BCMA ordered petitioner to discontinue the use or practice of chelation therapy. Petitioner refused and was expelled from the BCMA. As a result of that expulsion, pursuant to F.S. 458.-1201(l)(p), the respondent Board issued an administrative complaint following which a hearing was held on September 10, 1976. In due course the hearing officer filed a recommended order which was thereafter approved and adopted by the Board. Petitioner was reprimanded; ordered to immediately cease and desist from engaging in the utilization of chelation therapy in the treatment of arteriosclerosis unless and until authorized by the Florida State Board of Medical Examiners and his license to practice medicine was placed on probation for a period of one year. Review was then sought in this court.

The record reveals that chelation therapy consists of a series of intravenous injections of a chelating drug, usually disodium ethy-lenediamine tetraacetic acid (hereafter diso-dium EDTA, Na2 EDTA, or EDTA). Each injection takes approximately three to four hours to administer, and a normal course of treatment usually involves twenty such injections. The treatments are specifically intended to treat arteriosclerosis (hardening of the arteries), theroselerosis (deposits on the inner lining of the arteries), and other generalized circulatory deficiencies caused by excess calcium in the circulatory vessels. The common chelating agent, Na2 EDTA, was originally discovered by I. G. Farben in the 1930’s and is widely used as a food preservative. EDTA intravenous treatment is often recommended for lead poisoning and other diseases requiring removal of heavy metals from the body. Chelation treatments were widely used during World War II in treating sailors who had contracted poisoning from leaded paint. Since World War II more than 1500 scientific articles and studies have been published concerning practically every application of the chelating process in the body. Many of those articles are contained in the record.

The precise chemical reaction whereby metals, or calcium, are removed from the body through chelation is not yet completely known nor understood. However, through the years, many doctors have observed that after EDTA infusion, the urine calcium level rises and remains at relatively high levels for some months after administration of the treatments. The theory, now generally agreed upon by chelation proponents, is that the chelating salt binds with ionic calcium in the blood, causing a temporary calcium deficiency in the blood. This is rapidly replaced by calcium in precipitate form ionizing in the bloodstream. This calcium, known as metastatic calcium, comes from the walls of the blood vessels and from calcium precipitate in every cell. Many experts believe that the metastatic calcium sludge in each cell causes the cells gradually to disfunction. This phenomenon, coupled with the better known effects of calcium deposits on the interior walls of the blood vessels, results in a gradual decline in blood flow and cell function. Thus, if the pernicious calcium buildup can be prevented or reversed, cells and vessels can continue to function well into old age, reducing the inevitable effects of hardening of the arteries and other vascular occlusive diseases.

The record is replete with claimed instances of dramatic restoration of blood flow to the extremities resulting in arrest of gangrene, restored sensation, increased temperature and return of normal color to toes, fingers, hands and feet after chelation treatment. In one exceptionally dramatic case history, Reynolds Hall, a patient of petitioner, allegedly regained his sight during his seventh chelation treatment.

Chelation therapy is, then, infusion of a chelating agent (generally Na2 EDTA) into the blood stream over several hours, a treatment which is repeated about 20 times, generally over a period of a month or more.

The record reveals that over one million persons die each year in the United States from the effects of vascular occlusive disease. Ultimately, vascular occlusive disease affects all persons to a greater or lesser degree. Yet few treatments are known which combat the disease. Bypass surgery may be effective if the patient can tolerate surgery, if the occlusion is localized, and if it is accessible to the surgeon.

Vasil dilator drugs can temporarily relax blood vessels, allowing increased flow, if the inner walls are not covered by calcium plaque which restricts elasticity of the vessels. Another factor which contributes to the advancement of vascular occlusive disease is diet. Thus, if a patient reduces his intake of calcium and cholesterol the progress of the disease may be slowed. The only other alternative treatment known is chelation. Chelation is intended to remove the calcium that is the cause of the disease.

There is no doubt that the state has the authority, even duty, to control admission of persons to the practice of medicine and to prevent incompetent doctors from injuring patients. (Page v. State Board of Medical Examiners, 141 Fla. 294, 193 So. 82, 83 (Fla.1940) See also Page v. Watson, 140 Fla. 536, 192 So. 205 (1938)) The state has broad powers where the health of its citizens are concerned. (Barsky v. Board of Regents of University of State of New York, 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829 (1954)). The legislature has a right to prescribe reasonable rules and regulations that shall control the practice of medicine. (Page v. State Board of Medical Examiners, supra.) Such authority is, however, limited in that such rules and regulations must bear a reasonable relationship to the public safety, health, morals and general welfare. (Stadnik v. Shell’s City, Inc., 140 So.2d 871 (Fla.1962))

The Florida case most explicit on the issue of state authority to control a profession is Golden v. McCarty, 337 So.2d 388 (Fla.1976), in which the Supreme Court upheld a statute which required tattooing to be performed by a licensed doctor or dentist or by a person under the direction of one so licensed. In upholding the statute involved in that case the Supreme Court clearly applied a harmfulness analysis, stating:

“What is harmful or injurious to the public is for the Legislature to decide and courts should not substitute their judgment therefor [citations omitted]”. (337 So.2d at page 390)

In that regard it is relevant to note that neither BCMA, the hearing officer nor the Board has made any finding that chelation therapy is in any respect harmful or hazardous to the patient. Rather, the Board’s decision appears to have been based upon the hearing officer’s administrative determination that chelation therapy is “quackery under the guise of scientific medicine”.

By far the most famous in-depth analysis of state interest vis-a-vis health regulatory schemes was employed by the courts in deciding the several oft cited abortion cases. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), Mr. Justice Black-mun, speaking for the court spoke of the relationship between the patient and attending physician, holding that the initial decision as to whether or not to terminate a pregnancy is one that is purely personal to the mother and between her and her attending physician and that any unreasonable governmental interference must yield to the mother’s right of privacy. The right of privacy, Justice Blackmun observed, may be founded on the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action or upon the Ninth Amendment’s reservation of rights to the people. The right to make that private decision by patient and attending physician as to whether or not to terminate a pregnancy, even over the objection of the father, was recognized and approved by our Sister Court of the Fourth District in Jones v. Smith, 278 So.2d 339 (Fla. 4th DCA 1973).

The record clearly reveals that chelation therapy is widely used as a “treatment” for arteriosclerosis, though by a definite minority of the medical profession. There is no evidence that petitioner ever claimed that chelation therapy was a cure for arteriosclerosis. Indeed, the record reveals that petitioner allowed his patients to make their own choice of treatment after a full disclosure that chelation therapy had not been proven effective and was held in disfavor by the main stream of the medical community.

In Jones v. Smith, supra, the court stated: “ * * * ‘the abortion decision and its affectuation must be left to the medical judgment of the pregnant woman’s attending physician.’ The attending physician, in consultation with his patient, is free to determine without regulation by the state, that in his medical judgment the patient’s pregnancy should be terminated. The initial decision to terminate a pregnancy, then, is one that is purely personal to the mother and between her and the attending physician, and any unreasonable governmental interference must yield to the mother’s right of privacy.” (278 So.2d at page 341: Emphasis the Courts)

The right of the patient was further emphasized by the author of the Jones v. Smith decision wherein he stated:

“ * * * In Babbitz v. McCann, U.S.D. C.E.D.Wisc.1970, 310 F.Supp. 293, 299, the Court observed:
“ ‘As long ago as 1891, in Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the court said:
“ ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, “The right to one’s person may be said to be a right of complete immunity to be let alone.” ’ (Emphasis added)
“See also specially concurring opinion of Mr. Justice Ervin in Walsingham v. State, Fla.1971, 250 So.2d 857, and Young Women’s Christian Ass’n of Princeton, N.J. v. Kugler, U.S.D.C.N.J.1972, 342 F.Supp. 1048.” (278 So.2d at page 342: Emphasis the Courts)

We emphasize that we do not have here involved controlled substances such as those enumerated in Florida Statute 893.03, nor has there been any allegation or proof of fraud, misrepresentation, coercion or overreaching. Neither does the record even suggest any harm or potential harm to the patient as was the circumstance in Golden v. McCarty, supra. In each instance, as already noted, petitioner’s patients made an informed election.

Article I, Section 2, of the Constitution of the State of Florida provides that: “All natural persons * * * have inalienable rights, among which are the right to enjoy and defend life and liberty, and to pursue happiness * * * We hold that under that provision of the Constitution, in the absence of a demonstration of unlawfulness, harm, fraud, coercion or misrepresentation, respondent Board is without authority to deprive petitioner’s patients of their voluntary election to receive chelation therapy simply because that mode of treatment has not received the endorsement of a majority of the medical profession. It necessarily follows that under such circumstances respondent Board is without authority to prohibit petitioner from administering che-lation therapy.

History teaches us that virtually all progress in science and medicine has been accomplished as a result of the courageous efforts of those members of the profession willing to pursue their theories in the face of tremendous odds despite the criticism of fellow practitioners. Copernicus was thought to be a heretic when he theorized that the earth was not the center of the universe. Banishment and prison was the reward for discovering that the world was round. Pasteur was ridiculed for his theory that unseen organisms caused infection. Freud met only resistance and derision in pioneering the field of psychiatry. In our own era chiropractic treatment has been slow in receiving the approval of the other professions of the healing arts. We can only wonder what would have been the condition of the world today and the field of medicine in particular had those in the midstream of their profession been permitted to prohibit continued treatment and thereby impede progress in those and other fields of science and the healing arts.

Relevant to our reasoning is the following excerpt from Reprints of Medical Literature on Chelation Therapy Compiled by Harold W. Harper, M.D. and Gary F. Gordon, M.D., which appears in the record:

“Orthodoxy in medicine is like orthodoxy in any other professional field — it starts as a theory or tentative belief in some particular course of action. As the theory is expounded whether it is correct or incorrect, it begins to be believed by its proponents and begins almost to challenge a comparison with a religious belief. It begins to be held as a passionate belief in the absolute rightness of that particular view. Right or wrong, a dis-sentient view is regarded as a criminal subversion of the truth and the holder is frequently exposed to slander and abuse by his orthodox colleagues. In the history of medicine, this attitude maintained the orthodoxy of the views of Galen for 1200 years or more. It was the dead hand of orthodoxy that delayed the advance of knowledge through the Middle Ages. Even today, these same oppressive forces may shackle the advancement of medicine. It is so easy to hold orthodox views in the midstream of medicine. It is only on the edges of the stream of medicine in which advancement can take place. On the edges of the stream there have always been men of advanced views from Harvey, Pasteur, and Fleming to Jonas Salk who have pioneered the advancement of medicine; even in the face of criticism from their own colleagues.
“The orthodox view of Arteriosclerotic Vascular Disease is surgical intervention where possible, and at an enormous cost, or let the patient die. We as well as our orthodox colleagues, must remember the words of the oath taken on the day of graduation from medical school ‘and I will do nothing to harm the patient’.”

Finally, petitioner urges that since there are no legislatively prescribed guidelines which delimit the exercise of the power granted by F.S. 458.1201(l)(p), upon which statute respondent bases its complaint against petitioner, the statute is therefore an unconstitutional delegation of legislative authority in violation of Article III, Section 1 of the Florida Constitution.

Being mindful as we are that courts should not pass upon the constitutionality of a statute if a case in which the question arises may be effectively disposed of on other grounds we refrain from addressing that issue, since we have already determined that the order of respondent Board here sought to be reviewed must be quashed. However, we would be less than candid were we not to here acknowledge that several recent decisions of Florida courts cast grave doubts on the statute’s validity.

The order of respondent Board here sought to be reviewed is

QUASHED.

MELVIN and MILLS, JJ., concur.

      . In addition to the constitutional questions presented, petitioner originally assigned as error numerous alleged procedural defects. However, stating a desire to seek resolution of the fundamental underlying issue regarding the extent of permissible intrusion by the State into the doctor-patient relationship, he subsequently abandoned the non-constitutional issues.

      . The record suggests that approximately 12,000 persons die each year from such surgical procedure or its effects.

      . The patients were specifically excluded from testifying at the BCMA hearing. In the proceedings before the Board an untimely motion on behalf of the patients to intervene was denied. At the hearing before the Board one of the Board members stated:
      “I think that having a string of patients come up with anecedotal stories about how much better they felt the next day or the next year would not be admissible in any scientific inquiry into the effectiveness of any mode of treatment, and I think that that would not be helpful, nor would it protect the rights of the petitioner, or the health of the patients, which is what we are concerned with. Patients themselves are not competent to make those judgments.”

      . Singletary v. State, 322 So.2d 551 (Fla.1975); Stembridge v. Harwitz, 303 So.2d 85 (Fla. 3rd DCA 1974) and U. S. v. Rias, 524 F.2d 118 (5th Cir. 1975).

      . See for example, Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1976); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968); Sarasota County v. Barg, 302 So.2d 737 (Fla.1974); Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1977); D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977); and also Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978).


author: PER CURIAM.

text:
    HALE MANUFACTURING COMPANY and Employers Casualty Company, Appellants, v. Kathleen G. BAUDO, Hartford Accident & Indemnity Company and Steven B. Stratton, Appellees.
    No. 77-1835.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1979.

      Ronnie H. Walker of D’Aiuto, Walker & Buekmaster, Orlando, for appellants.
    Sidney H. Parrish of Troutman, Parrish & Weeks, P. A., Winter Park, for appellee Baudo.
   PER CURIAM.

This is an appeal from an order granting a new trial to the appellee, Kathleen G. Baudo. In this personal injury action the jury returned a verdict against the defendants, Steven B. Stratton and Hartford Accident & Indemnity Company, and in favor of the plaintiff-appellee, for $750,000.00. The jury also returned a verdict in favor of appellants, Hale Manufacturing Company and Employers Casualty Company, who were additional defendants in the court below. In the order granting a new trial on both liability and damages the trial court stated that the verdict as to appellants was against the manifest weight of the evidence. We conclude that this order does not sufficiently set out the reasons why the motion was granted so as to allow proper appellate review. In Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978) the Supreme Court stated:

Although an order for new trial need not incant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review. See Thompson v. Williams, 253 So.2d 897 (Fla.3d DCA 1971). Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused. (Id. at 435)

Also see Fla.R.Civ.P. 1.530(f), which requires that orders granting new trials set out the specific reasons therefor. The ap-pellee, Baudo, has also cross-appealed the trial court’s order denying her motions for directed verdict. We find no error in such rulings.

Accordingly, jurisdiction is hereby relinquished to the trial court in accordance with the provisions of Fla.R.Civ.P. 1.530(f) for a period of 30 days so that the trial court may enter an order specifying the grounds for granting the new trial.

ANSTEAD and LETTS, JJ., and JOHNSON, TOM, Associate Judge, concur.


author: McCORD, Chief Judge.

text:
    Bruce Stanley TOBLER, Appellant, v. STATE of Florida, Appellee.
    No. FF-438.
    District Court of Appeal of Florida, First District.
    Feb. 1, 1979.
    Rehearing Denied March 12, 1979.

      Bruce Stanley Tobler, pro se, Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

This appeal is from conviction of appellant of three counts of burglary and two counts of grand larceny. [See Tobler v. State, 350 So.2d 555 (Fla. 1 DCA 1977).] We affirm the convictions but remand for reconsideration of the trial court’s nonal-lowance of jail time credit in this case.

At trial, the State put into evidence a written confession given by appellant to a detective. Other evidence presented by the State corroborated this confession. Appellant presented no evidence at trial. During closing argument, appellant’s attorney attacked the reliability of the confession and claimed that it was coerced. In rebuttal, the prosecutor remarked:

“There has been no evidence that what the defendant wrote here is not the truth. The defense counsel says the defendant was coached, but not once did he say its not true, that it’s a lie, that it’s not his handwriting, that he didn’t write it.”

Appellant’s counsel objected to those remarks claiming they were a comment upon appellant’s right not to testify. The trial judge then remarked as follows:

“THE COURT: What do you want? I mean, I understand what you are saying, but what are you moving for?
MR. BETANCOURT: Your Honor, I want to record my objection.
THE COURT: Just as an objection?
MR. BETANCOURT: Yes, Your Honor, realizing what was said.”

The court overruled the objection.

Appellant first argues that the above-mentioned prosecutorial comment in closing argument constitutes reversible error. Regardless of whether or not that comment does constitute error, appellant has failed to preserve his point for appeal. See Clark v. State, 363 So.2d 331 (Fla.1978), in which the court ruled:

“When there is an improper comment, the defendant, if he is offended, has the obligation to object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection. The trial may then proceed, but he may not again raise that objection as a point on appeal. If the defendant fails to object or if, after having objected, he does not ask for a mistrial, his silence will be considered an implied waiver. . . . ”

Two of the burglary convictions involved the alleged breaking and entering by appellant and three others of the grounds of a May-Cohen’s warehouse and their further breaking and entering of a trailer parked on the grounds where they allegedly took $9,000 worth of merchandise. The breaking into the grounds was accomplished by cutting the lock off of the gate to a fence surrounding the warehouse and, after entering the grounds, the breaking into the trailer was accomplished by cutting the door off the trailer.

As to these two burglaries, appellant argues that entry into the mere curtilage of a business premises is not sufficient to constitute the offense of burglary of the structure located on those premises when entry is made only into a conveyance also located within the curtilage. Recognizing that the District Courts of Appeal of the Third and Fourth Districts have ruled otherwise, appellant urges this Court that such rulings were erroneous. See DeGeorge v. State, 358 So.2d 217 (Fla. 4 DCA 1978), and Greer v. State, 354 So.2d 952 (Fla. 3 DCA 1978). After considering appellant’s arguments and the cases cited, we agree with the decisions of our sister courts. DeGeorge stated it succinctly as follows:

“[A] plain reading of 810.011(1), extends curtilage to that of a structure, including a building of any kind for the purposes of defining a burglary.”

Within the foregoing point, appellant contends that even if the fenced area of May-Cohen’s is a curtilage, the only offense of burglary was that committed when the curtilage was entered; that since the trailer was also a part of the curtilage, entry into the trailer would not constitute a separate burglary. We disagree. The two are separate breakings and enterings and, therefore, are two separate offenses. Appellant’s forced entry into the fenced area was one burglary, and his later forced entry into the enclosed trailer parked within the fenced area was a second burglary.

As his final point, appellant contends that he is entitled to receive credit on the sentences imposed for 104 days he spent in the county jail. The trial judge directed that credit for those days was to be applied to appellant’s sentence for violation of parole. There is nothing in the record, however, to show that credit was given to appellant on any sentence. This cause is, therefore, remanded for the purpose of determining on the record whether the 104 days credit to which appellant is entitled has been applied to any sentence imposed upon appellant and, if not, to give appellant such credit. Such may be done without returning appellant to court.

AFFIRMED but remanded for determination of jail time credit.

MILLS and ERVIN, JJ., concur.


author: MILLS, Judge.

text:
    CITY OF JACKSONVILLE BEACH, Florida, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and International Brotherhood of Electrical Workers, Local 2358 (AFL-CIO), Appellees.
    No. JJ-418.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1979.
    Rehearing Denied April 2, 1979.

      Daniel R. Coffman, Jr. and Michael K. Grogan of Coffman & Coleman, Jacksonville, for appellant.
    Gene “Hal” Johnson of Smith & Johnson, Gainesville, William E. Powers, Jr. and James V. Antista, Tallahassee, for appel-lees.
   MILLS, Judge.

The City appeals from a final order of PERC certifying International Brotherhood of Electrical Workers (IBEW) as exclusive bargaining representative of certain City employees.

The City contends that PERC erred in dismissing its objections to conduct of IBEW affecting the results of the secret ballot election and in denying its request for an evidentiary hearing on the objections. We do not agree and affirm.

IBEW filed a petition for certification seeking to represent certain employees of the City. IBEW and the City entered into a Consent Election Agreement which was approved by the Chairman of PERC. The voting unit included all full-time and permanent part-time employees of the City employed in the following departments: City Manager’s Office, General Service Administration, City Clerk’s Office, Purchasing Administration, Golf Course, Parks and Cemetery, Recreation, Water and Sewer, Inspections and Electric, and excluded all part-time employees, sworn police officers, fire fighters, life-guard employees and all managerial/confidential employees.

A secret ballot election was conducted on 7 April 1977. The vote tally revealed that of 136 eligible voters, 123 cast valid ballots. Seventy-one ballots were cast for and fifty-two were cast against IBEW.

The City filed timely objections to IBEW’s pre-election conduct which it contended affected the results of the secret ballot election. The City stated that IBEW distributed a letter to the employees of the City several days before the election which misrepresented the basic wage rates paid to employees by six other Florida cities then under contract with IBEW in job classifications similar to those in the voting unit. The letter stated:

“We thought you would like to know you are surrounded by workers, performing the same type work as you are, who are represented by the IBEW and who are working under IBEW negotiated contracts.
“Following are some of their job classifications and straight time hourly pay.”

The City also alleged that the misrepresentation was made at such a late stage in the campaign as to prevent an effective response, therefore, interfered with the employees’ free choice in the election.

Pursuant to Fla. Admin. Code Rule 8H-3.28, an investigation of the objections to the election was conducted. The Chairman’s report on the objections found no material misrepresentations in IBEW’s letter. The City’s request for review of the Chairman’s report and for oral argument was granted and oral argument was heard.

On 20 January 1978, PERC sustained the findings of the Chairman’s report and dismissed the election objections. PERC found that IBEW’s letter did not constitute a material misrepresentation of fact. PERC also held that no disputed material issues of fact were raised by the evidence submitted by the parties, thus, an evidentia-ry hearing was unnecessary.

On 4 April the City’s Motion to Reconsider was dismissed by PERC and on 6 April IBEW was certified as the exclusive bargaining agent for the members of the voting unit. This appeal followed.

An election should be set aside only where there is misrepresentation which involves a substantial departure from the truth, which is made at a time which prevents the other party from making an effective response and which is likely to have a significant impact on the election. City of Punta Gorda v. PERC, 358 So.2d 81 (Fla. 1st DCA 1978).

IBEW’s undated letter was mailed to approximately 90 of the eligible voters on or about 2 April 1977. The letter quoted hourly wage rates for employees represented by IBEW in utility departments of six other Florida cities. The letter did not state that the hourly wages were minimum or maximum. The subsequent investigation revealed that the wages quoted were substantially the maximum rates which could be attained under the collective bargaining agreements with the other six cities.

We agree with PERC that neither the letter nor the subsequent investigation revealed misrepresentations of fact. The letter was permissible campaign propaganda which could be recognized as such by the employees.

Finding no misrepresentation of facts, it is unnecessary that we address the other factors established by the City of Punta Gorda case.

An evidentiary hearing is required by Section 120.57(1) where there are disputed issues of material fact. City of Punta Gorda v. PERC, supra. There are no disputed issues of material fact in this case, thus, a Section 120.57(1) hearing was not required.

The order appealed is based on competent substantial evidence and is in accord with the applicable law. It is, therefore, affirmed.

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


author: HUBBART, Judge. PER CURIAM.

text:
    Julian F. SARMIENTO, Appellant, v. The STATE of Florida, Appellee.
    No. 78-455.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Rehearing Denied June 8, 1979.

      Alvin E. Entin and Ronald A. Dion, Miami, Manuel W. James, Key West, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is a criminal prosecution for unlawful sale of heroin in which the defendant was convicted as charged and sentenced in the Monroe County Circuit Court. The defendant appeals.

I

The central issue presented for review is whether the warrantless electronic eavesdropping by state agents of a conversation between the defendant and an undercover police officer in the privacy of the defendant’s home [under circumstances where it was practicable for such agents to have applied for £,nd obtained a prior intercept warrant] constitutes an unreasonable interception of the defendant’s private communications in violation of Article I, Section 12, of the Florida Constitution. We hold that the above electronic eavesdropping constitutes such an unreasonable interception and reverse.

A

The facts pertaining to the above issue are as follows. On February 14, 1978, at approximately 5:00-6:00 p. m. Detective Charles Hitehins of the Monroe County Sheriff’s Office working as an undercover narcotics officer was at a bar in The Raceway Inn, in Key West, Florida. Also present in the bar was the defendant Julian Sarmiento and a young girl reputed to be living with him. Detective Hitehins had a conversation at the bar with the girl in question to the effect that he was interested in purchasing some heroin. The girl thereupon left and had a conversation with the defendant outside the presence of the detective. She later returned to inform Detective Hitehins that he could make a buy of heroin at the defendant’s house trailer which was located next door at 10:30 p. m. that night. Arrangements were made to meet at that location and time.

Detective Hitehins thereafter notified his superior officer, Detective Joseph Valdez of the Monroe County Sheriff’s Office, of the proposed narcotics purchase who in turn alerted other law enforcement officers. Detective Hitehins was thereupon equipped with a hidden electronic “body bug” for the purpose of allowing the surveilling police officers to monitor any conversation Detective Hitehins might have with the defendant in the defendant’s house trailer that night. No effort was made by any police officer connected with this case to apply for an intercept warrant for this electronic eavesdropping.

Detective Hitehins later went to the defendant’s house trailer as planned with a confidential informer and made a purchase of heroin from the defendant. Several law enforcement officers were stationed nearby outside the house trailer pursuant to a prearranged police plan. Two of these officers, Lt. Robert Santana and Sgt. Carol Key of the Key West Police Department, monitored and overheard certain conversations inside the house trailer by means of the electronic “body bug” worn by Detective Hitehins. The conversations which they overheard in the house trailer tended to establish that the defendant had participated in selling a quantity of heroin to Detective Hitehins..

At trial, the defendant objected to and moved to suppress the testimony of Lt. Santana and Sgt. Key as to what they heard on the electronic monitor relating to the conversations between the defendant and Detective Hitchins in the defendant’s house trailer. He argued that such evidence was inadmissible as constituting an unreasonable interception of private communications because of the failure of the police to obtain a prior intercept warrant for the electronic surveillance in this case. The trial court denied the motion.

The defendant was convicted as charged and sentenced to ten years in the state penitentiary. This appeal follows.

B

Article I, Section 12, of the Florida Constitution provides in relevant part as follows:

“The right of the people to be secure in their persons, houses, papers and effects against . . . the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, . . . the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.”

Central to invoking the protection of this constitutional right is a determination that there has been an “interception of private communications” by government agents. If so, a second determination must be made as to whether such interception was “unreasonable.” If both prerequisites are met, the above constitutional right has been violated and any evidence obtained in violation of such right is inadmissible in evidence against the victim of the unreasonable interception.

1

.Our first task, then, is to determine whether there has been an “interception of private communications” of the defendant by government agents in this case. All agree that the defendant’s private communications in his home were overheard through an electronic listening device by government agents. The parties sharply disagree, however, as to whether such electronic eavesdropping can be termed an “interception” in the constitutional sense.

We take it that to “intercept” a private communication, government agents must necessarily invade one’s reasonable expectation of privacy for such is the primary interest which this constitutional right was designed to shield. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Huffer v. State, 344 So.2d 1332 (Fla. 2d DCA 1977). Moreover, a person, such as the defendant herein, has the highest reasonable expectation of privacy when he is in his home for it is this sanctuary of privacy, above all else, that this constitutional privilege was designed to protect. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); Brown v. State, 62 So.2d 348, 349 (Fla.1952); Church v. State, 151 Fla. 24, 9 So.2d 164, 167 (1942); Jackson v. State, 87 Fla. 262, 99 So. 548, 549 (1924). We would not be true to the spirit or intent of this constitutional guarantee or its historical antecedents were we to hold otherwise.

In the instant case, it is clear that the defendant had a private conversation in the privacy of his home with an undercover police officer. The defendant without question assumed the risk that this officer might betray the defendant’s trust and reveal, as he did, the contents of this conversation to the outside world. • That, in our view, is a reasonable risk which any person assumes when he talks to anyone as the speaker has it within his power to gauge whether to take such a risk based on his personal assessment of the person to whom he is talking. As such, there was no invasion of the defendant’s reasonable expectation of privacy [and thus no “interception” in the constitutional sense] for the officer to listen to and later testify, as he did, to the content of the defendant’s conversation in the home. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).

In our view, however, the defendant had a reasonable expectation of privacy that no one else was listening to his conversation in the home besides the undercover police officer and the other people present therein. We are unwilling to impose upon our citizens the risk of assuming that the uninvited ear of the state is an unseen and unknown listener to every private conversation which they have in their homes. That is too much for a proud and free people to tolerate without taking a long step down the totalitarian road. The home is the one place to which we can retreat, relax, and express ourselves as human beings without fear that an official record is being made of what we say by unknown government agents at their unfettered discretion. It is here that we most enjoy the serenity and spontaneity of private life with at times its serious, quiet, intimate, free-wheeling, defiant, frivolous, and even profane discourse which liberates daily life but which few, if any, would want spread on the public record. No free society can long remain free which places such private conversations in the home entirely beyond any constitutional protection. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); United States v. White, 401 U.S. 745, 468—483, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (Harlan, J. dissenting).

It is for these reasons that this court in Hajdu v. State, 189 So.2d 230 (Fla. 3d DCA 1966), held that it was a violation of the Fourth Amendment to the United States Constitution and Section 22 of the Declaration of Rights of the Florida Constitution [the predecessor to Article I, Section 12, Fla.Const.] for government agents to electronically eavesdrop without a warrant on a private conversation between the defendant and an undercover police officer in the privacy of the defendant’s home and thereafter to testify in court as to what they overheard. We reaffirm and follow that decision today in holding that such eavesdropping constitutes an “interception” of the defendant’s private communications within the meaning of Article I, Section 12, of the Florida Constitution.

The state argues in effect that Haj-du is no longer good law because the subsequent passage of Sections 934.03(2)(c),934.-08(3), Florida Statutes (1977) impliedly overruled this decision by authorizing that electronic eavesdropping conducted in this case. We disagree. These statutes by their express terms do not apply to electronic eavesdropping in the home, as here, and cannot be read to overrule or supersede Hajdu. Moreover, it is axiomatic that a state statute cannot constitutionally alter a prior court decision interpreting the state constitution. We therefore decline the state’s invitation to interpret these statutes to apply to the home so as to overrule Hajdu. Corn v. State, 332 So.2d 4, 8 (Fla.1976). That decision was sound when rendered, has not been overruled by the above statutes, and is still good law.

2

Our next task is to determine whether the interception of the defendant’s private communications in his home was “unreasonable.” It is axiomatic that to intercept private communications whether in the home or elsewhere by invading a person’s reasonable expectation of privacy does not alone amount to a violation of Article I, Section 12, of the Florida Constitution. As with traditional searches and seizures, it is not all interceptions of private communications which are forbidden by the constitution, but only “unreasonable” interceptions. See Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).

In this regard, the law is clear that it it per se “unreasonable” for government agents to intercept private communications by electronic means without first obtaining a valid intercept warrant if under the circumstances it would have been practicable for the agents to have obtained such a warrant. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Tollett v. State, 272 So.2d 490 (Fla.1973); State v. Muscara, 334 So.2d 167 (Fla. 3d DCA 1976). Article I, Section 12, of the Florida Constitution lays out the constitutional requirements for such intercept warrants which are in turn implemented by Sections 934.07, 934.09, Florida Statutes (1977). Indeed, where a valid intercept warrant has been obtained, electronic interceptions of private communications have been sustained as reasonable. Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966).

In the instant case, the electronic interception employed by the police officers herein was accomplished without benefit of a prior intercept warrant. The state makes no contention that it was not practicable under the circumstances for the police to have applied for and obtained such a warrant. Indeed, the police had between 4-5 hours to do so between Detective Hitchins’ meeting at The Raceway Inn and the ultimate meeting in the defendant’s house trailer. The failure to obtain such a warrant under these circumstances makes the electronic interception herein “unreasonable” within the meaning of Article I, Section 12, of the Florida Constitution. State v. Muscara, 334 So.2d 167 (Fla. 3d DCA 1976).

The trial court accordingly committed reversible error in denying the defendant’s motion to suppress the testimony of Lt. Santana and Sgt. Key who electronically eavesdropped on the defendant’s private conversations and testified at trial as to the content thereof. The conviction herein must be reversed and the cause remanded for a new trial.

II

In view of our disposition of this case, it is unnecessary to consider the defendant’s Richardson violation contention as the point is unlikely to arise upon retrial. The defendant’s final contention, however, raises an issue which may arise upon retrial and we therefore must reach it.

In our view, the trial court committed reversible error in improperly restricting the defendant’s cross-examination of Detective Charles Hitchins by precluding the defendant from inquiring into a recent criminal investigation of the detective by the state. This result is not changed by the fact that the Monroe County Grand Jury returned a no true bill against the detective in such investigation as it is the defendant’s contention that the charges were dropped as part of an agreement with the state that the detective would testify against the defendant in this case. The defendant is entitled to inquire into such matters before the jury in an effort to impeach Detective Charles Hitchins’ testimony as a witness. Stripling v. State, 349 So.2d 187, 191 (Fla. 3d DCA 1977); Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974).

The judgment of conviction and sentence entered against the defendant herein is reversed and the cause is remanded to the trial court for a new trial to be conducted in conformance with the views expressed in this opinion.

Reversed and remanded.

Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

ON MOTION FOR REHEARING

PER CURIAM.

The state has filed a motion for rehearing in this cause raising as a ground therefor that the court overlooked or failed to consider that the defendant did not file a written pre-trial motion to suppress in the trial court and that the failure to do so was sufficient basis for the trial court to deny the motion. That argument, however, was never raised by the state either in its main brief or on oral argument in this cause and was in no way overlooked by this court. It cannot, therefore, be raised for the first time on a motion for rehearing. Nelson v. Selden Cypress Door Co., 78 Fla. 203, 83 So. 286 (1919); Cartee v. The Florida Department of Health & Rehabilitative Services, 354 So.2d 81, 83 (Fla. 1st DCA 1977); Price Wise Buying Group v. Nuzum, 343 So.2d 115, 117 (Fla. 1st DCA 1977).

Moreover, our review of the record reveals that the trial court properly entertained and heard the defendant’s motion to suppress at the time of trial. Davis v. State, 226 So.2d 257 (Fla. 2d DCA 1969); Fla.R.Crim.P. 3.190(h)(4). The state did not object to or contest the defendant’s right to make this motion in the trial court. It is too late now for the state to raise the issue.

We have considered the other grounds urged on the motion for rehearing and find them to be without merit. The motion for rehearing is, accordingly, denied.

      . “It is lawful under this chapter for law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.” § 934.03(2)(c), Fla.Stat. (1977).

      . “Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of the state or of the United States in any grand jury proceedings, or in any investigation or proceeding in connection with the judicial qualifications commission, if such testimony is otherwise admissible.” § 934.08(3), Fla.Stat. (1977).


text:
    Richard Alden DUBOSE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-534.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.
    Rehearing Denied July 5, 1979.
    Angus M. Stephens, Jr., Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See, e. g., Silver v. State, 188 So.2d 300 (Fla.1966); State v. District Court of Appeal, Third District, 187 So.2d 980 (Fla.1966); Gillman v. State, 346 So.2d 586 (Fla. 1st DCA 1977), and Green v. State, 280 So.2d 701 (Fla. 4th DCA 1973).


text:
    John Michael POLAND, Appellant, v. Kenneth PHILLIPS and Goodwill Industries of South Florida, Inc., Appellees.
    Nos. 78-931, 78-1209 and 78-1210.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Rehearing Denied July 5, 1979.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Bleeke, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and R. Owen Ricker, Jr., Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellees.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Appellant John Michael Poland, a defendant in the trial court, was the lead underwriter for Lloyd’s of London, the subscribing insurer to the certificate of insurance here in litigation. In this litigation, Poland represented the interest of that insurer. The judgment here appealed found that Kenneth Phillips, plaintiff in the trial court, and Goodwill Industries of South Florida, a co-defendant and cross-claimant, were entitled to recover under an insurance policy issued to defendant Goodwill Industries on a vacant warehouse in Dade County, Florida.

Two points are presented on appeal. The first urges that the trial judge erred in failing to direct a verdict for Poland against Phillips and Goodwill. The second urges that the trial court erred in failing to grant Poland’s motion for a new trial or, alternatively, motion for remittitur.

The pleadings in this cause and the claimed rights of the parties are somewhat complex. As briefly stated as possible for a consideration of the issues, the facts and pleadings presented to the trial court are as follows.

Preliminarily, it should be noted that the claimed rights of Goodwill arise out of an endorsement upon its existing policy and that the claimed rights of Phillips arise out of the same policy by reason of the trial court’s holding that the policy should be reformed to add the name of I. R. Mayers, a court-appointed receiver. Phillips received an assignment of Mayers’s rights.

In February of 1975, the circuit court had before it a foreclosure action on a vacant warehouse. In that proceeding, the court appointed a receiver for the warehouse property. The receiver had authority to rent the warehouse “ . . .in order to obtain the necessary insurance to protect against damage or loss of the property during the pendency of the action.” Mayers was the appointed receiver. He entered into a lease with Goodwill, who contacted Stevenson, an insurance agent, who in turn obtained permission from agents of the insuring group (Lloyd’s of London, with John Poland as its lead underwriter) to add the warehouse to Goodwill’s existing policy. A binder was issued. After communications between Mayers (the receiver) and Goodwill, Stevenson sent a memo to the insurers requesting that Mayers be added as an additional insured. In response to this request, the insurers added the property to Goodwill’s master policy, but with regard to Mayers, they sent a memo simply stating:

“With reference to your letter of June 19th, the Company has asked for an explanation of the interest of Mr. I. R. Mayers as Receiver.
“They comment that if as it appears he is a Receiver in bankruptcy, they would wish to be relieved of all the liability immediately.”

Stevenson contacted Goodwill for an explanation, in response to which Goodwill wrote Stevenson a letter on July 23, 1975, explaining that the property was involved in a foreclosure proceeding, not a bankruptcy proceeding, and that the property had been leased by Goodwill from Mayers, the court-appointed receiver. The letter further indicated that the foreclosure sale would be conducted shortly, that the receiver would “be out of the picture” at that point and that Goodwill wanted the insurance to continue on the property as long as it had an interest. Goodwill’s letter was transmitted by Stevenson to the insurance agent as an enclosure to the following memorandum letter:

“With reference to your letter of July 10th, requesting information on Mr. I. R. Mayers[, e]nclosed you will find a letter from Mr. Gibbs of Goodwill Industries, which we trust will answer your questions concerning his interest. Thank you.”

Following transmittal of this explanatory letter, Stevenson heard nothing further from the insurers. Goodwill also received no word that Mayers was not to be an additional insured under the policy.

On September 18, 1975, the building was substantially damaged by fire. The insurer denied coverage to Goodwill on the ground that the policy excluded coverage for an unoccupied building, and denied coverage to Phillips because his assignor, Mayers, was not an insured under the policy.

At the close of all the evidence, insofar as is relevant to this appeal, the trial court directed a verdict on liability in favor of plaintiff Phillips. The court, sitting without a jury on Goodwill’s equitable reformation claim, reformed the policy to add May-ers as an insured. Damages were set by the jury and judgment entered. Attorneys’ fees were subsequently awarded to Goodwill and Phillips.

Appellant Poland’s main thrust on this appeal is that under the facts in this case, neither Phillips nor Mayers, his predecessor in interest, were ever “insureds” under the certificate of insurance. It is, therefore, urged that the trial court improperly reformed the contract of the insurance to include Mayers as a named insured. It is true that neither Phillips nor his predecessors were named insureds on the face of the policy. Nevertheless, there was evidence before the trial court upon which it could validly exercise the equitable remedy of reformation of the insurance policy. Cf. the principles of law in Bevis Construction Co. v. Grace, 134 So.2d 516 (Fla. 1st DCA 1961); and Lighting Fixture & Electric Supply Co. v. Continental Insurance Co., 420 F.2d 1211 (5th Cir. 1969). The evidence shows that Mayers relied upon the assurances to Goodwill by Stevenson, as agent of the insurers, that Mayers would be an insured under the policy. The fact that the insurance was being procured for Mayers, as the receiver of the property, was made known to Stevenson, the agent of the insurers, and the information was furnished by Stevenson to the insurers. The insurers’ actions, in these circumstances, constituted an agreement to have Mayers as an additional insured on the policy. Cf. Taylor v. Glens Falls Ins. Co., 44 Fla. 273, 32 So. 887 (1902); also cf. Home Insurance Company v. Drescher, 210 So.2d 451 (Fla. 3d DCA 1961).

Appellant argues that the issue of reformation was not properly tried because it was not presented as a prayer in the original complaint by Phillips. The argument is not valid because the issue was presented by the cross-claim of Goodwill Industries and was tried at the same time as the issues raised by the complaint were tried. The trial judge had a duty to decide the issue and, having decided the issue, to submit the cause to the jury after the reformation of the contract. See the considerations of law in Dougherty v. Commercial Court Holding Co., 104 Fla. 595, 140 So. 470 (1932).

Appellant’s argument that recovery was barred by the vandalism and malicious mischief exclusions in the policy does not present error because it appears that the policy was issued on the building when it was vacant and with full knowledge that it was vacant. An insurance policy may not be issued on a vacant building and then be excluded from coverage because it is a vacant building. Cf. Mathews v. Ranger Insurance Company, 281 So.2d 345 (Fla.1973); and Moore v. Connecticut General Life Insurance Company, 277 So.2d 839 (Fla. 3d DCA 1973). The exclusions relied upon each operates upon a premise that the building would not be insured if it were vacant.

We have considered the other points raised by the appellant and find that they do not present reversible error. A discussion of these points and the subpoints argued would unduly lengthen this opinion.

We do especially consider, however, the appellant’s argument that attorneys’ fees were improperly allowed to Phillips and Goodwill. With regard to Phillips, the amount of the attorneys’ fees is not contested, but it is urged that Phillips may not recover because he is not a “named insured.” Recovery of attorneys’ fees is properly allowed by an assignee of a named insured who finds it necessary to resort to the courts in order to collect insurance proceeds due. See All Ways Reliable Building Maintenance, Inc. v. Moore, 261 So.2d 131 (Fla.1972); and Federal Insurance Company v. Sarasohn & Co., Inc., 281 So.2d 408 (Fla. 3d DCA 1973). With regard to the attorney’s fees allowed Goodwill, it is urged that they are excessive because Goodwill was allowed fees both for its prosecution of its cross-claim and for its defense of the action originally brought by Phillips. A review of the complicated pleadings in the cause reflects that the effort expended by Goodwill upon its cross-claim was, in effect, the same effort that was necessary to defend the action brought by Phillips. Goodwill incorporated the basic allegations of the complaint and asserted its own attempt to secure the insurance promised to Mayers and to have such insurance effected. These same proofs were the proofs necessary in order to support Goodwill’s cross-claim for reformation which originally made possible the enforcement of the insurance in this matter. Accordingly, the final judgments are affirmed both with regard to the principal appeal and the appeal from the allowance of the attorneys’ fees.

Affirmed.

      . These facts are related in the light most favorable to the plaintiff because the defendant-appellant argues a directed verdict should have been granted to the defendants.

      . Poland’s only point directed to this order urges that he should have received a directed verdict.