author: SCHEB, Judge.

text:
    Emma J. WIKE, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY and U Save, B & B Stores, Inc., Respondents.
    No. 78-830.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 1978.
    Edward D. Friedman of Kushner & Friedman, Fort Myers, for petitioner.
    Alex D. Littlefield, Jr., Tallahassee, for respondents.
   SCHEB, Judge.

An unemployment compensation appeals referee held that the act for which petitioner/claimant was discharged from her employment was not “misconduct connected with her work,” and that she was therefore entitled to receive unemployment benefits. The Board of Review reversed, ruling that petitioner’s actions did constitute misconduct. Claimant Wike now petitions for review.

The evidence before the appeals referee disclosed that petitioner was employed by B & B Cash Stores as a meat wrapper from March 11, 1975 to June 13, 1977. For approximately nine months prior to her discharge petitioner had frequent absences which her employer estimated to average one to two days per week. These absences were causing rather serious scheduling problems for the management and morale problems among the other employees.

Petitioner’s immediate supervisor, Paul Bernier, determined that he needed to speak with petitioner and either reduce her work schedule or have her take a leave of absence so that she could resolve whatever health or personal problems she was having. He therefore told Karl Silversdorf, the assistant meat manager, that he was pulling petitioner’s time card for the week of June 13, 1977, from its usual slot and that Sil-versdorf should tell petitioner when she came in to work that Bernier wanted to see her.

Silversdorf testified that when petitioner came in and found her time card missing, she asked him where it was. He said he told her that Bernier had it and she would have to ask him about it. A short while later he noticed that petitioner had left without waiting to talk to Bernier.

Petitioner testified that she asked Sil-versdorf whether she should wait for Bernier, who had not yet arrived at the store, or go home, since she couldn’t work without a time card. She said that Silversdorf replied, “I really don’t care what you do.” Petitioner explained that she was afraid she would start crying and did not wish to “fall apart” in front of her coworkers, so she left and went home.

When petitioner next contacted Bernier later that day, she was informed that she was discharged for failing to wait and confer with him.

The appeals referee found that petitioner was discharged

because of her unsatisfactory attendance and because she left the employer’s place of business after reporting to work on her last day at work and being advised that her time card had been removed and that she should wait for a meeting with her manager.

However, he further found that petitioner was not discharged for “misconduct connected with her work” within the meaning of the Florida Unemployment Compensation Law because her actions were not “tantamount to an intentional disregard of the employer’s interests.”

B & B then appealed to the Board of Review, which accepted the findings of fact by the appeals referee but reversed his determination that petitioner was not guilty of “misconduct.” The Board ruled that petitioner’s failure to wait for a conference with Bernier constituted “misconduct” as a matter of law. We believe that in so doing, the Board of Review has misconstrued the law. We therefore reverse.

Section 443.06, Fla.Stat. (1977) provides: “An individual shall be disqualified for benefits . . . [when] he has been discharged by his employing unit for misconduct connected with his work . . . .” Although the Unemployment Compensation Law does not define misconduct, this court has approved the following definition:

“Misconduct” ... is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inad-vertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.

Hammett v. Florida Department of Commerce, Division of Employment Security, 352 So.2d 948, 949 (Fla. 2d DCA 1977); Fredericks v. Florida Department of Commerce, Industrial Relations Commission, 323 So.2d 286, 288 (Fla. 2d DCA 1975).

While petitioner may have shown poor judgment or even acted negligently in failing to wait for her supervisor, we find there was competent, substantial evidence to support the appeals referee’s holding that petitioner’s actions did not amount to misconduct within the meaning of the Unemployment Compensation Law. Therefore, the Board of Review erred in overturning the appeals referee’s decision.

Accordingly, the petition for review is granted and the decision of the Board of Review is quashed. The cause is remanded with directions to grant petitioner’s claim for unemployment benefits.

GRIMES, C. J., and HOBSON, J., concur.

      . Judicial review by petition for review to this court from orders of the Board of Review in unemployment compensation matters is provided for by § 443.07(4)(e), Fla.Stat. (1977), and Fla.R.App.P. 9.110.


source: Caselaw Access Project

author: BOYER, Judge.

license: Public Domain

text:
    Daniel BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. JJ-294.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1978.
    Earl H. Archer, III, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove and Raymond L. Marky, Asst. Attys. Gen., for appellee.
   BOYER, Judge.

This is an appeal from an order of contempt, and other related matters.

One James Neal entered a plea of guilty to leaving the scene of an accident involving personal injury and was placed on probation for five years. One of the conditions of probation was that he would not drive “for any purpose during the term of probation”. Another condition was that he “in all respects live honorably, work diligently at a lawful occupation, and support dependents, if any, to the best of [his] ability, and live within what income is available * * ”. Apparently Neal’s drivers license was suspended but in due course, via some means not made clear by the record nor material here, his license was reissued to him by the Department of Motor Vehicles. On January 3,1978, Neal and some 70 other parolees and probationers were transferred to appellant Bryant, a newly reassigned parole and probation officer, for supervision. The pri- or probation officer met with Bryant and personally introduced him to the persons he would be supervising. One of the persons they attempted to visit was Neal. He, however, was at work so they talked to his sister who indicated that Neal had found better employment in Gainesville and was driving to and from work. Bryant thereafter called Neal into his office and was then informed of the reissuance of the driver’s license, Neal having stated that since the license was reissued he thought the condition of probation that he not drive had been lifted. Bryant told Neal that he might be in violation of his probation. However, he did not instruct Neal to continue nor discontinue driving, because he did not know whether it would “violate Neal’s rights.” Bryant was aware that the trial judge, on a prior occasion, had refused to modify the conditions of probation as to driving. Bryant informed Neal that he would investigate his case and that he would seek a modification of the court order if his investigation revealed the truth of the representations made to him by Neal. Bryant continued to phase into his new assignment. He contacted the Mental Health Clinic, the DWI School and Neal’s employer. He learned that Neal had made a good adjustment, complied with the provisions of probation pertaining to abstention from alcohol and was a good employee. He also determined that it was. essential to Neal’s continued employment that he be permitted to drive. On February 3, 1978 Bryant attempted to make an appointment with the trial judge to talk about the Neal case but he was unable to arrange for an appointment until February 13. At that meeting Bryant related the findings of his investigation to the trial judge and asked if the judge would be inclined to modify the conditions of probation so as to allow Neal to drive to work. The judge declined. Bryant, on the next day, went to Neal’s home to inform Neal of the judge’s decision. Neal was not at home so Bryant talked with Neal’s mother. Three days after having talked to the judge, Bryant physically took Neal’s driver’s license. On February 17, the trial judge issued a rule to show cause directing Bryant to show cause why he should not be held in contempt of court for indirect criminal contempt and sentenced accordingly. In due course an attorney was appointed to represent Bryant who requested a continuance and a jury trial. The trial was continued one day and the motion for a jury trial was denied. Another motion requesting the trial judge to re-cuse himself was also denied. When the hearing, was commenced Bryant was directed by the trial judge to proceed with his defense although no evidence had been adduced by the state nor the trial judge. After Bryant testified the trial judge cross-examined him. The record reflects that the judge, without being under oath, dictated into the record his narrative concerning his recollection of what transpired when he and the defendant met on February 13. The trial judge refused to be examined by Bryant’s attorney concerning his recollection testimony. Bryant was found to be in criminal contempt and an order of contempt was entered on March 1, 1978.

Examining the record, we find that Neal’s order of probation was not directed to the Department of Offender Rehabilitation nor any of its employees, but only to Neal. Bryant could not, therefore, of course, be held in contempt for violation of that order. Indeed, the record reveals that the rule to show cause which formed the basis for the charge against Bryant only recited that he was aware of the provisions of the probation order; that his predecessor had sought modification so as to allow Neal to operate a motor vehicle for work purposes and that the court had declined such modification; that such declination was within the knowledge of Bryant and that Bryant “well knowing of the terms of the probationary order, and that its modification had been sought on a prior occasion by your predecessor in office, nonetheless did give the defendant verbal authorization to operate a motor vehicle to drive daily between his home in Williston, Levy County, Florida and his employment in Gainesville, Alachua County, Florida” and that Neal “has been operating a motor vehicle pursuant to your authorization but in controvention and direct violation of the order of probation”.

Aside from the procedural matters which we will address in due course, it is apparent that in order for Bryant to have been validly found to be in contempt it was necessary that the charges against him, as above recited, be established by proof. The thrust of the charge is that Bryant gave verbal authorization to Neal to operate a motor vehicle contrary to the court’s order and that Neal had been operating a motor vehicle pursuant to such authorization. We do not find proof of that charge in the record. Neal did not testify. Bryant specifically denied giving any such authorization or permission and there was no other evidence on the point. The record does reflect that Bryant was aware of the restriction and was aware that Neal was nevertheless driving. While he did not then and there direct Neal to discontinue driving neither did he give permission nor authorization. Bryant’s testimony on the point was:

“Even though the order says that you are not to drive, and it looks like that you are in violation, I cannot proceed at this moment because I don’t know that much about the case. Let me back off, and I am not going to take any action until I find out more about this situation. It is a likelihood that the court will not go along with a modification based upon your past driving record and the fact that he had already refused once; but I will attempt to seek a modification in this matter in order that you may keep your job.”

Further, intent is one of the elements of contempt. Somerstein v. City of Miami Beach, 319 So.2d 158 (Fla. 3rd DCA 1975). There is no evidence of intent by Bryant to disobey the court’s order in this case. Nor is there evidence that Bryant’s alleged disobedience of the court order was willful. Bryant was a layman and did not understand the legal significance of the reissuance of Neal’s driver’s license. When the trial judge refused to modify the terms of Neal’s probation as to the driving condition, Bryant immediately took Neal’s driver’s license. The record reveals no contempt. (Florida Ventilated Awning Company, Inc. v. Dickson, 67 So.2d 218 (Fla. 1953). Department of Health and Rehabilitative Services v. State, 338 So.2d 220 (Fla. 4th DCA 1976).)

In Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977) the Florida Supreme Court distinguished civil contempt from direct or indirect criminal contempt as follows:

“If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil. This type contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the con-temnor’s sentence upon purging himself of the contempt. The sentence is usually indefinite and not for a fixed term. Consequently, it is said that the contemnor ‘carries the key to his cell in his own pocket.’ [citations omitted]
“On the other hand, a criminal contempt proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court. Ex Parte Earman, 85 Fla. 297, 95 So. 755 (1923); Demetree v. State, supra. Accordingly, while the conduct in the case at bar could be the subject of civil contempt proceedings at the instance of the wife to coerce the petitioner to vacate the premises, it could also be the basis for criminal contempt proceedings in the event the trial court determined the conduct to be obstinate and sought simply to vindicate the authority of the court by punishing the petitioner. It is apparent then that the nature of the conduct is not determinative of the character of the order.
* * * * * *
“Where the act constituting the contempt is committed in the immediate presence of the court, this contempt is defined as direct. Where an act is committed out of the presence of the court, the proceeding to punish is for indirect (sometimes called constructive) contempt. * * * ” (347 So.2d at pages 424 and 425.)

It is well recognized in Florida that greater procedural due process safeguards are accorded when one is accused of indirect criminal contempt. (Pugliese, supra.) The necessary procedure which must be followed in cases of indirect criminal contempt is set forth in Fla.R.Crim.P. 3.840. Subsection (a)(5) of that rule in particular provides the means for disqualification of a judge and states:

“Disqualification of Judge. If the contempt charged involves disrespect to or criticism of a judge he shall disqualify himself from presiding at the hearing. Another judge shall be designated by the Chief Justice of the Supreme Court.”

Bryant has also raised as error the failure of the trial judge to recuse himself. Looking at the language of Rule 3.840(a)(5), we cannot say that this case falls within the parameters of that rule. Since the contempt charged in this case does not involve disrespect or criticism of a judge, the question arises as to whether or not the judge otherwise erred in failing to recuse himself.

A judge need not recuse himself simply because the contempt was committed against him or a court of which he is a member. Further, a judge generally is not disqualified merely because he initiated the contempt proceedings. This is particularly true in cases of direct criminal contempt where it is necessary for immediate and summary action on the part of the trial court or judge. (67 A.L.R.2d 600 Disqualification of Judge in proceedings to punish contempt against or involving himself or court of which he is a member, p. 600.)

However, there are exceptional cases wherein due process may be violated if a judge tries a contempt committed against himself or a contempt concerning disobedience to an order rendered by him. We deem this to be such a case.

The trial judge was not merely a witness in this case, he was the only witness against Bryant to prove a charge of contempt which occurred out of the presence of the court. Probationer Neal, who was the only witness to the alleged contempt besides Bryant was not even called as a witness at the trial. The judge testified without being under oath and refused to be cross-examined by counsel concerning his recollection of the meeting between himself and Bryant. In that regard it is instructive to look at the language found in In the Matters of Lee Roy Murchison and John White, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955) in which review was sought of an adjudication of contempt where the same judge presiding at the contempt hearing also served as the “one-man grand jury" out of which the contempt charge arose. There the Supreme Court stated:

“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that ‘every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.’ Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11.
# * # * #
“As a practical matter it is difficult if not impossible for a judge to free himself from the influence of what took place in his ‘grand-jury’ secret session. His recollection of that is likely to weigh far more heavily with him than any testimony given in the open hearings. That it sometimes does is illustrated by an incident which occurred in White’s case. In finding White guilty of contempt the trial judge said, ‘there is one thing the record does not show, and that was Mr. White’s attitude, and I must say that his attitude was almost insolent in the manner in which he answered questions and in his attitude upon the witness stand . Not only was the personal attitude insolent, but it was defiant, and I want to put that on the record.’ In answer to defense counsel’s motion to strike these statements because they were not part of the original record the judge said, ‘That is something . . . that wouldn’t appear on the record, but it would be very evident to the court.’ Thus the judge whom due process requires to be impartial in weighing the evidence presented before him, called on his own personal knowledge and impression of what had occurred in the grand jury room and his judgment was based in part on this impression, the accuracy of which could not be tested by adequate cross-examination.
* * . * * * *
“Moreover, as shown by the judge’s statement here, a ‘judge-grand jury’ might himself many times be a very material witness in a later trial for contempt. If the charge should be heard before that judge, the result would be either that the defendant must be deprived of examining or cross-examining him or else there would be the spectacle of the trial judge presenting testimony upon which he must finally pass in determining the guilt or innocence of the defendant. In either event the State would have the benefit of the judge’s personal knowledge while the accused would be denied an effective opportunity to cross-examine. The right of a defendant to examine and cross-examine witnesses is too essential to a fair trial to have that right jeopardized in such way.
“We hold that it was a violation of due process for the ‘judge-grand jury’ to try these petitioners, and it was therefore error for the Supreme Court of Michigan to uphold the convictions. * * * ” (349 U.S. at page 136, 75 S.Ct. at page 625.)

As in the above quoted case, this case is distinguishable from an adjudication by a trial judge of a contempt committed in his immediate presence in open court. In cases of direct criminal contempt it may be necessary that the affronted judge act summarily and adjudge the contemnor in contempt in order to preserve the integrity of the court. But that necessity is lacking in eases of indirect or constructive contempt, and indeed due process requires that in cases such as this that the contempt be tried by another tribunal.

In Ex Parte Turner, et al., 73 Fla. 360, 74 So. 314 (1917) and Dixon v. State, 155 So.2d 632 (Fla. 2nd DCA 1963) it was held that matters relating to a prisoner serving under sentence of a court are regulated by statute, not by judicial orders, and that interference therewith is not a contempt of the court. Whether a probationer pursuant to court order constitutes an exception, or whether a probation officer (because of his peculiar relationship to the court) is an exception, are questions which have not been raised nor argued in the briefs: Because of our disposition of the case on other grounds we find it unnecessary to address them here.

The order of contempt here appealed is

REVERSED.

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


author: PER CURIAM.

text:
    Kinne Kohler PEARCE, Appellant, v. Linda H. PEARCE, Appellee.
    No. 78-894.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1978.
    C. Michael Duncan of Duncan & Duncan, Tavares, for appellant.
    William A. Sweat, Jr. of Miller & Sweat, Lakeland, for appellee.
   PER CURIAM.

We affirm the order of the trial court modifying the final judgment of dissolution, but we reverse the award of attorney’s fees to appellee. The trial court received no evidence as to the services performed by appellee’s attorney or as to the value of those services, and so it was without authority to make an award. Nivens v. Nivens, 312 So.2d 201 (Fla. 2d DCA 1975). Accordingly, we remand the case for rede-termination of attorney’s fees.

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


author: RYDER, Judge.

text:
    William H. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1073.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1978.

      Jack 0. Johnson, Public Defender and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

William Harrison Wilson appeals the denial of his motion to suppress the evidence against him, and his resulting conviction and sentence contending that the warrant - less search of his home was improper. We agree and reverse.

On December 13, 1977, Charles Kanehl, an undercover police officer attempting to purchase cocaine, met with one David Noble. Pursuant to Noble’s instructions, Ka-nehl drove to a specific address in Clear-water. This was a duplex apartment house. When they arrived at the address, Kanehl remained in his automobile and watched Noble go to the door of the first apartmeht of the duplex (appellant’s apartment). Noble entered and thereafter exited from the apartment, returned to Kanehl’s vehicle and delivered to him a packet of cocaine. Ka-nehl then paid Noble $75.00 which Noble took back to the same apartment and again returned to Kanehl’s car. They then departed. The substance purchased by Ka-nehl (and that substance later purchased), was turned over to a laboratory whose analysis proved the substance to be cocaine.

On December 15, 1977 around 1:40 p. m., Kanehl, accompanied by a Detective Logan of the Pinellas Sheriff’s Office, met Noble again who rode with them to the same Clearwater address. On this occasion, Noble followed the same routine. He exited Kanehl’s vehicle, walked to the same apartment, entered and then returned to the car. This time, however, both Kanehl and Detective Logan bought the cocaine from Noble. After they had given Noble their money'in exchange for the cocaine, Noble, as before, carried the money into the apartment and returned to the undercover police vehicle. The parties then drove from the area.

It is interesting to note Kanehl’s testimony following the account of the second “buy”. In response to a question relating to the officer’s ability to enter appellant’s apartment, Kanehl alluded to the fact that he and Noble had several brief conversations regarding Noble’s source and that there was more cocaine to be purchased. There is also a telling statement that, “We couldn’t get in that time”, obviously indicating a desire on the part of the investigators to gain entrance into appellant’s apartment. The reader should note that these conversations occurred sometime prior to Noble’s eventual arrest and the search of appellant’s apartment and they weaken the credibility of the State’s eventual position that the police wanted to enter appellant’s apartment only after Noble’s arrest to prohibit possible destruction of the contraband therein.

Still later, on December 16, 1977 the scenario is repeated, but with major alterations. Kanehl was again accompanied by Detective Logan. This time, however, Noble was met at another location, and he followed the two officers to appellant’s apartment in another vehicle. Once reaching appellant’s apartment, the two automobiles were parked and Noble walked over to Kanehl’s car. He told Kanehl he would have to check on the quantity his source had and, according to Kanehl, inquired as to whether Kanehl was still interested in purchasing some LSD. Obviously, this was a reference to some earlier conversation preceding the third meeting.

Having been assured by Kanehl that he and Logan had continued interest in the obtaining of LSD, Noble, according to Ka-nehl’s testimony, “went in the same apartment, the same door, and came back out a few minutes later, got in the back of my car as he had done in the past, and he retrieved three packets of cocaine and a pack of 100 LSD tablets which he sold to myself and Detective Logan, and he was getting out after we had paid him to go back into the apartment, as he had done in the past, and we arrested him.”

Unbeknownst to Noble, on this occasion, Kanehl was “wired for sound” — he was equipped with a body microphone which transmitted sound to a remote police receiver. Also, unknown to Noble, were the existence of a number of backup units in the immediate vicinity. These were marked and unmarked police vehicles which carried, at least, a Sergeant Grass of the Pinellas County Sheriff’s Office, a Captain Day, a Sergeant Peel and another unnamed officer of the Largo Police Department. Upon hearing of the arrest of Noble, all of these units immediately converged on Kanehl’s vehicle and the scene of the arrest.

Obviously, the police had exercised more than a modicum of pre-planning to arrange for the “body mike”, and for the presence of the backup units, not to mention coordinating the transaction with another, independent, police organization.

Thereafter, Detective Sergeant Grass went to appellant’s apartment, knocked on his door and informed appellant that the police had reason to believe there were drugs on his premises and that they were going to search his apartment at that juncture, despite the fact they, admittedly, did not have a search warrant for such action. Appellant never consented to a search.

The officers then entered the apartment, searched and found LSD, a controlled substance. Grass testified that he entered the apartment because he felt the contraband inside would have been destroyed since Noble did not return to appellant’s residence and that the arrest of Noble (and another individual parked outside appellant’s apartment) occurred in an area which was observable from appellant’s apartment.

After a hearing on appellant’s motion to suppress, the trial court ruled that the search was proper since the arrest of Noble could have been and probably was viewed by the occupants of appellant’s residence; that it would have been an unreasonable burden on the police to leave the premises and to secure a search warrant.

One must note, however, that this third meeting with Noble at the appellant’s apartment began around 10:00 p. m. At least six hours prior to this meeting, however, the police had in their hands a laboratory report confirming the fact that the previously purchased drugs were cocaine. It was Sergeant Grass who testified before the trial judge that after the third drug buy went down, after Noble’s arrest, and after all of the backup police units and additional policemen had swooped down upon the scene (a display of police force that would elevate the paranoia of even the most innocent of citizens), the police did not have time to obtain a search warrant for appellant’s home as the hour was late and by the time a judge was located, they feared appellant would have destroyed the contraband the police suspected was in his home. This reasoning does not wash. What happened during the six hour period between receiving proof the police had been sold cocaine out of appellant’s apartment on two previous occasions and the time of the third “buy”? The police had time to set up the third “buy”. They had time to obtain and install a body mike on Kanehl. They had time to arrange for Logan to accompany Kanehl to meet Noble at a different location than as before. They had time to confer, coordinate and arrange with a sister law enforcement agency a number of backup units. But, they say, not enough time to obtain a search warrant from a judge. Our past service as a trial judge is not so remote as to dim the memory of many instances wherein we were presented with search warrants for our perusal at varying times of the day and night. Surely, during that six hour period between proof of the identity of the drugs and the meeting time that the police at their leisure also arranged, the police could have arranged a conference with one of the twenty-five circuit judges of the Sixth Judicial Circuit or one of the ten Pinellas County judges who would have quickly responded and reviewed their request for the issuance of a search warrant.

Beyond memory, but not beyond written record, was birthed the concept that one has a greater expectation of privacy in one’s own home than elsewhere.

During the latter part of the 16th Century and early 17th Century, Sir Edward Coke (1552-1634) was in the service of Queen Elizabeth as Attorney General. For her he zealously prosecuted, among others, Essex, Southampton and Raleigh. . However, when he became Lord Chief Justice of England, he experienced a change in philosophy. Through his decisions, he began defining the rights of the citizenry.as opposed to the royal prerogatives and the excesses of the state. It appears that Lord Coke may very well have coined the phrase that one’s home is his castle when he wrote, “That the house of everyone is to him as his castle and fortress, as well for his defence, against injury and violence, as for his repose; . . .” Semayne’s case, 5 Co.Rep, 91A, Mich. 2., Jac. 1, The English Reports, In the King’s Bench, book 6, page 195. This notion also appears in his Institutes published in 1628.

As the law and democracy developed, we find in the 18th Century the statement of William Pitt, first Earl of Chatham, speaking as to searches incident to the enforcement of an excise on cider: “The poorest man in his cottage may bid defiance to all forces of the crown. It may be frail; its roof may shake; the wind may' blow through it; the storm may injure it; but the King of England may not enter it!: — All his power dare not cross the threshold of that ruined tenement!” Broom’s Leg.Max., pg. 432.

Of course, we all know of the concern for the home expressed by the United States Congress in the creation of the Third' and Fourth Amendments to the Constitution which were ratified by the people of the United States on December 15, 1791. Our State’s Constitution also displays special concern as to the concept of privacy one has in one’s home. Article I, Section 12, Florida Constitution, 1968.

Turning to case law in the state of Florida, we find the erudite former Chief Justice of the Florida Supreme Court, Mr. Justice Terrell adopting the philosophy of -Lord Chatham in his last opinion written in the case of Benefield v. State, 160 So.2d 706, 709 (Fla.1964). There, Mr. Justice Terrell condemned the search of a person’s home without warrant, although the search and arrest might have been based upon probable cause, due to the failure of the police to follow Section 901.19, Florida Statutes (1963), the right of an officer to break into buildings to effect arrest.

Unfortunately, we are again confronted with a matter wherein the action taken by the police is their own undoing.

As was so ably said last year by Mr. Justice Sundberg in Hornblower v. State, 351 So.2d 716 (Fla.1977):

“The Fourth Amendment to the United States Constitution is an expression of our founding fathers’ uneasiness with the potential omnipotence of a federal government. It reflects the notion that an individual can never enjoy the tranquility which he deserves if the government is free to tamper with his expectations of privacy through arbitrary searches. Consequently, the central theme of the Fourth Amendment is its prohibition against general searches. Practices like random entries into people’s homes or random searches of people walking the streets, to acquire information or obtain evidence are repulsive to our concept of a democratic society. . In essence, the Fourth Amendment forbids those occurrences and evinces the axiom that privacy is not a gratuity which we hold at the whim of our government. Only when there is a special governmental need that can be stated with particularity, will we allow the government to intrude on an individual’s privacy-
To implement this principle, the Supreme Court of the United States has mandated that warrantless searches ‘are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ . . . These exceptions have been ‘jealously and carefully drawn’, . and the burden is upon the State to demonstrate that the procurement of a warrant was not feasible because “the exigencies of the situation made that course imperative.’ . . Hornblower, supra, at 717 (citations omitted).

As in Hornblower, the State here did not obtain a search warrant to search appellant’s home. Although they had at least six hours between the time they had proof the purchased drugs were cocaine and the time of the third “buy”, the police didn’t even attempt to obtain a search warrant which would have been the key to appellant’s door.

The record discloses ample probable cause and time within which to obtain the warrant. We return to the lesson taught to us in Hornblower, supra:

“But the probable cause itself is not sufficient to support a warrantless search. As enunciated above, any warrantless search is presumed to be illegal unless there are exigent circumstances in addition to probable cause. The state submits that the scurrying around by the occupant when the police knocked at the door and announced their presence supplied justification for a warrantless search. It speculates that evidence might have been destroyed had the police taken time to obtain a warrant. We reject this rationale. In his testimony, the officer acknowledged that he intended to enter and search the trailer before he ever approached the mobile home. To sustain respondent’s argument would be to endorse the precise kind of conduct which the Fourth Amendment seeks to proscribe. Police could approach a dwelling, armed only with their own subjective suspicion that illegal activity was afoot, and wait for some suspicious movement, thereby giving them justification to break down the door and burst into the dwelling. Officers then would be equipped with the power to conduct any warrantless quest for evidence of guilt or of crime. Consequently, the suspicious movement which occurred when the police announced their presence cannot supply the exigent circumstances for the warrantless search. .
Notwithstanding the existence of probable cause, to carry its burden, the state needed to show that there was insufficient time to secure a search warrant. In effect, if time to get a warrant exists, the enforcement agency must use that time to obtain the warrant. Excluding the consent and plain view situations, which remove the need for a warrant, every ‘exception’ to the warrant requirement derives from an emergency situation, where to obtain a search warrant would defer police activity that must be performed punctually to be effective. Thus, in the search-incident exception, the exigent circumstances justifying quick action are destruction of incriminating evidence within the reach of the arrested individual and harm to the arresting officer.” Hornblower, supra at 718.

Even conceding, for the sake of argument, that there may have been exigent circumstances due to the fact that the occupants of the apartment may have observed Noble’s arrest, the police created their own exigent circumstances. As was made clear in Hornblower, this sort of police activity cannot and will not be condoned. Turning once again to Hornblower, we adopt and publish anew its philosophy as stated at page 719:

“It is obvious that a balance must be maintained between conflicting interests of society that would promote security within one’s home and at the same time, maximize the freedom of law enforcement officers to protect the peace of the community. Towards that goal, the Fourth Amendment establishes a procedure for effectuating the rights of individuals — the deliberation of a dispassionate and detached magistrate who initially makes an independent determination as to probable cause before a warrant may issue. Only under special circumstances is it unnecessary to follow this procedure. Were a magistrate not interposed between the policeman and the individual before a person’s privacy was threatened, that precious equilibrium between individual privacy and orderly society would be disrupted. As stated by the United States Supreme Court in Johnson v. United States, [333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436] supra:
‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence ' sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.’ (citations omitted)”

A court is reluctant to suppress evidence which, if obtained in lawful fashion, would have been of compelling importance to the prosecution for felony. But there is no other course by which a court can insist upon compliance by police officers with the requirements of law with respect to arrests and searches than to suppress evidence illegally obtained. The applicable rule of, law is not difficult to understand. It rests, to be sure, upon the exercise of reasonably sound judgment in appraising the necessities of the moment. But, so does almost every other duty of the police. Unless the necessities of the moment require that the' officer break down the door, he cannot do so without a warrant; and if in reasonable contemplation there is opportunity to get a warrant, or the arrest could as well been made by some other method, the outer door to a dwelling cannot be broken to make an arrest without a warrant. If nothing additional were required, a man’s right of privacy in his home would be no more than his rights on the street. The law is otherwise.

In the absence of exigent circumstances, and as said before such circumstances did - not exist here except those created by the police themselves, the only key the police would have to a person’s home would be the search warrant. Here, they had at least six hours to obtain that key but did not. Clearly then, the entrance into appellant’s home was unlawful, the presence of the officers in the home was unlawful, and so the search and the arrest of the appellant was also unlawful. It follows then that the evidence thus procured should have been suppressed. Accordingly, the judgment and sentence are vacated and the cause remanded for further proceedings consistent with this opinion.

GRIMES, C. J., and HOBSON, J., concur.


text:
    Mary MORGAN, Supervisor of Elections of Pasco County, Florida, Appellant, v. Arthur RODRIGUEZ, Individually and as a member of the Board of Commissioners of the Lake Padgett Road and Bridge District, and Board of Commissioners of the Lake Padgett Water and Sewer District, Appellees.
    Nos. 78-1988, 78-1989.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1978.
    Gerald A. Figurski, County Atty., Port Richey, for appellant.
    Peter M. Dunbar of Dunbar, Dunbar & Roman, New Port Richey, for appellees.
    David E. Cardwell, Director, Div. of Elections, Florida Dept, of State, Tallahassee, amicus curiae.
   PER CURIAM.

Affirmed. In view of the time exigencies presented in these appeals and the emergency nature of the expedited hearing held herein, rehearing is hereby dispensed with, the stay pending appeal is hereby vacated and the cause is remanded forthwith.

BOARDMAN, Acting C. J., and OTT and DANAHY, JJ., concur.


author: McCORD, Chief Judge.

text:
    ATLANTIC NATIONAL BANK OF JACKSONVILLE, a National Banking Association, Appellant, v. MODULAR AGE, INC., Brown Transport Corporation, C. P. Brown and I. C. Hemmings, Appellees.
    No. HH-420.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1978.
    Gary B. Tullis of Ulmer, Muchison, Ashby & Ball, Jacksonville, for appellant.
    Robert L. Cowles of Cowles, Coker & Myers, and Edward A. White, and E. Earle Zehmer, of Bedell, Bedell, Dittmar & Zeh-mer, and Delbridge L. Gibbs, of Marks, Gray, Conroy & Gibbs, Jacksonville, for ap-pellees.
   McCORD, Chief Judge.

This is an interlocutory appeal from an order of the circuit court granting partial summary judgment in favor of defendants-appellees on plaintiff-appellant’s suit seeking damages under a performance bond for alleged breach of a construction contract by the general contractor (appellee Modular Age, Inc.). We affirm.

The record on summary judgment shows that Ellinor Motor Company, the owner of certain real property in Seminole County, entered into a standard form AIA contract with appellee general contractor Modular Age for the construction of a lodging facility consisting of 102 modular units. Appellant Bank was the construction lender and executed a building loan agreement (mortgage) which identified Ellinor Motor Company as the owner and specifies that Henry H. Jordan, AIA, is the “owner’s architect.” It further provided by way of a written addendum signed by Henry H. Jordan that he agreed to act as the Bank’s architect in the event of default by the owner. The Bank required the general contractor, Modular Age, to post the performance bond upon which this suit was based. The bond was prepared by the Bank’s attorneys and signed by appellees Brown Transport Corporation, C. P. Brown and I. C. Hemmings as nonprofessional and gratuitous sureties. As part of the transaction, the sureties obtained from Frederick B. Ellinor (the principal stockholder of the owner) a hold harmless agreement.

The motel was completed and on August 7,1973, was licensed to operate by the Florida Hotel and Restaurant Commission and opened for business just prior to the “Arab oil boycott” in the following October and the tourist trade slump resulting therefrom. The motel lost money from the beginning of its operation. Ellinor Motor Company advised appellant of its financial distress in October but kept the motel in operation during 1974 and until September 3, 1975, when it closed.

In November, 1973, appellant decided to employ architects and engineers to-inspect the motel. At that time it contemplated a suit against the sureties to compensate it for its loan. The architects and engineers employed by the Bank, Reynolds, Smith & Hill, made several inspections of the motel and concluded that the wall construction between the tenancies did not meet the requirements of the Southern Standard Building Code in that they would,-not provide one hour fire resistance between tenancies. Rather than foreclose its mortgage, the Bank, on June 19,1974, filed this action alleging that the motel was valueless and seeking the full amount of the contract performance bond in damages. In July of 1975, appellant again utilized Reynolds, Smith & Hill to remove a wall section from a motel module and take it to a laboratory in Miami retained by appellant where heat and flames from four gas jets were applied directly to the wall sections without the fire protection benefit of the fire sprinkler system which was installed in the motel. On the basis of that test, the laboratory prepared a report finding the walls to be unsatisfactory and below minimum fire resistance requirements.

The contention of appellant in this suit is that these walls did not meet the Southern Standard Building Code for fire resistance; that it was the contractor’s responsibility to provide walls which would meet the code requirements and by failing to do so, the contractor breached its contract with Elli-nor; that therefore appellee sureties are liable to appellant under the performance bond for the amount of its loan. Appellee sureties contend that the contract was not breached by the contractor; that the walls did meet the code requirements but that even if they did not, such was the fault of the owner’s architect Henry Jordan pursuant to the contract entered into between the owner and the contractor and the construction loan agreement and it involved no breach of contract by the building contractor.

We do not find the question of whether or not the walls met the requirements of the code to be the controlling issue on this appeal. The basic question is whether or not walls which would meet the code were a design requirement for which the architect was responsible or a construction requirement, independent of design, for which the building contractor was responsible.

Frederick Ellinor, the owner of Ellinor Motor Company, first became interested in construction of the motel in December, 1971. He talked with Mr. McKnight of Modular Age, the eventual contractor, at a meeting in Atlanta on January 4, 1972. From that discussion, Ellinor was committed to utilizing modular unit construction. Such construction involves the use of room modules manufactured at a point distant from the job site, finished as to the interior but unfinished as to exterior walls, ceilings and floors. These modules are then delivered to the construction site where they are incorporated into the building in such a manner as to form a completed motel. At that first meeting, Ellinor met Henry Jordan who was later named as architect of the project. The construction contract between Ellinor Motor Company and Modular Age was executed on July 18, 1972. Later that month, Mr. Ellinor was advised that Peachtree Industries, the producer of motel modules initially considered by the parties, had raised its unit price by $550, which put the cost beyond the terms of the contract. Mr. McKnight, of Modular Age, then suggested using modules incorporating a new design of wall panel manufactured by Brown Watkins Company. This proposed construction utilized modular units constructed with machine-produced wall panels consisting of aluminum studs and polyurethane foam encapsulated between plywood paneling and heavy Kraft material.

By letter of September 5, 1972, the project architect, Henry Jordan, certified to the building official of Sanford, Florida, that:

“The plans submitted on the Cavalier Motor Hotel, Sanford, Florida, conform to the laws as to Egress [sic], type of construction and general arrangement, and conforms to the requirements of the Southern Standard Building Code.” (emphasis supplied)

A building permit was issued the following day by the City of Sanford. A building permit had previously been issued on August 22, 1972, by the supervising architect of the Florida Hotel and Restaurant Commission. Chamberlain Manufacturing Corporation having acquired the wall panel process and machine from Brown Watkins, entered into a subcontract with Modular Age on September 27, 1972, to produce room modules for the motel. This subcontract does not specifically require Chamberlain’s product to meet all requirements of the Southern Standard Building Code but by letter of November 28, 1972, Henry Jordan, project architect, appointed Robert A. Wanninger, Architect, to make in-plant inspections of the completed modular motel units at Chamberlain’s facility in Monroe, Georgia. Part of Wanninger’s responsibility was to verify code compliance of the modules prior to delivery of the units to the job site. Jordan’s letter states:

“We hereby approve your appointment as inplant inspector for the Chamberlain Manufacturing Co., Monroe, Georgia, manufacturer for the motel room modules for the Cavalier Motel Hotel, Sanford, Florida.
“Your firm will be responsible for certifying that these modules meet or exceed all requirements of the Southern Standard Building Code.”

Each of the 102 modular units utilized in the construction of the motel was individually inspected by Mr. Wanninger’s .firm and approved in a series of certificates which recited:

“The following motel modules were inspected by my firm and were found to be built in accordance with provisions of the Southern Standard Building Code.”

The originals of these inspection reports were sent to the owner’s architect, Henry Jordan, and copies were distributed to the owner, the building official in Sanford, and to the contractor. The last modular units used in this project were inspected and approved by Wanninger’s firm as of February 21, 1973, and delivered to the job site and ultimately used in the motel.

By letter of September 5, 1972, to the Sanford building official, Jordan had designated Lee Sayers, a Florida architect, to make on-site inspection of the work both on the status of the project and for its compliance with all applicable codes. The certificates of Mr. Sayers were provided to appellant pursuant to the terms of the building loan agreement by which they were required as a condition to the bank disbursements. The building loan agreement, among other things, required that the architect certify “that all work and materials are in accordance with the Plans; that all certifications and approvals which may be necessary or customary at such state of construction have been received; that all work has been done in a good and workmanlike manner.” Pursuant to the building loan agreement, Sayers inspected and approved all the modules except for minor items not material to this appeal and none of the modules were disapproved or rejected by Sayers for the deficiency in the walls which the Bank here asserts. In addition, the undisputed testimony of Mr. Braceland, the' present building official of the City of Sanford, was that the Sanford Building Department made periodic inspections during the construction of the project and made its three final inspections in the summer of 1973 approving all of the construction. Certificates of occupancy were then issued by the City of Sanford certifying that the motel complied with the building code enforced in the City of Sanford.

After argument of counsel on the motion for summary judgment, the trial judge advised all counsel by letter of September 16, 1977, as follows:

“In addition to the argument heard on the various motions for summary judgment, I have examined all the applicable pleadings, depositions and affidavits and have concluded that the architect Jordan was the architect for the owners of the motel; that the motel was constructed to the plans and specifications under the supervision of the architect and his appointed supervising architects; that the architect approved and certified that the motel was constructed according to these plans and specifications and that at the time of its construction and delivery over to the owners it complied with the provisions of the Southern Building Code. The bank stands in the shoes of the owners and is bound by the approval of the architect. I find no genuine issue of material fact on all of this and, therefore, the defendants are entitled to a summary judgment as a matter of law.”

Appellant contends that the motel room modules were components of material for which the contractor was responsible rather than elements of project design for which the architect was responsible and that there is a material issue of fact on this question and a further material issue of fact as to whether or not architect Wanninger was the designated representative of architect Jordan. We disagree. The contract provides as follows:

“4.7.1 The Contractor shall secure and pay for all permits, governmental fees and licenses necessary for the proper execution and completion of the Work, which are applicable at the time the bids are received. It is not the responsibility of the Contractor to make certain that the Drawings and Specifications are in accordance with applicable laws, statutes, building codes and regulations.” (Emphasis supplied.)

It is clearly an architect’s function and responsibility to design walls which will meet code requirements for one hour fire resistance rating between tenancies. It is his responsibility to insure that the plans and specifications comply with the applicable building codes for the area where the structure is to be built. See Bebb v. Jordan, 111 Wash. 483, 189 P. 553 (1920). There is no question but that Henry Jordan, the architect for the owner as well as for appellant, assumed that responsibility. Though he did not personally design the walls in question, he delegated that responsibility to others. This duty of the architect cannot be avoided by delegating the responsibility of insuring that portions of this design comport with the applicable laws and regulations. Johnson v. Salem Title Company, 246 Or. 409, 425 P.2d 519 (1967). An argument similar to the argument of appellant here was rejected by the Supreme Court of Washington in Teufel v. Wienir, 411 P.2d 151 (Wash. 1966). There, as here, the construction contract incorporated “these Standard General Conditions for the Construction of Building of the American Institute of Architects.” The question there involved the issue of whether the prime contractor could be held accountable to the owner for damages resulting from an insufficient wall installed on a high rise building. The owners sought to hold the contractor liable for the insufficiency based on the argument that the faulty walls were faulty materials for which the contractor was responsible. The court rejected that argument stating that the alleged problem was not the result of an isolated failure in one or a few of the wall systems or material, but rather was an indictment of the wall system’s sufficiency as a whole, and that this was a design function for which the owner’s architect was responsible. There the owner argued as appellant argues here that the AIA warranty or guaranty provision that the contractor will replace or repair defective materials within one year obligated the contractor to make good the defective walls. The court in ruling against this contention stated:

“. . . If an item is installed in accordance with the specifications of a standard American Institute of Architects guaranty, the contractor is not liable if the item’s failure to function properly is due to its design being improper for the intended use.”

We further find no merit in appellant’s contention that there is an issue of material fact on the question of whether or not Robert Wanninger was the designated representative of Jordan. The above-quoted letter of November 28, 1972, of Jordan to Wanninger obviously makes Wanninger his agent. The architect is defined in § 2.2.1 of the general conditions of the construction contract to mean “the Architect or his authorized representative.” Based upon deposition testimony suggesting that Wanninger was employed and paid by Chamberlain, appellant argues that there is a disputed issue of fact as to. whether Wanninger was the designated representative of Jordan. In addition to the above-mentioned letter of Jordan to Wanninger, Wanninger’s affidavit stands undisputed that he was appointed by Jordan to perform the in-plant inspections. Thus, regardless of his source of compensation, he was so appointed and accepted the appointment.

We have considered the remaining issues raised by appellant and found them to be without merit.

AFFIRMED.

BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


author: ERVIN, Judge. MELVIN, Judge,

text:
    Charles O. KOVALESKI, Appellant, v. TALLAHASSEE TITLE COMPANY and Fred F. Womble, as Tax Collector, Appellees.
    No. II-214.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1978.

      Charles Friend, Tallahassee, for appellant.
    Peter Guariseo; Harry H. Mitchell of Mitchell & Mitchell, Tallahassee, for appel-lees.
   ERVIN, Judge.

Kovaleski appeals the dismissal of his complaint seeking damages from the Leon County Tax Collector and the Tallahassee Title Company due to their failure to set forth in an abstract an interest held by third persons in the property bought by him at a tax sale. Prior to the final order of dismissal, Kovaleski’s complaint was twice dismissed, with leave to amend, for its failure to state a cause of action. In the court’s second order of dismissal, it was stated that plaintiff must allege ultimate facts showing a right of reliance by him on the title search as well as his reliance. A third amended complaint was filed, in turn attacked by additional motions to dismiss. Following a hearing on the motions, the court entered an order dismissing the amended complaint as amended, stating it had considered plaintiff’s motion to amend the complaint ore tenus to allege that prior to the purchase of the tax deed by him, he was furnished an abstract by the tax collector or by the clerk of the circuit court and, having received such abstract prior to bidding on the property, he relied on the information shown within it when submitting the bid. The court’s order concluded, “[T]he plaintiff had no right to rely on any act of the tax collector in furnishing the clerk of the circuit court with an abstract or a list of names of persons who had or might have an interest in the property involved, and being of such opinion the court concludes that there was no right to reliance which would create a cause of action in favor of the plaintiff and against either defendant.”

We affirm the court’s decision as to the tax collector but reverse as to Tallahassee Title. As to the former, there are no allegations in the complaint that the tax collector’s negligence proximately caused the injury plaintiff suffered. It is clear that but for the negligent omission in the search prepared by the abstracter, the injury could not have occurred. Additionally, we think the rule stated in Slavin v. Kay, 108 So.2d 462 (Fla.1958), applies. In Slavin, the court was faced with the question whether both an owner and a contractor were liable for injuries suffered by a third person resulting from their alleged negligence in the construction of a wash basin in the plaintiff’s motel room. The court held that if the offending defect was latent and unknown to the owner, the contractor remained liable, even after the project was completed and accepted by the owner. However, the owner could not be held liable where the condition was one which was not discoverable by inspection. The holding in Slavin has been followed by a number of more recent decisions, e. g., Mai Kai, Inc. v. Colucci, 205 So.2d 291 (Fla.1967); Forte-Towers South, Inc. v. Hill York Sales Corp., 312 So.2d 512 (Fla. 3d DCA 1975); Roman Spa, Inc. v. Lubell, 334 So.2d 298 (Fla. 1st DCA 1976); El Shorafa v. Ruprecht, 345 So.2d 763 (Fla. 4th DCA 1977). Here the offending omission from the abstract was no more discoverable by the tax collector than was the defective basin by the motel owner in Slavin. The injury which plaintiff alleges could not have been proximately caused by the actions of the tax collector in merely furnishing to him an abstract previously negligently prepared by the abstracter.

The allegations pertaining to the abstracter’s liability, however, are altogether different. As we have observed, the allegations, both written and verbal, were that the plaintiff relied upon an abstract prepared by Tallahassee Title Company prior to his successful bid at a tax sale of the property, and that the abstracter had omitted a preexisting interest in the title to the property which caused injury to plaintiff.

The general rule is that an abstracter is liable in damages to his employer for injury resulting from his wrongful or negligent errors in preparing an abstract of title and from defects or omissions in the abstract which he prepared and furnished. Sickler v. Indian River Abstract and Guaranty Co., 142 Fla. 528, 195 So. 195 (1940). He is, however, only liable for losses incurred by a plaintiff who relies on the abstract. 1 Am.Jur.2d, Abstracts of Title, § 19 (1962). Moreover, the duty to his employer is to use such care and skill as are exercised by persons engaged in similar oc cupations and under like circumstances. 1 Fla.Jur.2d, Abstracts, § 4 (1977). - The Sick-ler court also held that an abstracter does not render himself liable to every person who may be injured by reason of his negligence, rather liability exists only in favor of the person employing him or those in privity with him, hence there could be no remedy in tort against the abstracter, only in contract. 195 So. at 197.

While the rule as to an abstracter’s liability in the absence of privity has not been expressly overruled by any subsequent decisions of the Florida Supreme Court, courts in many other states have held that where the abstracter knew at the time of the abstract’s preparation that it was to be used by a third person who would depend upon it in a pecuniary transaction, the rule of liability will be extended to those who act in reliance upon the title shown by the abstract. 1 Am.Jur.2d, Abstracts of Title, § 16, p. 241 (1962). See cases collected under 34 A.L.R.3d 1122, 1132-1136 (1970). This exception is recognized in Restatement (Second) of Torts, § 552 (1977), which provides in part:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), [which pertains to the liability of one who is under a public duty to furnish such information] the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

The comment to subsection (2), pertaining to persons for whose guidance the information is supplied, states:

Under this Section, . . ., it is not necessary that the maker should have any particular person in mind as the intended, or even the probable, recipient of the information. In other words, it is not required that the person who is to become the plaintiff be identified or known to the defendant as an individual when the information is supplied. It is enough that the maker of the representation intends it to reach and influence either a particular person or persons, known to him, or a group or class of persons, distinct from the much larger class or might reasonably be expected sooner or later to have access to the information and foreseeably to take some action in reliance upon it. It is enough, likewise, that the maker of the representation knows that his recipient intends to transmit the information to a similar person, persons or group. It is sufficient, in other words, insofar as the plaintiff’s identity is concerned, that the maker supplies the information for repetition to a certain group or class of persons and that the plaintiff proves to be one of them, even though the maker never had heard of him by name when the information was given. Restatement (Second) of Torts, § 552, Comment h (1977).

In what is perhaps the most comprehensive opinion of any in the country on the subject of an abstracter’s liability in the absence of privity, the Michigan Supreme Court, in Williams v. Polgar, 391 Mich. 6, 215 N.W.2d 149 (1974), observed that six general court-created exceptions have been grafted upon the common law requirement of strict contractual privity. Those exceptions are: (1) The abstracter’s fraud or collusion. (2) The theory of third party beneficiary contracts. (3) The theory of foreseeability of use by a third party. (4) The actual knowledge or notice of the third party. (5) The agent for disclosed or undisclosed principals contracting with an abstracter. (6) The reissuance or recertification of an abstract. 215 N.W.2d at 152-153. The opinion noted that of 36 jurisdictions which have addressed the question of the abstracter’s liability, only seven retain a rule of strict contractual privity. Those seven states are Arizona, California, Florida, Illinois, Ohio, Texas and Wisconsin. After analyzing the opinions of the various jurisdictions, the court concluded that the plaintiff had presented a valid tort cause of action in the nature of negligent representation arising from contract for an abstracter’s services in favor of a non-contracting damaged third party whose reliance on the abstract could be foreseen. 215 N.W.2d at 158.

Notwithstanding the impressive list of out-of-state authorities recognizing one or more exceptions to the rule of privity, were it not for the Supreme Court’s decision in A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973), we would be compelled to follow the Sickler holding and affirm the order of the trial court dismissing the complaint against the abstracter. In Moyer, the court was asked by the Fifth Circuit Court of Appeals whether a general contractor could maintain an action against the supervising architect for damages proximately caused by the negligence of the architect in the absence of direct privity of contract. The court’s opinion specifically mentioned Sick-ler’s requirement of privity but nevertheless held a cause of action existed against the negligent architect in favor of the third party general contractor “who may foresee-ably be injured or sustained an economic loss proximately caused by the negligent performance of the contractual duty of an architect, . . . notwithstanding the absence of privity.” 285 So.2d at 402. The court observed that privity was a theoretical device of the common law which “recognizes limitation of liability commensurate with the compensation for contractual acceptance of risk . . '. [and] [t]he sharpness of its contours blurs when brought into contact with modern concepts of tort liability.” Id. at 399. Moreover, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916)—a case permitting a cause of action in tort against an automobile manufacturer by a person injured by an alleged defective condition in the car, who had not contracted with the manufacturer — “is heralded not so much for its' decision of the facts as for its prece-dential value: a case relaxing privity’s strictures.” Id. The MacPherson decision was recognized “as humane [and] ‘more in line with reason and justice.’ ” Id. Finally, Moyer quoted with approval a decision by the Second District Court of Appeal in Audlane Lbr. and Bldrs. Sup. v. D. E. Britt Associates, Inc., 168 So.2d 333 (Fla. 2d DCA 1964). Certain statements made in Audlane have particular relevancy here:

In our view the extent of appellee’s duty may best be defined by reference to the foreseeability of injury consequent upon breach of that duty. The complaint alleged that appellee knew that the design and specifications it prepared would be resold to and used by various fabricators. To argue that it is absolutely free of liability for negligence to these known users or consumers of its work is to disregard the half century of development in negligence law popularly thought to have originated in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696 (1916), and explicitly recognized in this state in Matthews v. Lawnlite Co., Fla.1956, 88 So.2d 299. The allegations of the complaint bring appellant within the ambit of Britt Associates’ duty and the court erred in its contrary determination. (Emphasis supplied.) 168 So.2d at 335.

We conclude, reasoning from Moyer and Audlane, there is no logical reason for distinguishing between an architect’s duty to a person who sustains injury due to the architect’s negligence, even though such person is not in privity with the architect, and an abstracter’s duty to a plaintiff, who while not in privity, may be foreseeably injured as a result of the abstracter’s negligence. We think a fair interpretation of Moyer is that so long as one may reasonably foresee that the plaintiff would sustain an economic loss proximately caused by the negligent performance of a contractual duty of the abstracter, the plaintiff may bring an action in tort against the alleged negligent abstracter, notwithstanding the absence of privity.

Under the circumstances of this case, it is immaterial whether the abstracter had specific knowledge of the identity of the plaintiff at the time it prepared the abstract. Nor does it matter whether the plaintiff was the holder of the tax certificate who applied for the deed. The facts alleged that the abstract was used by the tax collector, as required by Section 197.241(2), Florida Statutes (1977), for the purpose of delivering to the clerk of the circuit court a statement certifying the names and addresses of all persons whom the clerk was required by law to notify prior to the sale of the property. The abstracter certainly knew that its preparation of the title search was not for the benefit only of the tax collector with whom it contracted or of any tax certificate holders, but either knew or should have known that the law permitted the property upon which the title search was prepared to be sold for cash to the highest bidder at public auction. Section 197.266. It was therefore foreseeable that the person who successfully bid the property would rely upon the abstract in making his bid, and that any negligent omission of a preexisting interest from the abstract could cause injury to such person. We consider plaintiff’s complaint, as finally amended, stated a cause of action.

The order of dismissal, insofar as it affected the tax collector, is AFFIRMED, and REVERSED as to Tallahassee Title Company and remanded for further proceedings consistent with this opinion.

MILLS, Acting C. J., concurs.

MELVIN, J., dissents.

MELVIN, Judge,

dissenting.

I do not agree that the complaint states a cause of action in favor of the plaintiff and against the defendant abstract company. It is alleged that the abstract company, in an abstract furnished by it to the Tax Collector of Leon County, failed to include the name of some person who had an interest in the subject realty. The plaintiff was in no way in privity with the relationship between the Tax Collector of Leon County and the contractor. He simply was the successful bidder at the tax sale, and now complains for damages because of a sour title that he obtained at the sale. It is my view that the opinion of the Supreme Court of Florida in the case of Sickler v. Indian River Abstract & Guaranty Co., 142 Fla. 528, 195 So. 195 (1940), completely disposes of this question contrary to the position of the plaintiff.

The majority in its opinion analyzes many cases of many courts and finds that the philosophies expressed therein are in harmony with what is considered to be the more modern view relating to liability in cases such as that before the court. The majority concludes that the Supreme Court of Florida in A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (1973), has reversed Sickler v. Indian River Abstract & Guaranty Co.

It is my view that Moyer does not reverse Sickler. I perceive that Moyer should be read in the light of the question certified to it by the United States Court of Appeals, Fifth Circuit. The case referred to related to an alleged cause of action against an architect for errors in the preparation, design, plans and specifications concerning the construction of a building. The Supreme Court in Moyer dealt with the questions thus presented. I nowhere find the writings of the court in Moyer to depart from its earlier ruling in Sickler, or any implied permission for any District Court of Appeal or Circuit Court to use Moyer as a convenient vehicle for overruling Sickler. This court in Chelsea Title & Guar. Co. v. Louis Briggs Const., Inc., 315 So.2d 229 (1975), specifically noted the contention that Moyer had overruled the doctrine set forth in Sick-ler and then specifically noted the differences in the fact-situations in the two cases. The United States Court of Appeals, Fifth Circuit, in the later case of Nortek, Inc. v. Alexander Grant & Co., 532 F.2d 1013 (1976), at 1015, specifically cautioned that the ruling of the Supreme Court of Florida in the Moyer case “may be limited to the architect-general contractor situation” that was involved in the Moyer case. The court continued in its analysis to point out, “The court did not specifically overrule Buchman and relied on the architect’s direct supervision and control to find a cause of action. 286 (285) So.2d at 399.” (emphasis supplied)

If the pronouncements of the Supreme Court of Florida in the Sickler case above referred to are no longer in harmony with the modern philosophy of the law, I then perceive the Supreme Court of Florida in due season will so declare.

I respectfully dissent from that portion of the majority opinion that recognizes existence of a cause of action against the title company.

      . Which generally alleged that plaintiff relied upon the abstracter’s skill in making an accurate abstract for the purpose of showing that the abstract was used as evidence of title; that the abstract was a public record and .was made available to him by the tax collector or by the clerk of the court, the cost of which plaintiff paid or agreed to pay the tax collector; that the abstract was used by the tax collector to prepare the statement certifying the names and addresses of all persons whom the clerk of circuit court was required by statute to notify of the scheduled tax sale of the property; that the abstracter was in the business of preparing abstracts for examination by persons who rely upon abstracts; that the plaintiff desired to know the status of the title to the property before deciding whether to purchase it or how much to bid for it and that the abstract induced the plaintiff to purchase the property; that the plaintiff would not have purchased the property if he had known of the preexisting interest which certain third persons had in the property; that the plaintiff relied on the tax collector’s skill in making or obtaining an accurate abstract for the purpose of obtaining property on which appellant successfully bid.

      . An additional exception, created by statute, places liability upon the abstracter by the usual requirement that the abstracter give a bond as a security condition for payment for all damages which may accrue to any party resulting from errors in the abstract. E. g., Ark.Stats. Ann. 71-106; Colo.Rev.Stats.1963 Chpt. 1-1-5; Idaho Code § 54 — 101; Kan.Stat.Ann. 58-2802; Minn.Stat.Ann. § 386.66; Mont.Rev.Code § 66-2113; Rev.Stat.Neb. § 76-501; Nev.Rev.Stats. Title 19, § 240.330; New Mex.Stat.Ann. § 70-2-6; N.D.Cent.Code § 43-01-11; Okla.Stat. Ann. Title 1 § 1; Oreg.Rev.Stats. § 30.750; SDCL § 36-13-15; Utah Code Ann. § 1-1-12; Wyo.Stat. § 33-12.

      . We think the Moyer rule then is consistent with that stated in Polgar and § 552, Restatement (Second) of Torts, permitting a cause of action by a non-contracting damaged third party whose reliance on the information could be foreseen. Our interpretation of the Moyer decision is in no way conflicting with our prior opinion in Chelsea Title and Guaranty Co. v. Louis Briggs Const., Inc., 315 So.2d 229 (Fla. 1st DCA 1975), where we declined to decide whether Moyer overruled the requirement of privity with an abstracter since the facts in Chelsea reflected privity.

      . An affidavit, attached to a motion to dismiss, filed by the tax collector, stated not only that plaintiff was not the holder of the tax certificate who applied for the tax deed but, contrary to plaintiffs allegations, stated it was not until some seven months following plaintiffs successful bid at the sale that plaintiff first requested the tax collector’s office to furnish him with a copy of the title search on the property sold to him. If the title company can satisfactorily establish such controverted facts later during the proceeding, it may ultimately prevail. It is obvious however that it is improper to consider the affidavit’s statements when considering the propriety of a motion to dismiss.


author: SMITH, Acting Chief Judge.

text:
    COMMERCIAL CONSULTANTS CORP. and Linene Woods, Inc., Appellants, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Appellees.
    No. JJ-246.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1978.

      Kenneth G. Oertel of Truett & Oertel, P.A., Tallahassee, for appellants.
    Richard E. Gentry, Tallahassee, for appel-lees.
   SMITH, Acting Chief Judge.

Commercial Consultants Corp., realtors, and Linene Woods, Inc., subdividers of Lin-ene Woods Subdivision, appeal from a temporary cease and desist order issued by the Director of the Division of Florida Land Sales and Condominiums of the Department of Business Regulation. The Division issued the order, alleging violation of Chapter 478, the Florida Uniform Land Sales Practices Law, without giving Commercial and Linene Woods prior notice or an opportunity to be heard. The order directs Commercial and Linene Woods to (1) cease selling lots in Linene Woods Subdivision until the subdivided lands and all agents, employees and representatives of Commercial and Lin-ene Woods are registered with the Division pursuant to Chapter 478, Florida Statutes (1977), (2) inform all “purchasers contacted in the past” of the order, and (3) place all land sales proceeds collected after the date of the order in an escrow account under conditions specified by the Division.

Commercial and Linene Woods properly applied to this court for review under the Administrative Procedure Act, Chapter 120. The APA applies to all agency action affecting the substantial interests of a party. State ex rel. Dept. of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); Mc Donald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). And the Act subjects all agency action to judicial review. Section 120.68.

We stayed the effect of the Division’s order pending review. While the case was pending, the Division dismissed the temporary order and moved to dismiss the case as moot. We denied the motion because we consider the Division’s action, in entering a temporary cease and desist order without prior notice and a hearing, a matter of wide public interest deserving our attention. Ervin v. Capital Weekly Post, Inc., 97 So.2d 464 (Fla.1957); Harris v. Florida Real Estate Comm’n, 358 So.2d 1123 (Fla. 1st DCA 1978).

Although this “temporary” order is intermediate agency action, it is subject to immediate judicial review. We have authority under Section 120.68(1) to review intermediate agency action “if review of the final agency decision would not provide an adequate remedy.” We find that this intermediate agency order—directing Commercial and Linene Woods to immediately cease doing business, place certain proceeds of their business in an escrow account, and notify their customers that a state agency has ordered these sanctions against them— presents a proper case for our immediate review. Since the Division conducted no Section 120.57(1) or (2) proceedings before entering its order, we must review the order without benefit of a record establishing the facts underlying agency action and elucidating agency policies. Every element necessary to the order’s validity must appear on its face.

The temporary cease and desist order recites that it is entered under authority granted by the legislature in Chapter 478, Florida Statutes (1977). That chapter regulates the sale of subdivided land by installment land sales contracts and requires that sellers register a subdivision with the Division of Florida Land Sales and Condominiums, unless the subdivision is exempt from the Act, before lots may be sold or offered for sale. Section 478.23(1). To prevent a violation of Chapter 478 or the Division’s implementing rules, the Division is authorized to issue a cease and desist order after notice and a hearing. Section 478.171(1). But, “[i]f the division makes a finding of fact in writing that the public interest will be irreparably harmed by delay in issuing an order,” the Division may issue a “temporary” cease and desist order without providing prior notice and a hearing. Section 478.171(2).

To justify its summary action in this case, the Division’s order recites, as “FINDINGS OF FACT”, that Linene Woods is an unregistered subdivision not shown to be exempt, and:

The public interest may be irreparably harmed in that safeguards protecting remote land purchasers, the land sales industry, the public and the state’s economic well-being are impossible to effectuate without formal registration.

Appellants urge that this order violates Section 478.171(2) because it does not specifically describe the alleged irreparable harm. We agree. If we accepted the general, conclusory prediction of harm quoted above as sufficient justification for summary agency action, the legislature’s provision for notice and a hearing before a cease and desist order may issue could be avoided in every case. We cannot approve such a result. To satisfy the statute, the Division’s order must allege facts showing that specific incidents of irreparable harm to the public interest will occur without an immediate cease and desist order.

Even if we could construe Section 478.171 to uphold the Division’s cease and desist order, we could not so construe the Administrative Procedure Act, Chapter 120. The APA requires specific findings of fact to support summary agency action. Section 120.59 requires an agency issuing an emergency order to “recite with particularity” the facts underlying “a finding that an immediate danger to the public health, safety, or welfare requires an immediate final order . . ..” Similarly, Section 120.-54(8)(a)3, governing emergency rulemaking, requires an agency to publish “the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare . . . .” Although the order under review does not fit neatly under Section 120.59(3) or Section 120.54(8)(a)3, we perceive that the legislature has enacted in these sections a consistent standard intended to apply to all summary agency action subject to the APA.

The Division urges that the Legislature intended to establish a lower standard for summary agency action in Section 478.-171(3) because “[t]he very nature of the sale of subdivided lands to both Florida purchasers and out-of-state purchasers without registration creates a situation worthy of an emergency order.” But we do not find such intent expressed in the statutes. Nor do we see a significant difference between a finding that “the public interest will be irreparably harmed by delay in issuing an order” under Section 478.-171(3), and a finding of an “immediate danger to the public health, safety, or welfare” under Section 120.54(9)(a)3 or .59(3). In each case the agency is allowed to act before according basic due process rights to the parties. Because fundamental rights are abridged, the agency’s statement of reasons for acting “must be factually explicit and persuasive concerning the existence of a genuine emergency.” Florida Home Builders v. Division of Labor, 355 So.2d 1245, 1246 (Fla. 1st DCA 1978).

The Division’s temporary cease and desist order is declared invalid. Appellant’s petition for attorney’s fees is granted. Section 120.57(l)(b)9. Attorney’s fees are assessed at $1,000.00.

ERVIN and BOOTH, JJ., concur.

      . The order provides for a prompt hearing, upon request, to determine if the order should be made permanent. Section 478.171(2)(c).


text:
    Bradford TYNER, Appellant, v. STATE of Florida, Appellee.
    No. KK-419.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1978.
    Bradford Tyner, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Appeal from a denial of a motion to vacate a judgment and sentence, pursuant to Rule 3.850, Fla.R.Crim.P. Appellant contends that a substitute judge sentenced him without becoming familiar with the case and that, therefore, the sentence is invalid.

This issue could have been raised on direct appeal and, thus, cannot be raised with a motion to vacate or set aside a judgment and conviction. Von Eberstein v. State, 270 So.2d 444 (Fla. 1st DCA 1972). Accordingly, the order of the trial court is AFFIRMED.

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


text:
    STATE of Florida ex rel. Robert L. ALBANO, Petitioner, v. Honorable James T. NELSON, as Circuit Judge, Seventh Judicial Circuit, State of Florida, Respondent.
    No. LL-295.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1978.

      John W. Tanner, Daytona Beach, for petitioner.
    No appearance for respondent.
    Robert L. Shevin, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for State of Florida, real party respondent in interest.
   SMITH, Acting Chief Judge.

Albano’s petition for writ of prohibition contests the trial court’s power to proceed in this criminal prosecution otherwise than by pronouncing judgment and sentence upon Albano’s plea of nolo contendere, tendered on condition that suppression issues be preserved for appeal. The trial court accepted the tendered plea, so conditioned, but later rejected the plea after inspecting the presentence investigation report, and undertook to require Albano to plead unconditionally. We consider that, for the reasons stated in State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978), the court was without power to reject a nolo contendere plea once accepted; that Albano is in jeopardy of judgment and sentence upon that plea; and that the trial court must now proceed to judgment and sentence. See also State ex rel. Milton v. Strickland, 361 So.2d 446 (Fla. 2d DCA 1978).

The petition for writ of prohibition is GRANTED.

ERVIN and BOOTH, JJ., concur.


author: HUBBART, Judge.

text:
    Parker Charles PEAK, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 77-865.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 1, 1978.

      Philip Carlton, Jr. and Thomas A. Wills, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   HUBBART, Judge.

The defendant Parker Charles Peak, Jr. appeals a conviction of first degree murder and a sentence of life imprisonment with no eligibility of parole for twenty-five years entered in the Circuit Court for the Eleventh Judicial Circuit of Florida. He urges numerous alleged errors committed by the trial court as a basis for upsetting his conviction and sentence herein. We find no merit in these contentions and affirm.

First, the defendant attacks the constitutionality of the statute [§ 775.082(1), Fla.Stat. (1975)] under which he was sentenced to life imprisonment with no eligibility for parole for twenty-five years. The Florida Supreme Court has consistently upheld the constitutionality of this statute. McArthur v. State, 351 So.2d 972 (Fla.1977); Banks v. State, 342 So.2d 469 (Fla.1976); Owens v. State, 316 So.2d 537 (Fla.1975).

Second, the defendant contends that the trial court erred in giving a modified Allen charge [Fla.Std.Jury Instr. (Crim.) 2.21] to the jury after approximately ten hours of jury deliberations. The Florida Supreme Court has upheld a similar verdict — urging jury instruction under circumstances parallel to the instant case. State v. Bryan, 290 So.2d 482 (Fla.1974); Nelson v. State, 148 Fla. 338, 4 So.2d 375 (1941). See also Bryan v. Wainwright, 511 F.2d 644 (5th Cir. 1975). As a corollary to this argument, the defendant further argues that the trial court erred in refusing to give a requested jury instruction similar to the modified Allen charge given by the trial court but with a slightly different emphasis. Once the modified Allen charge was given, however, there was clearly no need, in our view, for the trial court to give the defendant’s requested charge.

Third, the defendant contends that the court made certain erroneous evi-dentiary rulings. He complains that the court excluded certain evidence touching upon his claim of self defense. In our view, the defense of self defense was never sufficiently raised at trial by the defendant or any other witness and accordingly the evidence in question was properly excluded. Bailey v. State, 155 Fla. 597, 21 So.2d 217 (1945); Williams v. State, 238 So.2d 137 (Fla. 1st DCA 1970). See also State v. Coles, 91 So.2d 200 (Fla.1956). The defendant further complains that evidence obliquely tending to show that he had a prior criminal record was presented before the jury thereby necessitating a mistrial in this cause. As the defendant himself admitted on cross-examination at trial that he did in fact have a prior criminal record, we regard the inadvertent reference to the defendant’s prior conviction as harmless. See Houston v. State, 337 So.2d 852 (Fla. 1st DCA 1976); Cunningham v. State, 239 So.2d 21 (Fla. 1st DCA 1970). The defendant also complains that a police photograph of the defendant was improperly admitted in evidence. We cannot agree. United States v. Davis, 487 F.2d 112 (5th Cir. 1973).

The defendant finally contends that the trial court erred in overruling his objections to certain alleged prejudicial comments made by the prosecuting attorney in final argument to the jury and in denying his motion for mistrial based thereon. In our view, these remarks were insufficient to upset the conviction herein. Whitney v. State, 132 So.2d 599 (Fla.1951); Gray v. State, 296 So.2d 612 (Fla. 3d DCA 1974); Frazier v. State, 294 So.2d 691 (Fla. 1st DCA 1974); Ricks v. State, 242 So.2d 763 (Fla. 3d DCA 1971).

Affirmed.


text:
    Olga Hernandez GARCELL et vir., Appellants, v. Arnold A. OPER, J. D., Ethicon, Inc., etc., et al., Appellees.
    Nos. 77-2071, 77-2072.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, James O. Nelson, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn and Stephen A. Stieglitz, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble and Todd A. Cowart, Miami, for appellees.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Thompson v. Jacobs, 314 So.2d 797 (Fla. 1st DCA 1975). See also Rice v. Walker, 359 So.2d 891 (Fla. 3d DCA 1978); Royal v. Black and Decker Manufacturing Co., 205 So.2d 307 (Fla. 3d DCA 1967).


author: PEARSON, Judge.

text:
    INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. Calvin JONES, Appellee.
    No. 77-2548.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.

      Goodhart & Rosner, Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
    Sam Bloom, Miami and David C. Arnold, Coral Gables, for appellee.
    Before HAYERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PEARSON, Judge.

Industrial Fire and Casualty Insurance Company was defendant in the trial court where it suffered a summary final judgment in favor of the appellee, Calvin Jones. The judgment held as a matter of law under undisputed facts that Calvin Jones was entitled to personal injury protection benefits under a policy which had been issued to Jones’ stepfather. We reverse upon a holding that the trial court incorrectly determined the applicable law and that defendant Industrial Fire and Casualty Insurance Company, as a matter of law, is entitled to a summary judgment in its favor.

The plaintiff, Calvin Jones, lived with his mother and his stepfather. Industrial insured a car owned by the stepfather, but a car owned by plaintiff’s mother was not insured under the Industrial policy. The plaintiff was injured in an automobile accident while driving his mother’s car. He claimed PIP benefits from Industrial, but Industrial denied the claim on the ground that the claim was barred by a specific exclusion in the policy.

All of the above facts were admitted. The trial court could have entered summary judgment for the plaintiff only upon a holding that the exclusion in Industrial’s policy which, on its face, would exclude recovery was an illegal exclusion. The exclusion was as follows:

“(g) under coverage C [Personal Injury Protection] to the named insured or any relative while occupying a motor vehicle of which the named insured is the owner and which is not an insured motor vehicle under this insurance.”

The insurance company claims that this policy exclusion was specifically authorized by Section 627.736, Florida Statutes (1977), which provides:

“(2) AUTHORIZED EXCLUSIONS.— Any insurer may exclude benefits:
(a) For injury sustained by the named insured and relatives residing in the same household while occupying another motor vehicle owned by the named insured and not insured under the policy . . . ”

We have previously held a similar exclusion valid in Fidelity & Casualty Company of New York v. Fonseca, 358 So.2d 569 (Fla.3d DCA 1978). We need not repeat the reasoning of that opinion here but would simply point out that the same reasoning is applicable to the question of the validity of the exclusion that the trial judge held to be invalid in the present case.

The plaintiff recognizes the authority of the above case but urges that the decision overlooks a provision of the Florida Statutes which makes the exclusion in the present case invalid. Accordingly, the plaintiff urges that Industrial’s policy does not conform to statutory requirements because the definition given in the policy for “named insured” varies from the definition provided by the Florida Automobile Reparation Reform Act, Section 627.730, et seq., Florida Statutes (1977), where Section 627.-732, Florida Statutes (1977), defines “named insured” as follows:

“As used in ss. 627.730—627.741:
* * * * * *
(3) ‘Named insured’ means a person, usually the owner of a vehicle, identified in a policy by name as the insured under the policy.”

It is suggested that because the wording of Industrial’s policy includes the policyholder “or spouse” as the named insured and because the spouse’s actual name is not given, such a definition of named insured violates and broadens the last quoted section of the above statute.

We hold that such an interpretation of the statute is improper and that a person described as a spouse of a policyholder may properly be included as a named insured even though the given name and surname of such spouse are not stated in the policy. We think this interpretation is necessary to preserve the intentions of the act and that any other interpretation would bring about the ridiculous result of allowing the insurance of one automobile and the coverage on several unnamed automobiles. See Fidelity & Casualty Company of New York v. Fonseca, 358 So.2d 569 (Fla.3d DCA 1978).

Accordingly, the summary final judgment appealed is reversed and this cause is remanded with directions to enter a judgment for defendant Industrial Fire and Casualty Insurance Company.

Reversed and remanded.

      . We believe it worth noting that as a practical matter an insurance company may include as a named insured a policyholder’s “spouse” (as a category) instead of an actual spouse’s name (that is, a particular person within the “spouse” category) for the simple reason that a policyholder (especially in this day and age) is not apt to have the same spouse at any given point in time. As a result, the actual name of the policyholder’s spouse is not a necessary prerequisite under the statutory requirement.