author: SMITH, Judge. SMITH, Judge.

text:
    POSTAL COLONY CO., INC., et al., Petitioners, v. Reubin O’D. ASKEW, Governor, et al., Respondents.
    No. Z-171.
    District Court of Appeal of Florida, First District.
    May 9, 1977.
    Rehearing Denied Aug. 10, 1977.

      C. Welborn Daniel, Clermont, for petitioners.
    Robert L. Shevin, Atty. Gen., Mary Jo Carpenter, Thomas A. Harris, James D. Whisenand and Richard M. Goldstein, Asst. Attys. Gen., Tallahassee, for respondents.
   SMITH, Judge.

Individual and corporate parties to proceedings of the Administration Commission, Department of Administration, here petition for review of final agency rulemaking action adopting Chapters 22F-6,22F-7, and emergency Chapters 22 FER-75-1 through 30, Fla.Admin. Code. Sections 120.53, .68, Florida Statutes (Supp.1976). Those rules are comprehensive land development regulations for the Green Swamp area of critical state concern, so designated in similar rule-making a year earlier by Chapter 22F-5, Fla.Admin. Code, Chapter 380, Florida Statutes.

The timely petition for review gives this court jurisdiction to review the agency rulemaking action. Although Sections 120.54(4) and 120.56 provide administrative proceedings for . consideration of rules challenged as “an invalid exercise of delegated legislative authority,” failure to so proceed does not constitute failure to exhaust administrative remedies. Sections 120.54(4)(d), 120.56(4); State ex rel Dep’t of Gen. Serv. v. Willis, 344 So.2d 580, 591 (Fla. 1st DCA 1977). The APA explicitly makes agency determinations of “immediate danger, necessity, and procedural fairness” in the adoption of emergency rules judicially reviewable without an intervening administrative challenge. Sections 120.54(8)(a)3, .68, Florida Statutes (1975); Lewis v. Judges of District Court of Appeal, 322 So.2d 16, 20 n. 15 (Fla.1975). While we have authority to remand for an evidentia-ry hearing on factual matters, Section 120.-68(6), that is unnecessary where, as here, the questions are without disputed factual issues.

Petitioners have standing to seek judicial review of this agency action. As in City of Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1976), the Administration Commission recognized petitioners as parties entitled to participate in the proceedings and did not by rule authorize limited forms of participation for those not eligible to become parties. Section 120.52(10)(c), Florida Statutes (1975).

Petitioners attack the Green Swamp land development regulations on constitutional and other grounds. One of the several statutory grounds is dispositive, and we reach no other. The regulations did not become effective within 12 months after July 16, 1974, the date the rule was adopted designating the area as one of critical state concern. Therefore the rule designation automatically terminated July 16, 1975, by operation of Section 380.05(12), Florida Statutes (1975). The development regulations which would have become effective July 20, 1975, had the designation survived four more days, were therefore deprived of a statutory predicate and could not become effective. The Administration Commission’s effort on July 15, 1975, to accelerate the effective date of the regulations by emergency rules 22 FER-75-1 through 30 was likewise ineffective. Section 120.54(8), Florida Statutes (1975).

The Green Swamp region encompasses parts of Lake, Sumter, Hernando, Pasco and Polk counties in Florida’s central highlands between Tampa and Orlando. Within that region, 322,690 acres in Polk and Lake counties were designated an area of critical state concern. The area is an invaluable natural resource. In Green Swamp the ground water level of the Floridan Aquifer surfaces at 120 feet above sea level, its highest in Florida, and generates pressure which maintains free-flowing springs and rivers related to the aquifer and allows easy withdrawal of ground water in central and southern Florida. The area has the potential of providing water to 2.4 million people. It gives rise to five major rivers. It affords flood protection. There are vast recreational opportunities.

In June 1974, acting under the Florida Environmental Land and Water Management Act of 1972, Chapter 380, the Division of State Planning, Department of Administration completed a final report and recommendations for the proposed Green Swamp area of critical state concern, specifying:

“. . . the boundaries of the proposed [area] and . . . the reasons why the particular area proposed is of critical concern to the state or region, the dangers that would result from uncontrolled or inadequate development of the area, and the advantages that would be achieved from the development of the area in a coordinated manner and recommend[ing] specific principles for guiding the development of the area.” Section 380.-05(l)(a), Florida Statutes (1975).

After hearings, the Administration Commission on July 16, 1974 adopted Chapter 22F-5 pursuant to the 1961 Administrative Procedure Act then in effect. Sections 120.021(2), .041(1), Florida Statutes (1973). The rule designated the Green Swamp area of critical state concern, described its boundaries, and established principles for guiding development, regulatory guidelines and other matters required by Section 380.-05.

The adoption of Chapter 22F-5 on July 16, 1974, put into effect a precise timetable for perfection of land development regulations: “After the adoption of a rule designating an area of critical state concern,” local governments are granted six months in which to submit to the state planning agency existing or proposed land development regulations “taking into consideration the principles set forth in the rule designating the area as well as the factors it would normally consider.” Section 380.05(5), (7). The planning agency is required either to approve the regulations submitted by a local government or, within 120 days after expiration of the six-month period, to recommend proposed regulations to the Administration Commission, which is required to adopt or not within 45 days. Section 380.05(6), (8). Any regulations so adopted must be “administered by the local government as if the regulations constituted, or were part of the local land development regulations.” If local administration is “inadequate to protect the state or regional interest,” the state planning agency is authorized to “institute appropriate judicial proceedings to compel proper enforcement.” Section 380.05(5) through (9).

The statute which controls this case is Section 380.05(12):

“If, within 12 months after the adoption of the rule designating an area of critical state concern, land development regulations for the district have not become effective under either subsection (6) or subsection (8), the designation of the area as an area of critical state concern terminates. No part of such area may be redesignated until at least 12 months after the date the designation terminates.”

On July 16, 1975, this statutory doomsday clock struck the rule designation of the Green Swamp area of critical state concern and, with it, the dependent land development regulations in Chapters 22F-6 and 22F-7. Those intended rules, though “adopted” by the Administration Commission on filing with the Department of State June 30, 1975, did not become “effective” until 20 days later, July 20,1975. The 1974 Administrative Act (APA) then provided that proposed rules

“. . . shall be adopted on filing with the Department of State and become effective 20 days after filing, on a later date specified in the rule, or on a date required by statute.” Section 120.54(11), Florida Statutes (emphasis added.)

We cannot assent to the Administration Commission’s argument, based on Section 120.54(11), that July 15, 1975 was the effective date “required by statute” for its Green Swamp regulations and, therefore, that the APA made the regulations effective five days earlier than “20 days after filing.” We may agree that in Section 120.-54(11) the phrase “or on a date required by statute” does not in context necessarily mean a date later than “20 days after filing,” but the Green Swamp development regulations were not “required” by Section 380.05(12) to become effective June 15,1975 in the sense the word “required” is used by Section 120.54(11). The APA there refers to statutes which require adoption of rules to be effectuated in all events and at a stated time. Chapter 380 does not “require” either that rules be adopted to designate the Green Swamp as an area of critical state concern or that rules be made effective to implement that designation within 12 months. Section 380.05(12) simply declares — and declares unambiguously — what shall become of such designations not so perfected within 12 months. The statute does not colorably purport to give accelerated effect to a land development regulation rule adopted in the thirteenth month after adoption of the designating rule; nor does it provide that land development regulations adopted in the eleventh hour of the twelfth month shall then take effect, the 20 day waiting period in Section 120.54(11) notwithstanding. Rather, the statute provides that “the designation of the area as an area of critical state concern terminates” if the unforgiving deadline passes before “land development regulations for the district have . . . become effective.”

The time having passed for the required implementation of the Green Swamp designation as an area of critical state concern, no court can call it back. By Chapter 380 the legislature evinced equal interest in state policies “to guide and coordinate local decisions” concerning critical natural resources and in controlling the means by which state policies are imposed on local governments. Section 380.021, Florida Statutes (1975). One of the legislature’s chief methods for controlling the potent authority of state agencies in this area was by arming Section 380.05(12) as a self-destruct mechanism for rule designations which are not timely implemented by effective development regulations. Faced with so obvious a legislative purpose, we are powerless to ignore its effect. Neal v. Bryant, 149 So.2d 529 (Fla.1962); Edgerton v. Int’l Co., 89 So.2d 488 (Fla.1956); Cram v. Florida Ind. Comm’n, 150 So.2d 501 (Fla. 3rd DCA 1963); Fla. Ind. Comm’n v. Nat. Trucking Co., 107 So.2d 397 (Fla. 1st DCA 1958).

On July 15, 1975, meeting in apprehension of the effect of Section 380.05(12), the Administration Commission adopted the text of the Green Swamp land development regulations as emergency rules 22 FER-75-1 through 30. Emergency rules are authorized by Section 120.54(8)(a), subject to procedural guaranties, “[i]f an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action. . . .” The statute authorizes “only that action” which is “necessitated by the immediate danger.”

The Administration Commission’s only finding in respect to “an immediate danger to the public health, safety, or welfare” was the following statement in its required notice of proposed emergency action:

“SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO PUBLIC HEALTH, SAFETY, AND WELFARE: The necessity to give immediate effect to land development regulations previously approved by the Administration Commission for the Green Swamp Area of Critical State Concern. If such regulations are not in effect by July 16, 1975 the critical area designation could possibly terminate causing an immediate danger to the water supply for Central Florida. Adoption of these rules will avoid that possibility.”

At the Commission’s July 15, 1975 meeting, the Attorney General also stated there was an emergency in the “possibility of the lapse of the designation over a 4 day period, and also the need to preserve an adequate water supply for central Florida.”' He said termination of the designation would cause “an immediate danger to the water supply for central Florida . . . .”

The record is barren of evidence that, on July 15, 1975, there was immediate danger to the central Florida water supply which could be obviated only by emergency rules coextensive with the doomed permanent rules, and similarly applicable to 322,690 acres. To evidence the emergency, the Commission refers us only to the June 1974 report of the Division of State Planning. That report was intended to and did persuasively demonstrate the existence of critical state concern for the area in the decade ahead, but it cannot regarded as documenting an “immediate danger” to 322,690 acres or derivatively to the whole of central and south Florida’s water supply. As that report recognized, over 90 percent of the designated area was then zoned “agricultural” or “rural conservation.” The report commented that resources of regional and state concern “are becoming endangered” by uncoordinated development, predicted that by 1985 the Floridan Aquifer will be unable to accept increased demands for fresh water, and pointed to other dangers “that would result” from excessive and uncoordinated development.

Any “immediate danger” in July 1975 did not loom over the water supply but over Chapters 22F-6 and 22F-7, which because they were not filed until June 30, 1975, could not be effective until July 20. The emergency therefore was not created by rampant commercialism, the spoliation of wetlands, ineffective local control, or public indifference to the Green Swamp, but rather by an avoidable administrative failure to make the necessary regulations effective within the time allowed. When as here the legislature has clearly specified the consequence of delay, emergency created wholly by an agency’s failure to take timely action cannot justify extraordinary suspensions or extensions of the statutory schedule. That principle binds the state in its most fundamental functions, such as the prosecution of crime. State ex rel. Boren v. Sepe, 256 So.2d 259 (Fla. 3d DCA 1972); Crain v. State, 302 So.2d 433 (Fla. 2d DCA 1974). That principle is recognized in the administrative law of other sovereigns. Shell Oil Co. v. FEA, 527 F.2d 1243, 1248 (Em.App.1975); Consumers Union of U.S., Inc. v. Sawhill, 393 F.Supp. 639, 640 (D.D.C. 1975), aff’d 523 F.2d 1404 (Em.App.1975); Poschman v. Dumke, 31 Cal.App.3d 932, 107 Cal.Rptr. 596 (1973); California Ass’n of Nursing Homes v. Williams, 4 Cal.App.3d 800, 84 Cal.Rptr. 590, 85 Cal.Rptr. 735 (1970). That principle is implicit in Florida’s APA.

The designation made by Chapter 22P-5, Fla.Admin.Code, terminated. Chapters 22F-6 and 22F-7 did not become effective. Chapters 22 FER-75-1 through 30 are invalid. The prayer of the petition for review is granted.

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

ON PETITION FOR REHEARING

SMITH, Judge.

For the first time in this proceeding, by petition for rehearing, the Administration Commission explains that an intervening rule challenge proceeding under Section 120.54(3), Florida Statutes (Supp. 1974) prevented filing of the rules with the Department of State upon approval June 17, 1975, and postponed their “adoption” until filing on June 30, 1975. The controlling statute provided that “any substantially affected person may seek an administrative determination of the validity of the proposed rule” on stated grounds and that, after the timely institution of rule challenge proceedings before the Division of Administrative Hearings, “no rule shall be adopted” by filing with the Department of State “until the hearing officer has rendered his decision.” Section 120.54(4). The hearing officer upheld the proposed land development regulations for the Green Swamp area of critical state concern by order entered June 27, 1975, a Friday, and the rules were “adopted” by filing the following Monday.

We regret that these significant circumstances were not called to our attention in the briefs and oral argument and that we did not independently discover them in the record. Our consideration of them at this time is deterred by Fla.App.R. 3.14(b), which might not otherwise control so important a revelation, and by today’s decision in Cross Key Waterways, Inc., v. Askew, Nos. Y-362, Y-363 and Y-430 (Fla. 1st DCA 1977), which holds unconstitutional the provision by Section 380.05(1) for designation of areas of critical state concern by use of the criteria stated in Section 380.05(2)(a) and (b). On the fundamental constitutional ground avoided by the principal opinion in this case, therefore, the Commission’s designation and land development regulations for the Green Swamp area of critical state concern must fall. The petition for rehearing is

DENIED.

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

      . The Division of State Planning, as the “agency designated by law to undertake statewide comprehensive planning,” was and is the “state land planning agency” charged with Chapter 380 responsibilities. Sections 20.31(3)(e), 23.-011 et seq., 380.031(16), Florida Statutes (1975).

      . The same provision is made by renumbered Section 120.54(12), Florida Statutes (Supp. 1976), embodying 1976 APA amendments.

      . As originally proposed to the legislature, the 20-day wait period was intended to insure “that interested persons will know of all rules before they become effective.” Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, p. 17 (3/9/74); Lewi's v. Judges of District Court of Appeal, 322 So.2d 16, 19 n. 6 (Fla.1975). APA amendments in 1976 added purpose to the 20-day wait period by permitting agency changes and even summary withdrawal of adopted rules in response to objections by the legislature’s administrative procedures committee. Chapter 76-131, Laws of Florida, §§ 120.54(12), .545, Florida Statutes (Supp.1976).

      . The legislative history of Florida’s 1974 APA reveals a concern by the sponsoring Law Revision Council that “reasons and special facts” be stated in connection with emergency rules “so that this provision does not become a way around the other formalities of rulemaking.” Reporter’s Comments, supra n. 2, p. 16.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    GADSDEN STATE BANK, a Florida Banking Corporation, Petitioner, v. Gerald A. LEWIS, as Comptroller of Florida, and as Head of the Department of Banking and Finance of the State of Florida, and the Quincy State Bank, a Florida Banking Corporation, Respondents.
    No. FF-227.
    District Court of Appeal of Florida, First District.
    June 30, 1977.

      See also, 348 So.2d 348, 348 So.2d 348.
    David A. Barrett, Barrett, Boyd & Holder, Tallahassee, for petitioner.
    James M. Barclay and George E. Lewis, II, Tallahassee, for respondents Lewis and Department of Banking and Finance; Alexander L. Hinson of Lines, Hinson & Lines, Quincy, for respondent Quincy State Bank.
   SMITH, Judge.

Gadsden State Bank petitions for review of an order of the Department of Banking and Finance, entered by the Comptroller, denying Gadsden a hearing on its protest of The Quincy State Bank’s application for authority to establish a branch bank near Gadsden’s existing facility in Chattahoochee. Section 120.68, Florida Statutes (Supp.1976). The Department and Quincy assert that Gadsden is not entitled to participation in a Section 120.67 hearing and that Gadsden seeks review of the wrong agency order or untimely seeks review of the right order.

Legislation effective January 1, 1977, authorizes the Department to approve establishment of branch banks for public convenience and necessity. Chapter 75-217, Laws of Florida, Section 659.06(1)(a)1, Florida Statutes (Supp.1976). By rule the Department has prescribed criteria for determining the public convenience and necessity for a proposed branch. Fla.Admin. Code Rule 3C-13.07. Those criteria, which are almost identical to statutory criteria for authority to establish a new bank, include requirements that:

“(a) Public convenience and necessity will be served by the proposed branch.
“(e) Local conditions assure reasonable promise of successful operation for the proposed branch, and for the existing banks or branches already established in such area.”

In May 1976, anticipating the January 1977 effective date of the branch banking law, Quincy applied for authority to establish a branch bank within its home county at Chattahoochee. In June, Gadsden notified the Comptroller of its intention to protest and, following correspondence and submission of data in support of its protest, Gadsden filed a comprehensive memorandum of protest in September. In November the Comptroller wrote Quincy of the Department’s intention to approve Quincy’s application soon after January 1, subject to conditions not here pertinent, but did not notify Gadsden, whose representatives learned of the letter of intent from a newspaper. The Department declined to furnish Gadsden “an official copy of said order or letter of intention and an official statement pertaining thereto which would serve to delineate and explain the reasons for and basis of the Comptroller’s order,” explaining the Department was bound to confidentiality by the Supreme Court’s decision in Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1976), 346 So.2d 53 (Fla.1977). On December 9, Gadsden as protestant requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (Supp.1976), asserting it is a “substantially interested and substantially affected party in the matter.” The Department replied it had taken “merely preliminary steps” concerning the proposed Quincy branch at Chattahoochee, that “no action which affects [Gadsden’s] substantial interest has been determined by this agency,” that a Section 120.57(1) hearing was accordingly denied, and:

“If and when [Gadsden’s] substantial interests are determined, [its] rights under Chapter 120, F.S., would then attach.”

By letter to Quincy dated January 3, 1977, but “issued” January 21, 1977, the Comptroller approved Quincy’s branch banking application subject to FDIC approval, and so notified Gadsden and others. On January 13, Gadsden filed another written request for a Section 120.57(1) hearing on Quincy’s application. Without acting on Gadsden’s January 13 request or mentioning it, the Department on January 21 notified Quincy and Gadsden, among others interested, that

“persons whose substantial rights are affected have until February 10, 1977 to file petition for hearing. If no such hearing is petitioned, the order will be final on February 21, 1977.”

On February 8, 1977, the Department by written order denied Gadsden’s January 13 request for a hearing, holding Gadsden is not a party or a person substantially affected by the proceeding on Quincy’s application. But in response to the Department’s January 21 communication, Gadsden mailed on February 10 and filed on February 11 a renewed application for a formal APA hearing. ■ The Department denied that application by order on March 3, stating that Gadsden’s interests are only those of a competing bank, and

“Gadsden has no standing and was not a proper party or a person whose substantial interests were determined by an agency. Section 120.57(1), Florida Statutes.”

On March 18 Gadsden petitioned this Court for review of the Department’s order denying it an APA hearing.

Section 120.57 provides:

“The provisions of this section shall apply in all proceedings in which the substantial interests of a party are determined by an agency. Unless waived by all parties subsection (1) shall apply whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, subsection (2) shall apply in all other cases.”

The Department’s position that a protesting competitor bank is not a “party” to another’s application for a branch is untenable. A Department rule provides:

“Parties to proceedings before the department are designated as applicants, petitioners, complainants, defendants, respondents, protestants, or intervenors, according to the nature of the proceeding and the relationship of the respective parties.” Fla.Admin.Code Rule 3-2.20 (emphasis added).

Another rule designates as “protestants” those who oppose the granting of an application, Fla.Admin.Code Rule 3-2.26, and still another authorizes protestants to make appearances and present evidence and argument at formal hearings. Fla.Admin.Code Rule 3-3.73. We are unimpressed by the Department’s argument that, because it declined to conduct a formal hearing, there was no occasion for Gadsden to properly “appear” and thus become a party protes-tan! Gadsden was and is a party.

We disagree also, on two grounds, with the Department’s argument that Gadsden is not entitled to participation in a Section 120.57(1) hearing because its “substantial interests” were not to be determined in proceedings on Quincy’s application. First, while the potential competitive injury to Gadsden by a branch Quincy bank is not explicitly a matter of statutory concern, it was made so by the Department’s rule requiring, as a condition to branch banking, that local conditions assure reasonable promise of successful operation for the proposed branch “and for the existing banks or branches already established in such area.” Fla.Admin.Code Rule 3C-13.07(l)(e). Second, a protesting party’s right of participation in an APA hearing does not depend on showing its own substantial interests are to be determined. Section 120.57 provides a hearing under one of its subsections “in all proceedings in which the substantial interests of a party are determined.” Quincy assuredly was such a party. The APA does not permit the implication that one whose interests are substantial enough to induce recognition as a party may be excluded from the hearing. Indeed, Section 120.57 provides that, “unless waived by all parties,” formal proceedings are necessary when there is a disputed issue of material fact. Every party is entitled to participation in a Section 120.57 hearing determining one’s substantial interests, and any party may timely invoke the right to a hearing even if the agency and the party whose substantial interests are to be determined agree to omit compliance with Section 120.-57.

Thus Gadsden is a party entitled to a Section 120.57 hearing because by agency rule it was a person “entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.” Section 120.-52(10)(b), Florida Statutes (Supp.1976). Gadsden is a party entitled to Section 120.-68 judicial review because its interests, recognized by the agency, were “adversely affected” by the agency order. Section 120.-68(1); City of Plant City v. Mayo, 337 So.2d 966, 970 (Fla.1976). Contrast ASI, Inc. v. Florida Pub. Serv. Comm’n, 334 So.2d 594, 596 (Fla.1976), in which the Supreme Court held the Public Service Commission properly denied a Section 120.57 hearing to a competitor of an applicant for a public transportation permit, on grounds the competitor “has no legally recognized interest in being free from competition” and the permit was issuable as a matter of right.

The Department and Quincy contend also that Gadsden has no standing here because it timely petitioned for review of the Department’s order of March 3, 1977, denying Gadsden a hearing, but did not petition within 30 days to review the letter denying hearing on December 16, 1976, or to review the order of February 8, 1977, or the Department’s final order of January 3, “issued” January 21, approving Quincy’s application. We likewise reject those arguments.

Without the prior benefit of our McDonald decision, the Department misconceived the APA’s hearing provisions are applicable only after the agency acts. While that application of those provisions is a permissible one, Section 120.57(2)(a)l, public and private interest will frequently be better served by hearings before the agency decides. See McDonald, supra n. 3, 346 So.2d at 578, n. 5. Here, while processing Quincy’s application to a favorable conclusion, the Department issued a series of lulling statements to Gadsden implying that, while Gadsden was presently denied a hearing, the requested hearing might one day be provided. The Department’s letters of December 16, 1976 and January 21, 1977 effectively invited further applications for hearings. Had Gadsden’s final application of February 11, 1977 been denied as repetitive of an earlier application earlier denied on the merits by the full order of February 8, interlocutory judicial review on the merits of the repetitive February 11 application might have been foreclosed. But the Department denied the renewed application on the merits by an expository order on March 3. The petition for judicial review was timely filed within 30 days thereafter. Fla. App. Rule 4.5c.

Ordinarily, without a more substantial showing of harm irremediable by review of final agency action on the pending issue, we would not favorably consider a petition for review of “preliminary, procedural, or intermediate agency action” such as the Department’s order denying Gadsden a Section 120.57 hearing. The proper remedy for such erroneous action is a petition to review the Department’s final action in the substantive matter before it — here, the Department’s action on Quincy’s application for branch banking authority. Yet, because of Gadsden’s repeated but unavailing efforts to secure a hearing which the Department was bound to grant, and because the Department’s January 21 order on Quincy’s branch bank ambiguously linked its finality to the absence of an intervening hearing petition by one whose substantial rights are affected, we hold Gadsden’s petition to review the Department’s preliminary, procedural or intermediate action is an acceptable vehicle for our jurisdiction. The Department’s final approval of Quincy’s petition must be considered as subject to our disposition of the interlocutory petition. Our disposition of Gadsden’s interlocutory petition nullifies the Department’s order approving Quincy’s application.

The Department’s order denying Gadsden participation in a Section 120.57 hearing is REVERSED and the cause is REMANDED to the Department for further proceedings.

BOYER, C. J., and McCORD, J., concur.

      . “Any bank heretofore or hereafter incorporated . . . shall have one principal place of doing business . . . ; in addition, with the approval of the Department and upon such conditions as the department shall prescribe, including a satisfactory showing by the bank that public convenience and necessity will be served thereby, any bank may establish up to two branches per calendar year within the limits of the county in which the parent bank is located.”

      . In a related case, also decided today, the Department seeks to disassociate itself from its “Regulatory Standards for Approval of Branches” by argument that Rule 3C-13.07 does not refine the statutory standard of “public convenience and necessity” for establishing branches but merely guides the Department in ongoing supervision of established branches. We cannot subscribe to that construction of a rule having such obvious contrary meaning. Recognizing that the Department’s experience and our intervening constructions of the APA may account for the Department’s discomfort with the unintended consequences of its rules, we reaffirm that agencies must honor their own substantive rules until, pursuant to § 120.-54, Fla.Stat. (Supp.1976), they are amended or abrogated. Sec. 120.52(14); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977). Contrast United Tel. Co. of Fla. v. Mayo, 345 So.2d 648 (Fla.1977), in which the Court approved agency departure, in a given case, from an agency rule of procedure.

      . See § 659.03(2), Fla.Stat. (1975), quoted and discussed in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

      . Subsection (1) of § 120.57 provides formal proceedings and subsection (2) provides informal proceedings leading to final agency action.

      . Before the 1974 APA was enacted, we recognized the standing of an existing and potentially competing bank to complain of the Comptroller’s deviation from statutory standards affecting the authorization of banks. Sec. 659.-56, Fla.Stat. (1975); National Bank of Tampa v. Green, 175 So.2d 545 (Fla. 1st DCA 1965), cert. den., 183 So.2d 215 (Fla.1965).

      .An agency may by rule confine party status to those whose participation is assured by the APA and “authorize limited forms of participation in agency proceedings for persons who are not eligible to become parties.” Sec. 120.-52(10)(c); City of Key West v. Askew, 324 So.2d 655, 659 (Fla. 1st DCA 1976).

      . McDonald v. Dep’t of Banking and Finance, supra n. 3.

      . McLean v. McLean, 340 So.2d 493 (Fla. 1st DCA 1976); Waltham A. Condominium Ass’n v. Village Management, Inc., 330 So.2d 227 (Fla. 4th DCA 1976).


author: PER CURIAM.

text:
    JEFFERSON NATIONAL BANK OF MIAMI BEACH, Petitioner, v. Gerald A. LEWIS, Comptroller of the State of Florida as Head of the Department of Banking and Finance, and Capital Bank of North Bay Village, Respondents. Gerald A. LEWIS, Comptroller, and Capital Bank of North Bay Village, Appellants, v. JEFFERSON NATIONAL BANK OF MIAMI BEACH, Appellee.
    Nos. FF-53 and FF-261 and FF-477.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearings Denied Aug. 18, 1977.
    Robert M. Ervin, Joseph C. Jacobs and Robert J. Angerer, Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for Jefferson.
    Richard E. Gentry, Tallahassee, and S. Craig Kiser, Davenport, Iowa, for Department of Banking and Finance and Lewis.
    Dennis I. Holober and Charles G. Moer-dler, Stroock, Stroock & Lavan, Miami and New York City, for Capital Bank of North Bay Village.
   PER CURIAM.

In No. FF-261, the order of the Comptroller and Department of Banking and Finance denying petitioner Jefferson participation in a hearing pursuant to Section 120.57, Florida Statutes (Supp.1976), is REVERSED. Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA, op. filed this date). In No. FF-53, the order approving respondent Capital’s application for branch banking authority at 780 Arthur Godfrey Road, Miami Beach, is likewise REVERSED and cause REMANDED for further proceedings on Capital’s application in accordance with today’s decision in Gadsden. By leave of the Comptroller and Department, Capital may continue interim branch operations until final agency action is taken on its application. In No. FF-477, the appealed order of the Leon County Circuit Court granting Jefferson declaratory and injunc-tive relief, although in substance entirely correct, is REVERSED and the cause REMANDED for dismissal because adequate remedies were and are available under Chapter 120, Florida Statutes (Supp.1976). State ex rel. Dep’t of Gen. Serv. 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).

BOYER, C. J., and McCORD and SMITH, JJ., concur.


text:
    CENTRAL BANK OF SOUTH DAYTONA, Petitioner, v. Gerald A. LEWIS, Comptroller of the State of Florida, and Head of the Department of Banking and Finance, and Florida Bank and Trust Company at Daytona Beach, Respondents.
    No. FF-150.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    David A. Monaco, Abraham, Kaney, Monaco & Main, Daytona Beach, for petitioner.
    James M. Barclay, Tallahassee, for respondent Lewis and Department of Banking and Finance.
    Berrien H. Becks of Becks & Becks, Day-tona Beach, and E. C. Deeno Kitchen and Robert J. Angerer, Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for respondent Florida Bank and Trust Company at Daytona Beach.
   PER CURIAM.

The order of the Department of Banking and Finance denying petitioner participation in a hearing pursuant to Section 120.57, Florida Statutes (Supp.1976), is REVERSED. Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA, op. filed this date). The cause is REMANDED to the Department for further proceedings. The Department’s order dated January 3, 1977, issued January 21, 1977, granting respondent Florida Bank branch banking authority at 2000 South Ridgewood Avenue in South Daytona Beach, Florida, is nullified by the error in the interlocutory order we here reverse. Pending final agency action in accordance with our decision in Gadsden, Florida Bank may at its risk and by leave of the Department proceed with such site preparations as are reasonably necessary to preserve the benefit of preparations already made, or with operation if the bank is now operating.

REVERSED.

BOYER, C. J., and McCORD and SMITH, JJ., concur.


author: ERVIN, Judge.

text:
    America BALINO et al., Petitioners, v. The DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, et al., Respondents.
    No. EE-62.
    District Court of Appeal of Florida, First District.
    July 11, 1977.
    Stephen Maher, Legal Services of Greater Miami, Inc., Miami, for petitioners.
    Chester G. Senf, Jacksonville, for respondents.
   ERVIN, Judge.

The issue before' us is who has the burden of proof at a reclassification hearing, the recipients of Medicaid benefits seeking continued assistance, or the Department of Health and Rehabilitative Services? We agree that the burden should be placed upon the Department and reverse.

Petitioners are elderly Medicaid recipients residing in Florida nursing homes. In September, 1975, the Secretary of the Department of Health, Education and Welfare promulgated regulations setting forth new and more restrictive criteria which Medicaid recipients must meet in order to receive skilled nursing care. 45 C.F.R. 405.-126-.128. In complying with the new regulations, the Department of Health and Rehabilitative Services then made changes in its level of care definitions. Fla.Admin. Code Rule IOC-7.21. HRS also undertook a massive state-wide reclassification of skilled care nursing home patients.

HEW’s regulations provide in those cases where the state intends to discontinue, suspend or reduce assistance, it shall first give timely and adequate notice of such intention. 45 C.F.R. 205.10(a)(4). It is also provided that before discontinuing such benefits, an opportunity for a “fair” hearing shall be granted to any applicant who requests a hearing. 45 C.F.R. 205.10(a)(5). Here, after HRS provided such notice, a single group hearing was held before a hearing officer with the petitioners’ consent. Following the hearing an order was entered by the hearing officer which, as it pertained to the burden of proof, stated:

“The State has the burden of proof at the hearing. Although Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), does not speak directly to this issue, it does require a fair and meaningful opportunity, under the circumstances, for a client to be heard and to challenge agency decision-making. Given the status of petitioners in these cases, i. e., nursing home residents incapable of caring for themselves, and given the presence of doctors, nurses and social workers on the medical review teams which are recommending the reclassifications, it should not constitute an undue burden to require respondents to sustain the burden of proof. As a practical matter, this simply means that respondents have to establish the grounds for reclassification, by a preponderance of the evidence, to the satisfaction of the hearing officer.”

The Secretary of HRS rejected the hearing officer’s recommended order as to the burden of proof, stating:

“The Petitioners have the burden of proof at the hearing as Federal law requires that Medicaid recipients prove eligibility.”

At the outset we must disagree with the Secretary’s conclusion that federal law requires such recipients to prove continued eligibility. This may be a correct interpretation of a recipient’s burden necessary to establish initial eligibility under appropriate federal regulations, 45 C.F.R. Sections 405.-126-128, but we have been cited to no federal statutes or federal regulations which require such recipients, once so classified, to have thrust upon them the burden of proof as to their continued eligibility. The general rule is, that as in court proceedings, the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal. State Department of Agriculture and Consumer Services v. Strickland, 262 So.2d 893 (Fla. 1st DCA 1972); Florida Dept. of Health and R. S. v. Career Serv. Com'n, 289 So.2d 412 (Fla. 4th DCA 1974); Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3rd DCA 1976). Florida’s Administrative Procedure Act is silent on the subject, although its federal counterpart is essentially the same as Florida deci-sional law. 5 U.S.C. § 556(d).

There is an even more compelling reason why the burden should be placed upon HRS. The hearing officer made an explicit finding of fact, not rejected by the Secretary’s final order, that petitioners were “nursing home residents incapable of caring for themselves, . . . .” This finding has not been challenged by HRS on review and it comes before us clothed with a presumption of correctness. Hayes v. Bowman, 91 So.2d 795 (Fla. 1957); Florida Rate Conf. v. Florida Railroad & P. U. Com’n., 108 So.2d 601 (Fla. 1959); O’Neil v. Pallot, 257 So.2d 59 (Fla. 1st DCA 1972). Such being the case, the guidelines set forth in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), are appropriately applicable to this cause. The federal regulations pertaining to hearings specifically require they shall be conducted pursuant to “the due process standards set forth . in Goldberg v. Kelly. . . .” 45 C.F.R. 205.10(a)(1)(h).

In Goldberg, residents of New York City who were receiving financial aid under state or federally assisted welfare programs brought actions alleging that welfare officials had either terminated or were about to terminate such aid without prior notice and hearing in violation of due process. After the commencement of the actions, welfare authorities adopted procedures whereby a recipient was given notice of the proposed termination of payments, and a right to have the proposed termination reviewed by a higher official as well as the right to submit a written statement for purposes of review.

The United States Supreme Court held that procedural due process required that such recipients be afforded an evidentiary hearing before the benefits were ended. True, Goldberg did not explicitly state that at such pre-termination hearings the burden would be upon the agency seeking to discontinue benefits, but such a conclusion is by inference inescapable:

“In the present context these principles [pertaining to one’s right to a fair hearing] require that a recipient have . an effective opportunity to defend by confronting any adverse witnesses . . ..” 397 U.S. at 267-268, 90 S.Ct. at 1020. (Emphasis added).

Certainly one who defends a position cannot at the same time be described as having the affirmative of that position.

Moreover Goldberg recognized the “opportunity to be heard must be tailored to the capabilities and circumstances of those who are to be heard.” 397 U.S. 268-269, 90 S.Ct. 1021. Since as Goldberg observed, written submissions for continued family aid “are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively . . ”, 397 U.S. 269, 90 S.Ct. 1021, is the option which is available to nursing home residents who are incapable of caring for themselves any more realistic when the burden is placed upon them at such hearings?

The hearing officer concluded that it would not be an undue burden for HRS to sustain the burden of proof in view of the agency’s medical review teams, consisting of doctors, nurses and social workers, who recommend the reclassifications. This conclusion appears entirely justified. HEW’s regulations provide detailed procedures relating to periodic evaluations of the patients’ conditions by medical review teams. 45 C.F.R. 250.23-.24. The final order of HRS specifically states that the reclassifica-tions will be done by teams which have reviewed the recipient’s medical records, although one member of the team must also have observed the recipient. Considering the superior resources available to the agency, it is hardly consistent with fundamental concepts of fairness to impose upon those who have been found incapable of caring for themselves the burden of the preponderance of the evidence at such reclassification hearings.

This cause is remanded to HRS with directions that it amend its final order by-adopting the hearing officer’s recommended order placing the burden of proof upon the agency at such hearings.

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

      . He could have determined, after reviewing the complete record, that such finding was not based upon competent substantial evidence. Section 120.57(l)(b)(9), Fla. Stat. (Supp. 1976).

      . The procedural requirements set forth in Goldberg were later held by the Court not to apply to recipients of disability benefits under the Social Security Act prior to termination of such benefits. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Court also stated that such a recipient bears the continuing burden of eligibility. 424 U.S. at 336, 96 S.Ct. 893. The Eldridge opinion was careful to point out differences in the facts before it and those in Goldberg. A major distinction being that the degree of deprivation in Goldberg was much greater than the termination of disability benefits in Eldridge. Petitioners persuasively argue that there is a significant distinction in procedures pertinent to disability benefits as opposed to Medicaid benefits since Title II of the Social Security Act, pertaining to disability benefits, places the continuing burden on the recipient, 42 U.S.C. § 423(d)(5), whereas there is no similar provision under Title XIX pertaining to Medicaid benefits. Notwithstanding the distinctions between Mathews and Goldberg, the Secretary of HEW has by regulation specifically required the procedures outlined in Goldberg to apply to reclassification hearings involving Medicaid recipients. Obviously the parties are bound by those procedures.


text:
    Kenneth Lane WINSLOW, M. D. (Licensee), Petitioner, v. DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION and State of Florida Board of Medical Examiners, Respondents.
    No. FF-97.
    District Court of Appeal of Florida, First District.
    July 11, 1977.
    Rehearing Denied Aug. 18, 1977.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for petitioner.
    Michael Schwartz of Slepin & Schwartz, Tallahassee, for respondents.
   PER CURIAM.

Petitioner files his petition for writ of certiorari from an order of the Board revoking his license to practice medicine in this state. The petition is treated by us as a petition for review of administrative action as provided by Section 120.68, Florida Statutes (Supp.1976). Petitioner raises three points seeking reversal, none of which is of merit. One point does however require extensive comment: He alleges that he was denied due process by (1) the legal advisor to the Board serving also as prosecutor and (2) the hearing officer serving also as a member of the Board. At the outset we note that the hearing officer recused himself from any of the proceedings at the final hearing which culminated in the revocation of petitioner’s license. Moreover, Section 120.57(l)(b)(ll), Florida Statutes (1975), allows a hearing officer to participate in the formulation of the agency’s final order if he has completed all his duties as hearing officer.

In Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), the United States Supreme Court held there was no unconstitutional infirmity in a Wisconsin statute which empowered a medical examining board to act both as an investigative and adjudicative body. The following comments by the Court are especially instructive:

“The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individual poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” 421 U.S. at 47-48, 95 S.Ct. at 1464.

The court continued at 421 U.S. 55, 95 S.Ct. 1468:

“The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing. Without a showing to the contrary, state administrators ‘are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.’ United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 85 L.Ed. 1429 (1941).”

Additionally the record shows that petitioner consented to an informal proceeding under Section 120.57(2). Subsection two, unlike subsection one, pertaining to formal proceedings, does not require that a hearing officer from the Division of Administrative Hearings of the Department of Administration be assigned to conduct an informal hearing. There was then no statutory requirement that the hearing officer, who was also a member of the Board, not participate.

The record reflects also that petitioner was afforded adequate notice of the hearing. Petitioner fails to show any abuse of discretion by the hearing officer’s refusal of the motion to continue the hearing made by petitioner’s attorney at the hearing.

Finally the evidence in support of that order of revocation was both competent and substantial.

The petition for review is denied.

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


author: McCORD, Chief Judge.

text:
    Shirley N. COUNTS, as Administratrix Ad Litem of the Estate of Avery Clarence Counts, Deceased, and Leoman Houston, Deceased, and Auto Owners Insurance Company, Appellants, v. Patsy Ruth NELSON, Appellee.
    No. CC-223.
    District Court of Appeal of Florida, First District.
    July 11, 1977.
    Rehearing Denied Aug. 18, 1977.

      John F. Sproull, Jr., of Harriett & Sprcull, Palatka, for appellants.
    Ronald E. Clark, of Clark & Mussoline, Palatka, Terry N. Freeman of Beverly & Freeman, West Palm Beach, for appellee.
   McCORD, Chief Judge.

This is an appeal from final judgment in a death by wrongful act suit growing out of an automobile accident in which Avery Clarence Counts and Darrell R. Nelson were killed. We find no error and affirm.

The action is brought by appellee, the wife of decedent Nelson, against appellants, Shirley N. Counts, as administratrix ad li-tem of the estates of Avery Clarence Counts, deceased, and Leoman Houston, deceased, (the latter being the record owner of the motor vehicle in which decedents Counts and Nelson were riding at the time of the accident) and their insurance carrier Auto Owners Insurance Company. The case was tried before a jury and at the conclusion of appellee’s case, appellants’ motion for a directed verdict was denied. Upon completion of the case, the jury returned a verdict for appellee apportioning damages between the statutory beneficiaries who were entitled to same. Appellants contend the trial court erred in not granting their motion for directed verdict; that they are entitled to reversal and entry of a judgment as a matter of law in their favor. They also contend that the verdict was excessive.

The evidence viewed in the light most favorable to appellee is as follows: Around noon on Sunday preceding the accident, which occurred between 12:15 a. m. and 3:00 a. m. on the following morning, decedent Counts drove over to the Nelson home in his 1969 Toyota automobile (legal title to which remained in Houston who had sold the vehicle to Counts) and invited decedent Nelson to ride with him to the 7-11 store. Counts drove the vehicle out of the Nelson yard with Nelson sitting in the front seat on the passenger side. This was the last that was seen or heard of them until they were both found dead at the scene of the accident about 3:00 a. m. the next morning.

Two highway patrol troopers who investigated the accident and arrived at the scene not long after it occurred found that the right front of the vehicle had struck a culvert and the car had then traveled 32 feet in the air turning over three-fourths of a turn and coming to rest on the driver’s side. It was extensively damaged and was a total loss. The right front body shield and bumper was driven rearward approximately two feet, and the right suspension was driven rearward approximately one foot. The windshield was popped out and the steering column and instrument panel was crushed by occupant impact. The bodies had not been moved. Counts was down against the driver’s door with his legs between the steering wheel and seat, and Nelson was slumped on top of him as the car laid on the driver’s door. Both had received head and facial injuries and blood covered both. There was no evidence to indicate that any other vehicle was involved in the accident or that the two occupants met their death other than as a result of the impact of the accident.

In addition to the physical position of the bodies and the fact that Counts had gone to Nelson’s home in Counts’ automobile and picked Nelson up on the previous afternoon, other evidence supporting the jury’s finding that Counts was the driver of the car was Mrs. Nelson’s testimony that she never knew of her husband driving anyone else’s vehicle other than his employer’s, and he would not even drive her car when she offered it to him. He only drove his Ford truck and never any other.

Appellants contend that the conclusion that Counts was the driver of the vehicle at the time of the accident is merely an inference which is unsupported by evidence, that to further conclude that the accident resulted from negligence of Counts and that Nelson’s death was a result of the accident pyramids inference upon inference. We disagree. There was ample evidence to support the jury’s finding that Counts was the driver of the automobile at the time of the accident. Supporting Counts’ negligence, the evidence shows the following: Counts’ vehicle was in a rundown condition; the brake pedal was soft and under pressure would bottle; the left front tire had 24 pounds of pressure with no tread; the two rear tires had 23 and 13 pounds of pressure with 8/32 and 2/32 tread depth; at speeds between 45 and 55 miles per hour the car had a distinct shimmey or shake of which Counts was aware. The accident occurred on a state road approaching a bridge in Putnam County. As the road travels south and approaches the bridge, it makes a curve to the left with a no passing zone on the left side. On the right side there are several warning signs warning of the bridge and to reduce speed. There was no artificial lighting and the road surface was dry the night of the accident. It is apparent that the automobile was driven off of the road and then traveled down a ditch to a private drive where it hit the concrete culvert. There was no physical evidence of braking or attempts by the driver to turn the vehicle back onto the road. The only evidence presented supports a finding that Counts and Nelson met their death as a direct result of Counts’ negligence in maintaining and driving his automobile. The evidence does not support a reasonable inference to the contrary. Any other finding would be based upon conjecture and speculation not supported by any evidence in the record. Such is outweighed by the evidence supporting Counts’ negligence.

Appellants, in support of their contention that we have only a pyramiding of inferences, rely upon the Supreme Court’s opinion in Voelker v. Combined Insurance Company of America, 73 So.2d 403 (Fla.1954). Voelker, however, involved construction of the terms of an insurance policy which did not cover injuries in which there was no visible contusion or wound on the exterior of the body of the insured causing death. There Voelker was found outside of his automobile floating in water with no visible bruises or abrasions on his body. In the case sub judice we do not have a parallel situation. Here all of the evidence points to Counts as the driver of the automobile, to the accident as to the cause of Nelson’s death and to negligence of Counts as the direct cause of the accident.

We have considered appellant’s second point and find it to be without merit.

Affirmed.

DREW, E. HARRIS and MASON, ERNEST E., (Ret.) Associate Judges, concur.


author: RAWLS, Acting Chief Judge.

text:
    Louise Orr ESTABROOK, Appellant, v. Watson W. WISE and Phillips Petroleum Company, a corporation, Appellees.
    No. AA-444.
    District Court of Appeal of Florida, First District.
    July 11, 1977.
    Rehearing Denied Aug. 8, 1977.

      Wilmer H. Mitchell, Mitchell & Oberhau-sen, Pensacola, for appellant.
    William F. McGowan, Jr., Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, and W. Spencer Mitchem, Beggs & Lane, Pensacola, for appellees.
   RAWLS, Acting Chief Judge.

Discovery of oil in the Jay, Florida, oil field area has resulted in a microscopic scrutiny of the title to land in that vicinity. So, we are here confronted with an appeal from a final summary judgment in which the trial court found that appellant-plaintiff Estabrook had no claim of interest which she asserted in certain Florida property.

By her complaint, Mrs. Estabrook alleged that she and appellee-defendant Warren Wise were residents of Tyler, Texas, and the purpose of her suit was to impose a resulting trust in favor of herself in mineral rights in certain Florida real property which was presently in the name of Wise; a portion of which had been leased to defendant-appellee Phillips Petroleum Company. Further allegations were that she and Wise were married in Texas (a community property state) in 1930 and remained married in that state until 1964, when she filed her petition for divorce. The gist of her further allegations are that during their marriage, Wise acquired the claimed interest in Florida minerals with community property funds, and that during their divorce litigation in Texas, he willfully failed to disclose his interest in same to the Texas court. Wise, by his answer, asserted the following affirmative defenses: 1) Mrs. Estabrook had knowledge of the ownership of the separate property in Florida, and, therefore, her action was barred by the statute of limitations; 2) laches; 3) the action is barred because the subject property was not purchased with community funds; 4) Mrs. Estabrook’s claim is founded upon a community property agreement entered into in Texas and upon the community property law of Texas which has no effect upon real property located in Florida; and 5) this action is barred because of the entry of the final decree of divorce between Mrs. Estabrook and Wise.

The trial court did not recite any specific ground in its final summary judgment upon which to enter same. Our review of this extensive record discloses several valid grounds upon which to sustain same; however, we will confine our comments to the latter ground based upon the Texas divorce.

On May 18, 1965, Mrs. Estabrook (at that time Mrs. Wise) and Mr. Wise entered into a property settlement agreement which stated, in part:

“. . . [A]nd no issue regarding community property . . . is to be submitted to the Court . . . if it should hereafter appear that either party desires to claim that some community property has not been divided, he or she shall be free to do so and shall be entitled to pursue his or her rights and remedies thereto.”

The final judgment of divorce was entered by the Texas court on May 25, 1965, incorporating the terms of the property settlement between the parties. In 1972, Mrs. Estabrook filed suit in Texas claiming an interest in the Florida property, which suit was appealed. She filed the instant suit in Florida in 1974. The Texas suit was ultimately dismissed by agreement of the parties.

The Texas divorce decree was a final judgment of divorce incorporating a property settlement agreement between the parties. Florida is not a community property state, and thus is not required to recognize an encumbrance predicated upon a foreign state’s community property law. The establishment of non-record title interests arising out of marital claims should be settled in the forum state. Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948); Dotter v. Dotter, 147 So.2d 209 (Fla. 2nd DCA 1962); Jones v. Jones, 140 So.2d 318 (Fla. 3rd DCA 1962), and McEachin v. McEachin, 154 So.2d 894 (Fla. 1st DCA 1963). The Texas court had jurisdiction pursuant to the agreement of the parties which was incorporated in its 1965 divorce decree for the parties to further “pursue his or her rights and remedies thereto.” Mrs. Estabrook did pursue her alleged rights in the Texas court; however, she also sought a construction of that court’s decree in the Florida court and subsequently abandoned her forum state. Any initial relief, pursuant to the final decree entered by the Texas court, should have first been resolved by that jurisdiction.

As stated in Cooper v. Cooper, 69 So.2d 881 (Fla.1954):

“As already pointed out the inquiry seems to have gone afield by developing how the parties to the original marriage had accumulated property and lost or gained in its manipulation, evidently on the theory that there should be a judicial determination of the fairness of the division when the personalty was exchanged for realty.' This was a futile procedure because the divorce case then pending had, meanwhile, culminated in a final decree and property rights then and there became settled. Finston v. Finston, 160 Fla. 935, 37 So.2d 423. We announced there the rule ‘that a final decree * * settles all property rights of the parties and bars any action thereafter brought by either party to determine the question of property rights.’ In that case the court had before it the question of property rights and held that the doctrine of res judicata controlled. Here the property rights were not introduced in the litigation but they could and should have been so the same rule applies here as will be seen by an examination of our opinion in Town of Boca Raton v. Moore, 122 Fla. 350, 165 So. 279, cited as authority for the rule stated in Finston v. Finston, supra.

We hold that the doctrine of res adjudica-ta controls. The judgment appealed is

AFFIRMED.

SMITH and ERVIN, JJ., concur.


text:
    Norma J. JOHNSON, as Personal Representative of Larry R. Johnson, Deceased, and Norma J. Johnson, Individually, Appellants, v. William I. McCOWEN and Beverly McCowen, his wife, Appellees.
    No. CC-178.
    District Court of Appeal of Florida, First District.
    July 11, 1977.
    Rehearing Denied'Aug. 18, 1977.

      William Landsberg and James E. Moore, Moore & Anchors, Niceville, for appellants.
    F. B. Estergren, Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellees.
   RAWLS, Acting Chief Judge.

The parties to this action are owners of adjoining waterfront lots bordering on Boggy Bayou in Santa Rosa County. Appellants filed their' complaint for declaratory judgment alleging that since the purchase by the parties of the lot from a common grantor, the lot had increased in area as the result of natural accretion and, therefore, a portion of the accretion was their property. After hearing the testimony proffered and personally viewing the properties, the trial judge established the seaward boundary lines between the parties as reflected by the survey incorporated in this opinion.

The issues posed by appellants are: 1) that the line established by the trial court defining the littoral rights of the parties is not consistent with the law and the facts, and 2) the line defining the land boundaries of the parties is not consistent with the law and the facts.

In 1969, within two days of each other, the parties to this cause acquired deeds to their waterfront parcels which divided Lot 4. As reflected by the survey utilized by the trial judge in fixing the common seaward boundary, the two lots are located in a convex waterfront cove. The upland lots adjoining appellants’ property are not parallel. Appellants contend that the common upland boundary should be extended in the same direction seaward from the deed corner which would have the effect of granting them a strip of land from 0 to 10.5 feet immediately adjoining appellees’ property, thus restricting appellees’ access to the waterfront. In weighing the respective rights of the parties, the trial court substantially preserved to the parties the same relative waterfront distances as each had in 1969.

Although oftentimes interchanged, riparian rights, according to the strict meaning of the term, are such as follow or are connected with the ownership of banks and streams or rivers. Those whose lands border upon tide waters are called “littoral” proprietors, and there appears to be no word or phrase of sufficiently broad meaning to include both riparian and littoral. Such rights, riparian and littoral, depend upon the ownership of land contiguous to the waters and are the same.

The rule of law applicable to adjacent landowners’ rights in littoral properties is that no rule can be laid down as to every situation, since their respective rights must depend in every instance upon the shape of the upland, the arm of the sea, and their relative position to each other. The aim of all rules as applied to the rights of adjoining littoral proprietors on an irregular shore is to give each, as far as may be, a fair and reasonable opportunity of access to the channel. The general rules by which alluvion is apportioned between different littoral owners is, when practicable, allot each proprietor a frontage of the same width on the new shore as on the old shore. When the general course of the shore curves or bends, two objects are to be kept in view; namely, to give each proprietor a fair share of the land and to secure to him convenient access to the water from all parts of his land by giving him a share of the outward line proportioned to a share of the line of the original shore owned by him.

Hayes v. Bowman is Florida’s landmark case dealing with littoral or riparian rights. There, the court stated:

“ . . . It should be borne in mind that littoral or riparian rights are appurtenances to ownership of the uplands. They are not founded on ownership of the submerged lands. It is for this reason, among others that we cannot define the area within which the rights are to be enjoyed with mathematical exactitude or by a metes and bounds description.
“We therefore prescribe the rule that in any given case the riparian rights of an upland owner must be preserved over an area ‘as near as practicable’ in the direction of the Channel so as to distribute equitably the submerged lands between the upland and the Channel. In making such ‘equitable distribution’ the Court necessarily must give due consideration to the law of the upland shore line, the direction of the Channel and the correlative rights of adjoining upland owners.”

In the instant case, the trial court, in following the dictates of Hayes, gave due consideration to the lay of the upland shoreline, the direction of the channel and the correlative rights of adjoining upland owners.

AFFIRMED.

SMITH and ERVIN, JJ., concur.

      . Subsequent to notice of appeal being filed, appellant, Larry R. Johnson, died. His personal representative has been substituted in his stead.

      . Appellants purchased Parcel 1, Lot 4; the appellees purchased Parcel 2, Lot 4.

      . Riparian is derived from Latin ripa, a river bank.

      . Littoral is derived from Latin litus, the seashore.

      . Guld, A Treatise on the Law of Waters (3rd Ed. 1900).

      . Rochester v. Barney, 117 Conn. 462, 469, 169 A. 45 (1933).

      . Gould, supra.

      . Hayes v. Bowman, 91 So.2d 795 (Fla.1957). See also Bliss v. Kinsey, 233 So.2d 191 (Fla. 2nd DCA 1970).


author: BOARDMAN, Chief Judge.

text:
    In re the GUARDIANSHIP OF Catherine BERG, incompetent.
    No. 76-1463.
    District Court of Appeal of Florida, Second District.
    July 13, 1977.
    Rehearing Denied Aug. 15, 1977.
    Kent W. Davis, Foster & Davis, St. Pe-tersburg, for appellant.
    Gardner W. Beckett, Jr., Nelson, Beckett, Nelson & Thomas, St. Petersburg, for ap-pellee.
   BOARDMAN, Chief Judge.

The question presented on this appeal is whether in a guardianship proceeding the trial court erred in granting an attorney’s fee of “between $200 to $300” to the attorney for the estate of an incompetent, in failing to award a fee to the guardian of the property of the estate, and in awarding the sum of $500 to the guardian of the person. We reverse the order of the trial court as to the fees awarded to the attorney and guardian of the property and affirm as to the fees granted to the guardian of the person.

Appellant/petitioner, Kent W. Davis, petitioned the trial court for authorization of payment of reasonable fees for services rendered by the guardians of the person and property of Catherine Berg and for attorney’s fees. The petition was accompanied by a sworn affidavit stating that reasonable compensation for 101 hours in services rendered from June 1973 to June 1976 by the guardian of the person, Mrs. E. Dane Bailey, was $1,000; for 45V2 hours in services rendered from September 1973 to June 1976 by the guardian of the property Kent Davis, was $675; and for 5014 hours in services rendered from September 1973 to June 1976 by the law firm of Foster & Davis of which Kent Davis was a'member, was $2,500. The record shows that Davis has previously been awarded $750 for services rendered as guardian of the estate and a like sum for services performed as the attorney for the estate up to September 23, 1973. His claim for additional fees is for services rendered in both capacities after that date.

The trial court entered an order finding:

1. That the guardian [of the person] has not been paid any fee for services and that she is paid $500, as her fee. This is not adequate or reasonable for her services, but it is still all the estate ■ can afford.
2. That the attorney’s fees be paid in the amount of the balance held by the guardian. The Court has taken into consideration the fact that Mr. Davis has already received $750, as attorney. The balance would be somewhere between $200 and $300. This fee is also inadequate for services, but it is all the estate of the Ward can afford to pay.

No fee was set at this time for Davis specifically for services performed in his capacity as guardian of the property.

The final accounting showed that Berg’s estate included assets totaling $11,-817.54. The principal asset was a $11,500 purchase money mortgage and promissory note, and the remainder was cash. It appears that the trial court based the award of $200 to $300 on the amount of cash on hand and apparently failed to take into consideration the total assets of the estate. In so doing it used an incorrect basis.

Davis expended time, labor, and ingenuity in protecting the estate of the guardian and for such services he should be reasonably compensated. We do not believe that the approximately $6.00 per hour for services rendered by him as attorney for the estate and no award for services rendered by him as guardian of the property of the estate is reasonable.

Although the trial judge stated in his order that $500 was not reasonable for the services performed by Mrs. Bailey, we hold, after review of the circumstances and the services rendered, the fee to be a reasonable one and for that reason affirm the award to her.

We remand to the trial court for the purpose of reviewing the fees awarded Davis. In doing so we have no doubt that the trial court will consider the monies previously received by him, the total assets remaining in the estate, and the fact that Davis acted as both guardian of the property and attorney and set a reasonable fee to be paid according to a schedule of regular periodic payments in a reasonable amount until the fees are paid in full. The trial judge in his discretion may award one reasonable fee for all the services performed by Davis or award separate reasonable fees for the services performed in each capacity.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

McNULTY and SCHEB, JJ., concur.


text:
    Beverly SAPP, Appellant, v. CITY OF TALLAHASSEE, Holiday Inns, Inc., a Foreign Corporation, Adam H. Jones, Richard F. Jones, Kendrick A. Jones and Kathleen M. Jones, as Licensees, Appellees.
    No. DD-251.
    District Court of Appeal of Florida, First District.
    July 15, 1977.
    Rehearing Denied Aug. 18, 1977.

      John C. Cooper and W. Dexter Douglass, Douglass & Powell, Tallahassee, for appellant.
    Anne C. Booth and Edgar Booth, Hall & Booth, Julius Parker, Jr., Madigan, Parker, Gatlin, Truett & Swedmark, Bryan Henry, Tallahassee, for appellees.
   ERVIN, Judge.

Appellant, Beverly Sapp, appeals the dismissal of two defendants, Holiday Inns, Inc. and the City of Tallahassee, from her personal injury suit. We affirm in part and reverse in part.

THE ALLEGED FACTS

Ms. Sapp’s second amended complaint alleges Tallahassee Police Department officers, on the evening of September 4, 1974, were on special assignment at the Tallahassee round Holiday Inn. One of the officers observed two males in the rear parking area and radioed a suspicious persons report to another officer on stake-out within the hotel. The officers observed the men loiter at opposite ends of the sidewalk near the rear entrance of the hotel for about ten minutes. Ms. Sapp, a temporary employee of the Inn, was then observed leaving the rear entrance, and looking for her ride before reentering the hotel. The officer on stake-out saw the two males follow her into the hotel about a minute later. Other than reporting in, the officer took no action. Twenty minutes later he saw the males running from the hotel after severely beating and robbing Ms. Sapp inside the hotel near the rear entrance.

The second amended complaint alleges the officers owed appellant a special duty to protect her from physical assaults and were negligent in failing to properly investigate the behavior of the men. In count two, appellees Adam, Richard, Kendrick and Kathleen Jones were alleged to be franchisees or licensees of the hotel and jointly and severally liable with appellee Holiday Inns, Inc., the national organization and franchisor, for the negligence of the hotel’s management in failing to provide adequate security in the rear parking areas. The trial court dismissed both the City of Tallahassee and Holiday Inns, Inc. since no showing of a duty to Ms. Sapp was made.

THE CITY’S LIABILITY

It is clear before a municipality may be held liable for the negligence of its employees, there must be shown the existence of a special duty, something more than the duty owed to the public generally. Florida First National Bank v. City of Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975); Evett v. City of Inverness, 224 So.2d 365 (Fla. 2nd DCA 1969); Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975). Ms. Sapp contends the police undertook a special duty to those persons using the rear area of the Holiday Inn, and she properly comes within that class. Such allegations are not sufficient under Florida decisional law. This court in Florida First National Bank, supra, held the plaintiff, guardian of two minor children, stated a cause of action for the negligence of police ’ officers in failing to investigate and report on complaints of child abuse involving the father of the minor children. We held:

“Here, the municipality, through its employees, engaged in an undertaking with reference to the Dobbert children. Other persons all of whom were in positions to have gone to the aid of the Dobbert children but for their reliance upon the municipal employees refrained from rendering aid.”

In the Supreme Court’s denial of certiorari, City of Jacksonville v. Florida First National Bank of Jacksonville, 339 So.2d 632 (Fla.1976), Justice England, in a concurring opinion, expanded on this key point:

“As the district court’s careful opinion shows, however, the facts in this case are so disparate from any other case which has ever considered the scope of municipal liability that the requisite factual similarity is wholly absent. Merely to mention some of the controlling facts here (as alleged in the complaint) is to highlight the differences:
(1)In this case a state statute directed procedures for the detection and prevention of child abuse. The Jacksonville police failed or refused to comply with them, with the consequence that the appropriate state agency never had the opportunity to know that the Dobbert children were in need of its services. No similar procedural default, resulting in injuries to the very persons the statute was designed to protect, occurred in the decisions cited for conflict jurisdiction.
(2) Jacksonville policemen actually contacted and superficially examined the Dobbert children on the basis of child abuse complaints. No such direct and personal contact with the persons injured was involved in the Wong, Modlin, and Evett cases.
(3) Mrs. Dobbert was in a Jacksonville jail and prison farm, and obviously unable to protect her children from abuse. She told responsible Jacksonville officials of her concerns, but the Jacksonville bureaucracy proved ineffective to deal with the problem. As a consequence, the very injuries of which she (and also her neighbors) warned were in fact inflicted. Nothing in Wong, Modlin or Evett approaches this factual setting.'
(4) The Jacksonville police and its investigators failed or refused to make written reports to their superiors, although internal procedures required that they do so. The injuries suffered were precisely those which might have been prevented had there been reports on file as to the particular individuals who suffered repetitive and cumulative injuries. Again the decisions cited for ‘conflict’ bear no factual resemblance to this case.” (Footnotes added)

There is here no showing of a violation of statutory procedures by the Tallahassee police — nor a showing of a direct and personal contact with Ms. Sapp. There is no allegation in the complaint of reliance by Ms. Sapp on the City’s police surveillance at the time the incident took place. This is not a situation where police authorities undertook a responsibility to particular members of the public, exposing them, without adequate protection, to risks which then materialize into actual injury. Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860 (1968).

HOLIDAY INN’S LIABILITY

Ms. Sapp’s second amended complaint alleges Holiday Inns, Inc. is jointly and severally liable with the local owners of the Tallahassee Holiday Inn for her injuries. The sole ground relied upon by Holiday Inns in its motion to dismiss was that there was no operational responsibility exercised by Holiday Inns over the motel facility. No legal relationship between Holiday Inns, Inc. and the local establishment was alleged in the amended complaint. We agree with the trial court that the complaint is legally insufficient in the absence of such allegations, but find the dismissal should be without prejudice. While Ms. Sapp had filed a complaint, a first amended complaint and finally a second amended complaint, the count alleging negligence by Holiday Inns, Inc. in the second amended complaint was for the first time dismissed by the court. No prior orders had been entered dismissing her cause of action against Holiday Inns, Inc. without prejudice. We are of course committed to the rule “that amendments to pleadings be liberally allowed in the interest of justice so that the merits of the case may be reached for adjudication whenever possible . .” Conklin v. Smith, 191 So.2d 311, 313 (Fla. 1st DCA 1966). Cf. Fla.R.Civ.P. 1.190.

As argued in her brief, Ms. Sapp can show an agency relationship between the local motel operation and the national Holiday Inn, Inc. by properly alleging control and domination on the part of the franchisor. See Cawthon v. Phillips Petroleum Company, 124 So.2d 517 (Fla. 2nd DCA 1960); Drum v. Pure Oil Company, 184 So.2d 196 (Fla. 4th DCA 1966); McMillion v. Sinclair Refining Company, 236 So.2d 151 (Fla. 1st DCA 1970).

Ms. Sapp should have an opportunity to pursue her discovery and establish what, if any, direct control Holiday Inns, Inc. exercised over the operations of the hotel, particularly in security matters. This of course should not be construed as a comment by this court on the merit of Ms. Sapp’s claim.

Holiday Inns, Inc. argues its franchise agreement with the local owners precludes as a matter of law the finding of an agency relationship. That agreement provides in part:

“(h) That Licensee, in the use of the name ‘Holiday Inn’, the service marks, trade marks, color scheme and pattern, signs and the System and in Licensee’s own advertising, shall identify Licensee as being the owner and operator of Licensee’s particular ‘Holiday Inn’ or ‘Holiday Inns’ under license from Licensor; that the parties hereto are completely separate entities, are not partners, joint adventurers, or agents of the other in any sense, and neither has power to obligate or bind the other; that Licensee shall not use the words ‘Holiday Inn’, or any combination of such words, in its corporate name or partnership name, if a corporation or partnership, nor allow the use thereof by others; that Licensee will sell or provide no products or services under the said service marks or trade marks, except inn service of lodging, foods, and other accommodations and conveniences for the public, of the same nature, type quality and distinguishing characteristics as are sold or provided, or may hereafter be sold or provided at the ‘Holiday Inns’ in and around Memphis, Tennessee.” (Emphasis supplied.)

Notwithstanding its assertion that it and its licensees were separate entities, other provisions of the agreement indicate varying degrees of control by Holiday Inns, Inc.; as examples, the requirement of regular inspection of the facilities by Holiday Inns’ inspectors, the requirement that the licensee strictly observe the operational rules of Holiday Inns, and a provision that the existing rules of operation may be amended in the wisdom of Holiday Inns. Another provision states that Holiday Inns shall maintain supervision over licensees “to assure compliance with ‘Holiday Inn’ standards as established in the System.”

When we compare that portion of the agreement disavowing any agency relationship between the licensor and licensee with the other pertinent portions establishing control, it is obvious that the contract’s terms are inconsistent and ambiguous. We have recently held, in construing an insurance contract, that where clauses are hopelessly irreconcilable and inconsistent, we would follow the rule resolving such ambiguities against the insurer, the drafter of the contract. Pomona Park Bar & Package Store v. Excelsior Ins. Co., 347 So.2d 136 (Fla. 1st DCA 1977). Opinion filed June 15, 1977.

However the agreement’s provisions are not necessarily dispositive of the agency question. While agency is normally a contractual relationship created by agreement of the parties, it may also be inferred from past dealings between the parties. It may be proved by the facts and circumstances of each particular case, including the words and conduct of the parties. 3 Am.Jur.2d Agency section 18; Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 54 A.L.R. 1173 (1927) (Whitfield concurring).

In addition, control and domination need not be actual but may be binding upon the principal if apparent. That is, if the principal has held the agent out to the public as being possessed of the requisite authority, and a third person is aware of his authority and has relied on it to his detriment, then the principal is estopped from denying the agency relationship. Mercury Cab Owners’ Association v. Jones, 79 So.2d 782 (Fla.1955); H.S.A., Inc. v. Harris-In-Hollywood, Inc., 285 So.2d 690 (Fla. 4th DCA 1973). Compare Wood v. Holiday Inns, Inc., 508 F.2d 167 (5th Cir. 1975), in which it was held there was not only sufficient control by Holiday Inns, Inc. over the licensee in its license agreement to subject Holiday Inns to liability for injury which occurred to an invitee caused by the licensee’s employee, but that Holiday Inns might also be liable on a theory of apparent authority. The court concluded that because the license agreement between Holiday Inns and its licensee provided that the facility should be constructed and operated so that it would readily be recognized by the public as part of the national system of Holiday Inns, a jury could reasonably conclude that the license agreement required that the motel facility be of such an appearance that travelers would believe it was owned by Holiday Inns, Inc. It further observed that when the plaintiff contracted with the Phenix City Holiday Inn for lodging, he contracted for proper treatment by the servants of the innkeeper, but there was virtually no way he could have known that the servants in the facility were servants of the licensee, not of Holiday Inns, Inc.

The same situation controls here. There is nothing in the record before us to indicate that Ms. Sapp, employed on a temporary fill-in basis at the restaurant of the Inn at the time the incident occurred, was aware the facility was operated by the licensees.

The order of dismissal is therefore affirmed as to the City of Tallahassee and reversed in part and remanded as to Holiday Inns, Inc. for further proceedings not inconsistent with this opinion.

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

      . Wong v. City of Miami, 237 So.2d 132 (Fla. 1970). Miami police were held not to owe a special duty to merchants who had requested protection during the 1968 Republican Convention, nor could police officials’ deployment of forces be considered prima facie negligence.

      . Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967). City was held not to be vicariously responsible for alleged negligence of city inspector. No special duty was owed store patron crushed by collapsing mezzanine.

        .Evett v. City of Inverness, Fla.App., 224 So.2d 365, supra. Police officer stopped but released allegedly intoxicated driver. Officer owed no special duty to decedent struck by this driver.

      . Holiday Inns, Inc. argues these three cases are authority for affirmance of the trial court’s dismissal, since in none of these cases was control or domination found. However those cases were disposed of at the summary judgment or directed verdict level, and not upon a motion to dismiss, as here.


text:
    Edward Leonard WHITE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-980, 76-805.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

These consolidated appeals are by the same defendant. The first is from the judgment of guilty pursuant to a jury verdict of the crimes of (1) robbery, (2) unlawful possession of a firearm while engaged in a criminal offense, and (3) aggravated assault. The defendant also appeals the sentences, which were as follows: life imprisonment for robbery, five years to run concurrently with life for the firearm charge and five years to run concurrently with life for the aggravated assault. The second appeal is from the denial of a post-trial motion pursuant to Fla.R.Crim.P. 3.850.

Turning first to the points raised for reversal of the judgment, the defendant contends that the court committed reversible error by a remark which could be interpreted as a comment upon the evidence.

No objection was made to the comment and, thus, the trial court was deprived of the opportunity to correct the somewhat strained construction now placed by the defendant upon the comment of the trial judge. Defendant relies upon Raulerson v. State, 102 So.2d 281 (Fla.1958). He admits that the comment would not ordinarily be reversible in the absence of an objection thereto. See Ashford v. State, 274 So.2d 517 (Fla.1973). He urges, however, that under the unique facts of this case, the alleged transgression of the trial court should be considered fundamental error. The unique fact referred to by the defendant concerns the proposition that because the controlling question before the jury was the identity of the defendant, therefore, the comment had the force of a directed verdict.

We hold that the comment is not fundamental error because it is clear from the context that the judge referred only to the fact that he was sustaining counsel for the defendant’s objection and that since the witness was present to testify, it was not necessary to go into secondary evidence. Additionally, we do not find the facts of this case to be so unusual as to require an application of the fundamental error doctrine. The defendant was clearly identified by the witness. He was tied to the robbery by the circumstantial evidence of the presence in his car of the fruits of the robbery and his finger prints were found on the cash register box which was robbed. It is true that comments of the court must be carefully scrutinized to see that they do not deprive the defendant of a fair trial at the hands of the jury. See Seward v. State, 59 So.2d 529 (Fla.1952). We hold that a careful scrutiny of this record reveals no substantial possibility of prejudice. Cf. Lister v. State, 226 So.2d 238 (Fla. 4th DCA 1969).

The second point relied upon by the defendant for reversal is a statement by the prosecuting attorney in closing argument which defendant says may have been interpreted by the jury as a comment upon the defendant’s failure to take the stand. In referring to the testimony of the eyewitness, the prosecuting attorney said, “You haven’t heard one word of testimony to contradict what she has said, other than the lawyer’s argument.” If the evidence presented a situation where the only person who could have contradicted the witness’s testimony was the defendant himself, then this comment might be interpreted as the defendant suggests. We hold that in this case, where the testimony of several witnesses was heard and there was nothing in the testimony to show that the defendant was not present at the scene of the crime, that the statement by the state’s attorney was a fair comment upon the evidence. We, therefore, find no error upon authority of State v. Jones, 204 So.2d 515 (Fla.1967); Woodside v. State, 206 So.2d 426 (Fla. 3d DCA 1968); and Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974).

The third point presented urges that the sentence for display of a firearm during the commission of a felony is illegal because defendant was also convicted of the felony, i. e., robbery. See Cone v. State, 285 So.2d 12 (Fla.1973). This court has previously dealt with this problem in Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1976). Following the reasoning of that case, we find that no error has been shown upon the sentence.

The appeal from the denial of the motion to vacate is likewise without merit. The basis of the motion was defendant’s contention that a motion for continuance by assigned counsel should not be charged against him in computing the time under the speedy trial rule. See Fla.R.Crim.P. 3.191(a)(1). A specially appointed public defender has been unable to find support for the defendant’s proposition and we know of none. We, therefore, affirm the denial of the motion upon authority of Brown v. State, 328 So.2d 497 (Fla. 3d DCA 1976).

The judgment, sentences and ruling on the motion are affirmed.

      . “Q. ... I ask you, please, to turn over that composite [the photographs], turn it over, and do you see your signature on the back of that?

        A. Yes.
      Q. Do you recognize that as having been your signature?
      A. Yes, ma’am.
      Q. Did you mark that down yourself?
      A. I did.
      Q. And accordingly, was anyone present when you did this?
      A. Yes, Detective Mueller.
      Q. Was there a court stenographer that took everything down that was said?
      A. Yes.”
      The prosecutor then referred to the prior objection of defense counsel, which prompted a response from counsel and the following comment by the trial court:
      “MS. GURALNICK [Assistant State Attorney]: Judge, this is what the objection was to prior by the defense attorney, with reference to this.
      MR. KLEIN [counsel for the defendant]: I think her testimony, her statement, is not in order. She is here to testify.
      MS. GURALNICK:' All that she is doing is indicating the ones she picked out before.
      THE COURT: She has testified from the stand. You don’t need anything else.”