author: COBB, Judge.

text:
    TOWN OF INDIALANTIC, Brevard County, Florida, a Municipal Corporation, and Clayton Test, Jr., Mayor-Chairman, Gus Carey, Kay Kovac, Barbara Willey, and Charles Settgast, as Members of the Town Council, Town of Indialantic, Florida, Appellants, v. James H. NANCE, as Trustee, Appellee.
    No. 80-389.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    Rehearing Denied June 23, 1981.
    Edward J. Silberhorn of Reinman, Harrell, Silberhorn, Moule & Boyd, P. A., Melbourne, for appellants.
    Joseph S. Gillin, Jr. of Storms, Krasny, Normile, Dettmer & Gillin, P. A., Melbourne, for appellee.
   COBB, Judge.

The Town of Indialantic (Indialantic) denied appellee Nance’s request for a zoning variance based on hardship. A three-judge circuit court panel sitting in review of In-dialantic’s decision granted Nance’s petition for certiorari and ordered Indialantic to grant the requested variance. Indialantic appeals the final judgment of the circuit court, and we reverse.

In July, 1978, Nance purchased Lots 8 and 9 of Indialantic-By-The-Sea, the two contiguous lots in question. The property was oceanfront property, bounded to the north by an existing three-story motel and to the south by six contiguous lots owed in whole or in part by Nance. The motel to the north, built before mean high-water and dune set-backs were required, is nonconforming to the extent that a portion of it lies east of the dune line. Over three hundred feet to the south on Lots 14 and 15, a contractual restriction required a motel to be built, if anything.

In August, 1978, Nance submitted a plan with Indialantic’s Zoning Board, proposing construction of dual, three-story buildings. The two buildings were to provide a total of twenty-four dwelling units. Because of the plan’s vagueness and also because it lacked the requisite number of off-street parking units, the Zoning Board rejected the plan suggesting that Nance file for a variance with Indialantic’s Board of Adjustment.

Other than the parking deficiency, the dual three-story plan met all other Indialantic zoning requirements, including a thirty-five-foot height restriction. The Zoning Board was required to deny the site plan, however, because it lacked the authority to grant a variance as to the parking deficiency.

Instead of filing an application for a parking variance on the dual three-story proposal, Nance applied to the Board of Adjustment for a height and parking variance for a single six-story building. Though containing twenty-four dwelling units, the same as the original plan, the six-story proposal provided four less parking units than the already parking-deficient original plan. The Board of Adjustment rejected Nance’s six-story plan, finding, among other things, that Nance had not demonstrated hardship, nor had he demonstrated the property at issue to be of an unusual nature.

Nance appealed the Board’s decision to Indialantic’s Town Council. During the Town Council hearing, Nance argued that Indialantic’s set-back, breeze-way parking, and landscape requirements, the state coastal, set-back restriction, the narrow shape of the subject property, the existence of the three-story motel to the north, and the requirement that a motel be built, if anything, three hundred feet to the south (on land also owned by Nance), combined to create such a hardship that he should be granted a height and parking variance. When questioned by council members, Nance admitted being aware of the thirty-five-foot height restriction at the time he purchased Lots 8 and 9. Nance’s architect admitted that the single six-story building would be less expensive to construct than the dual, three-story version. The council unanimously rejected Nance’s hardship contention, and denied the requested height and parking variances.

Subsequent to the Town Council’s rejection, Nance petitioned the Circuit Court of Brevard County for review of the council’s decision. The circuit court found that the height restriction combined with other In-dialantic zoning requirements to create an unusual' and unnecessary hardship to Nance, and that the hardship was not self-created. Finding additionally that the variance requested did not violate any conditions or limitations to the granting of the variance, the court reversed Indialantic’s rejection of the six-story plan, and ordered Indialantic to grant Nance’s application for variance. Indialantic petitioned this court for writ of certiorari to review the circuit court’s decision; we treat the petition for certiorari as a timely notice of appeal.

On appeal, Indialantic argues four points. Because of our holding today, it is unnecessary to consider the final three. Indialantic first argues that the Town Council’s rejection of Nance’s plan was “fairly debatable,” requiring the circuit court below to affirm the Council’s decision. Nance agrees that the “fairly debatable” standard is the correct test where an appellant seeks a zoning change or a change in use, but maintains the “fairly debatable” test does not apply when one seeks a variance from a zoning ordinance. Nance contends that the correct standard of review in this case is whether he, as variance seeker, established “unique or unnecessary hardship.”

The “fairly debatable” rule is a rule of reasonableness; it answers the question of whether, upon the evidence presented to the municipal body, the municipality’s action is reasonably based. Wolff v. Dade County, 370 So.2d 839 (Fla.3d DCA 1979), cert. denied, 379 So.2d 211 (Fla.1979); Central Bank & Trust Co. v. Board of County Commissioners of Dade County, 340 So.2d 503 (Fla.3d DCA 1976), cert. denied, 354 So.2d 979 (Fla.1977). The primary purpose of the “fairly debatable” test is to allocate decision-making authority over zoning matters between the legislative municipal body and the judiciary. J. Juergensmeyer and J. Wadley, Florida Zoning — Attacks and Defenses, § 4.2 (1980). See: Broward County v. Capeletti Brothers, Inc., 375 So.2d 313, 316 (Fla.4th DCA 1979), cert. denied, 385 So.2d 754 (Fla.1980). The test purports to prevent the court from substituting its judgment with regard to zoning ordinance enactments for that of the zoning authority. 375 So.2d at 316; 370 So.2d at 842. In other words, the “fairly debatable” test was created to review the legislative-type enactments of zoning ordinances. Under the “fairly debatable” test, the reviewing court must uphold the ordinance so long as a reasonable basis exists to support the zoning ordinance (assuming no constitutional violations).

In a strict sense, then, Nance correctly argues that the “fairly debatable” test is limited to the review of a municipality’s “legislative” zoning decisions. However, we do not agree with Nance’s contention that the proper standard of review in zoning variance cases is “unique and unnecessary hardship.” Unique and unnecessary hardship cannot be a standard of review. It is the category, the end-result, in which the variance seeker attempts to place himself in order to qualify for the variance. A standard of review must supply the reviewing court with guidelines it can use to determine the propriety of the municipality’s decision that classified the variance seeker as either a hardship or non-hardship. The propriety of the municipality’s decision must be determined by examining the evidence presented to it; the standard of review establishes the quantum and quality of evidence that will make a zoning variance determination irreversible by the reviewing court. Utilizing unique and unnecessary hardship as a standard of review simply begs the question of whether the evidence presented to the municipal body reasonably demonstrated unique and unnecessary hardship. We decline to follow the majority holding in Allstate Mortgage Corp. of Florida v. City of Miami Beach, 308 So.2d 629 (Fla.3d DCA 1975), cert. denied, 317 So.2d 763 (Fla.1975), and agree with Judge Pearson’s dissent in that case, which maintained that the proper standard of review in a zoning variance case is whether the lower tribunal had before it competent substantial evidence to support its findings. DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957).

At issue in DeGroot was the proper method and scope of review of a quasi-judicial county board determination. 95 So.2d at 914. The DeGroot court held that where, as in the present case, notice and hearing are required and the judgment of the board is contingent on the showing made at the hearing, the action is judicial or quasi-judicial. Id. at 916. The DeGroot court further held that the proper method of review in such cases is by certiorari, and that the scope of review was limited:

The [reviewing] court merely examines the record made below to determine whether the lower tribunal had before it competent substantial evidence to support its findings and judgment which must also accord with the essential requirements of the law.

Id. at 916. The court then explained that “competent substantial evidence” was evidence a reasonable mind would accept as adequate to support a conclusion. Id. at 916.

The DeGroot “competent substantial evidence” standard of review of quasi-judicial action effectively provides the same standard the “fairly debatable” test provides for review of legislative municipal zoning action: For the action to be sustained, it must be reasonably based in the evidence presented. The two concepts have been blurred; for example, in Bell v. City of Sarasota, 371 So.2d 525 (Fla.2d DCA 1979), the court utilized both the competent substantial evidence standard and the “fairly debatable” standard to decide a zoning variance issue. In Bell, the city’s board of adjustment granted the requested minimum land variance and the city sought review in the circuit court, alleging a lack of substantial competent. evidence to sustain the board’s finding; the circuit court reversed the grant. The Second District reversed the circuit court and reinstated the board’s decision, finding substantial competent evidence to justify the board’s action and finding the conflicting evidence also made the board’s decision fairly debatable. 371 So.2d at 527.

By whatever name it is called, the task of the court reviewing a zoning variance decision is to insure that the authority’s decision is based on evidence a reasonable mind would accept to support a conclusion. Compare DeGroot, 95 So.2d at 916, with Wolff v. Dade County, 370 So.2d at 841-842. If there was such evidence presented, the authority’s determination must stand. Martin v. First Apostolic Church, 321 So.2d 471 (Fla.4th DCA 1975). A prerequisite to the granting of a hardship zoning variance is the presence of an exceptional and unique hardship to the individual landowner, unique to that parcel and not shared by other property owners in the area. City of Miami v. Franklin Leslie, Inc., 179 So.2d 622 (Fla.3d DCA 1965). In the instant case, the evidence reasonably supports Indialantic’s conclusion that Nance did not suffer the requisite hardship. The lots at issue are typical of Indialantic oceanfront lots in size, shape and topography; the town’s height, set-back, breezeway, parking, and landscape requirements, as well as the state coastal construction setback restriction, apply equally to all beachfront property situated in Indialantic. In-dialantic’s zoning restrictions are common difficulties shared by all other oceanfront lot owners in the area, and are therefore not the unique hardship required to support a variance.

Additionally, Nance possessed a viable, dual, three-story plan that, with the exception of the parking deficiency, met all In-dialantic zoning requirements, including the height restriction. Nance never presented this plan to the Board of Adjustment, the body vested with the authority to grant such variance. The viability of this dual three-story plan itself illustrates a lack of hardship.

Nance, however, maintains that the motel to the north and the possibility of a motel being built three hundred feet to the south make his land unique. He contends that the non-conforming motel materially blocks the view to the north, and the possibility of a motel to the south threatens his view in that direction, and that this entitles him to a height variance. In ordering the variance to be granted, the circuit court placed central emphasis on the uniqueness of Nance’s asserted lack of view. We find the circuit court erred by considering the impaired view to be such a hardship that reversal of the determination by the Town Council was mandated as a matter of law. In the absence of some contractual or statutory obligation, a landowner has no absolute legal right to unobstructed air and light from the adjoining land. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So.2d 357 (Fla.3d DCA 1959), cert. denied, 117 So.2d 842 (Fla.1960).

The evidence before the Town Council reasonably supported its conclusion that Nance does not suffer the unique and unnecessary hardship required for the issuance of a variance. The circuit court erroneously substituted Indialantic’s reasonable finding that Nance suffers no legal hardship with its own finding that he does. Absent an abuse of discretion or a clearly erroneous decision, Indialantic’s decision should not have been set aside by the circuit court. Bell v. City of Sarasota, 371 So.2d 525 (Fla.2d DCA 1979); Alachua County v. Reddick, 368 So.2d 653 (Fla. 1st DCA 1979); City of Naples v. Central Plaza of Naples, Inc., 303 So.2d 423 (Fla.2d DCA 1974). Such did not exist in the present case. We reverse the circuit court below and remand the case to it with directions to reinstate Indialantic’s decision.

REVERSED and REMANDED with instructions.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Indialantic, Fla., Zoning Code § 28-102 (1977), gives the Board of Adjustment the authority to grant a variance in such cases where additional requirements are met.

      . Appeal of Board decisions to the Town Council is provided by section 28-107, Indialantic Zoning Code (1977).

      .§ 161.053, Fla.Stat. (1977).

      . Indialantic acted consistent with past beachfront height-variance denials: The Town had never previously granted a variance from the thirty-five-foot height restriction on beachfront property.

      . Such review by certiorari is authorized by Article V, Section 5, of the Florida Constitution.

      . Indialantic, Fla., Zoning Code § 28-102(2), (4) (1977).

      . Fla.R.App.P. 9.040(b).

      . In support of this position, Nance cites, Allstate Mortgage Corp. of Florida v. City of Miami Beach, 308 So.2d 629 (Fla.3d DCA 1975), cert. denied, 317 So.2d 763 (Fla.1975). For the reasons discussed hereinafter, we reject this view.

      . We note that the Allstate court failed to cite its own precedent of Shaughnessy v. Metropolitan Dade County, 238 So.2d 466 (Fla.3d DCA 1970), which used a combination “fairly debatable”/“competent substantial evidence” test to leave undisturbed the action of a county board that granted a special use. 238 So.2d at 468-469.

      . In its decision, the circuit court stated:
      The plight of [Nance] is due to unique circumstances and conditions in that he will be deprived of a view of the ocean because of the three-story structure extending to the dune line on the north and the motel restriction imposed on the property to the south. The difficulty or hardship of [Nance] is special or unique and perculiar [sic] to the application of the height restriction to his property and not general in character.


source: Caselaw Access Project

author: RYDER, Judge.

license: Public Domain

text:
    Daniel P. FRIESLANDER and Sandra L. Frieslander, Appellants, v. Mary E. MAHON, P.A., Appellee.
    No. 80-12.
    District Court of Appeal of Florida, Second District.
    May 20, 1981.
    Rehearing Denied July 1, 1981.

      Barbara J. Paulson and Chris W. Alten-bemd of Fowler, White, Gillen, Boggs, Vil-lareal & Banker, P. A., Tampa, for appellants.
    Anthony P. Prieto of Diecidue, Ferlita, Prieto, Nutter & Rosen, P. A., Tampa, for appellee.
   RYDER, Judge.

Daniel and Sandra Frieslander appeal from a judgment of foreclosure entered in favor of Mary E. Mahon, P.A. We reverse.

Appellee filed a complaint against appellants and Billie J. Frieslander, co-owner with appellant Daniel of the home, seeking to foreclose a mortgage given to secure a promissory note for criminal defense attorney’s fees. Appellants signed a promissory note requiring payment of $10,000.00 plus 9% interest in monthly installments of $207.59. Appellants signed a mortgage containing an acceleration clause on their home to secure the note. The home was titled in the names of Daniel and his former wife, Billie. Daniel had been given exclusive use and possession of the home in a divorce proceeding along with custody of two minor children. After signing of the note on July 10, 1978, appellants began making regular weekly payments to appellee. By March 23, 1979, appellants had paid a total of $3,600.00. Appellants became liable for numerous costs in the criminal action beginning in December of 1978. By March of 1979, the costs totaled over $2,800.00.

Except for a few small payments not important to this appeal, neither party allocated the payments made to the principal indebtedness or to costs. On February 14, 1979, appellee wrote to appellants indicating that all payments made since August had been applied to costs incurred in late December of 1978 and January of 1979. Also on February 14, counsel for appellee wrote appellants declaring the mortgage in arrears, and accelerating the entire principal amount. Appellants subsequently made payments totaling $475.00, and additional payments were rejected by appellee.

At final hearing, appellants were not represented by counsel. The court entered a final judgment of foreclosure of appellant Daniel’s one-half undivided interest, and ordered that interest sold.

When there is no direction for payment to a specific debt by a debtor, the creditor may apply the funds as he desires. Winchester v. Florida Electric Supply, Inc., 161 So.2d 668 (Fla. 2d DCA 1964). But appellee’s belated application of all the payments to costs was not an effective application. The right of a creditor to apply a payment must be exercised at the time of payment, or is otherwise lost. Randall v. Pettes, 12 Fla. 517 (1868). That result is further strengthened below because appel-lee’s attempted allocation was made after a controversy had arisen between the parties, since the mortgage was accelerated by letter of the same date. Battle v. Jennings Naval Stores Co., 74 Fla. 12, 75 So. 949 (1917).

Without any effective allocation by either of the parties of the payments, it became the duty of the court to allocate them. We are unable to determine, nor did the parties suggest, any proper allocation of payments which the court could have made below which would support the judgment of foreclosure. The general rule for allocation of payments is that the court should apply payments to those items that are earliest in point of time and then to an unsecured debt in preference to one that is secured. 24 FlaJur. Payments § 25 (1959). See 60 Am. Jur.2d Payment § 94 (1972). Below, as of December 21, 1978, appellants had made payments of $2,400.00. The total accrued monthly mortgage payments and costs to that date were $2,110.23. Thus as of December 21, appellants had a credit balance of $290.77 with appellee. That credit balance would have to be allocated to the next installments due in the mortgage. 60 Am. Jur.2d Payment § 98 (1972). Thus, the credit balance of December 21 paid the January installment payment on the mortgage and part of the February installment. While appellee’s acceleration letter of February 14 might have been effective to accelerate the debt for a partial delinquency of the February payment due on February 1, the subsequent acceptance by appellee of an additional $475.00 provided more than enough funds to eliminate the delinquency.

Even if ordinary allocation by the court did not produce this result, the court should have first applied all payments to the reduction of the mortgage on homestead property. An exception to the general rule of first applying undirected payments to unsecured debts is recognized by several states to favor allocation of undirected payments toward a mortgage secured by a lien on homestead property over an unsecured debt. Pospishil v. Jensen, 205 Iowa 1360, 219 N.W. 507 (1928); Briggs v. Iowa Savings & Loan Assoc., 114 Iowa 232, 86 N.W. 320 (1901); First National Bank v. Hollingsworth, 78 Iowa 575, 43 N.W. 536 (1889); Holden v. Farwell, Ozmun, Kirk & Co., 223 Minn. 550, 27 N.W.2d 641 (1947); Paschall v. Pioneer Savings & Loan Co., 19 Tex.Civ. App. 102, 47 S.W. 98 (1898). Contra, Andrews v. Kentucky Citizens Building & Loan Assoc., 24 Ky.L.Rep. 966, 70 S.W. 409 (1902). Thus, all payments made below would first be applied to reduce mortgage installments which came due, then to accrued costs. With this allocation, the payments made prior to the attempted acceleration are adequate to keep the mortgage current. Under facts quite similar to those below, we note that the third district has held a homestead mortgage unenforceable. “As a matter of public policy, we determine that a former husband cannot create an enforceable lien on his undivided one-half interest in homestead property by giving his attorney notes secured by mortgages.” Daniels v. Katz, 237 So.2d 58 (Fla. 3d DCA 1970).

The judgment of foreclosure below is VACATED and the case REMANDED for entry of judgment for appellants.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: PER CURIAM. DANAHY, Judge,

text:
    Barbara J. LANDAY, Appellant, v. Sumner LANDAY, Appellee.
    No. 80-523.
    District Court of Appeal of Florida, Second District.
    May 22, 1981.
    Rehearing Denied June 25, 1981.

      Robert L. McDonald, Jr., Tampa, for appellant.
    Wayne 0. Smith of Wallace, Smith & Finck, P. A., St. Petersburg, for appellee.
   PER CURIAM.

Where one marriage partner contributes funds from a source unconnected with the marriage to payment of some but not all of the consideration for property acquired by the parties as a tenancy by the entireties, does a special equity arise in favor of the contributing spouse and, if so, to what extent? We take the opportunity in this case to state a definite answer to that trouble- ; some and recurring question.

In the case before us the parties purchased a home for approximately $15,-700.00 and acquired title by the entireties. The wife made the down payment of $6,486.57 from funds which she brought to the marriage and which were clearly unconnected with the marital relationship. The husband did not dispute the fact of the wife’s contribution nor did he present rebuttal evidence that the wife intended to make a gift to him when she contributed the down payment. The husband’s rebuttal evidence consisted of his testimony that he made some of the mortgage payments on the property and made repairs and improvements on the property, using his own money and labor. The husband’s evidence was insufficient as a matter of law to establish a special equity on his part. Ingram v. Ingram, 379 So.2d 955 (Fla.1980).

The wife’s contribution, therefore, stands unrebutted. She asserts that under such circumstances, the trial judge erred in failing to declare that the wife has a special equity in the property in question. We agree, and reverse.

We are aware that in Ball v. Ball, 335 So.2d 5 (Fla.1976), our supreme court stated the rule to be that a special equity is created by an unrebutted showing that all of the consideration (emphasis ours) for real property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. This court, in Smith v. Smith, 382 So.2d 1242 (Fla.2d DCA 1980), seemed to interpret the rule in Ball v. Ball to mean that where a contributing spouse furnishes less than all of the consideration, no special equity arises. We do not believe this to be an accurate interpretation of Ball v. Ball, and, therefore, recede from our holding in Smith v. Smith to the extent that it indicates otherwise.

But if a special equity in entireties property arises in favor of a spouse contributing less than all of the consideration, how is the special equity to be measured? Should the wife in the instant case have:

1. One hundred per cent of the property; that is, all of the husband’s one-half interest? That result would follow from Malkemes v. Malkemes, 357 So.2d 223 (Fla.2d DCA 1978), because that case took into consideration only the contribution to the down payment.
2. A vested interest to the extent of her contribution; that is $6,486.57? That result is suggest by Abbott v. Abbott, 297 So.2d 608 (Fla.2d DCA 1974).
3. A percentage interest in the property equal to the ratio of the cash down payment she made to the entire purchase price of the property with the remainder of the property shared equally with the husband?

We believe the third option is the appropriate choice, and hold that a spouse who furnishes some but not all of the consideration for entireties property acquires a special equity or vested interest in the property equal to the ratio which his or her contribution beam to the entire consideration. That share is in addition to the contributing spouse’s 50% interest in the remainder of the property. We recede from Abbott v. Abbott and Malkemes v. Malkemes to the extent that they indicate otherwise. We reverse the final judgment in the case before us as to that portion denying the wife’s special equity claim, with directions that a judgment be entered declaring that the wife’s interest in the property in question is 41% plus one-half of 59%, or a total of 70.5%.

The final judgment in this case also directed that personal property of the parties, consisting of furniture, furnishings and fixtures in the marital home, shall be partitioned. The parties neither requested nor agreed that there be a partition of personal property. In the absence of appropriate pleadings or an agreement of the parties, the trial judge is without authority to declare a partition of personal property. Banfi v. Banfi, 123 So.2d 52 (Fla.3d DCA 1960); Rankin v. Rankin, 258 So.2d 489 (Fla.2d DCA 1972).

We reverse the final judgment also as to that portion directing a partition of personal property.

REVERSED and REMANDED with directions.

SCHEB, C. J., and RYDER, J., concur.

DANAHY, J., concurs in part and dissents in part.

DANAHY, Judge,

concurring in part and dissenting in part.

The problem presented in the instant case deserves resolution and I concur with the majority opinion’s treatment of the question in all respects save one. I disagree with the formula chosen by the majority to measure a contributing spouse’s special equity in property held as a tenancy by the entireties, where the amount of the contribution is less than all of the consideration for the property. I would have chosen a formula which produces the same percentage interest as the formula chosen by the majority, but is expressed in terms more consistent with the special equity concept and the rules of law which define each spouse’s interest in property held by the entireties.

In Ball v. Ball, 335 So.2d 5 (Fla.1976), the supreme court pointed out that we must start with the premise that where property is held as a tenancy by the entireties, record title speaks for itself and bespeaks an equal division. Therefore, the wife in the instant case already has a 50% interest in the property and it is incongruous to say that she has a 41% interest in the property as a special equity.

A special equity established by one spouse is a vested interest carved from the other spouse’s interest in the property (which would be the entire property if the other spouse’s interest is 100% ownership). Therefore, it seems to me that a formula for the measurement of a special equity must be expressed in those terms; that is, a percentage vested interest taken from the other spouse’s share of the property. This means that where the property is held as a tenancy by the entireties, so that each spouse already has a 50% share, a special equity established by one spouse must be expressed as an interest in addition to that spouse’s existing 50% interest.

Furthermore, I feel that the contributing spouse should receive back the amount of his or her contribution if the property depreciates in value, before the noncontributing spouse receives any share. If this is not the case, then the contributing spouse will have made a gift of a part of the contribution to the other spouse. That result would conflict with the underlying premise that a special equity arises because no gift is intended.

Therefore, I would hold that a spouse who furnishes some but not all of the consideration for entireties property acquires, as an addition to the spouse’s one-half share, a special equity or vested interest in the property equal to one-half the ratio which his or her contribution bears to the entire consideration, or one-half the dollar amount of the contribution, whichever is greater. That formula would produce the same percentage interest as does the formula chosen by the majority and would avoid any unintended gift consequences.

      . This rule would apply as well to a situation in which both spouses contribute some but not all of the consideration from sources outside the marriage, as in the Malkemes case. The rule expressed here, however, differs from the formula applied in Malkemes, which determined the percentage interests of the spouses by the ratio of each one’s contribution to the total contribution of both (the cash down payment).


author: GRIMES, Judge.

text:
    SOUTH TRAIL AREA FIRE CONTROL DISTRICT, a Municipal Corporation, Appellant, v. Larry D. KNECHT, Appellee.
    No. 80-1724.
    District Court of Appeal of Florida, Second District.
    May 22, 1981.
    Rehearing Denied June 29, 1981.
    Richard E. Nelson and Omer Causey of Nelson, Hesse, Cyril, Weber, Smith & Wid-man, Sarasota, for appellant.
    Daniel Joy, Sarasota, for appellee.
   By this appeal, South Trail Area Fire Control District challenges a trial court order requiring it to reinstate Larry D. Knecht as an employee.

South Trail is a governmental entity established by the legislature which provides firefighting and ambulance service for Sarasota County. Knecht worked for South Trail as a paramedic. Simultaneously, he was employed by Southern Medical Ambulance Services, Inc., which operates a private ambulance service in the same area as South Trail.

Because he deemed Mr. Knecht’s dual employment to be a conflict of interest under section 112.313(7), Florida Statutes (1977), Fire Chief William H. Drymon requested that Knecht resign as an employee either of Southern Medical or South Trail. When Knecht refused to resign either position, Drymon terminated his employment with South Trail.

In accordance with South Trail’s appeal procedure, Mr. Knecht appealed his dismissal to South Trail’s Grievance and Appeals Board which conducted a hearing on the matter on December 28, 1978. The board received sworn testimony from witnesses on behalf of both South Trail and Knecht concerning whether Knecht had taken actions while an employee of South Trail to further the interest of Southern Medical at the expense of South Trail. After listening to this testimony and argument by Knecht’s attorney, the board voted unanimously in favor of sustaining the action taken by Chief Drymon. On January 24, 1979, the board filed a written decision which included the following findings of fact:

4. That based upon the testimony and evidence presented at the appeal hearing, it was clear that Mr. KNECHm had a conflict of interest due to his employment by Southern Medical Ambulance Services Corp. (Southern Medical Services) and the South Trail Area Fire Control District, and that this conflict of interest was, is and will be a detriment to the District.
5. That based upon the testimony and evidence presented at the appeal hearing, it was clear that Mr. KNECHT was given every opportunity by Chief Drymon to terminate his employment with Southern Medical Services in order to avoid his conflict of interest, but Mr. KNECHT elected not to terminate his employment with Southern Medical Services, and he was therefore terminated by Chief Drym-on.
6.That based upon the testimony and evidence presented at the appeal hearing, it was clear, in view of Mr. KNECHT’s conflict of interest, the negative effect of this conflict of interest on the South Trail Area Fire Control District, and Mr. KNECHT’S voluntary decision not to give up his job with Southern Medical Services in order to keep his employment with the South Trail Area Fire Control District, the Chief acted fairly and in accordance with his duties in terminating Mr. KNECHT.

Subsequently, Mr. Knecht asked the South Trail Board of Fire Commissioners for a de novo hearing, but the fire commissioners denied this request. Knecht then appealed the decision of the Grievance and Appeals Board to the fire commissioners. After a hearing, the commissioners affirmed the action of the board. At this point, Knecht filed a petition for a writ of mandamus in the circuit court. The court entered an order for an alternative writ, and in response to South Trail’s motion to quash that writ, it entered an order construing the petition as a petition for a writ of certiorari. After receiving briefs and hearing oral argument, the court entered an order granting the petition for certiorari and ordering South Trail to reinstate Knecht with back pay and benefits. The court gave as the basis for its ruling that the Grievance and Appeals Board had denied Knecht due process of law by failing to make oral findings of fact on the record at the time the board made its decision.

On appeal, South Trail argues that the court erred in finding that the procedures used by the Grievance and Appeals Board violated due process. We agree. It is true that our notions of due process require that an administrative body make specific findings of fact to support the decision it reaches in proceedings such as the one involved in this case. Laney v. Holbrook, 150 Fla. 622, 8 So.2d 465 (1942). Thus, if the Grievance and Appeals Board had not made findings of fact in its written order, we might better understand the court’s ruling. However, we know of no authority which would require the Grievance and Appeals Board to make oral findings at the time it initially reaches a decision. Moreover, we note that the board followed the provisions of its rules and regulations which direct only that, “The Grievance and Appeals Board shall be charged with the responsibility of investigating report [sic] and hearing all evidence and testimony with regard to the alleged violation or grievance and accept, reject or make recommendation for other action within 30 days.”

On appeal, Mr. Knecht has suggested that regardless of whether written findings of fact are sufficient, we should sustain the court’s action because the board’s attorney improperly advised the board that the issue to be decided was whether Chief Drymon acted fairly in firing Knecht rather than whether Knecht had a conflict of interest by virtue of his dual employment. We cannot accept this argument. The rules and regulations of South Trail which authorize employee appeals specify that the standard by which disciplinary action is to be measured is whether it was fair. The determination of whether Drymon fairly discharged Knecht necessarily encompassed the consideration of whether Knecht had a conflict of interest, and the record supports the board’s conclusion that he did.

We reverse the judgment and remand the case with directions that the court reinstate the order of the Grievance and Appeals Board.

SCHEB, C. J., and CAMPBELL, J., concur.


author: PER CURIAM.

text:
    Randy Dale SESSOMS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-493.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied June 19, 1981.
    Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Bailey v. State, 393 So.2d 24 (Fla. 3d DCA 1981); Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980); § 901.151, Fla.Stat. (1979); compare Wesley v. State, 375 So.2d 1093 (Fla. 3d DCA 1979).


author: SCHWARTZ, Judge.

text:
    MERCY HOSPITAL, INC., Appellant, v. Margarita MENENDEZ and Valentin Menendez, Appellees.
    No. 80-1932.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied July 15, 1981.

      Adams & Ward and Robert C. Ward, Miami, for appellant.
    Maguire & Friend and Michael P. Ma-guire, Coral Gables, for appellees.
    Barrett, Bajoczky & Barrett and Frank Caldwell, Tallahassee, for The Florida Patient’s Compensation Fund as amicus curiae.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

After proceedings conducted pursuant to our decision in Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077, 1079 (Fla.3d DCA 1979), cert. denied, 383 So.2d 1198 (Fla.1980), the trial court held that the hospital had not complied with the conditions of Section 768.54(2)(b), Florida Statutes (1976 Supp.) so as to permit a limitation of its liability to $100,000 per medical malpractice claim. Accordingly, the final judgment previously entered for the plaintiffs in the full amount of their $125,000 jury verdict against Mercy was held to be in full force and effect. The hospital again appeals from this determination.

We agree with the conclusion below that, properly interpreted, Section 768.54(2)(b)l required — as it specifically said — that the escrow account established by a health care provider to demonstrate financial responsibility under the option provided by that subparagraph be in the amount of $100,000 “per claim.” Since it is conceded that Mercy’s escrow account was far less than that, the order under review is

Affirmed.

      . The section then provided:
      0s) A health care provider shall not be liable for an amount in excess of $100,000 per claim for claims covered under subsection (3) in this state if, at the time the incident giving rise to the cause of the claim occurred, the health care provider:
      T. Had:
      ‘a. Posted bond in the amount of $100,000 per claim;
      ‘b. Proved financial responsibility in the amount of $100,000 per claim to the satisfaction of the board of governors of the fund through the establishment of an appropriate escrow account;
      ‘c. Obtained medical malpractice insurance in the amount of $100,000 or more per claim from private insurers or the Joint Underwriting Association established under subsection 627.351(7); or
      ‘d. Obtained self-insurance as provided in s. 627.357, providing coverage in an amount of $100,000 or more per claim...
      This provision was drastically revised by Ch. 78-47, Laws of Florida, on the point in issue here. See Section 768.54(2)(b), Florida Statutes (1979).

      . Reading subparagraphs a-d together, see 30 Fla.Jur. Statutes § 91 (1974), it is plain that the legislature sought to precondition the right to limit liability upon the provision, through one of four alternative means, of security for the payment of every claim up to $100,000. This conclusion is strengthened by the fact that sub-paragraphs a-d, then contained in Section 627.-353 Fla.Stat. (1976), were each specifically amended by inserting the words “per claim” after “$100,000.” Ch. 76-260, § 6, Laws of Fla. See 30 Fla.Jur. Statutes § 97 (1974). There is thus no basis for Mercy’s contention that any escrowed amount whatever would comply with paragraph “b” so long as the board of governors approved. The “satisfaction” of the board provided in the statute obviously refers only to its satisfaction that the escrow account actually exists or is properly secured, rather than to its approval of the amount. That issue is (or was) mandated by statute.

      . At least eight malpractice claims were brought against Mercy in the pertinent year of 1976. Mercy’s escrow account was only $100,-000.


author: SHARP, Judge.

text:
    Marilyn PEARSON and E. J. Pearson, her husband, Appellants, v. WALLACE AVIATION, INC., Appellee.
    No. 79-286.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    Rehearing Denied July 1, 1981.

      Martin B. Unger of Gurney, Gurney, & Handley, P.A., Orlando, for appellants.
    Richard R. Whitson of Whitson & Whit-son, Daytona Beach, for appellee.
   SHARP, Judge.

Marilyn Pearson and her husband, E. J. Pearson, plaintiffs in the trial court, appeal a non-final order transferring their action from Orange County to Volusia County. The lower court ruled venue was improper in Orange County.

The Pearsons filed their action in Orange County against Wallace Aviation, Inc., alleging causes of action in contract and tort for the defendant’s alleged failure to repair and properly inspect the Pearson’s aircraft at its place of business in Flagler County. Marilyn was severely injured when the aircraft malfunctioned and crashed near Maguire Airport in Orange County. At the time the suit was filed, Wallace Aviation, Inc., was no longer doing business, but its president was living in Volusia County.

The affidavit in support of the defendant’s motion to transfer venue established that Wallace Aviation, Inc., was doing business only in Flagler County at the time the plane was inspected, and that it had no connection with Orange County. At the hearing before the lower court no testimony was taken. The decision to transfer was based on the lower court’s conclusion that the cause of action “accrued” in Flagler County, not Orange, and that Volusia was a viable venue choice because the president of the corporate defendant resided there.

Section 47.051, Florida Statutes (1979), gives a plaintiff three possible venue choices: the county in which the domestic corporate defendant “has, or usually keeps an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.” The record in this case fails to show this corporate defendant has any office to transact business in any county, and the suit does not involve any property located in any particular place. Therefore, venue is proper only in the county where the cause of action accrued.

The defendant takes the position that the cause of action accrued in Flagler County because the services performed by the defendant which allegedly caused the accident were all performed in Flagler. In negligence suits, the rule is well established that a cause of action accrues where the plaintiff suffers his or her injuries; normally the site of the accident. Hopkins v. Lockheed Aircraft Corp., 201 So.2d 743 (Fla.1967); Majestic II, Enterprises, Inc. v. Butler, 372 So.2d 548 (Fla. 3d DCA 1979); Kilpatrick v. Boynton, 374 So.2d 557 (Fla. 4th DCA 1979); Kelly-Springfield Tire Co. v. Moore, 355 So.2d 451 (Fla. 3d DCA 1978); Perry Building Systems, Inc. v. Hayes & Bates, Inc., 361 So.2d 443 (Fla. 1st DCA 1978); Walt Disney World Co. v. Leff, 323 So.2d 602 (Fla. 4th DCA 1975). In Hopkins and Kelly-Springfield there were allegations (as in this case) of defective maintenance and design of the defective airplane and auto tire involved in those cases, but the place where those contributing or causal acts took place were not deemed to alter the general venue rule.

Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975) dictates no different result. Gaboury was a suit for the wrongful death of a patient treated in St. Johns County, who subsequently died in Orange County. The decedent actually received her injuries in Flagler, although she lived until she reached Orange County. In the present case Marilyn Pearson received no injuries until the plane crashed in Orange County, and had she not flown that unfortunate day, she might not have been injured.

To make venue turn on what may have caused the crash and where that happened, would complicate the general rule of venue in personal injury accidents. Had Pearson claimed the cause was defective design of the plane, would that change venue to the site of the manufacturer’s plant? Or if she claimed she’d been poorly instructed to fly, would it change venue to where she took flying lessons? Although other venue rules could be logically devised to determine where a tort cause of action accrues, precedent and simplicity of application persuade us to adhere to the established rule.

The order transferring venue from Orange County is reversed and the cause is remanded.

REVERSED AND REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A).

      . Majestic II Enterprises, Inc. v. Butler, 372 So.2d 548 (Fla. 3d DCA 1979).

      . This case involves a complaint which sets forth two causes of action in tort and one cause of action in contract. In this opinion we are only concerned with venue for the cause of action in tort. A cause of action for breach of contract accrues in the county where the contract is breached. Windsor v. Migliaccio, 399 sold 65, No. 80-670 (Fla. 5th DCA May 27, 1981). However, when there are several causes of action suit may be brought in any county where any of the causes of action arose. § 47.041, Fla.Stat. (1979). Therefore, Pearson could bring suit in any county where the cause of action in tort or contract arose.

      .The court’s decision to transfer venue in Ga-boury actually turned on transfer for grounds of “forum non-conveniens.” § 47.122, Fla.Stat. (1979).


author: LILES, WOODIE A. (Retired), Associate Judge. ROBERT P. SMITH, Jr., Judge,

text:
    Shaw FROM, Appellant, v. TALLAHASSEE DEMOCRAT, INC., and Knight-Ridder Newspapers, Inc., Appellees.
    No. VV-379.
    District Court of Appeal of Florida, First District.
    May 28, 1981.
    Rehearing Denied July 13, 1981.

      Jean Laramore, of Oertel & Laramore, Tallahassee, for appellant.
    C. Gary Williams, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellees.
   LILES, WOODIE A. (Retired), Associate Judge.

Jim Durham wrote a tennis column in the August 9, 1976, issue of the Tallahassee Democrat, which is owned by Knight-Rid-der Newspapers, Inc. The article, which is set forth as follows in its entirety, concerned the tennis pro at the Winewood Country Club, Shaw From:

Winewood’s pro comes a winner
Winewood Country Club’s tennis program took a prestige leap Tuesday when Juan Ortiz signed a contract, replacing head pro Shaw From as of Sept. 1.
Ortiz came to Florida State University his freshman year as Puerto Rico’s men’s champ and fit right in at No. 2 or 3 behind Ricardo Bernd. His last year (’74), the wiry flash dropped to positions 4 and 5 due to a back injury, but started showing old form last October when he defeated Ray Bellamy for the TTA Top 16 title at Killearn.
Not only does Ortiz own the best playing credentials in town at present, but he also has a large and loyal junior following. His instructing popularity mushroomed during his six-month interim stint at Forestmeadows and now he has enlisted the majority of tourney-potential youngsters for his private lesson stable.
Winewood Corporation’s Bill Cartee evidently liked the new pro’s “customer is always right” philosophy, ingrained from a hotel and restaurant management background at FSU. A winning personality cinched it, but Oritz [sic] would do well not to hot [sic] all the shots in any future mixed doubles tournaments as he did at Killearn earlier this summer — not [sic] matter the stakes. Ordinarily he makes all the right moves while still scratching a living.
As a teacher of tennis, Ortiz knows his members come first. He also realizes he has taken his own fine game about as far as it’s going to go. Keeping in shape and a reputation up are his motives for playing these days. His predecessor Shaw From, however, has an improving player’s grand illusions, which contributed to his problems as a pro.
From, who knows tennis equipment well, did not fully understand his members’ needs. Perhaps time to reflect will help him decide whether he wants to devote his efforts to becoming the best player he can be or the best pro.
The descending pro has contributed a lot of time to junior development in behalf of the Tallahassee Tennis Association (although, until it is truly organized that’s like spinning wheels). His interests seem to be more in line with the kind of junior boom we can expect when Tom Brown Park’s facility is christened— hopefully next spring.
If he stays around, From will be a candidate for the park’s tennis directorship, but so will the highly capable and tournament-tested Stu Bruner. Ortiz had one foot in the door, too, by heading the successful Parks and Recreation Department summer tennis. It will be interesting to see if a scrap develops for that job.
Meanwhile, Wine wood ought to appreciate their new pro and vice-versa, for both have scored a coup. And the club might get two pros for the price of one if ’76 Seminole Enrique Andrade of Ecuador returns from a three-week job as instructor at Alex Mayer’s (Sandy’s father) Camp in New Jersey to be Ortiz’ assistant.

Mr. From thought the article to be libelous, and his attorneys sued the Tallahassee Democrat together with Knight-Ridder Newspapers, Inc. Ruling that From was a public figure, that the article was not libelous per se, and that the statements in the article were opinions and not false statements of fact, the trial court entered an order dismissing the suit with prejudice. In From’s appeal he assigns as error this ruling which necessitates this Court’s examining that ruling in the context of the Florida law as well as numberous federal cases. We believe the court incorrectly characterized From as a public figure. The record reflects that From was known only by the membership of the Winewood Country Club who participated in the tennis program together with people who travelled in those circles. This could hardly meet the test in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and their progeny.

The article was certainly not libelous per se but does fall within the definition of opinions as opposed to false statements of fact.

Historically, publishers were strictly liable for publication of defamatory statements unless they could prove that the statements were either true or privileged. Mashburn v. Collin, 355 So.2d 879 (La.1977). Further, the common law defense of truth was sufficient. However, in 1964, the United States Supreme Court in New York Times v. Sullivan, supra, struck down that defense on the basis that truth standing alone was insufficient to protect freedom of expression and erected a constitutional privilege of fair comment respecting public officials. The Court held that guarantees afforded by the First Amendment prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not.

One of the privileges established by common law was that of “fair comment”. This qualified privilege allowed a publisher to express an opinion or otherwise comment on matters of public interest. The common law evolved to offer qualified privileges to persons, institutions or groups who voluntarily injected themselves into the public scene in activities affecting a community’s welfare, such as public officials, political candidates, community leaders, and persons taking a public position on a matter of public concern, as well as those offering their'creations for public approval such as artists, performers and athletes. Mash-burn, supra , Restatement of Torts 2d, § 566 (1977). The majority view held that only “comment” or “opinion” was protected and not misstatements of fact. Mashburn, supra; W. Prosser, Torts, § 188, p. 819 (4th Ed. 1971). This privilege, however, is lost when an opinion is. published with malice showing either a bad faith or a bad motive. See Herman v. Labor Co-Op Educational & Publishing Society, 139 F.Supp. 35 (D.D.C. 1956). The minority view held that even false statements of fact were privileged if they were made for the public benefit with an honest belief in their truth. Harper and James, The Law of Torts, § 5.28 (1956).

In New York Times, the United States Supreme Court elevated the minority view to constitutional status and limited its use to criticism of public officials. Three years later, a majority of the Court agreed to extend this constitutional privilege to defamatory criticism of “public figures”. As sociated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

The standard then to be applied became that of “actual malice” which was defined as “knowledge that the statement was false or ... reckless disregard of whether it was false or not.” New York Times, supra; Walker, supra. The U. S. Supreme Court in St. Amant v. Thompson, 390 U.S. 727, 730-731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968), defined reckless disregard as:

“Reckless disregard” .. . cannot be fully encompassed in one infallible definition ... The cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.

In Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the Supreme Court extended the actual malice standard when it said “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” However, shortly thereafter in Gertz v. Robert Welch, Inc., supra, this privilege was drastically revised and a two-pronged test was pronounced for determining whether a person was a public figure and therefore subject to actual malice standard when it said:

In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. 418 U.S. 351, 94 S.Ct. 2997, 41 L.Ed.2d 312.

It therefore becomes apparent that From is not a public figure for the purposes set forth in New York Times and Walker. Appellees urge that he was a public figure under Gertz. It can be seen from the article, which is a part of the complaint, that From was a tennis pro for the Winewood Country Club. He worked diligently to obtain publicity for himself and for the program. He organized a city-wide mixed doubles tournament and worked with the Winewood ladies’ team and junior team in order to obtain publicity. At times he contributed financially to purchasing television ads. The Club itself advertised From and his picture and name were prominently featured in various ads. Accordingly, we look “to the nature and extent of his participation in the particular controversy giving rise to the defamation.” Id., at 418 U.S. 352, 94 S.Ct. 2997, 41 L.Ed.2d 812. The record does not reveal that From ever attempted to discuss the situation described in the article with Jim Durham or any other media representative. He therefore “plainly did not thrust himself into the vortex of this public issue nor did he engage the public’s attention in an attempt to influence its outcome.” Id. Even had he done so, he did not become involved in a “public controversy” as envisioned in Gertz. See Time, Inc. v. Firestone, 424 U.S. 448, 454, 96 S.Ct. 958, 965, 47 L.Ed.2d 154 (1976); J. Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc., and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349, 1366 (1975).

Gertz went further and required the states to abandon their common law rule of strict liability for defamation actions but permitted them to adopt any standard of conduct in cases of defamation of private plaintiffs so long as it did not provide for liability without fault. As can be seen by an examination of the case law of Florida, the Supreme Court of our state has not had or taken the opportunity to adopt an actual malice or simple negligence standard, and we restrain ourselves from doing so in this case. Suffice it to say that even though the complaint contains the magic words and allegations of actual malice, the article, which is a part of the complaint, is not libelous whether measured by an actual malice or simple negligence standard. We are not unmindful that several post- Gertz cases decided by Florida courts appear to indicate in dicta that a negligence standard has been adopted vis-a-vis private citizen plaintiffs. See Helton v. United Press International, 303 So.2d 650 (Fla. 1st DCA 1974); Karp v. The Miami Herald Publishing Company, 359 So.2d 580 (Fla. 3d DCA 1978); Gadsden County Times, Inc. v. Horne, 382 So.2d 347 (Fla. 1st DCA 1980). These cases, however, do not mandate a negligence standard and are distinguishable from the holding of this Court. In Helton, this Court observed:

According to Gertz, the doctrine of “public or general issue” is no longer available to the media as a defense in a defamation suit by a citizen who is neither a public official or a public figure. Defamation plaintiffs that are neither public officials nor public figures are no longer required to prove knowledge of falsity or reckless disregard for the truth as apparently was required by the progenitors of Gertz. Id., at 651.

The above language correctly notes that Gertz does not require an actual malice standard for publications involving matters of public interest or concern. What it fails to note is that while Gertz no longer requires an actual malice standard as a matter of constitutional principle under the First Amendment, it does not foreclose the state courts from choosing an actual malice standard. Id.

In Karp, supra, the Third District Court of Appeal also apparently applied a negligence standard regarding private plaintiffs in defamation cases. However, the actual holding in that case was that The Miami Herald was not even negligent as established by summary judgment in the circuit court. Id., at 581-2. Further, the Third District Court of Appeal adopted the lower court’s reliance on Time, Inc. v. Firestone, supra, as authority for concluding that negligence was the appropriate standard. Karp, footnote 1, at 581. This conclusion is based upon an erroneous interpretation of Time, Inc. v. Firestone, for the United States Supreme Court reversed because the Florida Supreme Court had failed to enunciate a standard of fault. That opinion does not mandate a negligence standard.

This issue was also briefly touched upon by a panel of this Court in Gadsden County Times, Inc. v. Horne, supra. The strict holding in that case, however, is that common law certiorari does not lie to review an order denying a motion for partial summary judgment on the issue of whether the plaintiff is a public figure. Dicta does imply that under Gertz a negligence standard should apply in cases involving private individuals, Id., at 349. Nevertheless, as set forth above, Gertz does not mandate a negligence standard for the states in private defamation suits. Further, Gadsden does not address the issue of what standard should apply to suits filed by private persons involved in matters of public or general concern, as this case does.

A careful examination of the article itself reveals that only two statements could conceivably possess a defamatory meaning:

... His predecessor Shaw From, however, has an improving player’s grand illusions, which contributed to his problems as a pro.
From, who knows tennis equipment well, did not fully understand his members’ needs....

The question, then, is whether or not those statements are statements of fact or statements of opinion. If they are statements of opinion, they are not actionable.

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. Gertz, at 418 U.S. 339-340, 94 S.Ct. 3007, 41 L.Ed.2d 805.

The determination of whether a statement is one of fact or of opinion has been, by several courts, determined to be a question of law and therefore made by the court and not by a jury. Again, this question has not heretofore been clearly answered in Florida, but we think the better view should be as pronounced in Bucher v. Roberts, 595 P.2d 239 (Colo.1979), and Rinaldi v. Holt, Rhinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). We adopt the view that it is a question of law for the court and hold that these statements contained in the article are opinion, which is a critical judgment made by the author.

Gertz would indicate that expressions of opinion are privileged and protected by the Constitution. There is, however, a distinction between pure expression of opinion and mixed expression of opinion. Pure opinion occurs when the defendant makes a comment or opinion based on facts which are set forth in the article or which are otherwise known or available to the reader or listener as a member of the public. Mixed expression of opinion occurs when an opinion or comment is made which is based upon facts regarding the plaintiff or his conduct that have not been stated in the article or assumed to exist by the parties to the communication. Restatement (Second) of Torts, § 566, pp. 171-172. The opinions contained in the article are not based upon facts disclosed in the article itself but rather From’s performance and position in the Tallahassee tennis community provides the assumed facts upon which the author could base his opinion. See Information Control v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir. 1980):

In sum, the test to be applied in determining whether an allegedly defamatory statement constitutes an actionable statement of fact requires that the court examine the statement in its totality and the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published. Id., at 784.

The statements were made in a tennis column in a local newspaper to an audience who would be expected to be aware of the tennis pro’s situation at the Winewood Country Club. From admits as much when he agrees that even if the column had not been written, everyone in the Tallahassee tennis circles would have known that his contract was not renewed and that Juan Ortiz had replaced him. Further, his performance as a tennis pro in this community provides the assumed facts from which Jim Durham drew his opinion. See also Mashburn, supra; Cherry v. Des Moines Leader, 114 Iowa 298, 86 N.W. 323 (1901). He could not invite the attention of the public as he did through his efforts at self-promotion and then complain if the attention was not favorable. It is therefore readily seen that these statements are privileged pure opinion and not defamatory and thus not actionable. See Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (Fla. 4th DCA 1976). The article is not libelous per se under Gertz. In fact, libel per se is no longer a viable doctrine where the defendant is a member of the news media and the plaintiff cannot demonstrate “actual malice” on the part of the defend? ant. Gertz says, and we quote:

... [w]e hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. 418 U.S. 349, 94 S.Ct. 2997, 41 L.Ed.2d 810.

This language seems to end the distinction between libel per quod and libel per se. See Memphis Publishing Company v. Nichols, 569 S.W.2d 412, 419 (Tenn.1978), quoting Eaton, at 1434. See also Metromedia, Inc. v. Hillman, 285 Md. 161, 400 A.2d 1117, 1118-9 (1979). Since pleading and proof of actual injury are required in most cases per Gertz, all libels governed by Gertz are, in effect, libel per quod. As Justice Powell noted:

... [t]he doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injuries sustained by the act of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury. 418 U.S. 349, 94 S.Ct. 2997, 41 L.Ed.2d 811.

In summary, the trial judge’s characterization of From as a public figure, when measured by Gertz, was improper though not reversible. The article itself, a part of the complaint, can neither be actionable under a standard of actual malice or simple negligence; and without adopting either standard as the law of Florida, we do hold, however, that the trial judge reached the proper result, and we affirm his order.

AFFIRMED.

THOMPSON, J., concurs.

ROBERT P. SMITH, Jr., J., dissents with opinion.

ROBERT P. SMITH, Jr., Judge,

dissenting:

I think From’s complaint states a cause of action for defamation sufficient to withstand a motion to dismiss. The attribution to him of “an improving player’s grand illusions, which contributed to his problems as a pro,” and the statement that From “did not fully understand his members’ needs” are susceptible of being understood as attributing to From conduct incompatible with the proper performance of his profession as a teaching tennis professional, causing the damages specifically alleged. Drennen v. Westinghoase Elec. Corp., 328 So.2d 52, 54 (Fla. 1st DCA 1976). From’s allegations that this material was published falsely and with negligence or actual malice are sufficient to satisfy whatever standard of conduct may be found, on a more mature record, to be pertinent in the case of this newspaper defendant.

In my opinion, the Gertz aphorism that “there is no such thing as a false idea” imposes no constitutional restriction on the defamation claim of a private figure such as From, and does not change the common law that the qualified privilege to express an opinion or otherwise comment fairly on matters of public interest is an affirmative defense that like other such privileges must be pleaded and proved by the defendant. Glynn v. City of Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980). As is the case of any other qualified privilege, that one may be defeated by actual or express malice. 1 A. Hanson, Libel and Related Torts §§ 137-38, 147-50 (1969); Gibson v. Maloney, 231 So.2d 823 (Fla.1970), cert. den., 410 U.S. 984, 93 S.Ct. 1505, 36 L.Ed.2d 180 (1973). In other words, defamatory matter uttered concerning a private figure gains no immunity from the notion, contradicting alleged fact, that by nature an opinion cannot have falsely described plaintiff; such defaming gains immunity, if at all, from the speaker’s privilege of utterance absent malice. Thus a private figure’s complaint alleging publication, falsity, defamatory tendency, actual damage and malice cannot be held insufficient as a matter of law, whatever may later be shown in defense. E. g., Loeb v. Geronemus, 66 So.2d 241 (Fla.1953).

I would not reach and therefore do not attempt to fathom the questions of whether what was published concerning From — who was, I repeat, a private figure, contrast Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (Fla. 4th DCA 1976), cert. den., 354 So.2d 351 (Fla.1977)—was pure or mixed opinion and whether those interested enough to have read the article may be supposed to have known the facts, unstated, on which the opinion was based, thus making the complaint nonactionable under this approach. Whether this kind of bootstrapping defense is ever appropriate for a publication made to the community at large, I doubt; I do not doubt that it is inappropriate on a motion to dismiss a private figure’s complaint for failure to state a cause of action.

I therefore respectfully dissent, and would reverse the order dismissing From’s complaint.

      . Coogler v. Rhodes, 38 Fla. 240, 21 So. 109 (1897); Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); Abram v. Odham, 89 So.2d 334 (Fla.1956).


author: LARRY G. SMITH, Judge.

text:
    PENSACOLA JUNIOR COLLEGE, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and United Faculty of Florida, Local 1847, AFT, AFL-CIO, Appellees.
    No. WW-223.
    District Court of Appeal of Florida, First District.
    May 28, 1981.
    Rehearing Denied July 13, 1981.

      Robert L. Norton, Barry J. Warsch and Lewis E. Shelley, of Hogg, Allen, Ryce, Norton & Blue, Coral Gables, for appellant.
    Frederick G. Bohannon and Dennis Golla-day, for appellees.
   LARRY G. SMITH, Judge.

The College seeks review of an order of PERC finding that its registrar was not a managerial employee within the meaning of Section 447.203(4), Florida Statutes (1979), and that certain of its secretaries were not confidential employees within the meaning of Section 447.203(5), Florida Statutes (1979). The College argues that PERC’s order ignores the record evidence supporting a confidential designation for the secretaries and a managerial designation for the Registrar. We agree and reverse.

In its managerial/confidential petition filed in 1979, the College sought to designate the following secretaries as confidential employees:

Executive Secretary to the President
Secretary III to Dean of Personal Affairs
Secretary IV to Vice President for Academic Affairs/Executive Vice President
Secretary IV to Vice President for Student Affairs
Secretary II to Vice President for Academic Affairs/Executive Vice President
Secretary IV to Comptroller
Secretary III to Provost
Secretary III to Assistant to President

At the same time, the College sought to have the Registrar designated as managerial.

At the hearing on the petition, the College and the Union stipulated that: (1) All eight secretaries have access to confidential memoranda dealing with recommended disciplinary actions which have yet to be approved; (2) all eight secretaries are employed by a manager within the meaning of the Public Employees Relations Act (PERA), are privy to confidential information relating to the managerial functions of that individual, and the memoranda, documents and personal letters that they are privy to are documents not accessible to the public under Florida law; (3) the eight secretaries have access to the materials used in the Monday meetings of the President’s staff at which policy, discipline, and changes in the organizational structure of the college are decided; (4) the Secretary to the comptroller would be privy to the facts and figures used by the management team in the event of collective bargainings; (5) the Secretary to the Dean of Personal Affairs, the Secretaries to the Vice Presidents as well as the Executive Secretary to the President, would be intimately involved in the preparation of contract proposals in the event of collective bargaining and would have access to the memoranda accumulated in support of positions taken by the management bargaining team; and (6) the Executive Secretary to the President, the Secretary to the Dean of Personal Affairs, and the Secretary to the Assistant to the President are privy to confidential documents relating to litigation which the college is involved in under the various federal acts and the legal documents and work product of the law firm representing the college in its labor matters.

With regard to the Registrar, it was stipulated that: (1) He is paid a salary at the dean level and employs directly, or through supervisors working under him, approximately twenty-five people; (2) he has the authority to recommend termination of anyone under his supervision an l his recommendations have always been accepted; (3) he requests merit increases for his subordinates which have been accepted over 95% of the time; and (4) he would be directly involved in any collective bargaining process especially with regard to proposals relating to classroom size or utilization and would be called upon to inform negotiators concerning the impact certain proposals would have on students. No other evidence was introduced with regard to these positions.

The hearing officer recommended that the President, Dean of Personal Affairs, Vice President for Academic Affairs, Executive Vice President, Vice President for Student Affairs, Comptroller, Provost, the Assistant to the President, and the Registrar be designated as managerial. PERC accepted his recommendation except as to the Registrar, and designated each of the positions (excepting the Registrar) as managerial.

With regard to the Executive Secretary to the President, Secretary III to Dean of Personal Affairs, Secretary IV to Vice President for Academic Affairs/Executive Vice President, Secretary IV to Vice President for Student Affairs, Secretary II to Vice President for Academic Affairs/Executive Vice President, the hearing officer recommended that they be designated as confidential employees because they would be required to prepare memoranda concerning contract proposals for the above college employees which he recommended be designated as managerial.

The hearing officer also recommended that the Secretary to the Assistant to the President be designated as confidential since she prepares legal documents and other work products for the College’s labor law firm and is exposed to documents confidential as a matter of law in assisting a managerial employee in performance of one of the managerial criteria set forth in Section 447.203(4), Florida Statutes.

Although the Secretary to the Comptroller would, if collective bargaining ensued, provide the management team with facts and figures in written form to support management’s position during negotiations, the hearing officer found that she did not have access to information which is confidential as a matter of law because this information merely assisted the employer in preparation for collective bargaining negotiations and was not equivalent to access to information regarding the employer’s negotiating position. Collier County Association of Educational Office and Class Aide Personnel and School Board of Collier County; In Re Managerial/Confidential Application of School Board of Collier County, 4 FPER ¶4185 (1978). Though the Secretary to the Comptroller prepared memoranda concerning recommended disciplinary action of other employees, he noted that the School Board had not cited any law exempting this information from the Public Records Act and therefore he felt this did not result in a finding that she aided or assisted a managerial employee in a confidential capacity. Sarasota County Teachers Association v. School Board of Sarasota County, Florida, In Re Managerial/Confidential Petition of the School Board of Sarasota County, Florida, 5 FPER ¶ 10149 (1979). Nevertheless, he recommended that the Secretary be designated as confidential because she was the personal secretary to a managerial employee and consequently a per se confidential employee under this court’s decision in School Board of Palm Beach County v. Florida Public Emp. Relations Commission, 374 So.2d 527 (Fla. 1st DCA 1978), cert. den. 380 So.2d 427 (Fla.1980).

He felt that the Secretary to the Provost should likewise be designated as a confidential employee since she is the personal secretary to a managerial employee. However, he stated that she would not otherwise meet the test established in Palm Beach County for the determination of a confidential employee since she only prepared documents relative to policy formulation and did not aid or assist a managerial employee in confidential matters.

Finally, the hearing officer recommended that the Registrar be designated managerial because he has the authority to hire, discipline, evaluate and effectively terminate his subordinates. He stated that the Registrar’s exercise of these functions on behalf of the College constituted a significant role in personnel administration under Section 447.203(4)(a)4.

PERC’s order rejected the hearing officer’s recommendation to designate the Registrar as managerial and rejected the hearing officer’s recommendation to designate the eight secretaries as confidential. PERC explained the basis of its decision thusly:

The Commission rejects the Hearing Officer’s recommendation to designate as managerial the Registrar because the recommendation is not supported by record evidence. The Hearing Officer’s recommendation was based in part upon his finding that the Registrar has authority to hire his subordinates. The record is devoid of evidence in support of this finding. Furthermore, even if there were record evidence to support all of the findings of fact regarding the Registrar, such findings would fall short of the prerequisites for designation as managerial pursuant to Section 447.203(4)(a)4., Florida Statutes (1979). See Teamsters Local No. 991 v. Leon County Board of County Commissioners, 5 FPER ¶ 10130 (1979); Florida State Lodge, Fraternal Order of Police v. City of Tallahassee, 4 FPER ¶ 4344 (1978).
The Commission further declines to designate the Registrar a confidential employee since the record is devoid of evidence that he meets the criteria set forth in Section 447.203(5), Florida Statutes (1979).
The Commission rejects the recommendation to designate as confidential the following employees:
Executive Secretary to the President
Secretary III to Dean of Personnel Affairs
Secretary IV to Vice President for Academic Affairs/Executive Vice President
Secretary IV to Vice President for Student Affairs
Secretary II to Vice President for Academic Affairs/Executive Vice President
The Hearing Officer based his recommendation regarding the above employees on his finding that those secretaries “would be required to prepare memoranda concerning contract proposals.. .. ” The Commission has held that a confidential designation cannot be based upon prospective duties but “must be based upon current job duties actually required and performed.” In re Managerial/Confidential Petition of the Collier County Board of County Commissioners, PERC Order No. 80E-098 (May 16, 1980). There is no other evidence in the record to support a confidential designation for the above-named secretaries. Accordingly, the Commission declines to designate these secretaries confidential.
The Commission rejects the recommendation to designate as confidential the Secretary IV to Comptroller and the Secretary III to Provost. The recommendation was based solely on their status as personal secretaries to managerial employees. In the absence of any record evidence that they actually perform confidential duties for managerial employees the Commission will not designate them confidential. See In re Managerial/Confidential Petition of the Collier County Board of County Commissioners, supra. The Commission rejects the recommendation to designate as confidential the Secretary III to Assistant to President. The recommendation was based upon her exposure to confidential documents in connection with her assistance and aid to the Petitioner’s private labor attorneys. A confidential designation must be based upon confidential duties performed for a managerial employee. The record does not support such a finding.

We reject PERC’s conclusions with regard to the eight secretaries and Registrar. Without reiterating the evidence previously detailed, we conclude that the undisputed record evidence clearly qualifies the eight secretaries in question as confidential and the Registrar as managerial.

PERC urges that a confidential designation for the first five enumerated secretaries should be rejected because the hearing officer’s recommendation was based on prospective duties in connection with collective bargaining, whereas, a confidential designation must be based upon current job duties actually required and performed. According to PERC’s view, this interpretation is mandated by the language of Section 447.203(5), defining confidential employees, and the language of Section 447.203(4), defining managerial employees. PERC argues that the legislature clearly provided for prospective involvement of a managerial employee by the wording of subsection (a)2 of Section 447.203(4) which reads: “May reasonably be required on behalf of the employer to assist in the preparation for the conduct of collective bargaining negotiations.” In contrast, PERC points out, the language of Section 447.203(5) that “ ‘Confidential employees’ are persons who act in a confidential capacity to assist or aid managerial employees as defined in subsection (4)” indicates that a confidential designation must be based upon current job duties actually performed. PERC reasons that by including the language “may reasonably be required” in Section 447.203(4)(a)2, and omitting equivalent language from Section 447.203(5), the legislature has evidenced its intent to limit confidential designations to those employees currently performing confidential tasks.

We reject PERC’s analysis of the statutory language, because we can find no basis for the conclusion that the legislature intended that a managerial designation may be based upon prospective duties of an employee, while a confidential designation for his personal secretary must be withheld until the secretary actually commences the handling of confidential matters relating to collective bargaining. Initially we note that the introductory language in both statutes, Section 447.203(4) and (5), is cast in the present tense. Only one of the seven paragraphs of subsection (a) of Section 447.-203(4) is in the future tense. We agree with the college that such language does not evidence intentional and purposeful disparate inclusion or exclusion. To follow PERC’s reasoning produces the illogical and unjustified conclusion that a public employer may introduce evidence that a managerial employee will in the future prepare materials for the conduct of collective bargaining on behalf of the employer but may not show that the managerial employee’s secretary will edit, proofread or type this material. Further, by making the additional requirement that a confidential designation must be based upon current duties involving a single aspect of the managerial employee’s position, PERC has imposed a requirement above and beyond those imposed by the legislature in Section 447.203(5) in contravention of this court’s holding in Palm Beach County, supra.

Next, PERC concluded that the Secretary III to the Assistant to President should not be designated confidential since her confidential duties were not performed for a managerial employee but were performed for the college’s labor law firm. This conclusion ignores the other undisputed record evidence of confidential duties performed by all of the secretaries. Further we agree with the college that the secretary or secretaries who are privy to and help prepare documents relating to litigation that the college is involved in and documents and the work product of the labor law firm representing the college are confidential employees.

Finally, with regard to the Secretary to the Comptroller and the Secretary to the Provost, PERC urges that the hearing officer incorrectly based his recommendation that they be designated confidential solely on their status as personal secretaries to managerial employees. In making this recommendation, the hearing officer relied upon this court’s decision in Palm Beach County, a case which PERC states was overruled by this court’s subsequent decision in School Board of Lee County v. Florida Public Employees Relations Commission, 382 So.2d 1260 (Fla. 1st DCA 1980). However, we agree with the college that even if the hearing officer’s reliance upon Palm Beach County was misplaced, there is ample record evidence supporting a confidential designation for these two secretaries. We find that the hearing officer reached the right conclusion and that PERC was not justified in ignoring his recommendation. Firestone v. Firestone, 263 So.2d 223 (Fla.1972); In Re Estate of Yohn, 238 So.2d 290 (Fla.1970).

In Palm Beach County, this court held that “the personal secretary of a managerial employee such as a school principal is, by definition, ‘one who aids or assists a managerial employee in confidential matters.’ ” In Lee County, this court stated that the Palm Beach County case simply determined as a matter of law that the personal secretary of a school principal is, by definition, a confidential employee. The court declined to extend that categorical ruling to include all secretaries for other managerial employees in the school system. Although PERC had previously interpreted Palm Beach County as finding personal secretaries to managerial employees to be per se confidential employees, PERC now contends that the holding of that case was limited in Lee County, so that it now stands for the proposition that only the personal secretary of a school principal is a per se confidential employee. An alternative reading of this aspect of Lee County suggests that it did not overrule Palm Beach County’s holding that the personal secretary of a managerial employee is per se a confidential employee but simply declined to extend that ruling to other (not personal) secretaries of managerial employees. We think the latter interpretation of Lee County is correct, but in any event, that case would not dictate a contrary result here because the record before us amply supports the determination that these two secretaries acted in a confidential capacity to assist or aid managerial employees. This satisfies the two-pronged Palm Beach County test, which was left undisturbed by the Lee County decision.

In passing, we would like to comment on the hearing officer’s statement that though the Secretary to the Comptroller prepared memoranda concerning recommended disciplinary actions of other employees, this did not result in a confidential designation because no law was cited exempting this information from the Public Records Act. In making this determination, the hearing officer relied on PERC’s decision in Sarasota County Teachers Association v. School Board of Sarasota County, Florida, In Re Managerial/Confidential Petition of the School Board of Sarasota County, Florida, a case which held that an employee was not confidential because the files he had access to were not exempt from public inspection pursuant to the Public Records Act. PERC cited no authority for this proposition in the Sarasota County case, and we find none. We disagree that the confidential designation of a public employee should hinge on whether that employee has access to information exempt from the Public Records Act. We would comment that many confidential matters are not made a matter of public record at all. Further, many communications to which a personal secretary would be privy are not required to be kept as a matter of record. Therefore, this limitation which PERC has added to the definition of a confidential employee ignores the realities of many confidential communications between a managerial employee and one who aids or assists him in his managerial capacity. Nevertheless, as we recognized earlier, the hearing officer reached the right result in determining that this secretary was a confidential employee even though for the wrong reason.

Lastly, the Registrar is the head of a recognized division of the college, in charge of approximately twenty-five employees. He is paid a salary at the dean level; his recommendations concerning termination of employees under his supervision are always accepted; his request for merit wage increases for his subordinates are accepted 95% of the time, and he has the overall responsibility for evaluating his subordinates. Taken as a whole, we agree with the College that the Registrar has a significant role in personnel administration within the College framework. This is not a case in which the employee simply makes effective recommendations for hiring and firing. Further, the Registrar will be intimately involved in collective bargaining relative to classroom size, the utilization of facilities, and the impact upon students of various proposals. We make no ruling that these functions rise to the level necessary to bestow managerial status upon the Registrar under Section 447.203(4)(a)l and 2, but merely state that this evidence when considered in conjunction with the other record evidence clearly warrants a managerial designation for the Registrar.

Accordingly, PERC’s order is reversed and the cause is remanded for entry of an order consistent with the holding herein

THOMPSON, J., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge, concur.

      .Section 447.203(4) “Managerial employees” are those employees who:
      (a) Perform jobs that are not of a routine, clerical, or ministerial nature and require the exercise of independent judgment in the performance of such jobs and to whom one or more of the following applies:
      1. They formulate or assist in formulating policies which are applicable to bargaining unit employees.
      2. They may reasonably be required on behalf of the employer to assist in the preparation for the conduct of collective bargaining negotiations.
      3. They have a role in the administration of agreements resulting from collective bargaining negotiations.
      4. They have a significant role in personnel administration.
      5. They have a significant role in employee relations.
      6. They are included in the definition of administrative personnel contained in s. 228.-041(10).
      7. They have a significant role in the preparation or administration of budgets for any public agency or institution or subdivision thereof.
      ******

      . Section 447.203(5) “Confidential employees” are persons who act in a confidential capacity to assist or aid managerial employees as defined in subsection (4).

      . As to the effect of stipulations generally, see Manatee County v. Florida Public Employees Relations Commission, 387 So.2d 446 (Fla. 1st DCA 1980).

      . PERC’s analysis and ruling applies the so-called “labor nexus standard,” which was rejected in Hendricks County Rural Electric Membership Corp. v. NLRB, 627 F.2d 766 (7th Cir. 1980), and in the same court’s earlier decision in the same case, 603 F.2d 25 (7th Cir. 1979). Under that standard, a confidential designation may be applied to a secretary only if she assists and acts in a confidential capacity to persons who formulate, determine and effectuate management policies in the field of labor relations. The court held that all secretaries working in a confidential capacity, “without regard to labor relations,” should be excluded from the Taft-Hartley Act. However, it should be noted that the United States Supreme Court on March 2, 1981 granted review of the ruling, Case No. 80-885, NLRB v. Hendricks County Rural Electric Membership Corp., - U.S. -, 101 S.Ct. 1479, 67 L.Ed.2d 612 (1981).


text:
    Hugh D. STUART, Appellant, v. J. L. McMULLEN, Appellee.
    No. NN-452.
    District Court of Appeal of Florida, First District.
    May 29, 1981.
    Rehearing Denied July 13, 1981.
    Joseph M. Ripley, Jr. of Ripley, Rich & Brim, Jacksonville, for appellant.
    John H. McCormick of McCormick, Reid & Drury, Jasper, and Lynwood F. Arnold, Jr., of Albritton & Sessums, Tampa, for appellee.
   PER CURIAM.

The record contains competent substantial evidence to support the ruling of the trial court. The final judgment is AFFIRMED.

McCORD, BOOTH and SHIVERS, JJ., concur.