author: McCORD, Judge.

text:
    Joseph Virgil DELATTE, Appellant, v. STATE of Florida, Appellee.
    No. OO-107.
    District Court of Appeal of Florida, First District.
    June 4, 1980.
    Michael J. Minerva, Public Defender and Randolph P. Murrell, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Delatte appeals his judgment of conviction for carrying a concealed firearm entered upon his plea of nolo contendere, reserving his right to appeal the trial court’s denial of his motion to suppress the firearm. Appellant contends the warrantless search of his travel bag was illegal because the inventory of its contents at the jailhouse was an unreasonable search, and in the alternative, he argues the search was not a bona fide inventory search. We disagree and affirm.

Police legally arrested Delatte upon discovering an outstanding arrest warrant charging him with escape from a Louisiana prison. Appellant, who was hitchhiking when arrested, had a travel bag in his possession. Delatte and the bag were transported to the jailhouse where he was processed and placed in a cell. The bag, after having been in the property room for approximately thirty to forty minutes, was searched by Sergeant Dekle for the purpose of safeguarding the jail after Officer Dula, who did not testify at the suppression hearing, reportedly told him there might be a gun in the bag. A loaded pistol was discovered among some clothes. It was determined that supervised inmates were occasionally permitted in the property room to retrieve their belongings, for example clothes, if they were going to court. At other times, and while supervised, trustees having cleaning duties were allowed access to the room. In addition, inmates went into the room to help retrieve their misplaced property. Weapons were not knowingly stored in the property room. Dekle further explained that, as a matter of policy, all luggage brought into the jail was to be searched for contraband, or “anything of that nature,” apparently including a weapon search to safeguard the jail. However, it was not customary to complete an inventory of each item and no such inventory was performed here. It was admitted that the search might not invariably be performed in each case and might not have occurred here had not Dula spoken to the sergeant.

The trial court denied the motion to suppress, finding that the objective to be accomplished, i. e., removing weapons from possible contact with other prisoners, was reasonable, and that the type of search made was routinely and customarily performed.

The threshold question is whether a valid “inventory search” of luggage is precluded by the holding in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). We think not. Sanders was rendered to resolve misunderstandings as to the proper application of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), concerning the invalidity of a warrantless search of locked footlockers seized from an automobile. 442 U.S. at 754-755, 762, 99 S.Ct. at 2588, 2592, 61 L.Ed.2d at 238-239, 244. Sanders held that a warrant is generally required before luggage can be searched, regardless of whether or not it is seized from an automobile. 442 U.S. at 764, n. 13, 99 S.Ct. at 2593, n. 13, 61 L.Ed.2d at 245, n. 13. The Court concluded:

[W]e hold that the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree it applies to such luggage in other locations. Thus, insofar as the police are entitled to search such luggage without a warrant, their actions must be justified under some exception to the warrant requirement other than that applicable to automobiles stopped on the highway. Where — as in the present case — the police, without endangering themselves or risking loss of the evidence, lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay the search thereof until after judicial approval has been obtained.

442 U.S. at 766, 99 S.Ct. at 2594, 61 L.Ed.2d at 246. In addition, Sanders recognized the possible validity of warrantless luggage searches under circumstances concerning public safety, and not a particular exigency. 442 U.S. at 764, n. 12, 99 S.Ct. at 2593 n. 12, 61 L.Ed.2d at 245, n. 12. In considering Sanders and Chadwick together, we do not find it surprising that Sanders failed to discuss the concept of inventory searches. Both cases involved probable cause to search for contraband and consequently, both opinions accentuated the warrant requirement in such cases. In connection with this discussion, the majority opinion in Chadwick acknowledged that the Court had held warrantless searches unreasonable, and therefore unconstitutional, in a variety of settings, but noted:

In circumstances involving noncriminal inventory searches, where probable cause to search is irrelevant, we have recognized “that search warrants are not required, linked as the warrant requirement textually is to the probable-cause concept.” South Dakota v. Opperman, 428 U.S. 364, 370, n. 5, 96 S.Ct. 3092, 3097, n. 5, 49 L.Ed.2d 1000 (1976). This is so because the salutary functions of a warrant simply have no application in that context; the constitutional reasonableness of inventory searches must be determined on other bases.

433 U.S. at 10, n. 5, 97 S.Ct. at 2483 n. 5. Thus, we are of the opinion that consideration of the inventory search (or protective safety search for weapons) issue, not raised in either Sanders or Chadwick, is not precluded by the holdings or rationale of either ease. Several post-Chadwick cases expressly or impliedly recognize this. United States v. Bloomfield, 594 F.2d 1200 (8th Cir. 1979); Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, 343-346 (1979) cert. denied, 444 U.S. 475, 100 S.Ct. 472, 62 L.Ed.2d 116 (1979); People v. Merchant, 86 Mich.App. 355, 272 N.W.2d 656, 658-659 (1979); United States v. Hill, 458 F.Supp. 31, 34 (D.C.1978).

We must decide next whether the search here was a valid protective search. To guide us in this determination, we should first recognize some basic principles which have been developed in our state in this area. In Elson v. State, 337 So.2d 959, 963 (Fla.1976), quoting State v. Jenkins, 319 So.2d 91, 93 (Fla. 4th DCA 1975), with approval, our Supreme Court recognized the serious intrusion which occurs in an inventory case involving the search of personal belongings:

Regardless of the resort to a play on semantics suggesting that a distinction exists between an ‘inventory’ and a ‘search’ an ‘inventory’ search is a ‘search’ within the Fourth Amendment prohibition against unreasonable searches and seizures — A rose by any other name would smell as sweet — Shakespeare.
Courts considering the inventory concept do not always agree as to whether the inventory is a search within the Fourth Amendment since some courts say that a search implies an examination of premises or persons with a view to the discovery of evidence of guilt. [Citation omitted.] Other courts, including ours, hold that the Fourth Amendment governs all intrusions on personal security by agents of the public. If there is an intrusion upon personal security by an officer, there is a search. [Citations omitted.]
Defendant should have been given the choice of leaving his belongings in the motel room or requesting the sheriff to take them into custody for him. He should not be required without his consent to have his personal belongings stored by the sheriff during the time that he is in jail.

337 So.2d at 963.

In Elson, the sheriff and the highway patrolman had proceeded to the motel to make an inventory search so as to protect any property the defendant might have had at the motel and obtain money which might be available for bond. Elson enunciated the following:

The inventory search concept can validate a warrantless search only where the police have some valid reason or right for taking a defendant’s property into custody. It is well settled, of course, that the search of a vehicle is not unreasonable when the search is a routine inventory of the car which is taken into custody. [Citations omitted.] .
The distinction between an inventory search and an exploratory search is a delicate one which depends upon the totality of the circumstances in each case.

The common type of inventory case is the automobile inventory. Some of the principles have been stated in Fields v. State, 369 So.2d 603, 605 (Fla. 1st DCA 1978) as follows:

Essential requirement to a valid inventory search is that the police have taken lawful custody of the vehicle in the first instance and that they act in good faith in conducting inventory rather than using it as a subterfuge for warrantless search. [Citation omitted.]
The basis on which Courts uphold inventory searches, i. e., that under routine police procedure it is essential when impounding a car to inventory it and its contents for preservation thereof as well as to insulate the police and garage owner from responsibility in the event of theft or destruction. [Citation omitted.]
The reasonableness of any search without a warrant is measured from the standpoint of the conduct of the searchers. If their conduct is in some way reprehensible, or if they precipitate a search and are motivated therein solely by desire to ‘hunt’ for incriminating evidence, or if they do so without any plausible explanation or justification, the invasion is an unreasonable one. [Citation omitted.]

Although the United States Supreme Court has not considered the precise type of search presented here, we think the groundwork exists for upholding the protective safety search for weapons shown here. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) first upheld the validity of a routine inventory search for an automobile lawfully impounded by police. A study of Opperman reflects a balancing of interests test which translates into a finding of what is a reasonable intrusion. Initially, Opperman recognized, for various reasons, the diminished expectation of privacy in an automobile. 428 U.S. at 367-368, 96 U.S. at 3096. The Court also stated the authority of the police to seize and remove vehicles under certain circumstances, finding that a subsequent inventory of an automobile developed to meet three distinct needs, one of which included “the protection of the police from potential danger.” 428 U.S. at 369, 96 S.Ct. at 3097, citing Cooper v. California, 386 U.S. 58 at 61-62, 87 S.Ct. 788, at 790-791, 17 L.Ed.2d 730 (1967). Plainly, the test to be applied is one of “reasonableness.” In this regard, Opperman reasoned:

In Cooper v. California, supra, the Court upheld the inventory of a car impounded under the authority of a state forfeiture statute. Even though the inventory was conducted in a distinctly criminal setting and carried out a week after the car had been impounded, the Court nonetheless found that the car search, including examination of the glove compartment where contraband was found, was reasonable under the circumstances. This conclusion was reached despite the fact that no warrant had issued and probable cause to search for the contraband in the vehicle had not been established. The Court said in language explicitly applicable here:
It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. 386 U.S. at 61-62, 87 S.Ct. 788 [at 790-791], [17 L.Ed.2d 730]. [Footnotes omitted.]

428 U.S. at 373, 96 S.Ct. at 3099. In Cooper, the search was not justified on the basis of an inventory of the items in the car. Rather, the issue presented was whether the search was reasonable under the Fourth Amendment, it being recognized that the reason for and nature of the custody may constitutionally justify the search. 386 U.S. at 61, 87 S.Ct. at 790. Opperman also cited Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), which did not involve an inventory of the contents of the car, but rather was a justifiable intrusion undertaken “to protect the community’s safety” where the police had reasonable grounds to believe a weapon might be in the car and thus available to vandals. South Dakota v. Opperman, 428 U.S. at 374, 96 S.Ct. at 3099.

In Cady, the Court used analogy as an aid in determining what was reasonable. For example, the Court explained:

In Harris the justification for the initial intrusion into the vehicle was to safeguard the owner’s property, and in Cooper it was to guarantee the safety of the custodians. Here the justification, while different, was as immediate and constitutionally reasonable as those in Harris and Cooper: concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle. . . . While perhaps in a metropolitan area the responsibility to the general public might have been discharged by the posting of a police guard during the night, what might be normal police procedure in such an area may be neither normal or possible in Kewaskum, Wisconsin. The fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable.

413 U.S. at 447, 93 S.Ct. at 2531. The Court concluded:

Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not ‘unreasonable’ within the meaning of the Fourth and Fourteenth Amendments.

413 U.S. at 448, 93 S.Ct. at 2531. In sum, a line of United States Supreme Court cases and the inventory search cases of our state provide ample guidance for concluding that the protective safety weapons search undertaken here was “reasonable.”

Delatte was taken into lawful custody under circumstances which do not even remotely suggest a pretextual arrest. His bag accompanied him to the jail because there was nothing else to be done with it. Delatte never requested that the bag be taken elsewhere or be given to anyone else and there is no evidence that he was prevented from making such a request. See Fields v. State, supra. Compare Elson v. State, supra. The justification for separating Delatte from his property can not be seriously questioned. “It can not be denied that to prevent escape, self-injury, or harm to others, the police have a legitimate interest in separating the accused from the property found in his possession.” United States v. Lipscomb, 435 F.2d 795, 800 (5th Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). More specifically, we agree that “police have full authority to prohibit the entry of weapons, drugs or other potentially harmful items into jail.” State v. Kaluna, 55 Haw. 361, 520 P.2d 51, 61 (1974). Thus, at the point when the bag was brought into the jailhouse, the officers clearly had the duty and authority to store the travel bag and its contents safely.

The problematic issue is whether the travel bag could be reasonably searched, rather than stored as a unit, to accomplish the objective of safeguarding the jail considering the possibility that a weapon might be located in the bag. We think this question deserves scrutiny particularly when luggage is involved, which, unlike the automobiles in Opperman, Cady and Cooper, “is inevitably associated with the expectation of privacy.” Arkansas v. Sanders, 442 U.S. at 762, 99 S.Ct. at 2592, 61 L.Ed.2d at 244. Other jurisdictions, recognizing that an inventory search is justifiably conducted for the protection of the police from dangerous instrumentalities, require that there be at least a reasonable suspicion to believe that the contents are particularly dangerous before a container may be reasonably searched. See, e. g., People v. Counterman, 192 Colo. 152, 556 P.2d 481, 484-485 (1976), (involving inventory of a sealed knapsack). An example of this view is stated in United States v. Bloomfield, 594 F.2d 1200, 1203 (8th Cir. 1979), as follows:

As to the last purpose, however, protecting the police from danger, an argument could be made that by inventorying the contents of the knapsack, the police would more likely become apprised of harmful items within. In determining whether this governmental interest warrants the further infringement on a citizen’s right to privacy that an itemized inventory could impose, we must balance the “governmental and societal interests advanced to justify such intrusions against the constitutionally protected interest of the individual citizen in the privacy of his effects.” [Citations omitted.]
It seems to us, in the case at hand, that comparing this right to privacy with the governmental interest at stake, the governmental interest is slight. It is simply not reasonable to assume that, given the circumstances in which this knapsack was found, storing it as a unit at the police station, without specific knowledge of its contents, can pose a danger to police. As Justice Powell acknowledged in his concurring opinion in South Dakota v. Op-perman, supra, 428 U.S. at 378, 96 S.Ct. 3092 [at 3101], while the danger associated with impounding unsearched automobiles can not be discounted, it is rare. In addition, there are alternative ways of detecting such danger, such as use of dogs trained to locate explosives. Because there is no indication in this situation that appellant’s knapsack posed any danger to police, we do not believe that opening and inventorying its contents, rather than storing the knapsack as a unit can be justified on the basis of protecting police.
In conclusion, we note that our holding that the knapsack should have been inventoried as a unit rather than opened and itemized is confined to the facts before us. If a container which is to be inventoried is not securely closed so that the articles within could possibly fall out, it may be wiser for police to itemize the articles. See United States v. Neumann, 585 F.2d 355 (8th Cir. 1978). And, if police have some reason to believe a container which is to be inventoried holds instrumentalities which could be dangerous even when sitting idly in the police locker, the police may, and should, inventory the contents of the container.

See also, State v. Kaluna, supra; Reeves v. State, 599 P.2d 727, 735-736 (Alaska 1979) (cases construe search too intrusive under their state constitutions.)

However, in Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (1979), the court held that the police lawfully acquired possession of Mooney’s luggage (no impounded vehicle involved). The police inventoried the contents of the luggage for weapons and contraband, which was standard police procedure, to protect themselves from any weapon that might be in the belongings that arrestees might call for. Past experience had turned up drugs and razor blades hidden in folded paper so the police unfolded paper which had been taken from a plastic shopping bag. The items were also inventoried. The court concluded that Opperman and the fifth circuit cases cited therein recognized the propriety of opening and inventorying the contents of any container. 254 S.E.2d at 344. Mooney stated that although Chadwick necessarily impinged on an inventory search of luggage to some extent, the question after Chadwick was “whether officers were truly pursuing an investigatory or inventory search.” 254 S.E.2d at 346. The court held that the search was reasonable under all the circumstances because the officers were in good faith carrying out an inventory procedure without investigative intent and therefore, the search was not violative of Mooney’s Fourth Amendment rights. 254 S.E.2d at 346. See also, Dearing v. State, 393 N.E.2d 167, 171-173 (Ind.1979) (search fulfilled reasonable governmental purpose when officer opened suitcases at bus station pursuant to “normal property room” policy after officer requested by defendant to retrieve suitcases from bus station and under the circumstances, officer entitled to be “wary” of contents).

Finally, another line of thought simply takes the view that Chadwick did little or nothing to affect the suggestion in Opper-man that it was permissible to inventory the contents of suitcases taken from impounded vehicles. E. g., People v. Merchant, 86 Mich.App. 355, 272 N.W.2d 656, 658-659 (1979).

In balancing the respective interests here, we conclude the scope of the search was reasonable. Great weight should be accorded the governmental purpose shown here because of the vital interest of the state in protecting the physical well-being of officers and detainees at the jail. This type of interest has led the Court in the past to justify as “reasonable” other limited intrusions into an individual’s privacy interests. E. g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We think the cases representing the Bloomfield view fail to sufficiently emphasize the interests at stake. Although the chance of danger might be slim, the danger itself could be great, perhaps fatal. Also, we think the Bloomfield rationale inadequately considers the potential for danger. It would be unreasonable to require every officer who came in contact with luggage from the property room, in any number of needless-to-mention circumstances, to ponder whether the luggage he carries contains a loaded gun, which might discharge if dropped, or be sought by any number of unknown persons, whether or not he has it in his possession. It may not be administratively feasible to implement security measures for the protection and retrieval of personal property equal to that likely exercised in connection with separate weapon storage. Supervised access would not alleviate danger if a prisoner were to suddenly retrieve his gun rather than his clothes.

We find our previous opinions in State v. Southwell, 369 So.2d 371 (Fla. 1st DCA 1979), and Liles v. State, 375 So.2d 1094 (Fla. 1st DCA 1979), distinguishable. There the search in each instance was for contraband. Neither was a protective search for weapons and in neither did the court entertain the theory that valid inventory searches were conducted. In Southwell, the defendant had requested that he be allowed to deposit his overnight bag in one of the lockers at the airport rather than that it be transported with him to the jail. In Liles, the police impounded defendant’s truck in a parking lot and made what they called an inventory search of it, including a satchel contained in it. The satchel was in the possession of the police at the parking lot and defendant no longer had access to it. It had not been deposited in the property room at the jail where the defendant would be allowed access to it, in accordance with established procedure, as in the case sub judice.

We hold that Officer Dekle undertook a valid weapon search of Delatte’s luggage pursuant to routine procedure and incident to the safe storage of weapons which likely could have been contained therein, considering that the arrestee was lawfully taken into custody by police who found it reasonably necessary to take and retain custody of Delatte’s personal possessions under circumstances that negate a finding that there was an exploratory search or any other search not motivated by the desire to reasonably execute a legitimate governmental purpose.

AFFIRMED.

LARRY G. SMITH and SHIVERS, JJ., concur.

      . We believe a fair reading of the record indicates that the routine searches were conducted to safeguard the jail against incoming weapons as well as incoming contraband. Transcript, p. 8.

      . We accept the trial court’s finding that the evidence in this regard merely indicated that some belongings might inadvertently escape a routine protective search, and that this fact did not mean that Delatte’s bag was not searched as part of the routine procedure.

      .In this case, the term is a misnomer because the contents of the bag were not “inventoried.” However, it will be seen that the determination of whether the search here was constitutional is measured by the considerations applicable to classic inventory cases.

      . The arrestee being detained for criminal activity has a long tradition of armed violence. Terry v. Ohio, supra, 392 U.S. at 23-24, 88 S.Ct. at 1881.


source: Caselaw Access Project

author: LARRY G. SMITH, Judge.

license: Public Domain

text:
    SCHULT MOBILE HOME CORP. and Liberty Mutual Insurance Company, Appellants v. Connie WALLING, Appellee.
    No. QQ-297.
    District Court of Appeal of Florida, First District.
    June 4, 1980.

      Alex P. Lancaster of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    Ramon Clark Calafell, Jr., and Stephen L. Rosen of Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa, for appel-lee.
   LARRY G. SMITH, Judge.

In this worker’s compensation proceeding the Deputy Commissioner entered an order requiring the employer-carrier to pay medical bills for claimant’s hospitalization and treatment by Dr. Wallace, a physician not authorized by the carrier to render medical services to claimant. The carrier contends that the order was in error because its duty under Section 440.13, Florida Statutes, to provide proper medical treatment was fully discharged by offering claimant the choice of several physicians other than Dr. Wallace, the one she requested. We have carefully reviewed the order appealed and the supporting record, and conclude that the order should be affirmed.

After surgery performed by a neurosurgeon authorized by the carrier, the claimant experienced an unsatisfactory recovery. Her request to be treated by Dr. Wallace was denied by the carrier on the grounds that he was not on its list of approved physicians. Instead, the carrier offered claimant the services of two other physicians, one of whom offered her no help, and the other informed her there was no help available.

Claimant obtained the services of an attorney, who again informed carrier of claimant’s condition, and again requested authorization for Dr. Wallace to treat her. Claimant’s request for Dr. Wallace was again denied, but the carrier offered a choice of three other physicians, none of whom were satisfactory to claimant. She testified that she was afraid to be treated by one of them, that another was an orthopedic surgeon, and she preferred a neurosurgeon since her surgery had been performed by a neurosurgeon; and Dr. Wallace, whom she requested, was a neurosurgeon. She declined the services of the third physician on the grounds that he was a partner of one of the doctors who had already treated her, and she did not want to return to him.

In the meantime, the claimant had begun seeing Dr. Wallace, and in September, 1978, Dr. Wallace performed surgery on her back. Several subsequent surgeries were also performed by Dr. Wallace, with the result, according to claimant, that her pain became bearable, and her condition was much better than after her initial surgery.

The carrier relies for reversal in part upon the decision in Nally v. Davis, IRC Order 2-3361 (February 21, 1978). In that case the employee requested medical treatment and the employer gave him the choice of several authorized physicians. However, the employee did not choose one of these, but selected an unauthorized physician for treatment. Under these circumstances, the Commission held, the employer did not fail to provide medical services, and the claims for treatment by the unauthorized physician were denied.

We find that the Nally case and others relied upon by carrier are not dispositive of this appeal, since we are persuaded that the situation in which this claimant found herself does not fit neatly into those cases in which treatment by an unauthorized physician has been disapproved. We consider particularly applicable certain of the findings, and the reasoning expressed by the Deputy Commissioner in resolving this difficulty. In his order he found that the treatment rendered by Dr. Wallace was reasonable and necessary as a result of claimant’s compensable accident. He referred to the claimant’s testimony that she did not receive any help from the authorized physicians, and in fact, did not make any progress after surgery by the initial authorized physician. He found further:

* * * I find that the claimant cooperated with the carrier in every respect, and I find that the carrier failed to provide proper treatment for the claimant. The testimony of Ms. Planer [carrier’s representative] was that Dr. Wallace was not authorized because “he was not on their list of authorized physicians.”
I find this “list” to be discriminatory and detrimental to the claimant in that it denies the claimant proper treatment for her injury. The purpose of the Workman’s Compensation Act is to repair an injured claimant in order to get that claimant back into the labor market. The Employer/Carrier is required to provide the treatment that will accomplish this, and arbitrary decisions have no place in the Compensation Act.
6. Once the Claimant advised the Carrier that she was dissatisfied with the authorized physicians, it was incumbent upon the carrier to authorize proper alternative treatment. This they neglected to do, and their failure to authorize proper remedial treatment may well have been extremely detrimental to the Claimant. I accept the testimony of Dr. Wallace that the surgeries he performed on the Claimant were her only means of needed relief. Conservative treatment would not work, as that is evidenced by the record.
* * * * * *
7. In making the above findings, the undersigned Deputy Commissioner is aware of what is becoming rather extensive case law regarding change in physicians. The undersigned is of the opinion that difficulty in arriving at a mutually agreeable physician to treat the claimant was due to the lack of a Judge of Industrial Claims to hear this matter in a timely fashion. The undersigned would specifically find that both the Claimant and Liberty Mutual Insurance Company acted in good faith in this matter, but the parties had a genuine dispute and the statutory fashion in which to resolve that genuine dispute was not available to the parties without the claimant experiencing severe medical problems because of the delay. For these reasons the undersigned Deputy Commissioner is of the opinion that more discretion than is normally afforded a situation as that sub judice was necessary to effect the intent and purpose of the Worker’s Compensation Act.

We find that the Deputy Commissioner’s resolution of this controversy was in accord with the purposes of the Worker’s Compensation Act. Section 440.13 reserves to the claimant the right to dispute the carrier’s selection of a treating physician for good cause. Robinson v. Howard Hall Company, 219 So.2d 688 (Fla.1969). The Deputy Commissioner found, and we agree, that the claimant’s dissatisfaction with the carrier’s selection of various physicians was for good cause or reason, and therefore, she was fully justified by medical necessity in exercising her right to seek alternative medical care and treatment. Compare Edward L. Nezelek Construction v. Terlizzese, IRC Order 2-2869 (November 7, 1975), and Sun Banks of Florida v. Hicks, IRC Order 2-3867 (July 25, 1979). Redwing Carriers Inc. v. Pinto, IRC Order 2-3089 (January 6, 1977), cert. den. 348 So.2d 952 (Fla.1977), held that there is no requirement in the law that all medical treatment come to a standstill, when the parties have reached an impasse, until the question which doctor shall perform the treatment has been resolved by the Judge. The Commission recognized that the claimant cannot arbitrarily change physicians. However, in the Redwing Carriers case, before the employer responded to claimant’s request for a change in physician, the need for treatment reached the emergency stage. Although we do not interpret or apply the Redwing Carriers case as limiting recovery by unauthorized physicians only in case of an emergency, we think there is ample evidence here to reflect an urgent and unmet need for additional medical treatment upon claimant’s first visit to Dr. Wallace, and indeed, the record reflects that her admission to the hospital by Dr. Wallace on February 24,1979 was on an emergency basis.

For the foregoing reasons, the order appealed is AFFIRMED.

McCORD and WENTWORTH, JJ., concur.


author: BOARDMAN, Judge.

text:
    Cynthia Ann Means SAPP, Petitioner, v. FLORIDA STATE BOARD OF NURSING, Respondent.
    No. 79-1666.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.
    Martin J. Jones, St. Petersburg, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, Richard A. Hixson, Asst. Atty. Gen., and Patricia J. Brown, Certified Legal Intern, Tallahassee, for respondent.
   BOARDMAN, Judge.

Cynthia Sapp petitions for review of an administrative order suspending her license as a practical nurse. We reverse. .

Petitioner was charged in an administrative complaint with (1) administering an overdose of medication to a patient at the Clearwater Convalescent Center on August 11, 1978; (2) physically abusing an elderly patient on August 14, 1978, while in the course of her employment with the Clear-water Convalescent Center; (3) leaving the medicine room unattended and the door unlocked; and (4) leaving the medicine cart unattended in the hallway and in the patients’ rooms.

An administrative hearing was held at which petitioner admitted administering a drug overdose to a patient, but denied having left the medicine cart unattended or the medicine room unlocked and unattended. Other witnesses, however, testified that she had done so.

Following the conclusion of the hearing, the hearing officer prepared a recommended order. In that order, in the section denominated “FINDINGS OF FACT” is contained what appears to be a statement of the case and facts such as one would find in a legal brief. The portion of this section in issue here reads as follows:

4. There were no written or oral instructions given to employees of the convalescent center relative to the locking of the door to the medication room, or to the attendance or placement of the medication cart.
There is insufficient evidence to show that the Respondent did in fact leave the medication room unattended and the door unlocked, or that she left the medication cart unattended in the hallways and in the patients’ rooms.

In the section headed “CONCLUSIONS OF LAW,” the order states that petitioner violated Section 464.21(l)(b), Florida Statutes (1978 Supp.) by departing from the standards of acceptable practice in injecting a patient with an overdose of medication, causing severe injury, and that petitioner further violated the statute by treating an elderly patient in such a manner that the patient was bruised and emotionally upset.

In the final paragraph, captioned “RECOMMENDATION,” the order recommends that petitioner be placed on probation for a period not to exceed one year.

Upon review of the entire record, respondent Florida State Board of Nursing (the Board) rejected paragraph 4 of the “FINDINGS OF FACT” quoted supra as not being based on competent, substantial evidence, stating that the competent, substantial evidence supported a finding that petitioner did leave the medicine room unlocked and the medicine cart with no one in attendance and summarizing the testimony concerning the issues mentioned in paragraph 4 of the hearing officer’s order. The Board felt that, under the circumstances, the recommended penalty of one year probation did not reflect the danger and seriousness of petitioner’s violations, and suspended petitioner’s license for fifteen months, to be followed by twenty-one months probation. The instant petition for review followed timely.

The proceedings below are governed by Section 120.57(1), Florida Statutes (1978 Supp.), the Administrative Procedure Act. Section 120.57(l)(b)9, provides:

9. The agency may adopt the recommended order as the agency’s final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record.

The major problem before us is whether the hearing officer’s finding of fact that “[tjhere is insufficient evidence to show that the Respondent did in fact leave the medication room unattended and the door unlocked, or that she left the medication cart unattended in the hallways and in the patients’ rooms” is actually a finding of fact or whether it constitutes a legal conclusion that there was no legally sufficient evidence that, if believed, would support a finding that petitioner had been lax in maintaining the security of the medicine room or the medicine cart. The sentence in question, although placed in the section of the order captioned “FINDINGS OF FACT,” is by its terms a legal conclusion. If it was intended to be such, the Board correctly rejected it, since there was competent, substantial testimony to the contrary. § 120.57(l)(b)9.

However, notwithstanding the wording of this sentence, we consider it equally plausible that the hearing officer meant that she was simply not persuaded by the testimony of the witnesses against petitioner that petitioner had left the medicine room unlocked or the medicine cart unattended, and that she believed the testimony to the contrary. There was competent, substantial evidence under these circumstances to support a finding that petitioner was not guilty of the charged misconduct. Hence the Board would not have been authorized to substitute its interpretation of the facts for that of the hearing officer, who was personally able to evaluate the testimony and demeanor of the witnesses. Koltay v. Division of Genera] Regulation, Department of Business Regulation, 374 So.2d 1386 (Fla. 2d DCA 1979); Venetian Shores Home & Property Owners v. Ruzakawski, 336 So.2d 399 (Fla. 3d DCA 1976).

Because we are unable to absolutely determine the hearing officer’s intent with respect to this finding of fact, and in an abundance of caution, we deem it necessary to remand for clarification by the hearing officer. The Board may then conduct its review of this case in the appropriate light.

In addition, the Board clearly erred in rejecting the hearing officer’s finding that “[tjhere were no written or oral instructions given to employees of the convalescent center relative to the locking of the door to the medication room, or to the attendance or placement of the medication cart.” While there was testimony that accepted nursing practice requires that medicine rooms be kept locked when a health care provider is not in attendance and that medication also not be left unattended, there was no evidence that the employees of the convalescent center were given specific oral or written instructions with regard to the locking of the medicine room or the attendance or placement of the medicine cart. The only testimony concerning this issue was that of another employee, LPN Alice Russell, who had seen no written instructions and had never been given any oral instructions concerning these matters. The Board’s rejection of the hearing officer’s finding was not based on competent, substantial evidence.

Accordingly, the Board’s order is REVERSED and the cause REMANDED with instructions to remand to the hearing officer for clarification of the finding of fact in question. Following clarification, the Board is instructed to reconsider petitioner’s case in accordance with this opinion.

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

      . Section 464.21(l)(b) provides in pertinent part:
      (1) GROUNDS FOR DISCIPLINE. — The board shall have the authority to . discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state who has been found guilty by the board of:
      (b) Unprofessional conduct, which shall include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which proceeding actual injury need not be established.


author: MOORE, Judge.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. MAYOR’S JEWELERS OF POMPANO, INC., Mayor’s Jewelers of Dadeland, Inc., Mayor’s Jewelers of Hollywood, Inc., and Albert Glass Company, Inc., Appellees.
    No. 77-1818.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.

      Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P.A., Miami, for appellant.
    Carey M. Fischer of Ferrero, Middle-brooks & Strickland, Fort Lauderdale, for appellee, Mayor’s Jewelers of Pompano, Inc.
    Victor H. Womack of Magill, Sevier & Reid, P.A., Miami, for appellee, Albert Glass Co., Inc.
   MOORE, Judge.

Mayor’s Jewelers of Pompano Beach, Inc. suffered a loss of valuable jewelry when an unknown thief entered its building by breaking a plate glass window. Investigation revealed that “riot glass” had not been installed originally as required by contract with Albert Glass Company, Inc. Mayors sued Albert Glass for breach of contract, negligence and breach of implied warranty. After Albert Glass filed a third party complaint against its insurer, United States Fidelity & Guaranty Company (USF&G), Mayors joined USF&G as a direct defendant.

USF&G denied coverage for the damages allegedly sustained by Mayors. The case was severed and a non-jury trial was conducted only on the coverage issue. USF&G now appeals the final judgment determining coverage for the negligence and breach of implied warranty counts. We affirm.

In its complaint, Mayors sought recovery for theft of the jewelry, loss of business profits, loss of goodwill, expense of repair to the broken windows, expense of reinstal-lation of riot glass and the cost of litigation. Agreeing that it insures Albert Glass for “property damage” sustained by another for which Albert Glass is liable, USF&G contends that the elements of damage claimed by Mayors are not encompassed in the term “property damage” as that term is used in its policy. It also contends that its insurance coverage does not apply to the facts of this case pursuant to various policy exclusions.

The policy provides:

The company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
A. Bodily injury or
B. Property damage
to which this insurance applies, caused by an occurrence. .

It defines “occurrence” as “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the Insured”. It further defines “property damage” as “injury to or destruction of tangible property”.

Initially, USF&G argues the theft of jewelry is not “injury to or destruction of tangible property”. Neither we nor appellant have been able to discover any Florida law construing the same or similar policy provisions under analogous facts. Although appellant has cited numerous cases from other jurisdictions none is persuasive and each is factually distinguishable. In State v. Glens Falls Insurance Co., 132 Vt. 97, 315 A.2d 257 (1974), the Court held that the loss of certain photographic transparencies by the insured was not a physical injury to or destruction of tangible property. In Johnston v. Tally Ho, Inc., 303 A.2d 677 (Del.Super.Ct.1973), loss of commissions and injury to reputation were held not to be tangible property damage. The court in Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill.App.3d 115, 294 N.E.2d 7 (1973) held that investments, anticipated profits and financial interests are not tangible property. None of the cases cited by appellant is persuasive.

“Injury” is defined as: “Any wrong or damage done to another, either in his person, rights, reputation, or property”, and “an act which damages, harms or hurts”. Black’s Law Dictionary, Fourth Edition. Certainly Mayors suffered the ultimate injury to its property when a thief stole the property.

We are persuaded by the opinion of the Court in Pittway Corp. v. American Motorists Ins. Co., 56 Ill.App.3d 338, 13 Ill. Dec. 244, 370 N.E.2d 1271 (1971) which held that property is damaged to the extent that its market value is diminished. As here, the property was not physically damaged but was rendered totally useless. When property is stolen, its market value to the one who lawfully possessed it is totally diminished. We therefore hold that theft of personal property is “property damage” unless a contrary intent is clearly expressed. If, as USF&G maintains, property is damaged only when it suffers actual, physical damage, it would have been relatively simple to include the word “physical” in its definition. As conceded by appellant, an ambiguity existing in a policy is construed in favor of the insured and we construe the term here to include loss, disappearance or theft. Thus, there was coverage for the loss of the jewelry (we render no opinion as to the other claimed damages) and the trial court was correct unless one of the exclusionary clauses applied.

We now consider the exclusionary clauses which are:

This insurance does not apply:
# * * * * *
(k) to . property damage resulting from the failure of the Named Insured’s products or work completed by or for the Named Insured to perform the function or serve the purpose intended by the Named Insured, if such failure is due to a mistake or deficiency in any design, formula, plan, specifications, advertising material or printed instructions prepared or developed by any Insured; but this exclusion does not apply to property damage resulting from the active malfunctioning of such products or work . . . ;
(l) to property damage to the Named Insured’s products arising out of such products or any part of such products;
(m) to property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith; . . .

Exclusion (k) can be divided into two parts: the first part being what is commonly referred to as the “business risk” exclusion, and the second part being an exception to the exclusion. USF&G argues that under the facts in this case, coverage is excluded because its insured’s product (the glass) failed to perform the function or serve the purpose intended by the insured and there was no active malfunctioning of the glass to bring it within the exception. It concludes that the failure to perform had to arise from a mistake or deficiency in the plans, design or specifications. USF&G overlooks, however, the allegations in the complaint. It is not alleged that the product failed. It is alleged that the insured negligently installed the wrong type of glass. We therefore hold exclusion (k) inapplicable to the facts here.

The other two exclusions, (/) and (m), may well apply to certain of the claimed damages. They would not apply to all of the damages; thus, the applicability of these exclusions is a matter for determination by the trial court at the appropriate time.

We hold the trial court was correct in finding coverage and affirm.

LEWIS B. WHITWORTH, Associate Judge, concurs.

JAMES C. DAUKSCH, JR., Associate Judge, concurs in conclusion only.


author: GLICKSTEIN, Judge.

text:
    Ronald MOTCHKAVITZ and Joan Motchkavitz, his wife, Appellants, v. L. C. BOGGS INDUSTRIES, INC., Zuckerman & Vernon Corp., a Florida Corporation, and Theodore Faber, an individual, Appellees. ZUCKERMAN & VERNON CORPORATION, a Florida Corporation, Appellant, v. Ronald MOTCHKAVITZ and Joan Motchkavitz, his wife, L. C. Boggs Industries, Inc., and Theodore Faber, an individual, Appellees.
    Nos. 78-1945, 78-1973.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Walter H. Beckham, Jr., and Joel D. Eaton of Podhurst, Orseck & Parks, P.A., Miami, and Beckham, McAliley & Proenza, Miami, for appellants-Motchkavitz in No. 78-1945.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellant-Zuckerman & Vernon Corp. in No. 78-1973.
    Robert P. Kelly of Pyszka, Kessler & Adams, Fort Lauderdale, for appellee-L. C. Boggs.
   GLICKSTEIN, Judge.

Ronald Motchkavitz and Joan Motchka-vitz, his wife, together with Zuckerman & Vernon Corporation appeal from a summary final judgment in favor of L. C. Boggs Industries, Inc. We affirm.

The record discloses that Zuckerman was the owner of property in Hallandale on which Gulfstream Garden Apartments, a condominium, was being constructed in 1972. In order to construct the project, Zuckerman used the general contractor’s license of its vice president, Arthur Siegel, to secure the required permit and entered into separate contracts with different contractors for the plumbing, concrete, electrical, and other work. Specifically, Zucker-man engaged May Plumbing Company, Inc., for the plumbing work; May, in turn, contracted with L. C. Boggs Industries, Inc., for catch basins. On November 20, 1972, a backhoe operated by a Boggs’ employee struck and injured Ronald Motchkavitz, an employee of May. Motchkavitz received workmen’s compensation benefits from May and its insurer, and brought the present action, joined by his wife, against Zucker-man, Boggs and Faber, the allegedly negligent employee of Boggs. Boggs moved for summary judgment on the ground that workmen’s compensation was the exclusive remedy available to Motchkavitz. The trial court agreed.

The sole issue on appeal is whether the statutes in effect at the time of the accident precluded an action for damages by an employee of a contractor against his employer’s subcontractor for the negligence of one of the subcontractor’s employees when the contractor has secured payment of workmen’s compensation benefits for its injured employee. We conclude that they did.

The governing statutes, Sections 440.10(1) and 440.11(1), Florida Statutes (1971), provide as follows:

440.10 Liability for compensation. — (1) Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees of the compensation payable under §§ 440.13, 440.15 and 440.16. In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.
* * * * * *
440.11 Exclusiveness of liability. — (1) The liability of an employer prescribed in § 440.10 shall be exclusive and in place of all other liability of such employer to any third party tort-feasor and to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee or his legal representative, in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.

At oral argument counsel for the Motch-kavitzes conceded that May was a “contractor” within the language of the above statutes. Nevertheless, appellants argue that the statutes only immunize a contractor, not a subcontractor, and should be narrowly construed because they are in derogation of the employee’s right to sue for his injuries. Trail Builders Supply Co. v. Reagan, 235 So.2d 482 (Fla.1970). They further argue that judicial precedent has extended immunity to a subcontractor only when there was a general contractor involved, Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (1940) and has rejected immunity when there were — as here — an owner-builder and an independent contractor, C & S Crane Service, Inc. v. Negron, 287 So.2d 108 (Fla.3d DCA 1973), cert. denied, 296 So.2d 49 (Fla.1974). Appellants chronicle numerous decisions.

We hold that in determining whether a subcontractor may be sued for injuries sustained by an employee of its contractor, it is totally irrelevant whether the contractor is a “general” or “independent” contractor. The statutes in question use neither term. All that must be established is the relationship of contractor and subcontractor. Sub judice, May was plainly a contractor; it had a contractual obligation to the property owner, a portion of which it sublet to another. Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954). Boggs was clearly May’s subcontractor. Nothing more should be required to afford Boggs the umbrella of immunity which May enjoys. Conklin v. Cohen, 287 So.2d 56 (Fla.1973). The employees of both should be on an equal footing.

Because we believe the issue involved herein to be a matter of great public importance we certify the following question to the Supreme Court:

CAN THE EMPLOYEE OF A “CONTRACTOR,” HAYING RECEIVED WORKMEN’S COMPENSATION BENEFITS FROM HIS EMPLOYER, SUE HIS EMPLOYER’S SUBCONTRACTOR FOR DAMAGES ARISING OUT OF THE NEGLIGENCE OF THE LATTER’S EMPLOYEE?

We also certify the entire case to the Supreme Court on the basis that it is in direct conflict with the decision from the Third District in C & S Crane Service, Inc. v. Negron, supra.

AFFIRMED and CERTIFIED.

LETTS, C. J., and HURLEY, J., concur.

      . See also Favre v. Capellitti Brothers, Inc., 381 So.2d 1356 (Fla.1980).

      . Miami Roofing & Sheet Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950), (Held: action not maintainable by employee of one subcontractor against other subcontractor; both subcontractors were under one general contractor); Brickley v. Gulf Coast Constr. Co., 153 Fla. 216, 14 So.2d 265 (1943), (Held: action not maintainable by widow of employee of subcontractor against general contractor); Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (1940), (Held: action not maintainable by employee of general contractor against subcontractor).

        Conklin v. Cohen, 287 So.2d 56 (Fla.1973), (Held: action by widow of deceased employee maintainable against property owner; also against architect if his contract was with owner but not if contract was with employer; not maintainable against engineers whose “contract was with the general contractor”).

        Smith v. Ussery, 261 So.2d 164 (Fla.1972), (Held: action maintainable by employee of independent contractor against another independent contractor); Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954), (Held: action maintainable by employee of independent contractor against another contractor who was designated as general contractor in its contract with owner and who performed certain portion of construction work, and against owner); State ex rel. Auchter Co. v. Luckie, 145 So.2d 239 (Fla. 1st DCA 1962), cert. denied, 148 So.2d 278 (Fla.1962), (Held: action maintainable by employee of independent contractor against owner-builder); C & S Crane Service, Inc. v. Negron, 287 So.2d 108 (Fla.3d DCA 1974), cert. denied, 296 So.2d 49 (Fla.1974); (Held: action maintainable by employee of subcontractor of independent contractor against another subcontractor of same independent contractor); Cromer v. Thomas, 124 So.2d 36 (Fla.3d DCA 1960), cert. discharged, 135 So.2d 420 (Fla.1961), (Held: action maintainable by employee of city against independent contractor).


author: PER CURIAM.

text:
    Roy L. LIEFER, Appellant, v. Alice M. LIEFER, Appellee.
    No. 78-1972.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Rehearing Denied June 27, 1980.

      John D. Wessel, Boca Raton, and Larry Klein, West Palm Beach, for appellant.
    Harry G. Carratt, of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, and S. Robert Zimmerman, Pompano Beach, for appellee. .
   PER CURIAM.

Husband appeals the trial court’s award of lump sum alimony to wife. We affirm on the basis of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Costich v. Costich, 383 So.2d 1141 (Fla. 4th DCA 1980); and Bashaw v. Bashaw, 382 So.2d 1352 (Fla. 4th DCA 1980).

Husband also appeals the award of permanent periodic alimony. We find no error in this regard.

AFFIRMED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


author: DOWNEY, Judge.

text:
    Margaret MERCIER, as Personal Representative of the Estate of Kathleen T. Mercier, Deceased, Appellant, v. Frank MEADE, III, and Frank Meade, II, Appellees.
    No. 79-174.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Rehearing Denied June 26, 1980.
    Charles C. Powers of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appel-lee, Frank Meade, II.
   DOWNEY, Judge.

Appellant, Margaret Mercier, as personal representative of the estate of Kathleen Mercier, sued appellees, Frank Meade, II, and Frank Meade, III, father and son, for the wrongful death of her daughter, Kathleen Mercier. Count One of the Complaint was solely against the son, Frank Meade, III. Said count alleged that Meade, III, “negligently maintained, handled and/or operated a .38 caliber handgun” killing Kathleen Mercier. Count Two sought to allege a cause of action against both father and son. It alleged the following things: Meade II, owned the gun in question; at the time of the shooting, Meade, III, possessed the gun with the knowledge and consent of Meade, II; Meade, II, delivered possession of the gun to Meade, III, with the intent of furthering the defendants’ mutual purposes. Count Three was also against both defendants for Meade, II’s, negligently entrusting the gun to Meade, III.

The trial court granted a motion to dismiss Count Two with prejudice on October 18, 1978. On January 9, 1979, the trial court entered summary final judgment on Count Three in favor of Meade, II. Appellant has filed a timely appeal from the summary final judgment of January 9, 1979. However, the error argued on appeal is the alleged error of the trial court in dismissing with prejudice Count Two of the complaint. At no point in her brief does appellant assert the trial court committed any error in entering summary judgment on Count Three.

Appellant contends that a handgun is a dangerous instrumentality, and thus under the rule laid down in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), the owner of a handgun who loans it to another is liable, without more, for the other’s negligent use of the gun which injures a third person. We reject that contention because the courts in Florida have consistently held that, while a gun may be a dangerous instrumentality, the owner thereof is not liable for its negligent use by another unless the owner is negligent in entrusting the gun to the tort-feasor. Horn v. I.B.I. Security Service of Florida, Inc., 317 So.2d 444 (Fla.4th DCA 1975); Acosta v. Daughtry, 268 So.2d 416 (Fla.3d DCA 1972); Brien v. 18925 Collins Ave. Corp., 233 So.2d 847, 38 A.L.R.2d 1328 (Fla.3d DCA 1970).

Accordingly, the judgment appealed from is affirmed.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    SCOTT STEVENS, INC., d/b/a Sir’s Limited and Sir’s, Bruce Siegel and Neil Siegel, Individually, Appellants, v. EAGLE CLOTHES, INC., Appellee.
    Nos. 79-1193, 79-2166.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Ronald E. Dobelstein of Garlick, Cohn, Darrown & Hollander, Hollywood, for appellants.
    Erick A. Rothfeld of the Law Offices of Bernard Rothfeld, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

Upon review we find no error by the trial court in the entry of final summary judgment except as to the award of attorney’s fees. Accordingly, the judgment is affirmed in part and reversed in part, and remanded with directions that the award of attorney’s fees be stricken.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


author: ORFINGER, Judge.

text:
    Samuel B. MIDDLETOWN, Appellant, v. STATE of Florida, Appellee.
    No. 77-2603/T4-29.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.

      David M. Porter, Public Defender, Titus-ville, and Joan H. Bickerstaff, Asst. Public Defender, Cocoa Beach, for appellant.
    No appearance for appellee.
   ORFINGER, Judge.

This is an appeal from a judgment and sentence imposed upon the appellant pursuant to a jury verdict finding the accused guilty of the offense of grand larceny. Appellant’s court appointed counsel has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On January 31, 1980, this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed the brief and the record herein and no reversible error appears. The motion of the appellant’s counsel to withdraw is hereby granted, and the judgment of the trial court is hereby

AFFIRMED.

COBB, J., concurs.

CROSS, J., concurs only in conclusion.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)


author: WENTWORTH, Judge.

text:
    ARMOUR AND COMPANY, Appellant, v. Jimmy Lee CANNON, Appellee.
    No. RR-13.
    District Court of Appeal of Florida, First District.
    June 5, 1980.
    Gwynne A. Young, Ernest L. Currin and Jeffrey A. Cramer, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    William D. Douglas, of Hamiton & Douglas, Tampa, for appellee.
   WENTWORTH, Judge.

The self-insured employer appeals a worker’s compensation order finding that the claimant sustained a compensable heart attack, and we affirm. After over two years as a forklift operator in the warehouse, claimant was given new job duties as a local truck driver. It is uncontroverted that these new duties involved much more strenuous physical labor; for example, claimant was required to personally unload, without assistance, approximately 20,000 pounds of meat daily. After several weeks of this activity, claimant began to notice some chest discomfort and sustained a heart attack within three months, which manifested while claimant was unloading a 65 pound box of meat. The record provides competent substantial evidence to support the conclusion that claimant’s heart attack was caused by this physical activity, and the judge of industrial claims properly found the claimant’s heart attack compensable as the result of a specifically identifiable effort not routine to the claimant’s job. See Victor Wine & Liquor v. Beasley, 141 So.2d 581 (Fla.1962); Nationwide Utilities v. Hord, IRC Order 2-3746 (March 23, 1979), cert. denied, 381 So.2d 768 (Fla.App.) (Fla.1980). The present case is unlike Richard’s Department Store v. Donin, 365 So.2d 385 (Fla.1978), which involved emotional stress without physical exertion.

Accordingly, the order appealed is affirmed.

ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.


author: RYDER, Judge.

text:
    GRIFFIN BUILDERS SUPPLY, INC., Appellant, v. Ruth JONES, Appellee.
    No. 79-912.
    District Court of Appeal of Florida, Second District.
    June 6, 1980.
    Robert G. Jacobson of Farr, Farr, Hay-mans, Moseley, Odom & Emerich, Port Charlotte, for appellant.
    Robert J. Norton of Norton & Marryott, Punta Gorda, for appellee.
   RYDER, Judge.

Griffin Builders Supply, Inc. appeals the grant of summary judgment to appellee Jones, alleging that material issues of disputed facts remain regarding the effect of a release signed by appellant’s representative. We agree.

Appellant and appellee allegedly entered into an oral contract for appellant to build a house for appellee in return for costs plus an agreed profit of $3,817.62. After substantially completing construction, appellant’s supervisor executed a contractor’s affidavit to obtain the remainder of mortgage proceeds from Coast Federal Savings and Loan Association. The affidavit stated:

That in addition to the above listed amounts, if any, there is now due said contractor the final payment in full on said improvements in the sum of $7,506.25; or any amount due or to become due thereunder; that payment to said contractor of said sums shall constitute a full release by said contractor of any and all claims arising out of said contract.

Appellant accepted the $7,506.25. Bloomport, appellant’s supervisor, averred by affidavit that he gave Coast Federal, as appellee’s agent, the affidavit only to obtain the money and did not intend that the document release appellee from further payment under the contract. The alleged costs plus agreed profit exceeded payments by $3,757.33 after the final mortgage payment was made, and appellant sought that additional amount from appellee. We reject the contention of appellant’s supervisor, since a releasor cannot avoid the effect of a release by stating that he did not read it before signing. See Florida East Coast Ry. Co. v. Thompson, 93 Fla. 30, 111 So. 525 (1927); 66 Am.Jur.2d Release § 15 (1973).

The affidavit provides for the final payment of the mortgage proceeds to appellant to be a full release of claims from the contract with appellee. Appellant urges that inclusion of the phrase “or any amount due or to become due thereunder” implies that later payments could be required. The release is ambiguous, since the language “or any amount due or to become due” implies that further payments may be anticipated, while the words “final payment in full” imply general release.

We have held that an ambiguous contract creates genuine issues of material fact as to the correct interpretation of the contract, thus precluding summary judgment. Tampa Electric Co. v. Florida Power Corp., 267 So.2d 110 (Fla. 2d DCA 1972). See Buckel Corp. v. Fidelity & Deposit Co. of Maryland, 370 So.2d 824 (Fla. 2d DCA 1979). When the wording of an agreement is ambiguous and parties suggest different interpretations, the issue of proper interpretation becomes one of fact precluding grant of summary judgment. Westchester Fire Ins. Co. v. In-sink-erator, 252 So.2d 856 (Fla. 4th DCA 1971); Commercial Trading Co. v. Zero Food Storage, Inc., 199 So.2d 109 (Fla. 3d DCA 1967).

The release considered below was ambiguous and thus created genuine issues of material fact. The summary judgment is REVERSED, and the case REMANDED for further proceedings.

GRIMES, C. J., and BOARDMAN, J., concur.


text:
    Bertha Lee JENKINS, Appellant, v. In re ESTATE of Charlie JENKINS, Appellee.
    No. OO-142.
    District Court of Appeal of Florida, First District.
    June 6, 1980.

      Bill A. Corbin, Blountstown, for appellant.
    No appearance, for appellee.
   LILES, WOODIE, A., Associate Judge (Retired).

Appellant filed in the trial court a petition for administration of the estate of Charles Jenkins, seeking, as surviving spouse, to have her attorney named personal representative of the estate. She appeals the trial court’s ruling that Ethel Kate Jenkins is entitled, as the surviving spouse, to appointment as personal representative of the estate of Charlie Jenkins. We affirm.

The deceased and appellant were married in 1940 in Mitchell County, Georgia, and resided together as husband and wife until 1948. In 1948 they separated, and the deceased moved to Port St. Joe, Florida, where he resided until he died intestate on October 4, 1977. Since 1948, appellant has been aware that the deceased was residing in Port St. Joe, and appellant has visited Port St. Joe on three occasions from 1948 to date.

The deceased and Ethel Kate Jenkins were married on November 13, 1959, in Apalachicola, Florida, and resided together as husband and wife until the deceased’s death on October 4, 1977. At the time of the marriage, Ethel Kate Jenkins believed the deceased was legally eligible for marriage. Appellant was aware of the marriage. Only after the death of the deceased did appellant appear to assert the continuing validity of her marriage to decedent.

In Florida, a strong presumption exists in favor of the validity of the last marriage. The burden of rebutting that presumption rests upon the party attacking the legality of the last marriage. Teel v. Nolen Brown Motors, 93 So.2d 874 (Fla.1957). Although, in meeting her burden, the first wife is not required to eliminate every remote possibility that her husband may have secured a divorce from her prior to his last marriage, “it is necessary that she tender evidence which when weighed collectively establishes the absence of a reasonable probability that her husband actually secured the divorce.” Teel, supra. In Quinn v. Miles, 124 So.2d 883, 886 (Fla. 1 DCA 1960), the court recognized:

It has been repeatedly held that if the records of the State Bureau of Vital Statistics fail to disclose any divorce by the decedent against his wife during the period of their separation, such evidence will be sufficient proof that no such divorce was ever procured, and likewise sufficient to rebut the presumption of validity attaching to the subsequent marriage of decedent.

In this case, appellant met her burden to tender sufficient evidence that a divorce was not obtained in Florida when she introduced into evidence a letter from the Office of Vital Statistics in Jacksonville, Florida, which stated that that office had failed to find a record of divorce or annulment of the marriage of deceased and appellant. Appellant also presented three exhibits which were not admitted into evidence showing notations from the Clerk of the Circuit Courts in Franklin and Gulf Counties, Florida, and the Clerk of Circuit Court in Mitchell County, Georgia, all of which relate that there is no record of a dissolution of the marriage of deceased and appellant in those counties. The trial court concluded that appellant had not adduced sufficient evidence to overcome the strong presumption in favor of the validity of the second marriage and thereupon upheld the validity of deceased’s marriage to Ethel. We agree that appellant has not met her burden since she has not introduced sufficient evidence that a divorce was not obtained in the State of Georgia. In Teel the court declared:

. in this day of well kept public records covering vital statistics, such as, births, marriages and divorces, we feel that to the extent possible the public records available should be exhausted in an effort to establish the fact of divorce or the absence of a divorce as the case may be. In this case, for example, we judicially know that the State Bureau of Vital Statistics is the custodian of records that reflect the granting of divorces in every county in Florida. A similar agency exists in the State of Georgia, where the deceased [husband] in the instant case evidently resided for a considerable period of time. In order to eliminate the doubt as to the presence or lack of a divorce, and in order to discharge the burden placed upon her, we think the first wife should have exhausted a search of these public records.

See also Jablonski v. Caputo, 297 So.2d 310 (Fla. 2 DCA 1974). Likewise, in the instant case, since appellant and the deceased had resided together as husband and wife and then separated in Georgia, we feel that appellant was required by the law of Florida to introduce evidence that the records of the Bureau of Vital Statistics in Georgia did not reflect a dissolution or annulment of the marriage of appellant and the deceased. Because appellant failed to meet her burden of proof, we affirm the decision of the trial court.

AFFIRMED.

BOOTH, J., concurs.

SHAW, J., concurs in results only.


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    James E. PADGETT, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. TT-330.
    District Court of Appeal of Florida, First District.
    June 6, 1980.
    James E. Padgett, petitioner, pro se.
   PER CURIAM.

Upon consideration of the petition for writ of habeas corpus, the rule to show cause previously issued herein, the motion to dismiss filed by respondent, and response thereto filed by petitioner, the rule to show cause is hereby discharged, the motion to dismiss is granted and the petition dismissed.

MILLS, C. J., LARRY G. SMITH, and WENTWORTH, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    FARM STORES and Employers Insurance of Wausau, Appellants, v. Darlene DYRDA, Appellee.
    No. QQ-286.
    District Court of Appeal of Florida, First District.
    June 9, 1980.
    Steven Kronenberg of Pyszka, Kessler & Adams, Miami, for appellants.
    Arthur Newman, P.A., Miami, for appel-lee.
   PER CURIAM.

The order on appeal is affirmed except as to the award of Dr. Ticktin’s bill for services which were unauthorized and rendered at a time when the employer/carrier was voluntarily providing medical attention. The award of this bill is accordingly reversed. Corporate Group Services, Inc. v. Lymberis, 146 So.2d 745 (Fla.1962); Sun Bank of Florida v. Hicks, IRC Order 2-3867 (July 25, 1979).

There is case support for the proposition that due process problems arise when the deputy commissioner undertakes to rule on issues not framed by the parties. Florida Production Engineering v. Fisher, IRC Order 2-3437, cert. denied, 368 So.2d 1366 (Fla.1979); Alterman Transport Lines, Inc. v. Hawkins, IRC Order 2-3180 (1977), cert. denied, 354 So.2d 978 (Fla.1977); U.S. Steel Corp. v. Green, 353 So.2d 86 (Fla.1977); Haygood Floors, Inc. v. Nichols, 9 FCR 344 (1975). The Florida Industrial Relations Commission, in Sea Ray Boats, Inc. v. Snedeker, 9 FCR 318 (1975), however, rejected the due process argument and affirmed the deputy commissioner’s award of unclaimed temporary partial disability benefits. In rejecting the appellants' argument that a claim for temporary total disability benefits would not allow for an award of temporary partial the Commission pointed out:

[I]f appellants agreed that appellee had not reached maximum medical improvement, and was less than temporarily and totally disabled, we find it difficult to apprehend such an element of surprise as to a finding of temporary partial disability that would justify a reversal for lack of due process.

The instant case is factually similar in that neither surprise nor prejudice is demonstrated. As in Snedeker, it is difficult to imagine that the carrier would not be on notice that the denial of claimed temporary total disability benefits might well result in an award of temporary partial where there is a gap between the cessation of temporary total disability and the date of maximum medical improvement. We find no demonstrated prejudice or surprise, nor for that matter has any been alleged. The carrier relies upon the proposition that as a matter of law temporary partial disability benefits cannot be awarded because they were not claimed. This is not altogether true for although the claimant did not put such benefits at issue in the pretrial stipulation, Attorney Arthur Newman’s letter to the claims administrator set forth a claim for temporary partial disability benefits. A copy of this letter went to Farm Stores at 11190 West Flagler Street, Miami, Florida. According to the notice of hearing sent to the parties by the deputy commissioner on August 11, 1978, the following issues were in dispute: temporary total and/or partial, permanent total and/or partial, 40 weeks rehabilitation, medical expenses, nursing, transportation, medical care, penalties, interest, costs, attorney’s fees, average weekly wage. Bay Plumbing Co., Inc. v. Harbin, 337 So.2d 799 (Fla.1976) affirms that issues are not framed as of the time of the hearing. Appellants’ argument is essentially the same argument raised in Bay Plumbing, supra, to wit: that since the claimant did not renew his claim for temporary partial disability benefits before the deputy commissioner, the carrier was denied due process notice. Justice Sundberg points out in Bay Plumbing that due process does not set so high a standard. The award of temporary partial benefits is accordingly affirmed.

ROBERT P. SMITH, Jr. and SHAW, JJ., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla. 1st DCA 1979).


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    Joseph ROSENKRANTZ, Appellant, v. John R. SUTTON, Appellee.
    No. 79-1749.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Joseph Rosenkrantz and Stuart H. Abramson, Miami Beach, for appellant.
    Bartel & Shuford and Stanley Jay Bartel, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The final order under review [which construed a written stipulation settling a lawsuit between the parties] is affirmed upon a holding that the trial court reasonably construed and applied paragraph 14 of said stipulation to entitle the appellee John R. Sutton to 10% of the 40% contingent fee receivable from the client for legal representation at trial in a certain case, which construction we are not disposed to reverse based on the legal principles stated in Hall v. Hall, 135 So.2d 432, 433 (Fla. 3d DCA 1961).


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    TRANSAMERICA BUSINESS CORPORATION, a Florida Corporation, f/k/a Landban of Florida Corporation, Appellant, v. Tomas DIEGO, Individually and as a partner in MMD & Associates, a Florida Partnership, Appellees.
    No. 79-1819.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Harold M. Braxton, Miami, for appellant.
    Spear & Hoffman and L. Joseph Hoffman, Coral Gables, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Stuart v. Hertz Corp., 351 So.2d 703, 705 (Fla.1977); 14 Fla.Jur. “Fraud and Deceit” § 43 (1957).


text:
    REPUBLIC NATIONAL BANK OF MIAMI, Appellant, v. Ernest L. SARTAIN and Carmen Sartain, Appellees.
    No. 79-1899.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Paul, Landy, Beiley & Harper and Lawrence R. Metsch, Miami, for appellant.
    Wakefield, Hewitt & Webster and Garth A. Webster, Miami, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The final judgment on garnishment under review is affirmed upon a holding that: (a) the trial court had personal jurisdiction over the garnishee [United Postal Savings Association] as said garnishee filed an answer to the writ of garnishment herein directed to the merits of said writ, and, consequently, made a general appearance in the cause; McKelvey v. McKelvey, 323 So.2d 651, 653 (Fla. 3d DCA 1976); 13 Fla. Jur.2d “Creditors’ Rights” § 63 (1979); and (b) the garnishors’ [Ernest and Carmen Sar-tain] failure to file a traverse had no legal consequence in this cause. See Florida Steel Corp. v. A. G. Spanos Enterprises, Inc., 332 So.2d 663 (Fla. 2d DCA 1976); §§ 77.06(3), 77.061, Fla.Stat. (1979).

Affirmed.

      . We assume without deciding that the appellant Republic National Bank has standing to raise the points urged on appeal.


text:
    Kirk NEWMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1078.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Kirk Newman, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and HUBBART, JJ.
   PER CURIAM.

Petitioner Kirk Newman pursuant to Fla. R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


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    Bernard KEARSE, Appellant, v. STATE of Florida, Appellee.
    No. 78-1392.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.

      Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant appeals the trial court’s denial of a motion to suppress as evidence the narcotic paraphernalia which he was charged with unlawfully possessing. At issue is the validity of the stop and subsequent frisk, which led to appellant’s arrest. We hold that there were insufficient facts to constitute a “founded suspicion” on which to justify the stop. We reverse.

At 4:00 p. m. on January 12, 1978, two Broward County Deputy Sheriffs were on routine patrol in their police car on Northwest 27th Avenue near Fort Lauderdale. The deputies observed appellant leaning into the passenger window of a vehicle which was parked in a service station parking lot and occupied by several persons. After observing the deputies as they approached, appellant walked “briskly” away from the deputies’ vehicle. As appellant continued to walk down the sidewalk, the deputies exited their vehicle and ordered appellant to halt. The deputies directed appellant to turn around and place his hands on a store wall preparatory to being frisked for weapons. When appellant outstretched his arms, the deputies saw a hypodermic plunger protruding from his rear pocket and seized the evidence.

The trial court made specific findings and conclusions based upon the deputies’ testimony. Deputy McCann testified that he had known appellant for two years, and that while he had never observed appellant involved in criminal activity, he was aware of such involvement from other sources. The officers testified that appellant’s conduct of hurriedly walking away was out of character since appellant would normally acknowledge the deputies when he saw them. Although the deputies were unable to articulate what type of criminal activity they suspected was occurring, they became “suspicious” because of appellant’s inconsistent behavior on the day in question.

The trial court, in concluding that the stop was lawful, relied upon our decision in State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978):

. There will be borderline cases, of course, in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect’s possible commission, existing or imminent, of a crime: the time, the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge. (Emphasis supplied).

In upholding the search, the trial court held that appellant’s behavior and unusual actions in light of the deputies’ knowledge was the legitimate basis for a “founded suspicion,” and that the seizure was the result of the syringe being in open view. The court may also have considered the testimony that the area had an incidence of crime and that one of the deputies had observed “thousands” of drug situations “with an m.o. where people lean into a car.”

In our opinion, the totality of the circumstances were insufficient to justify a reasonable conclusion that appellant was involved in any criminal activity and therefore the investigatory stop was improper. To justify temporary detention of a person, a “founded” suspicion in the mind of the determining officer that the person has committed, is committing, or is about to commit a crime is required. A “bare” suspicion, on the other hand, cannot support detention. State v. Stevens, supra at 1247.

The “suspicion” that the officers acted upon was based on appellant’s behavior in avoiding the officers and walking away from them upon their approach. This alone was not enough to constitute a “founded suspicion,” especially since the officers conceded that they were not quite sure what appellant had done or what he was doing, but that his actions seemed suspicious in light of the officers’ previous contacts with appellant.

Although leaning into a car is typical of a drug purchase situation “m.o.,” the deputies testified that there was nothing inherently suspicious nor did the deputies observe anything unusual going on in the vehicle which appellant was seen leaning into.

The circumstances in this case — that is, the appellant walking briskly away from a parked vehicle after observing the police— were insufficient to justify appellant’s detention.

In reversing the trial court’s denial of the motion to suppress, we rely upon the language provided in Jackson v. State, 319 So.2d 617, 619 (Fla. 1st DCA 1975):

. . A ruling otherwise would mean that any citizen who terminated a conversation with another on a public sidewalk at the time a police officer happened to be approaching and who then walked briskly in the opposite direction from the approach of the police officer, would be subject to detention. .

See also, Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977).

Although our decision upon the stop is dispositive, we consider it appropriate to discuss the fact that appellant was ordered to turn around and put his hands on the store wall, preparatory to a pat-down search for weapons. Section 901.151(5), Florida Statutes (1977), permits a limited search only when a law enforcement officer “has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon.” In the present case, there is nothing in the record to suggest appellant was armed with a dangerous weapon. It was therefore improper to require appellant to put his hands on the wall to be searched, regardless of any question involving the stop.

Based on the foregoing, the physical evidence was unlawfully seized as the result of an improper exercise of police power. Accordingly, the judgment and sentence are reversed with directions that the trial court enter an order suppressing the evidence seized from appellant.

REVERSED and REMANDED, with directions.

LETTS, C. J., and MOORE, J., concur.


text:
    In re ESTATE of Marguerite CROSLEY, Deceased.
    No. 78-2405.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.

      Joel T. Daves, III, of Burdick & Daves, and R. K. Kramer, West Palm Beach, for appellant.
    Joe N. Unger of Law Offices of Joe N. Unger and Samuel S. Smith of Smith, Man-dler, Smith, Werner, Jacobwitz & Fried, Miami Beach, for appellee-Jeannine Boven-deerd.
   DOWNEY, Judge.

This is an appeal from a final judgment determining heirs and beneficiaries in the Estate of Marguerite Crosley, deceased.

The appellant, Leonard D. Crosley, is the stepson of the deceased, being the only living child of Garrett D. Crosley, the predeceased spouse of Marguerite Crosley. Leonard claims there are no other heirs or blood relatives of Marguerite Crosley, and thus he is the sole living heir pursuant to Section 732.103(5), Florida Statutes (1977).

During the course of the administration, Jeannine Bovendeerd, a resident of Belgium, claimed that she is a blood relative to the deceased and, as such, entitled to inherit the estate. Leonard filed a petition for determination of heirs and beneficiaries. In due course, the trial court entered a summary final judgment determining that Jeannine was the first cousin once removed of the decedent and entitled to inherit her estate pursuant to Section 732.103(4), Florida Statutes (1977).

Leonard’s first contention on appeal is that the trial court committed reversible error in not allowing him to take the deposition of Jeannine in Palm Beach County. The trial court entered a protective order prohibiting the taking of Jeannine’s deposition except for good cause. However, other forms of discovery were available to Leonard, and he did propound interrogatories to Jeannine. Therefore, reversible error has not been demonstrated in this regard.

Appellant also contends that summary judgment was improper because the evidence adduced by Jeannine was inadequate to prove Jeannine’s relationship to the deceased.

There are three types of evidence in the record which the court considered in arriving at the summary judgment: Jeannine’s answers to interrogatories; an affidavit filed by Jeannine; and some official documents from Belgium. We do not believe the foregoing evidence is sufficient to enable the court to enter the judgment under consideration. The answers to interrogatories furnish a good deal of information regarding Jeannine’s relatives, but they simply do not prove that there is no genuine issue of material fact that Jeannine is the first cousin of the deceased. Furthermore, the authentication of the official documents offered in evidence at the hearing on the motion for summary judgment is insufficient to make them admissible in evidence. Section 92.032, Florida Statutes (1977), authorizes the introduction into evidence of official foreign documents when: 1) the documents are certified by the lawful custodian thereof; 2) the documents are accompanied by a certificate of an official of the foreign government that the lawful custodian has certified the copies; and 3) the certificate of the foreign official is authenticated by a consular officer of the United States, resident in such foreign country, certifying that the official signing is truly an official of such foreign government and his signature is genuine. These documents would not be admissible at trial in their present form because the record does not clearly show they were certified by their lawful custodian nor that they were accompanied by the appropriate certificate of an official of the Belgian government. The documents were thus not properly authenticated pursuant to Section 92.032. Therefore, it was improper for the trial court to consider them.

Finally, there is the affidavit filed by Jeannine in which she purports to describe that part of her family tree which would demonstrate her relationship to the deceased. In many cases there is a great deal of laxity exhibited in the form of affidavits used in support of motions for summary judgment. However, Florida Rule of Civil Procedure 1.510(e), provides, among other things, that affidavits in support of motions for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affi-ant is competent to testify to the matters stated therein.” There is no statement in Jeannine’s affidavit from which court could determine that the affidavit is made on personal knowledge, or that Jeannine is competent to testify to the family history set in the affidavit. These deficiencies make the affidavit an insufficient basis to support the summary judgment in this case. See Silber v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla. 1st DCA 1975); Hurricane Boats, Inc. v. Certified Indus. Fab., Inc., 246 So.2d 174 (Fla. 3d DCA 1971); Antonio v. Barnes, 464 F.2d 584 (5th Cir. 1972).

At first blush our holding as to the affidavit might appear somewhat technical; however, this is a classical case for the imposition of the strictures of Florida Rule of Civil Procedure 1.510(e). Had the affidavit comported with Rule 1.510(e), Jeannine might well have taken the entire estate based solely on her affidavit. In the present posture of the case Leonard is defenseless against any competent evidence Jeannine can adduce to support her claim. Thus, the trial court should be vigilant that no inadmissible proof (such as Jeannine’s affidavit in its present form and the Belgian official documents in their present form) be considered.

In view of the foregoing, the entry of summary judgment for Jeannine on the record presented was error.

Appellant filed a motion for an allowance of attorneys’ fees against the estate, relying on Rule 9.400, Florida Rules of Appellate Procedure and § 733.106, Florida Statutes (1977). This Court is without jurisdiction to award fees under that statute, which is solely the province of the probate court. Garvey v. Garvey, 219 So.2d 685 (Fla.1969). Such an award by the probate court is subject to review in the ordinary manner. In re Estate of Bridges, 282 So.2d 197 (Fla. 1st DCA 1973). Rule 9.400 contemplates an allowance of attorneys fees in favor of the prevailing party to be paid by the unsuccessful party and then only if otherwise authorized by substantive law. Accordingly appellant’s motion is denied without prejudice to his right to petition the probate court for an allowance of attorneys’ fees for prosecuting this appeal.

REVERSED AND REMANDED for further proceedings.

ANSTEAD and HERSEY, JJ., concur.


text:
    Corinne HARTMAN, Appellant, v. Joseph HARTMAN, Appellee.
    No. 78-2651.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Richard J. DeSanto, Fort Lauderdale, for appellant.
    Richard R. Kirsch and Charles F. McClos-key, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Canakaris v. Canakaris, 382 So.2d 1197, (Fla. Case No. 54,124, Opinion issued March 27, 1980), and Duncan v. Duncan, 356 So.2d 28 (Fla. 1st DCA 1978).

LETTS, C. J., and BERANEK and HERSEY, JJ., concur.


text:
    Paul JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-219.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.

      Richard L. Jorandby, Public Defender, and Bruce Zeidel, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant entered a plea of nolo conten-dere to the offense of burglary, reserving the right to question on appeal from the judgment of guilty the trial court’s order denying his motion to suppress.

Appellant did not appear at the hearing on his motion to suppress. The only two witnesses who testified were two police officers, one who first took the appellant into custody (Officer Stracuzza) and one who later took a statement from appellant at the police station (Detective Springman). At the suppression hearing, Officer Stracuz-za testified that he and Officer Inglis received a call concerning a burglary which occurred at Chuck’s Steak House in Plantation, Florida. They responded to the scene and were given a description of two individuals who were seen breaking into a parked automobile. Investigation revealed that an 8-track stereo had been removed therefrom. The two officers then drove to a pawn shop about two blocks from the Steak House and inquired of the proprietor regarding persons fitting the description of the suspects. They learned that two boys fitting the description had just left the shop. The officers departed but were very shortly thereafter notified that the two boys had returned to the pawn shop. As the officers were returning to the pawn shop they saw two boys, each carrying a paper bag, who matched the description furnished the police. The officers exited the car, approached the boys, and identified themselves. Stracuzza advised the boys that the police were investigating a burglary and that the boys fit the description of the suspects. He did not read them the Miranda litany at the time, but he specifically told them they were not under arrest. Stracuzza said the boys were very cooperative and upon request appellant gave him permission to look in the large bag which appellant was carrying. Therein Stracuzza found an 8-track stereo. The boys were then asked if they would accompany the officers back to Chuck’s Steak House, which they did. There the victim identified the stereo as the one taken from his automobile. An eyewitness at the scene also identified the boys as the culprits, and in a statement taken later at the police station the crime was admitted. The record reflects that appellant was twenty years of age and had completed the tenth grade.

Appellant contends that consent to search was not voluntarily given, thus invalidating the search of the bag and tainting the subsequent confession given at the police station, since the search and the confession were all part of a continuous process.

A search is valid if consent thereto is freely and voluntarily given. Jackson v. State, 132 So.2d 596 (Fla.1961). When the state relies upon consent to validate a war-rantless search, the quality of proof required is clear and convincing evidence. Bailey v. State, 319 So.2d 22 (Fla.1975). In examining the evidence to determine whether it is sufficient to meet the standard required, the court must distinguish between submission to apparent authority of an officer and unqualified consent. For the subject of the search to effectively waive his rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search. Mobley v. State, 335 So.2d 880 (Fla. 4th DCA 1976).

The only evidence presented on the motion to suppress was that of the police officers. Regarding the search, the proof is that the boys were cooperative; they were advised of the circumstances surrounding the inquiry; they were told they were not under arrest; and the officers requested permission to look into appellant’s bag. Appellant then allowed the officer to look into the bag, whereupon he found the stolen stereo.

The trial judge observed the witnesses and was satisfied with the truth of their testimony. The determination of the voluntariness of the appellant’s consent was a question for the trial judge and should not be disturbed on appeal unless his conclusion was clearly erroneous. As this court held in James v. State, 223 So.2d 52 (Fla. 4th DCA 1969):

Whether or not consent has actually been given or is simply a manifestation of consent produced by coercion is a question for the trial judge, and his determination must be accepted on appeal unless clearly erroneous, United States v. Vickers [387 F.2d 703 (4th Cir. 1967)]. 223 So.2d at 56.

Our study of the record convinces us that the State met its burden of proof and that the trial judge correctly denied the motion to suppress. Since the search was proper, appellant’s second point regarding the confession’s being tainted by an improper search is without merit.

Accordingly, the judgment and sentence appealed from is affirmed.

AFFIRMED.

ANSTEAD and MOORE, JJ., concur.