author: SHARP, Judge.

text:
    SOUTHEAST FIRST NATIONAL BANK OF SATELLITE BEACH, a National Banking Association, Appellant, v. ATLANTIC TELEC, INC., a Florida Corporation, Appellee.
    No. 78-2108/T4-226.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.
    Rehearing Denied Oct. 31, 1980.
    James F. Page, Jr., Orlando, for appellant.
    John M. Starling, Titusville, and P. F. Nohrr, Melbourne, for appellee.
   SHARP, Judge.

Southeast First National Bank of Satellite Beach appeals from a judgment against it for $13,000.00 in favor of Atlantic Telec, Inc. The bank also appeals the trial court’s dismissal of the bank’s third party complaint against Genesis Two-Atlantic Limited for lack of personal jurisdiction. We affirm the $13,000.00 judgment against the bank, but we reverse the dismissal of the complaint against Genesis.

Atlantic brought suit against the bank because the bank failed to stop payment on a $13,000.00 check drawn by Atlantic on its account payable to Genesis. The stop payment order was oral, contrary to section 674.403(1), but the bank does not appeal the determination that it wrongfully failed to stop payment. It argues that Atlantic failed to show it had a right to stop payment on the check, and therefore Atlantic suffered no actual loss.

Simply because a bank pays a check over a stop payment order does not entitle the customer to recover damages against the bank, but it does establish a prima facie case for the customer. The bank must present evidence to show absence of loss, or the right of the payee of the check to receive payment. Then the customer must sustain the ultimate burden to show why there was a defense to payment of the item.

The parties agree for purposes of this appeal that Atlantic established a prima facie case. The bank then proved that the check was given by Atlantic to Genesis pursuant to a contract between the parties. Atlantic agreed to purchase a “soil inocu-lant” from Genesis, for resale to large farm operators in central Florida, and Genesis agreed to provide various sales assistance and technical help. The $13,000.00 check was in part payment of Atlantic’s obligations under the contract to Genesis.

Atlantic then had the burden of going forward to show why it had the right to stop payment on the check. We believe the record shows it carried that burden. It presented testimony to show that Genesis breached its contract with Atlantic by failing to provide the technical information and sales assistance to Atlantic, as required under the contract. Although the payee of a check may be a holder in due course, Genesis did not take the check for value in view of the breach of contract and failure of consideration testimony, and the check, like the underlying contract for which it was given, could be defeated by such defenses.

Because the bank was potentially liable to its customer in this case, it was entitled to assert Atlantic’s rights against Genesis in its third party complaint. The bank alleged Genesis negotiated a contract in Florida to do business with Atlantic; the parties executed the contract in Florida for an on-going sales distribution business and effort between the parties, looking towards continued activity of Genesis in Florida;

and Genesis failed to perform the requirements of the contract in Florida. Genesis’ motion to dismiss simply denied it was doing business in Florida, and claimed South Carolina as its state of residence. Genesis was served pursuant to Florida’s “Long Arm” statute § 48.193, Florida Statutes (1979). The allegations contained in the bank’s third party complaint were sufficient to establish personal jurisdiction over Genesis, and the motion to dismiss was insufficient to require the bank to further substantiate its jurisdictional allegations. Further, the allegations of the bank concerning Genesis’ activity in Florida are sufficient to satisfy the due process requirements of “minimum contacts.”

AFFIRMED in part; REVERSED in part and REMANDED.

ORFINGER, J., concurs.

FRANK D. UPCHURCH, Jr., J., concurs without participation in oral argument.

      . The dismissal of the third party complaint against Genesis, the third party defendant, could have been appealed under Fla.R.App.P. 9.130(a)(3)(C)(i). However, the bank did not lose its right to appeal the dismissal as a part of the final judgment. Fla.R.App.P. 9.130(g).

      . § 674.403(1), Fla.Stat. (1979), provides: “A customer . . . may stop payment on any item payable, for or drawn against such customer’s or customers’ account but the same shall not be effective and the bank may disregard the same unless the order is in writing . .” See Florida Nat. Bank at Coral Gables v. Dental, 210 So.2d 241 (Fla. 3d DCA 1968).

      . § 674.403(3), Fla.Stat. (1979), provides: “The bank may be liable to its customer for the actual loss incurred by the customer resulting from the wrongful payment of an item contrary to a valid and binding stop payment order . (Emphasis supplied).

      . Thomas v. Marine Midland Tinker’s National Bank, 86 Misc.2d 284, 381 N.Y.S.2d 797 (Civ. Ct.N.Y.1976).

      . Mitchell v. Republic Bank & Trust Co., 35 N.C.App. 101, 239 S.E.2d 867 (1978).

      . Supra notes 4, 5.

      . § 673.302(3), Fla.Stat. (1979).

      . § 673.303(1), Fla.Stat. (1979).

      . § 673.306, Fla.Stat. (1979).

      . § 674.407, Fla.Stat. (1979); Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. 4th DCA 1974).

      . Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977); Word Business Consultants, Ltd., Inc. v. Automotive Finishes, Inc., 532 So.2d 120 (Fla. 2d DCA 1977).

      . Electro Engineering supra; Compania Anonima Simantob v. Bank of America, 373 So.2d 68 (Fla. 3d DCA 1979).

      . U.S.Const. Amends: V, XIV; International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Osborn v. University Society, 378 So.2d 873 (Fla. 2d DCA 1979).


source: Caselaw Access Project

author: LARRY G. SMITH, Judge. ERVIN, Judge

license: Public Domain

text:
    DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. Virgil ANDERSON, C. M. “Max” Anderson, A. F. Brown and Nick Maltezo, Appellees.
    No. LL-37.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.
    Rehearing Denied Nov. 25, 1980.

      Jim Smith, Atty. Gen., and Martha J. Cook, Asst. Atty. Gen., for appellant.
    David W. Palmer, II, Crestview, for ap-pellees.
   LARRY G. SMITH, Judge.

The Department of Revenue appeals a final judgment which enjoined the collection of admissions taxes on admission fees collected. from appellees’ deep-sea party-boat fishing customers. The trial judge found the facts sufficient to indicate a “representation” by the Department that it would not hold appellees accountable for uncollected admissions taxes accruing during the period from August 1, 1970, to February 6, 1972, the date of issuance of the mandate of this court in Department of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla. 1st DCA 1972), cert. den. 262 So.2d 682 (Fla. 1972), cert. dism. 287 So.2d 93 (Fla. 1974). The trial judge also found that the facts presented “an exceptional set of circumstances” justifying application of the defense of estoppel to prevent collection of the taxes for that period. We affirm.

The essential facts and circumstances of this latest episode in the continuing saga of fishing boat admissions tax controversies are set forth adequately in the final judgment, from which we quote as follows: This suit involves four specific plaintiffs. Those are C.M. (Max) Anderson, Virgil Anderson, A.F. Brown and Nick Maltezo. This was a suit filed on behalf of those four plaintiffs to contest their liability to the State of Florida for admissions taxes accruing between the dates of August 1, 1970 and July 31, 1973. Between those dates, each of the plaintiffs operated deepsea [sic] “party” fishing boats. These boats, for a fee paid, or otherwise arranged for, at dockside within the State of Florida, would take customers into the offshore waters beyond Florida’s territorial limits where they would spend the day fishing and relaxing. Later, usually at the close of the day, the customers are returned to the dock from which the boat departed. Brown’s business operated out of Pensacola, Florida; Maltezo’s operated from Destin, Florida. Both Andersons operated out of Panama City, although C. M. Anderson also operated out of Sarasota, Florida during the period in question. During most of the period between August 1, 1970 and July 31, 1973, none of the plaintiffs collected an admissions tax from their customers or remitted any such taxes to the Department of Revenue on the fares which were charged their customers to board their boats. In July of 1973, plaintiffs were all served with a document styled “Notification of Intent to Examine Books and Records Under Chapter 212, Florida Statutes.” The An-dersons received theirs by certified mail; Brown’s and Maltezo’s were hand delivered by various auditors of the Department of Revenue. The tolling of the statute of limitations is not in dispute. Neither is the computation of the taxes which accrued during the period in question. The taxes accruing during this three year period, computed at 4% of each of the plaintiff’s gross sales of admissions, are as follows:

* * * * * *
Although each of the plaintiffs also failed to collect taxes on his sales of admissions for various periods prior to August 1, 1970, the Department concedes that assessment and collection of these taxes is barred by the statute of limitations. F.S. § 212.14(6).
The plaintiffs contend that the Department of Revenue is estopped from asserting tax liability for all, or at least a portion, of that period. Each of the plaintiffs except C. M. Anderson testified that he had never received any contact from the Department of Revenue concerning his admissions tax liability prior to July of 1973, when they were contacted by auditors in connection with the audit which is the subject of this litigation. However, C.M. Anderson testified that as a result of his operation in Sarasota, Florida, he was contacted during this period by auditors of the Department of Revenue who covered Sarasota, Florida. His testimony is that these auditors in Sarasota insisted that he collect and remit to the State of Florida admissions taxes on this operation and threatened to take collection actions against him in the event that he did not.
One Joe Ed Davis who operates a similar business out of Panama City, Florida also testified to the effect that he had had certain conversations with agents of the Department of Revenue during this period in question which had led him to believe that his operation would not be subject to back assessments of admissions taxes in the event that he did not collect those taxes from his customers. Although when he first ceased collecting these taxes, Mr. Davis had structured his prices so as to absorb a deficiency should one be assessed as a result of his failure to collect these taxes, as a result of these conversations, he stopped structuring his prices so as to cover a possible deficiency. There was some evidence adduced to the effect that, at a certain undisclosed point in time he may have informed the various plaintiffs of some or all of these conversations. However, none of the plaintiffs were present at the time these conversations between Davis and the Department of Revenue transpired. Likewise, no representatives of the Department of Revenue were present at such times as Davis may have informed any of the various plaintiffs about the substance of these conversations.
The Bureau Chief of the Department of Revenue Sales Tax Bureau, W.D. Mayo testified to the effect that the two An-dersons periodically had received sales and use tax report forms for some time through 1968 and 1969. He testified that they continued to be sent forms for several months after they had ceased collecting and remitting tax but that eventually the Department of Revenue, several months after tax remissions had ceased, stopped sending forms to them. Brown continued to receive sales and use tax report forms throughout the period and continued to make small remissions, apparently for sales other than admissions. Nick Maltezo never registered with the Department of Revenue until some time in 1973 and hence received no forms until that time.
The various plaintiffs all testified that the fact that they ceased to collect, or in the case of Brown and Maltezo never collected, admissions taxes was due to their knowledge of the case of Straughn v. Kelly Boat Services, 210 So.2d 266 (1 D.C.A. Fla. 1968), and to some extent, the advice of counsel. Also, the plaintiffs brought forth evidence that DOR officials indicated that no effort would be made to collect the taxes after the Kelly case (cited above).

Without digging more deeply than is necessary into the quagmire of decided cases on this issue, we can now say with assurance that Kelly I, supra, footnote 3, was in error, either by indicating (improperly) that admissions taxes could not be assessed on admission fees charged to fishing boat customers, as stated in Pelican, supra footnote 3, or by erroneously holding the admissions tax void, as declared in George W. Davis & Sons, Inc. v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977), although it was actually valid, according to Pelican. The Kelly I error and its correction have been revisited most notably in Department of Revenue v. Kelly Boat Service, Inc., 324 So.2d 651 (Fla. 1st DCA 1975), hereafter Kelly II, Davis, and Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979), with seemingly disparate and virtually irreconcilable opinions. Kelly II held that the Department was not foreclosed by Kelly I or otherwise from collecting the admissions tax. However, as recognized by the court in both the Davis and Hobbs decisions, the “primary focus” (Davis at 1333) of the complaining taxpayers in Kelly II was the alleged illegality of the tax, not that the State was estopped to collect it. The Hobbs case was similar to Kelly II in that (although the court’s opinion dealt extensively with the estoppel theory and its inapplicability in that case) the “entire thrust” (Hobbs at 368) of the taxpayers’ original and amended complaint was that Kelly I prohibited collection of the admissions taxes, with no issue of estoppel being raised by the pleadings.

Summarizing, we are thus faced with the holding of Kelly II that collection of the tax was not prohibited by Kelly I; the holding of Davis that Kelly I might nevertheless be the basis for estoppel in favor of a taxpayer who, with the approval of the Department of Revenue, followed the law as announced in Kelly I, and neglected to collect the admissions tax from his customers; and finally, the holding of Hobbs that the admissions tax was collectible notwithstanding Kelly I, and estoppel, which could be a defense, could not be applied in the circumstances present in that case.

Our analysis convinces us that in certain respects the essential facts of this case are similar to those found in Hobbs, in which the court said:

Even if it were established it was common knowledge among party boat operators that the Department had decided to delay its audits until the uncertainty of its authority to collect-created by Kelly I -was resolved, the circumstance of knowledge still would not create an es-toppel against the State. (Id. at 369)

As previously noted, however, the taxpayers did not plead estoppel in the Hobbs case, whereas in the present case they did. Furthermore, the trial judge, in his resolution of this controversy, undoubtedly found this case similar to the circumstances in Davis, in that the taxpayers established their reliance upon the Kelly I decision, and properly pleaded the estoppel defense. Even though, as the Department appropriately points out, the appellees here could not establish any direct contact with Department officials as did the taxpayers in Davis, we nevertheless find the reasoning of the Davis opinion in refusing to allow collection of taxes accruing during the questionable period equally applicable here.

The well-established rules concerning retrospective and prospective application of a decision of a court of last resort have been recognized in Florida, as in Florida Forest and Park Service v. Strickland, 18 So.2d 251 (Fla. 1944). Ordinarily, a decision of a court of last resort overruling a former decision is retrospective as well as prospective in its operation, unless specifically declared by the opinion to have a prospective effect only. Generally, a judicial construction of a statute will ordinarily be deemed to relate back to the enactment of the statute, much as though the overruling decision had been originally embodied in the statute. To this rule, however, there is a certain well-recognized exception that,

. where a statute has received a given construction by a court of supreme jurisdiction and property or contract rights have been acquired under and in accordance with such construction, such rights should not be destroyed by giving to a subsequent overruling decision a retrospective operation. . . . (Florida Forest and Park Service v. Strickland, supra, at 253)

This exception has been held to apply to the construction of taxation statutes. Mercan tile Nat. Bank of Cleveland, Ohio v. Lander, 109 F. 21 (C.C. Ohio 1901), affirmed Lander v. Mercantile Nat. Bank of Cleveland, Ohio, 118 F. 785 (C.A. Sixth Cir. 1902); 21 C.J.S. Courts § 194, page 329. See also City of Naples v. Conboy, 182 So.2d 412 (Fla. 1965), and Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla. 1973). Cf. North American Company v. Green, 120 So.2d 603 (Fla. 1959), and Williams v. Jones, 326 So.2d 425 (Fla. 1975).

Without expressly saying so, both this court and the trial court in Davis unmistakeably gave effect to the principle that an overruling decision should not be given retrospective application so as to impair or abridge contract rights acquired under the former decision, as may be seen from the opinion’s many references to the taxpayers’ justifiable failure to collect the tax from his customers at the time he contracted with them, and his inability to “go back” and collect these back taxes after Pelican reversed Kelly I.

We conclude, after a careful examination of Kelly I, Pelican, and succeeding cases, that a highly unique set of circumstances and precedents has developed during this prolonged admissions tax controversy. The plain fact of the matter is that this court in Pelican distinguished or clarified Kelly I by stating that Kelly I did not deal with the admissions tax, but in Davis, this court placed an entirely different interpretation upon Kelly I by stating that the court in Kelly I “ruled the admissions tax void and later in Pelican receded from such ruling and held the admissions tax valid.” (Davis, at 1332) Further, we find language in Davis that amounts to a virtual overruling of Kelly II, but without so stating. The existence of these diverse interpretations and the futility of efforts, even on the part of the trial judges, to apply them in some rational manner furnishes ample reason, in our opinion, to uphold the trial judge’s finding of “exceptional circumstances” upon which to base his estoppel ruling.

Under the highly unusual and complex circumstances presented by this controversy, we have determined to leave undisturbed the ruling of the trial judge, who found the facts sufficiently compelling to apply the equitable doctrine of estoppel to enjoin collection of admissions taxes from appellees accruing prior to February 6, 1972, the date of our Pelican mandate.

The judgment appealed from is AFFIRMED.

Upon consideration by the court, en banc, MILLS, C. J., and McCORD, BOOTH, LARRY G. SMITH and THOMPSON, JJ., concurred in majority opinion.

ERVIN, J., dissented with opinion, joined by ROBERT P. SMITH, Jr., and SHAW, JJ.

SHIVERS, WENTWORTH and JOA-NOS, JJ., by recusal, did not participate in the decision.

ERVIN, Judge

dissenting.

The essential facts in this case are indistinguishable from those in Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979), app. dism., 378 So.2d 345 (Fla. 1979). In both cases no direct representations were made by administrative officers to the taxpayers during the three-year statutory period they would not collect the tax, so the element of reliance, necessary to establish estoppel, is lacking. See Greenhut Construction Co., Inc. v. Knott, 247 So.2d 517 (Fla. 1st DCA 1971). Yet, paradoxically, here we hold the taxpayers excused from paying the admissions tax, whereas in Hobbs we directed the appellant to pay it.

It is true that in Anderson -unlike Hobbs -appellants pled estoppel. Nevertheless, the trial judge in Hobbs specifically ruled the Department was estopped from retaining taxes already collected and from collecting taxes alleged due. On appeal, we held estoppel could not be relied upon to justify the taxes’ nonpayment-not because it was not pled, but because the facts did not support the defense.

The majority also holds that because the taxpayers acquired contract or property rights under Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla. 1st DCA 1968) (Kelly I), the decision overruling Straughn, Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla. 1st DCA 1972), cert. den., 262 So.2d 682 (Fla. 1972), should only be given prospective effect even though the overruling decision itself, and cases following it, Department of Revenue v. Kelly Boat Service, Inc., 324 So.2d 651 (Fla. 1st DCA 1975) (Kelly II) and Department of Revenue v. Hobbs, supra, were applied retrospectively. The issue whether Pelican should be applied prospectively has already been decided contrary to the taxpayers’ position. In George W. Davis & Sons, Inc. v. Askew, 343 So.2d 1329, 1333 (Fla. 1st DCA 1977), the court examined the record in Kelly II and found the taxpayers there had contended that “if the tax was valid, the law established by Pelican should be given prospective application only and not retroactive application.” While the Kelly II decision does not reflect it explicitly rejected that argument, I can only conclude from the following statement it did so: “The state is not foreclosed by reason of our 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise, to assert that . . . Kelly should satisfy its full tax liability incurred within three years prior to August 1, 1973.” 324 So.2d at 652 (emphasis supplied).

The two Florida cases cited in the majority’s opinion to support its position that, under appropriate circumstances, a superseding opinion should be applied prospectively to a construction of the taxing statutes, i. e., City of Naples v. Conboy, 182 So.2d 412 (Fla. 1965) and Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla. 1973), did not involve impairment of property rights, but where decided upon equitable principles, a fact noted in Williams v. Jones, 326 So.2d 425, 437 (Fla. 1976):

In each of those cited cases the taxing authorities acted in accordance with a statute or ordinance [later declared unconstitutional] and thereby undervalued the property of the taxpayers, thus presumably, lulling the taxpayers into a sense of reliance upon the invalid provisions. In the instant case the taxing authorities have consistently assessed the leasehold interests as real property in accordance with Section 196.001, Florida Statutes, subsequent to its enactment into law in 1971 and have in nowise misled the taxpayers concerning the interpretation of the law.

When as here the Department made no statements to the taxpayers it would not collect the tax, but only delayed its assessments until the uncertainty of its authority to collect — caused not by it, but by a court over which it had no control-was resolved, I fail to see how it can be said that the Department “misled the taxpayers concerning the interpretation of the law.”

The majority also suggests that the following language in Davis in effect overruled Kelly II: “During the interim between the court’s final opinion in Kelly I and its opinion in Pelican reversing its decision in Kelly I, appellant had no authority to collect the tax.” 343 So.2d at 1332. I cannot believe this isolated sentence was intended to supersede the holding in Kelly II. On the contrary, Davis took great pains to distinguish the facts in Kelly II from those before it, commenting that in Kelly II, “[T]he Department . . . never told Kelly or any of the other boat operators . that the tax was not due.” 343 So.2d at 1333. As we observed in Hobbs: “[T]he Davis decision stands on its own exceptional facts.” 368 So.2d at 368. In Davis-unlike the facts here and in Hobbs -direct representations were made to the taxpayer during the taxable period that the Department would not collect the tax. Thus Davis appropriately applied estoppel for the benefit of a narrow class of taxpayers.

The majority also states that because of this court’s “diverse interpretations” of the taxing statutes “ample reason [is furnished] to uphold the trial judge’s finding of ‘exceptional circumstances’ upon which to base his estoppel ruling.” Ante at 1038. The applicable taxing period involves the dates of August 1, 1970 through July 31, 1973. The only opinion which arguably misled the taxpayers during that time frame was Kelly I, later modified by Pelican. All the other opinions cited by the majority as conflicting-Kelly II, Davis and Hobbs -were decided after the taxable period and are not supportive of any theory of estoppel simply because the taxpayers did not then rely upon them as authority not to collect the tax.

Florida Rule Appellate Procedure 9.331 is the proper mechanism by which a district court maintains “uniformity in [its] decisions.” If the majority is dissatisfied with our opinions in Pelican, Kelly II and Hobbs, it should forthrightly overrule them. Both the Rule and the doctrine of stare decisis are ill served by distinctions, only of gossamer strength, advanced to excuse the appellants’ obligation to pay the tax — an obligation, which, until now, I had assumed was firmly established by law.

      . Section 212.04, Fla.Stat. (1969).

      . The date August 1, 1970 is fixed by application of the three year statute of limitations to the Department’s demand date of July 31, 1973.

      . The Pelican case held that the court’s decision in Department of Revenue v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla. 1st DCA 1968), Kelly I, prohibited collection of sales taxes on transactions occurring outside Florida’s territorial waters, but did not enjoin collection of admissions taxes on admissions fees charged to or paid by fishing boat customers as they boarded the vessels at dockside.

      . This interpretation of Kelly I, found in the Davis opinion, apparently was not considered in arriving at the court’s earlier Kelly II decision, and is not discussed in the Hobbs decision which followed Davis.

      . . During the interim between the court’s final opinion in Kelly I and its opinion in Pelican reversing its decision in Kelly I, appellant bad no authority to collect the tax. . (Davis, at 1332, emphasis supplied).

      .As a final note, the 1980 Legislature, by amendments to Subsection (16) of Section 212.-02, Florida Statutes, (Chapter 80-213, Laws of Florida, 1980, effective July 1, 1980.), eliminated the admissions tax on “any charge made for entering or staying upon any boat or vessel for the privilege of participating in any sport or recreation, including fishing.”

      . See Hobbs at 369:
      We conclude that appellees have failed to establish any theory of estoppel which would bar DOR from retaining taxes already collected or from auditing and assessing the tax liability for appellees for all periods not barred by the statute of limitations.


author: DAUKSCH, Chief Judge.

text:
    Patricia S. SCHREIBER and Matthew R. Schreiber, her husband, Appellants, v. WALT DISNEY WORLD CO., Appellee.
    No. 80-114.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    Rehearing Denied Nov. 6, 1980.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and James Albert Sisser-son and Sammy Cacciatore of Nance, Cacci-atore & Sisserson, Melbourne, for appellants.
    John L. O’Donnell, Jr. and John H. Ward, Sr. of DeWolf, Ward, Morris, Wohlust, Jontz & O’Donnell, Orlando, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a personal injury case. The trial court erred in failing to give two requested jury instructions: Florida Standard Jury Instruction 3.1(a) entitled “duty to use reasonable care” and Florida Standard Jury Instruction 3.1(b) entitled “vicarious liability.” It is axiomatic that each party is entitled to have the jury instructed on his theory of the case. Seguin v. Houser Motor Co., 350 So.2d 1089 (Fla. 4th DCA 1977). Among various allegations of fault, plaintiff maintained at trial that appellee’s employee failed to properly warn or instruct her in the manner best to descend the “Flume,” a water course plummeting from the heights to a plunge in the watery depths below. At trial appellant took the position that appel-lee owed her a duty to assure her safety because she was a patron at that business place. The standard of care owed a business invitee is one of reasonable care. Drake v. Sun Bank & Trust Co., Etc., 377 So.2d 1013 (Fla. 2d DCA 1979). The appellant was entitled to that instruction at trial.

Because of the failure to give these two instructions, we must reverse the judgment for a new trial.

REVERSED AND REMANDED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


author: BASKIN, Judge. BARKDULL, Judge, SCHWARTZ, Judge

text:
    Michael L. GREFKOWICZ and Deborah J. GREFKOWICZ, Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 79-1189.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Rehearing Denied Nov. 19, 1980.

      Nicholas R. Friedman, Miami, for appellants.
    Robert A. Ginsburg, County Atty. and Stanley B. Price, Asst. County Atty., for appellee.
    Leonard Helfand, Miami, for Florida Dept, of Health and Rehabilitative Services as amicus curiae.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

In a de novo hearing, the Board of County Commissioners of Dade County (hereinafter referred to as the Board) reversed the Zoning Appeals Board and denied the Gref-kowiczes’ zoning application for an unusual use of a residence as a home for the elderly and for a parking variance. The Grefkow-iczes then filed a notice in the circuit court for a de novo hearing on the zoning application pursuant to Section 163.250, Florida Statutes (1977). The circuit court refused to grant a de novo hearing, but instead entertained the matter as an appeal and determined that the Board had substantial competent evidence to support its denial of the zoning application.

The Grefkowiczes appealed, claiming error on two counts; first, that the circuit court should have conducted a de novo hearing, and second, that there was no substantial competent evidence to support the Board’s decision. We find no merit in either argument.

The provisions of Section 163.250, Florida Statutes (1977) do not apply unless there is an enactment by the Board of County Commissioners electing to be bound by the provisions of Chapter 163, Florida Statutes. § 163.175, Fla.Stat. (1977). Since no ordinance was passed and since there was no other authorization for a de novo review, there was no error in the circuit court’s denial of the Grefkowiczes’ motion. Orange County v. City of Apopka, 299 So.2d 652, modified on rehearing, 299 So.2d 656 (Fla. 4th DCA 1974); City of Apopka v. Orange County, 299 So.2d 657, modified on rehearing, 299 So.2d 660 (Fla. 4th DCA 1974).

Concerning appellants’ second point on appeal, we hold that the evidence supports the Board in its conclusion that the unusual use would not be compatible with the neighborhood. The testimony presented by the neighboring property owners and that presented by the Grefkowiczes themselves showed that the Grefkowiczes intended to use a strictly residential property for a commercial purpose. That testimony provided substantial, competent evidence that the use would not be compatible with the neighborhood. See: Board of County Commissioners v. Lowas, 348 So.2d 13 (Fla.3d DCA 1977); Code of Metropolitan Dade County, F1. (1978) § 33-311(d).

In so holding, we are not unmindful of the holding of City of Apopka v. Orange County, supra, that “[t]he objections of a large number of residents of the affected neighborhood are not a sound basis for the denial of a permit.” In this case, just as was contemplated by City of Apopka v. Orange County, supra, the testimony of the aggrieved property owners disclosed facts which could properly be considered.

For these reasons, the circuit court’s decision affirming the Board is affirmed.

BARKDULL, Judge,

concurring.

I concur in the affirmance of the order appealed herein. In considering the instant request for an unusual use, to wit: a home

for the aged as permitted under Section 33-13(e), Code of Metropolitan Dade County, the County Commission is charged with the duty of protecting the public interest. This court succinctly stated in B. S. Enterprises, Inc. v. Dade County, 342 So.2d 117 (Fla.3d DCA 1977):

“... The Board of County Commissioners acting under the zoning regulations had the responsibility of determining whether the granting of the special exception would adversely affect the public interest.. . . ”

In considering the propriety of denial of an unusual use, this court stated, in Dade County v. Florida Mining and Materials Corporation, 364 So.2d 31 (Fla.3d DCA 1978):

“. .. The granting or refusal thereof is to be determined by the facts of the individual case, viewed in light of the governing body’s right to reasonably regulate mining operations under its police powers to advance the community’s interest in health, safety, morals or welfare .... ”

Considering the evidence with these admonitions in mind, along with the criteria for granting an unusual use set forth in Section 33-311(d), Code of Metropolitan Dade County, the record contains facts sufficient to support the Commission’s denial of the requested unusual use as being detrimental to the public health, safety, welfare or morals.

Therefore, I would affirm the circuit court’s decision affirming the decision of the Board of County Commissioners.

SCHWARTZ, Judge

(dissenting).

Although I agree that the appellants had no right to a de novo hearing in the circuit court, I disagree with the determination that there was substantial, competent evidence to support the commission’s denial of the unusual use application. A “home for the aged” is specifically designated in Sec. 33-13(e), Dade County Code, as a permissible “unusual use” in an RU-1 district. The application for that use could therefore be denied only upon a showing that the particular proposal would “adversely affect the public interest.” B. S. Enterprises, Inc. v. Dade County, 342 So.2d 117, 118 (Fla.3d DCA 1977); Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478, 480 (Fla. 4th DCA 1975). As I read the record before the commission however, it contains only (1) statements of several property owners that they did not want the proposed “adult congregate living facility” in their neighborhood and (2) expressions of tender but unsolicited concern for the safety of the elderly persons who would be living there, based on the facts that a canal was nearby and that fire fighting facilities were allegedly inadequate. Neither factor constitutes an acceptable basis for the board’s action. . Allapattah Community Association, Inc. v. City of Miami, 379 So.2d 387 (Fla.3d DCA 1980), cert. denied, 386 So.2d 635 (Fla. 1980) and cases cited; City of Apopka v. Orange County, 299 So.2d 657 (Fla. 4th DCA 1974). In my view, the court’s decision to affirm on this record amounts to a holding that granting an unusual use is a matter of the grace of the commission and that a denial of such an application is therefore essentially unreviewable. I do not think that this is or should be the law.


author: SCHWARTZ, Judge. HUBBART, Judge

text:
    The STATE of Florida, Appellant, v. Stanley H. STEINBRECHER, Appellee.
    No. 79-1318.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.

      See also Fla.App., 389 So.2d 1045, 389 So.2d 1054.
    Janet Reno, State’s Atty. and Theda R. James, Asst. State’s Atty., for appellant.
    Bernard A. Frank and Jack R. Nagelely, Miami Beach, for appellee.
    Before HUBBART, C. J., and SCHWARTZ, J., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The state appeals from an order granting the defendant’s motion to suppress tape recordings of his conversations, which had been secured without an intercept warrant but in accordance with Sec. 934.03(2)(c), Fla. Stat. (1977). The order itself accurately summarizes the controlling facts:

1.On December 6, 1978, law enforcement officers of the Dade County Public Safety Department acquired the consent of one Angelo Jordan to tape record phone calls and in-person conversations between Jordan and the defendant, Stanley H. Steinbrecher, a sergeant with the City of Miami Beach Police Department. The purpose of these records was to gain evidence of alleged criminal acts, to— wit: Bribery and Unlawful Compensation.
2. Phone conversations and person-to-person conversations between Jordan and the defendant were intercepted, after such consent, between December 6, 1978, and January 23, 1979, in an effort to detect said criminal acts.
3. No Intercept Warrant was obtained prior to the interception of the conversations.
4. The State has conceded that there was sufficient time to obtain an Intercept Warrant.
5. None of the intercepted conversations occurred in the residence of the defendant or touched the said residence.

The trial judge based his ruling upon Sarmiento v. State, 371 So.2d 1047 (Fla.3d DCA 1979), cert. granted and pending, Fla. Sup.Ct., Case no. 57,173, in which this court held that, without a warrant, an eavesdropping officer could not testify to the contents of a conversation which occurred in the defendant’s home. After the entry of the order below, however, we held in Franco v. State, 376 So.2d 1168 (Fla.3d DCA 1979), cert. denied, 386 So.2d 636 (Fla.1980), that a warrant was not required in a situation identical to the one involved here. This case is controlled by Franco and is decisively unlike Sarmiento in at least two respects: (a) it concerns the admissibility of the tapes themselves, rather than only the testimony of a person who overhead the conversation, see, Hajdu v. State, 189 So.2d 230, 233-34 (Fla.3d DCA 1966), cert. denied, 196 So.2d 923 (Fla.1967); and (b) the conversations in question did not take place in the privacy of the home. For these reasons, it is not necessary to determine whether Sarmiento has continuing viability as applied to its own facts, notwithstanding the quite different constitutional reasoning adopted in Franco. See, contra, State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980). On the authority, therefore, of Franco v. State, supra, the order under review is

Reversed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would affirm the order under review in all respects. In my view, the subject tape recordings were properly suppressed by the trial court because they represent the fruit of an unreasonable interception of a private conversation involving the defendant and the police in violation of the defendant’s rights guaranteed by Article I, Section 12 of the Florida Constitution. No intercept warrant was ever obtained for the subject electronic eavesdropping although concededly it was practicable to have obtained one. As such, the subject tape recordings were inadmissible in evidence and the state agent’s “consent” to the subject electronic eavesdropping cannot change this result. I have more fully developed the authorities and reasoning to support this view in my dissenting opinions in State v. Shaktman, 389 So.2d 1045 (Fla.3d DCA 1980) (opinion filed this date), and Franco v. State, 376 So.2d 1168, 1170-1172 (Fla.3d DCA 1979), upon which I rely for my dissent herein.

      . See also, Jacobs v. State, 389 So.2d 1054 (Fla.3d DCA 1980); State v. Shaktman, 389 So.2d 1045 (Fla.3d DCA 1980); Trinidad v. State, 388 So.2d 1063 (Fla.3d DCA 1980).


author: PEARSON, DANIEL S., Judge. HUBBART, Judge

text:
    The STATE of Florida, Appellant, v. Bernard SHAKTMAN, Appellee.
    No. 79-1339.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Rehearing Denied Nov. 14, 1980.
    See also, Fla.App., 389 So.2d 1054, 389 So.2d 1043.

      Janet Reno, State’s Atty., for appellant.
    Melvin S. Black, Miami, for appellee.
    Before HUBBART, C. J., and NESBITT and PEARSON, DANIEL S., JJ.
   PEARSON, DANIEL S., Judge.

This is an appeal by the state from an order suppressing evidence obtained by the tape recording of telephone conversations between Shaktman and an undercover police officer.

The parties stipulated to the facts pertinent to the defendant’s motion to suppress. The police, suspecting that the defendant was engaged in illegal betting, set the stage to obtain tape recorded evidence of the defendant placing bets with them. They had a telephone (to which they attached recording equipment) installed in an apartment rented and paid for by them. The undercover police officer then personally arranged with Shaktman that Shaktman would call him at the apartment number for the purpose of placing bets. Shaktman did exactly that, and his incriminating conversations were recorded with the consent of the police officer receiving the call. The police did not obtain any court order or warrant authorizing the recording of these conversations. There were no exigent circumstances which would have excused the failure to obtain a court order or warrant if one were required.

The rub, of course, is that no court order or warrant authorizing the police to tape record Shaktman’s telephone conversations was required. The undercover officer’s consent was enough to validate the recording. It is for that reason that we must reverse the trial court’s order.

The trial court based its ruling on Tollett v. State, 272 So.2d 490 (Fla.1973); Sarmiento v. State, 371 So.2d 1047 (Fla. 3d DCA 1979); and State v. Muscara, 339 So.2d 167 (Fla. 3d DCA 1976). Its reliance on those decisions was misplaced. Tollett merely announces the evidentiary rule that as a predicate to the admission of the tape recording or a seized conversation, the consenting party must testify that he consented to the recording. As we later explained in Franco v. State, 376 So.2d 1168 (Fla. 3d DCA 1979), once that predicate requirement for admissibility is met, the tape recording between the consenting party and the accused may be introduced into evidence, and the absence of a warrant or order, the lack of probable cause, and the nonexistence of exigent circumstances are all without significance.

To the extent that Sarmiento v. State, supra, retains , life after Franco, but see State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980), it is clearly limited to its discreet setting-that is, the monitoring by two police officers stationed outside of the defendant’s home of a conversation between the defendant and another within the defendant’s home, about which the monitoring officers, not the officer engaged in the conversation with the defendant, testified.

As to Muscara v. State, supra, there is no life after Franco. Muscara’s holding that a recording made by undercover police officers of a conversation they had with the defendant was inadmissible because of the failure of the officers to secure an intercept warrant where there was ample time to do so was dealt-a death blow by Franco.

The present case is controlled by Franco, and upon its authority we reverse. See also Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980); State v. Steinbrecher, 389 So.2d 1043 (Fla. 3d DCA 1980); State v. Scott, supra.

Reversed.

HUBBART, Judge

(dissenting).

I must respectfully dissent; I would affirm in all respects the trial court’s order suppressing the tape recordings herein. In my view, the subject electronic eavesdropping constitutes an “unreasonable interception of private communications” condemned by Article I, Section 12 of the Florida Constitution because it was conducted without benefit of a valid intercept warrant under circumstances where it was admittedly practicable to have obtained one, and, accordingly, the fruits of such electronic eavesdropping were inadmissible in evidence.

I continue to be profoundly disturbed that electronic eavesdropping by the state-which by common consent represents a serious assault on the personal privacy of all people -can take place without any judicial control whatever, without honoring any of the constitutional limitations imposed by Article I, Section 12 of the Florida Constitution on state-conducted electronic eavesdropping, so long as an agent of the state participates in the intercepted conversation and “consents” to the interception which he himself conducts to obtain evidence of a criminal act. Indeed, the court herein states that “once [the consent] predicate requirement for admissibility is met, the tape recording between the consenting party and the accused may be introduced in evidence, and the absence of a warrant or order, the lack of probable cause, and the non-existence of exigent circumstances are all without significance.” [p. 1046]. I take this to mean that a state agent may conduct the subject electronic eavesdropping at his unfettered discretion without benefit of a valid intercept warrant, without any exigent circumstances whatever, and without a shred of probable cause. With all due respect, I must protest such a sweeping grant of arbitrary authority to the state as it amounts, in effect, to an electronic writ of assistance and an unjustified invasion of personal privacy specifically prohibited by Article I, Section 12 of the Florida Constitution.

I

The law is well-settled that warrantless searches and seizures are per se “unreasonable” under the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution, subject only to a few specifically established and well-delineated exceptions. These exceptions have been jealously and carefully drawn, and the burden is upon the state to demonstrate that the procurement of a warrant was not feasible because the exigencies of the situation made that course imperative. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948); Norman v. State, 379 So.2d 643 (Fla.1980); Hornblower v. State, 351 So.2d 716 (Fla.1977); Haile v. Gardner, 82 Fla. 355, 359-61, 91 So. 376, 378 (1921); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla. 1978); Miranda v. State, 354 So.2d 411 (Fla. 3d DCA), cert. denied, 364 So.2d 888 (Fla. 1978); Britton v. State, 336 So.2d 663 (Fla. 1st DCA 1976); Shepard v. State, 319 So.2d 127 (Fla. 1st DCA), cert. denied, 328 So.2d 845 (Fla.1975); Hannigan v. State, 307 So.2d 850 (Fla. 1st DCA), cert. denied, 315 So.2d 195 (Fla.1975).

The law is equally well-settled that electronic eavesdropping constitutes a search and seizure within the meaning of the above constitutional provisions and, indeed, is specifically encompassed by Article I, Section 12 of the Florida Constitution. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It is, therefore, abundantly clear that state-conducted electronic eavesdropping, like all other searches and seizures, is unreasonable when conducted without a valid intercept warrant absent exigent circumstances, and that its fruits are inadmissible in evidence. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Application of the above constitutional law renders, in my view, the electronic eavesdropping in the instant case unreasonable, and its fruits inadmissible in evidence. It is undisputed on this record that the subject electronic eavesdropping of the defendant’s telephone conversations took place without benefit of a valid intercept warrant under circumstances where it was imminently practicable to have obtained one and, therefore, was conducted under non-exigent circumstances. As such, the subject electronic eavesdropping must fall under the established law.

We are told, however, that notwithstanding the above law, the subject electronic eavesdropping is beyond any constitutional limitation here because a state agent participated in the intercepted conversation and consented to the electronic interception which he joined in conducting for the purpose of investigating a crime. I fail to see why this fact makes the subject electronic eavesdropping any less unreasonable. Whether conducted with or without police “consent,” we nonetheless deal with war-rantless electronic eavesdropping performed by the state under non-exigent circumstances. Based on the established law, such electronic eavesdropping is unreasonable under Article I, Section 12 of the Florida Constitution.

Still, it must be conceded that the result here, which otherwise seems so clear under the law, is inexplicably clouded by an uncertain and conflicting line of authority. On the federal level, the electronic eavesdropping now under discussion was determined to be outside the scope of the Fourth Amendment in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Yet, in Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429,17 L.Ed.2d 394 (1966), the Court approved the warrant requirement as a Fourth Amendment predicate for such electronic eavesdropping and quoted with approval from Mr. Justice Brennan’s dissent in Lopez. Later, in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Court approved the Lopez majority position without receding from Osborn; moreover, the authority of the White Court’s equivocal ruling is itself doubtful as it is a plurality opinion and did not muster a majority of the Court. We are thus left, at best, with federal support for both sides of the constitutional issue stated herein.

In Florida, our Supreme Court has yet to speak authoritatively on this issue with reference to Article I, Section 12 of the Florida Constitution, although in Tollett v. State, 272 So.2d 490 (Fla.1973), the Court in dicta expressed a strong preference, as did the Osborn Court, for electronic intercept warrants as the method by which the subject electronic eavesdropping should be conducted. The district courts of appeal have spoken to the instant issue on a number of occasions, but often with conflicting and equivocal results. See State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980); Franco v. State, 376 So.2d 1168 (Fla. 3d DCA 1979); Sarmiento v. State, 371 So.2d 1047 (Fla. 3d DCA 1979), review accepted, 25 Fla.L.W. i (1980); State v. Muscara, 334 So.2d 167 (Fla. 3d DCA 1976), cert. denied, 344 So.2d 327 (Fla.1977); Hajdu v. State, 189 So.2d 230 (Fla. 3d DCA 1966), cert. denied, 196 So.2d 923 (Fla.1967).

The statutory law, both federal and state, appears to authorize the subject electronic eavesdropping. See 18 U.S.C.A. § 2511(2)(c) (1970); §§ 934.03(2)(e), 934.-08(3), Fla.Stat. (1979). These statutes, however, do not and cannot resolve the constitutional issue posed by this case as it is settled that constitutional issues are solely for the courts to determine. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); Corn v. State, 332 So.2d 4, 8 (Fla. 1976). Moreover, a study of the legislative history of these statutes reveal that they were never intended to settle the constitutional issue posited herein as they do nothing more than track some prior court decisions on the subject. See United States v. White, 401 U.S. 745, 790-92, 91 S.Ct. 1122, 1145, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting). Thus, the constitutional issue under discussion remains before us as unresolved as ever.

Given the conflicting and uncertain nature of the law in the area, I would return to the fundamental purpose which our constitutional search and seizure guarantee was designed to accomplish. Such an historical analysis fully supports the view, urged here, that warrantless searches and seizures, including electronic eavesdropping, which are conducted under non-exigent circumstances, are unreasonable and constitutionally impermissible.

II

It is clear, beyond any hope of successful contradiction, that the Fourth Amendment to the United States Constitution and its counterpart, Article I, Section 12 of the Florida Constitution, were adopted to end the abuse of general exploratory searches and seizures as asserted by the British Crown in the American Colonies through general writs of assistance in the period 1761 to 1776. Indeed, the abuses wrought by the writs of assistance regime to enforce the highly unpopular Trade and Navigation Acts passed by the British Parliament during this time was one of the primary causes of the American Revolution. These general writs authorized British customs officers, without any prior court approval and without a shred of evidence, to search any private premises they selected for unspecified smuggled goods for the entire lifetime of the reigning English sovereign plus six months subsequent to the sovereign’s death, without ever having to account to a court of law for any property they might seize.

All the colonial courts in America, save the courts in Massachusetts and New Hampshire, resisted issuing such writs of assistance, despite strong and continued pressure from the British Crown, as they were, in their view, unauthorized by English law. And in Massachusetts, the colonial courts issued these general writs of assistance in 1761 only over the eloquent legal protest of James Otis, Jr. A group of Boston merchants who were represented by Otis had petitioned the Massachusetts colonial court in 1761 not to reissue the general writs of assistance upon the death of the then-reigning English sovereign. Otis’ legal argument in that case expresses well the reasons why this country felt so deeply against the general writs of assistance and the abuses which they represented.

Specifically, Otis argued that under the applicable acts of Parliament, a court was authorized to issue only special writs of assistance based on probable cause specifically describing the place to be searched and the things to be seized; that general writs of assistance, as requested by the Crown, were unauthorized under English law as they gave customs officers unlimited authority to search any private premises at the officers’ unfettered discretion. Such a general writ,, he said, “places the liberty of every man in the hands of every petty officer.” 2 Legal Papers of John Adams, supra note 7, at 142. Moreover, Otis added in words which spoke for the nation:

“[I] will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is. It appears to me (may it please your honours) the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution, that ever was found in an English law-book.” Id. at 139-40.

John Adams, who was a spectator in the courtroom to this legal argument by Otis and later one of the principal architects of American Independence, subsequently wrote:

“I do say in the most solemn manner, that Mr. Otis’s oration against writs of assistance breathed into this nation the breath of life.” 10 Works of John Adams 276 (1856).
“American independence was then and there born. . . . Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. In 15 years, namely in 1776, he grew up to manhood and declared himself free.” Id. at 247-48.

More than any other provision of the Bill of Rights, then, the Fourth Amendment and its counterpart in state constitutions deal with a fundamental right of such historic importance that this country, in part, fought a revolution in order to guarantee its preservation to the individual. It must, accordingly, be considered a right of preeminent significance to the founding of this country. Moreover, in Florida, that right has been specifically extended in our state constitution to prohibit, as here, unreasonable electronic interceptions. Art. I, § 12, Fla.Const.

A

The court’s decision herein sanctions what, in my view, is a general writ of assistance to the police to conduct electronic eavesdropping of any conversation where one of their number is a participant and consents to the interception. Just as the general writs of assistance authorized British customs officers to conduct, at their discretion, general searches and seizures of private premises, so the court herein authorizes the police at their discretion to conduct electronic searches of private conversations in which the latter participate and consent to the interception. Such a holding flies in the face of the central purpose of Article I, Section 12 of the Florida Constitution, which extends its protection to electronic searches and seizures, and is, in my view, false to the constitutional history which gave rise to its enactment. We seem to have forgotten that we fought a revolution, in part, to end the abuses wrought by the general writs of assistance regime. Now it seems that the regime which was so thoroughly hated and fought is allowed to exist, in part, in this state, despite the presence of a constitutional provision designed to end it. I think we should enforce the letter and spirit of that constitutional provision and declare this electronic writ of assistance invalid.

B

It is urged that as the police may constitutionally repeat to the outside world everything they hear in a private conversation they have with anyone, Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), that a fortiori they may electronically record the entire conversation and play it for the outside world. This is a specious argument. It is one thing for the police to verbally repeat to the outside world a conversation they have had with a private individual as no outside party, by this practice, becomes a listener to the original conversation; indeed, no electronic eavesdropping of any type has taken place. It is quite another thing, however, for the police to electronically intercept and record the same conversation and thereafter play the tape recording to the outside world as everyone, by this practice, has been made an actual listener to the original conversation. In short, in the latter situation, we deal with electronic eavesdropping governed by our constitution, but not so in the former.

Under Article I, Section 12 of the Florida Constitution, a person has, or ought to have, a reasonable expectation of privacy that the only listeners to a private conversation in which he participates are the people involved in such conversation. The writ of assistance practice sanctioned in this case makes us all take the risk that the entire world is an unknown and unseen listener to every private conversation we have as long as a police agent participates therein and “consents” to an electronic interception thereof. Surely the events of recent history should teach us, if our colonial past does not, that we owe ourselves and our posterity a better country than that. Indeed, the best argument for freedom in this troubled century is the horror of a world without it. See e. g., Solzhenitsyn, The Gulag Archipelago (1973); Bullock, Hitler: A Study in Tyranny (1953).-

C

We are told that our citizens are nonetheless protected from the arbitrary electronic search power sanctioned by this case because, in any event, the police agent participant in the private conversation must “consent” to the surreptitious electronic eavesdropping. With all due respect, I find such a protection illusory. Just as a general exploratory search of private premises cannot be upheld because the police officer conducting the search consented to it, so a general electronic search of a private conversation cannot be upheld because the police officer who engaged in the surveillance and participated in the conversation consented to the interception. The individual’s right of privacy is in no way protected by the government’s consent to this invasion of his privacy. Indeed, all invasions of privacy enjoy governmental consent else the invasion itself would never have been accomplished.

D

We are all justly proud of the right of free speech which this country protects through its Bill of Rights in the federal and state constitutions. That right, however, is jeopardized by today’s decision. All of us must now take the risk that everything we say in a private conversation may be surreptitiously recorded by the police when a police agent participates therein and “consents” to such surveillance. In my view, to impose such a risk on our citizens is to place a chilling effect on the right of free speech. Who among us are willing to have our private conversations spread on the public record and played to everyone at the government’s unfettered discretion. Freewheeling private conversations liberate daily life; they are filled with the frivolous, the serious, the intimate, the outrageous, and even the profane. We are now told, however, that our private conversations belong to the government so long as a government agent talks to us and “consents” to an electronic eavesdropping thereof. With all due respect, I find such a result intolerable. None of us can truly have a right of free speech when we are required, as the court herein holds, to take the risk that every person to whom we talk may be a government agent who is recording everything we tell him. Surely, we cannot live in the long run with such a totalitarian result.

Ill

Finally, I cannot help reflecting that the sordid nature of this petty gambling case tends to obscure the fundamental importance of the issue involved herein. If this case involved only the defendant’s fate, I might join the court in reversing the order under review and be done with it. But much more is involved, namely, the fundamental privacy rights of all of our citizens. What we define here as the scope of the defendant’s rights in this case defines the rights of all of us as well. It is a sobering thought and should give us reason to pause.

Given the gravity of the constitutional issue which faces us, it is my view that the court’s ruling in this case is contrary to the letter and spirit of Article I, Section 12 of the Florida Constitution and thereby weakens our constitutional ideal of personal freedom. The decision here should remind us once again what a fragile ideal personal freedom is, what a painfully slow, erratic course it has taken over the years, both in this area of law and others, and how its attainment is not a natural birthright, but a hard won acquisition. At a time when the future of freedom is threatened by the thirst for totalitarian solutions to social and economic problems the world over, at a time when even our own country is convulsed with seemingly intractable problems which make the survival of freedom far from inevitable, we might profitably reflect on the words of an earlier court as to our duty in cases of this nature:

“[T]he court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods. Constitutional provisions for the security of person and property are to be liberally construed, and ‘it is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon’ (citations omitted) .... The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not •to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right.” Byars v. United States, 273 U.S. 28, 32-34, 47 S.Ct. 248, 249-50, 71 L.Ed. 520-24 (1927).

Application of this wise rule of constitutional adjudication lends further support, in my judgment, to the view which I take in this case.

In addition to the above, I rely upon the authorities and analysis developed in my dissenting opinion in Franco v. State, 376 So.2d 1168, 1170 (Fla. 3d DCA 1979) (Hub-bart, J., dissenting). For all of these reasons, I sincerely regret the court’s decision herein and can only hope that someday it will be reversed. Until then, we live in a country which is less free than our founding fathers envisioned.

      . These issues are relevant only in the absence of consent. Section 934.03(2)(c), Florida Statutes (Supplement 1978), provides: “It is lawful under this chapter for a law enforcement officer ... to intercept a wire or oral communication when . . . one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.” See also State v. Napoli, 373 So.2d 933 (Fla. 4th DCA 1979) (holding that the custody and seal provisions of Section 934.09 do not apply to consent interceptions which require no judicial authorization).

      . The Franco court expressly receded from Mascara to the extent its holding was in conflict.

      . I would rest the result in this case solely on Article I, Section 12 of the Florida Constitution, rather than the Fourth Amendment, not because I feel the Fourth Amendment is inapplicable here, but because the federal law on the subject issue-as will be demonstrated later-is uncertain, conflicting, and, in the nature of things, susceptible of final resolution only by the United States Supreme Court. In the meantime, it is clear beyond doubt, that Florida courts can interpret the search and seizure guarantee of our state constitution in the way urged herein. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). This is particularly apt as to Article I, Section 12 of our constitution, as it was amended in 1968 to specifically encompass unreasonable electronic eavesdropping, which, I believe, speaks volumes in favor of striking down all warrantless electronic eavesdropping conducted, as here, under non exigent circumstances.

      . See S. Dash, The Eavesdroppers (1959).

      . Article I, Section 12 of the Florida Constitution reads as follows:
      “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.”

      . “The object of the new language in Section 12, Article I is to insure that before a wiretap is made a judicial officer will determine whether there is probable cause to make the tap. A citizen’s privacy is supposed to be protected to the extent of having a magistrate determine in advance whether his private conversations should be ‘bugged’ by the police because of suspected criminality. Captain Campbell did not take the trouble to have a judge determine in advance whether there was justification for the wiretap. He went ahead and made the ‘tap’ without prior judicial approval. This is a circumvention of a citizen’s right guaranteed by Section 12, Article 1, and cannot be sanctioned.” 272 So.2d at 495- 96. It is true, however, that the Court disapproved the proof of consent given in the case because the police informer was not called to testify on the issue. It is equally true that the Court’s decision contains language which indicates that, had this been accomplished, a different result would have obtained. Nonetheless, the Court was not faced with the issue which confronts us in the instant case, namely, whether the failure to obtain a warrant for the subject electronic eavesdropping in itself renders such eavesdropping unreasonable. As such, Tollett does not settle the subject constitutional issue in this cause.

      . Weeks v. United States, 232 U.S. 383, 390, 34 S.Ct. 341, 343, 58 L.Ed. 652 (1914); Boyd v. United States, 116 U.S. 616, 625-26, 6 S.Ct. 524, 529-30, 29 L.Ed. 746 (1885). “The [Fourth] Amendment was adopted in response to deep resentment against the general warrant (known as the writ of assistance) used by British customs officials to search for goods smuggled into the Colonies in violation of the trade and navigation acts, which severely restricted the ability of the colonies to trade with areas outside the Empire.” J. Landynski, Search and Seizure, in The Rights of the Accused 30 (S. Nagel ed. 1972). “In years prior to the Revolution leading voices in England and the Colonies protested against the ransacking by Crown officers of the homes of citizens in search of evidence of crime of illegally imported goods. The vivid memory by the newly independent Americans of these abuses produced the Fourth Amendment as a safeguard against such arbitrary official action by officers of the new Union, as like provisions had already found their way into State Constitutions.” Frank v. Maryland, 359 U.S. 360, 363, 79 S.Ct. 804, 807, 3 L.Ed.2d 877 (1959). The words of the Fourth Amendment “reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure in their persons, houses, papers and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws.” Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 510, 13 L.Ed.2d 431 (1965). “Prior to the Revolution, the liberty of the citizen in the colonies was harassed by writs of assistance in the hands of revenue officers .... These writs were exasperating to the citizen, contrary to every democratic impulse and were considered the most flagrant examples of arbitrary power known to the people, hence the language of the Fourth Amendment which was repeated in all the State Constitutions [including Florida].” Church v. State, 151 Fla. 24, 29-30, 9 So.2d 164, 166-67 (1942).

      . “Historically we are dealing with a provision of the Constitution [the Fourth Amendment] which sought to guard against an abuse that more than any one single factor gave rise to American independence.” Harris v. United States, 331 U.S. 145, 159, 67 S.Ct. 1098, 1105, 91 L.Ed. 1399 (1947) (Frankfurter, J., dissenting). “Mr. Justice Frankfurter wisely pointed out in his Rabinowitz dissent that the [Fourth] Amendment’s proscription of ‘unreasonable searches and seizures’ must be read in light of ‘the history that gave rise to the words’-a history of ‘abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution . . .. ’ The Amendment was in large part a reaction to the general warrants and warrant-less searches that had so alienated the colonists and had helped speed the movement for independence.” Chimel v. California, 395 U.S. 752, 760-61, 89 S.Ct. 2034, 2038-39, 24 L.Ed.2d 685 (1969).
      On November 2, 1772, a committee of 21 was appointed by the inhabitants of Boston to state the rights of the American Colonists as British subjects. The committee later presented its report, which contained a lengthy protest against the general writs of assistance. H. Gray, Quincy’s Massachusetts Reports 1761— 1772, 466-67, app. I (1865); J. Landynski, Search and Seizure and the Supreme Court 38 n.90 (1966); N. Lasson, the History and Development of the Fourth Amendment to the United States Constitution 72 (1937); 1 The Bill of Rights: A Documentary History 200, 205-206 (B. Schwartz ed. 1971).
      On October 26, 1774, the First Continental Congress in Philadelphia petitioned the English King for a redress of grievances. Among the listed abuses was this protest: “The officers of the customs are empowered to break open and enter houses, without the authority of any civil magistrate, founded on legal information.” J. Landynski, Search and Seizure and the Supreme Court 37-38 (1966); N. Lasson, The History and Development of .the Fourth Amendment to the United States Constitution 75 (1937).
      Finally, the July 4, 1776 Declaration of Independence protests the abuses wrought by the hated Trade and Navigation Acts. As to the writs of assistance, the Declaration condemns the English King for sending “swarms of officers, to harass our people” and for making colonial judges “dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.” 1 The Bill of Rights: A Documentary History 251, 253 (B. Schwartz ed. 1971). These references, although indirect, seem clearly to include the search powers asserted by the English customs officers and the persistent pressure exerted by the British Crown upon the colonial judges to legitimize this practice. Dickerson, Writs of Assistance as a Cause of the Revolution, in The Era of the American Revolution 73 (R. Morris ed. 1939); N. Lasson, supra, at 80.

      . N. Lasson, supra note 6, at 53-55, 57. J. Landynski, Search and Seizure and the Supreme Court, supra note 6, at 33 n.59. For a copy of a typical general writ of assistance, see 2 Legal Papers of John Adams 144 47 (L. Wroth and H. Zobel eds. 1965).

      . J. Landynski, Search and Seizure and the Supreme Court, supra note 6, at 36-37.

      . 12 Car. II, c. 19, 7 Pickering Statutes at Large 460 61 (1660); 13 & 14 Car. II, c. 11, 8 Pickering Statutes at Large 78-94 (1662); 7 & 8 Will. Ill, c. 22, 9 Pickering Statutes at Large 428 37 (1696); 1 Anne stat. 1, c. 8, 10 Pickering Statutes at Large 414-17 (1701); 7 Geo. Ill, c. 46, 27 Pickering Statutes at Large 505-12 (1766).

      . Otis’ argument is taken from the Massachusetts Spy, April 29, 1773, at 3, cols. I -3, reprinted in 2 Legal Papers of John Adams, supra note 7, at 139 44.

      . Every state in the union has a search and seizure guarantee in its state constitution. Mr. Justice Frankfurter, in his dissenting opinion in Harris v. United States, 331 U.S. 145, 160 n. 5, 67 S.Ct. 1098, 1106 n. 5, 91 L.Ed. 1399 (1947), collects these guarantees as they first appeared in the respective state constitutions. See also Art. I, § 14, Alaska Const. (1959); Art. I, § 5, Hawaii Const. (1959).

      . In this connection, one is reminded of Mr. Justice Frankfurter's insightful observation:
      “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” United States v. Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting).


text:
    Bart JACOBS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1643.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Rehearing Denied Nov. 19, 1980.
    See also, Fla.App., 389 So.2d 1043, 389 So.2d 1045.

      Flynn, Rubio & Tarkoff and Michael H. Tarkoff, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and SCHWARTZ, J., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Jacobs appeals from his convictions and four concurrent twelve-year sentences imposed after a jury found him guilty of conspiracy to commit burglary, conspiracy to commit robbery, burglary, attempted robbery, and the possession of a firearm in the commission of a felony. The case arose from an aborted attempt to rob a large quantity of gold bullion which had been stored in an Air Canada warehouse at the Miami International Airport. The jury found that Jacobs, an Air Canada employee, had been involved in the planning and attempted execution of the crime.

The defendant’s primary contention challenges the denial of his motion to suppress an electronic tape of a telephone conversation between Jacobs and another employee of Air Canada, James Potter. The conversation, which was highly incriminating, occurred during a call which Potter, by prearrangement and at the direction of Dade County police officers, had placed to Jacobs at the latter’s home. The officers overheard and recorded the conversation, of course with Potter’s consent, but without having obtained an intercept warrant which would have judicially authorized that action. In this court, Jacobs argues that the tape should have been suppressed under what he calls a “logical extension” of Sarmiento v. State, 371 So.2d 1047 (Fla.3d DCA 1979), cert. granted and pending, Fla.Sup. Ct., Case no. 57,173, in which this court held that, absent a warrant, officers could not testify to an in-person conversation with a “wired” undercover man which took place inside the defendant’s residence. We do not agree.

Subsequent to the Sarmiento decision, this court ruled in Franco v. State, 376 So.2d 1168 (Fla.3d DCA 1979), cert. denied, 386 So.2d 636 (Fla.1980), that a warrant is not required when, as here, the requirements of Section 934.03(2)(c), Florida Statutes (1977) and Tollett v. State, 272 So.2d 490 (Fla.1973), have been met. We think that the case at bar is much closer to Franco that it is to Sarmiento. More specifically, the facts here are distinguishable from Sarmiento in two significant ways:

1. Sarmiento concerned only the testimony of two officers who, unknown to the defendant, were located outside the house and who overheard a conversation between two other persons, the defendant and still a third officer; in this case, in contrast, the person to whom Jacobs directly spoke, Potter, himself testified and recounted the conversation to the jury. Thus, the recording of that same conversation was admissible under Hajdu v. State, 189 So.2d 230 (Fla.3d DCA 1966), cert. denied, 196 So.2d 923 (Fla.1967). In Hajdu, which was heavily relied upon in Sarmiento, this court stated at 189 So.2d 233-34:
The State relies upon the opinion of this court in Gomien v. State, Fla.App.1965, 172 So.2d 511. This reliance is misplaced. The Gomien opinion and authorities cited therein were primarily concerned with the authenticity of a transcript of a conversation. These authorities are not applicable in the instant case, because the alleged conversations were never transcribed, [e. o.] In Gomien, the witness testifying was the person who caused the conversation to be recorded after having been invited into the defendant’s premises. In the instant case, the objectionable testimony was given by a person not within the defendant’s premises and by one to whom an invitation had not been extended. The person in the instant case who is analogous to the witness in the Gomien case was the witness White, and she was permitted to testify as to what transpired in the appellant’s premises. And, if she had recorded the conversation, then upon proper authentication [if otherwise admissible] any such transcription would have been admissible under Gomien v. State, supra; Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, and other authorities, [e. s.]
2. The conversation in Sarmiento was a face-to-face encounter between the defendant and another which occurred, as the opinion emphasized, within the defendant’s own home; this case concerns a telephone call between the defendant and a person obviously located somewhere else. We agree with the state’s contention that the difference is a meaningful one in terms of the very focus of the Sarmiento decision-the extent of one’s legitimate expectation that his personal conversations will remain private. Surely, a person who speaks on the telephone and who therefore cannot know either the location of his conversant or whom else may be listening on an extension or a speaker phone, takes far more serious chances with his privacy than one who speaks to a known acquaintance inside his “castle” walls.

Because of these distinctions, we need not consider whether the Sarmiento decision has survived the adoption of a basically contrary analysis and holding in the Franco, case. See, contra, State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980). On the authority of Franco, therefore, we conclude that the trial court correctly refused to suppress the tape in question here.

The defendant’s remaining points do not require extended discussion. We need not even pass upon the merits of those which concern only the two conspiracy and the attempted robbery charges. This is so because' the sentences imposed on these counts are to run concurrently with that on the burglary count, which is not separately challenged. Since there is no reason to believe that Jacobs will suffer any adverse practical consequences, concerning his eligibility for parole or otherwise, as a result of the additional convictions, compare, United States v. Rubin, 591 F.2d 278 (5th Cir. 1979), cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979), we apply the “concurrent sentence doctrine” and decline to consider these issues. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Mathis v. State, 348 So.2d 1221 (Fla.3d DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978); see also, Bush v. State, 369 So.2d 674, 676, n.2 (Fla.3d DCA 1979); Gibson v. State, 368 So.2d 667, 668, n.2 (Fla.3d DCA 1979).

Finally, contrary to the appellant’s claims, we find no error in the trial court’s admission of a photograph of the crime scene, Bauldree v. State, 284 So.2d 196 (Fla.1973); Cravero v. State, 349 So.2d 649 (Fla.3d DCA 1977), cert. denied, 358 So.2d 129 (Fla.1978), or in its approval of the prosecutor’s reference in final argument to Jacobs’ failure to call a supposedly favorable witness at the trial. Buckrem v. State, 355 So.2d 111 (Fla.1978); Shapiro v. State, 345 So.2d 361 (Fla.3d DCA 1977), cert. denied, 353 So.2d 678 (Fla.1977); Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975).

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the convictions under review and remand the cause to the trial court with directions to suppress the subject tape recordings. In my view, these tape recordings represent the fruit of an unreasonable interception of a private conversation involving the defendant and the police in violation of the defendant’s rights guaranteed by Article I, Section 12 of the Florida Constitution; no intercept warrant was ever obtained for the subject electronic eavesdropping although concededly it was practicable to have obtained one. As such, the subject tape recordings were inadmissible in evidence and the state agent’s “consent” to the subject electronic eavesdropping cannot change this result. I have more fully developed the authorities and reasoning to support this view in my dissenting opinions in State v. Shaktman, 389 So.2d 1045 (Fla.3d DCA 1980), and Franco v. State, 376 So.2d 1168, 1170-1172 (Fla.3d DCA 1979), upon which I rely for my dissent herein.

      . Sentence on the possession charge was suspended.

      . See also, State v. Steinbrecher, 389 So.2d 1045 (Fla.3d DCA 1980); State v. Shaktman, 389 So.2d 1045 (Fla.3d DCA 1980); Trinidad v. State, 388 So.2d 1063 (Fla.3d DCA 1980).


author: PER CURIAM.

text:
    Morris LAPIDUS, d/b/a Morris Lapidus Associates, Appellant, v. CITIZENS FEDERAL SAVINGS AND LOAN ASSOCIATION, a United States Corporation, Appellee.
    No. 79-1687.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Rehearing Denied Nov. 19, 1980.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Marvin E. Chavis and Alan G. Greer, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ. '
   PER CURIAM.

The final judgment of the trial court entered pursuant to a jury verdict in favor of Citizens Federal Savings and Loan Association against an architect, Morris Lapidus, d/b/a Morris Lapidus Associates, challenged solely on the ground that Lapi-dus was entitled to a setoff against, or extinguishment of, the judgment against him, is affirmed upon a holding that (1) the trial court was correct in refusing to set off from the amount of the judgment the amount for which Citizens Federal released Lapidus’ two co-defendants (an engineer and contractor), where the jury was instructed to base its verdict upon the tor-tious acts and contractual breaches for which Lapidus alone was responsible, the record suggests nothing to overcome the presumption that the court’s instructions were followed, see Putnam Lumber Co. v. Berry, 146 Fla. 595, 2 So.2d 133 (1941); Bell v. Baptist Memorial Hospital, Inc., 363 So.2d 28 (Fla. 1st DCA 1978); Leisure Group, Inc. v. Williams, 351 So.2d 374 (Fla. 2d DCA 1977); National Car Rental System, Inc. v. Holland, 269 So.2d 407 (Fla. 4th DCA 1972), and there was sufficient evidence to support the jury’s verdict; (2) the right of setoff set forth in Sections 768.041 and 768.31(5), Florida Statutes (1979), applies only where the co-defendant’s settlement is for the same tort or injury as the one committed or caused by the tortfeasor seeking setoff, Devlin v. McMannis, 231 So.2d 194 (Fla.1970), and where, as here, the record fairly reflects that the jury could apportion the damages for which Lapidus was solely responsible, setoff is not required, Insurance Company of North America v. Edmondson, 354 So.2d 887 (Fla. 1st DCA 1977); (3) to the extent that the jury’s verdict was in part or in whole an award of damages on account of a breach of contract, a distinct cause of action brought against Lapidus only, Sections 768.041 and 768.31(5), Florida Statutes (1979), expressly restricted to torts, are inapplicable, see Penza v. Neckles, 344 So.2d 1282 (Fla.1977); cf. Devlin v. McMannis, supra (holding that a suit by the estate of a minor decedent and a suit by the minor’s parents for wrongful death were separate causes of action requiring separate setoffs); and (4) the liability of Lapidus for breach of contract was not extinguished under the common law rule that the release of a joint and several obligor releases all others, since the co-defendant contractor and engineer, whom Citizens Federal released, were not obligors on the contract between Lapidus and Citizens Federal, Newsome v. Finch, 375 So.2d 1144 (Fla. 1st DCA 1979); compare Penza v. Neckles, supra.

Affirmed.

      . In pertinent part, the trial court’s instruction read:
      “I instruct you that the Plaintiff, Citizens Federal Savings and Loan Association, is not entitled to recover from the Defendant, Morris Lapidus Associates, for the negligence, breach of contract or errors of the engineer, H. J. Ross and Associates, but is only entitled to recover for any breach of contract or negligence of the Defendant, Morris Lapidus Associates, with reference to its duties and responsibilities.” (T. 1321).
      “I instruct you that Plaintiff, Citizens Federal Savings and Loan Association, is not entitled to recover from the Defendant, Morris Lapi-dus Associates, for the negligence, breach of contract, or errors of the contractor, M. R. Harrison Company, but is only entitled to recover for any breach of contract or negligence of the Defendant, Morris Lapidus Associates, with reference to its duties and responsibilities.” (T. 1321-1322).

      . No special verdict or special interrogatories were requested by Lapidus. We may therefore sustain the verdict on the breach of contract theory even if it could not be sustained on the tort theory. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978).


author: LARRY G. SMITH, Judge.

text:
    AMERICAN VIDEO CORPORATION, Appellant, v. Gerald A. LEWIS, Comptroller of the State of Florida, and Florida Department of Revenue, a State agency, Appellees.
    No. SS-129.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.
    Rehearing Denied Nov. 21, 1980.

      Robert S. Goldman, of Thompson, Wads-worth, Messer & Rhodes, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wilson Crump, II and Barbara Staros Harmon, Asst. Attys. Gen., for appellees.
   LARRY G. SMITH, Judge.

American Video, a provider of cable T.V. service in Broward County, appeals an order of the Comptroller (adopting in toto the hearing officer’s recommended order) denying a claim for refund of taxes and penalties assessed under the sales and use tax law, Chapter 212, Florida Statutes. Appellant maintains that the items of property forming the basis for the dispute consisting of hooks, cables, transformers, rods, ferrules, and the like (hereinafter called “drop-in items”) were purchased for rental and therefore constituted a “resale” to its customers under the definition of “sale,” Section 212.02(2)(a), and consequently were not subject to the sales tax imposed by Section 212.05. We affirm.

Section 212.05 declares that every person in this state “who engages in the business of selling tangible personal property at retail in the state, or who rents or furnishes any of the things or services taxable under this chapter,” is exercising a “taxable privilege.” The drop-in items in question are obviously “tangible personal property,” and the furnishing of cable television service is specifically made taxable under Section 212.05(5).

A taxable “retail sale” is defined in Section 212.02(3)(a) as “a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, ...” (emphasis added). Section 212.02(2)(a) defines “sale” as:

(a) Any transfer of title or possession, or both, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration.

Appellant’s contention is that the “drop-in items” are “rented” to its customers so that a “resale,” occurs, and appellant’s initial purchase of these items from its suppliers is therefore not a taxable transaction under the quoted provisions. The parties draw their factual arguments from a stipulated statement of the material facts. Appellant emphasizes that title to the drop-in items remains in appellant; a deposit is paid by the customer, refundable upon return of the items to appellant at the termination of service; the customer agrees to pay for replacement of any such items stolen, lost, or damaged while in the customer’s possession; and a portion of the monthly service charge paid by the customer includes consideration for the use and possession of these items of tangible personalty.

Appellee responds that the drop-in items are really nothing more than pieces of hardware which enable appellant to distribute the cable signal from its trunk lines to the individual customer’s T.V. set, and which enable customers to tune their T.V. sets so that they may view the programming provided by appellant. Thus, according to ap-pellee, the disputed items are simply a part of the apparatus used by appellant in providing a service to its customers, in no sense being sold or “rented,” as such, to the customer.

Although we are mindful of appellant’s arguments that the focus of the taxing statutes is economic and objective rather than legalistic and subjective, so that the intention of the parties does not necessarily control, we do not view this argument as precluding a realistic analysis or evaluation of each factual circumstance as did the hearing officer, in applying the statutes. We think the better reasoned application of the taxing statutes supports the view of appellee that appellant’s purchases of these items is taxable. There is no separate charge made by appellant in its monthly billing to its customers specifically designated as a charge for “rental” of these drop-in items. This circumstance in and of itself may not be determinative in a given case, as for example, Seripto Inc. v. Carson, 105 So.2d 775 (Fla.1958), in which the supplier of metal display containers in which mechanical writing instruments were delivered to Florida wholesalers was held not responsible for collection and remission of the Florida use tax, notwithstanding no separate charge was made for the container. We think Seripto is factually distinguishable in that the cost of the metal container was included in the price paid for the total merchandise “package” acquired by the Florida wholesalers for ultimate re-' sale to Florida merchants. In no sense did the Seripto case involve the furnishing of a “service” as is the case here.

In our resolution of the controversy we are primarily influenced by the simple fact that these hooks, ferrules, wires and gadgets are unused, unusable and of no value in and of themselves to the customer, so as to support payment of a separate consideration for their possession, until such time as appellant makes the proper connections to its system so that the customer can watch cable T.V. For this, and nothing else, the customer pays a consideration in the form of his monthly service charge, the only charge made, except for the initial hook-up and equipment deposit.

A separate tax is collected by appellant from its customers for the furnishing of the cable television service under Section 212.05(5). Because of this, appellant contends that the Comptroller’s ruling creates double taxation-a tax on the drop-in items when purchased by appellant, and a tax on their use or rental when installed on the premises of a customer. Section 212.12(12) contains a declaration of legislative intent that wherever, in construction, administration or enforcement of the chapter on sales taxes there may be a question respecting the duplication of the tax, that the “end consumer, or last retail sale shall be the sale intended to be taxed and insofar as may be practicable there be no duplication or pyramiding of the tax.” We conclude, under the facts of this case, that when appellant purchases these items for its use in providing television service to its customers, a taxable transaction occurs; and when the necessary connections are made and the customer receives his television service furnished by appellant, a separate taxable transaction occurs. Under the legislative scheme, the tax on appellant’s initial purchases is passed on to its customers as a part of the regular monthly subscription. When there are two taxpayers and two separate taxable transactions or privileges, double taxation does not occur. See Ryder Truck Rental, Inc. v. Bryant, 170 So.2d 822 (Fla.1964), and Boise Bowling Center v. State, 93 Idaho 367, 461 P.2d 262 (Idaho 1969).

Our resolution of the controversy under appellant’s point one makes it unnecessary for us to rule upon appellant’s contention that the hearing officer improperly relied upon appellant’s failure to furnish a resale certificate under Rule 12A-1.38(1), Florida Administrative Code. See Pioneer Oil Company, Inc. v. State, Department of Revenue, 381 So.2d 263 (Fla. 1st DCA 1980). It is unnecessary for us to decide whether appel-lees’ failure to assert the nonfurnishing of resale certificates as a defense to the refund claim, or its stipulation that all procedural requirements necessary to pursue the refund claim had been satisfied, amounted to a waiver.

affirmed!

ERVIN and SHAW, JJ., concur.