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

text:
    Hooper ALEXANDER, III, as Administrator of the Estate of Margaret M. Alexander, Deceased, Appellant, v. ALTERMAN TRANSPORT LINES, INC., a Florida Corporation, and Charles E. Penley, Appellees.
    No. MM-450.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1980.
    Rehearing Denied Sept. 11, 1980.

      Joseph D. Farish, Jr. and Louis L. Williams of Farish, Farish & Romani, West Palm Beach, for appellant.
    E. Harper Field and Albert W. Whitaker of Keen, O’Kelley, Field & Ellis, Tallahassee, for appellees.
   LARRY G. SMITH, Judge.

Appellant, plaintiff below, urges that the trial court committed error: (1) in allowing the defendant to introduce evidence of Ms. Alexander’s age, (2) in not receiving into evidence the tax returns of defendant Al-terman and in not imposing sanctions for Alterman’s failure to produce net worth statements, (3) in refusing to admit interrogatory answers. The defendant cross-appeals, urging that the trial judge erred in denying its motion for a directed verdict on the claim for punitive damages. As to the points raised by plaintiff, we find no reversible error and affirm; as to defendant’s cross-appeal, we affirm.

Alterman Transport Lines, Inc., and Charles Penley were sued for compensatory and punitive damages for an accident caused by employee Penley, in the operation of Alterman’s truck, which resulted in Ms. Alexander’s death.

After plaintiff had introduced evidence regarding Ms. Alexander’s personal life, the defendant, on cross, elicited her age and despite plaintiff’s objection, this information was allowed to go to the jury. Under the circumstances, even if we agree that the age of the decedent was not material to any issue in the case, the plaintiff introduced matters which were just as immaterial, so that plaintiff cannot be heard to complain. Applying the rule that “Harmful error does not result unless such evidence is pursued to the point that it is calculated to unduly excite the passions and prejudices of the jurors,” Le Fever v. Bear, 113 So.2d 390, 392 (Fla. 2nd DCA 1959), we find any error on this point was harmless, and does not require reversal.

In Tallahassee Democrat, Inc. v. Pogue, 280 So.2d 512 (Fla. 1st DCA 1973), this court ruled that tax returns and profit and loss statements are not competent evidence of net worth and are, therefore, inadmissible. The Florida Supreme Court, in Tennant v. Charlton, 377 So.2d 1169 (Fla.1979), disapproved of this decision and adopted the decision of the Second District in Charlton v. Tennant, 365 So.2d 418 (Fla. 2nd DCA 1978), holding that a plaintiff seeking punitive damages is entitled to “discovery” of defendant’s income tax returns and business statements, subject to control of the trial judge under Florida Rule of Civil Procedure 1.280(c), permitting the court to make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires. We assume from the holding in Tennant v. Charlton, supra, that such tax returns and other business statements would be admissible in a case deemed to warrant submission of the punitive damage claim to the jury; but it by no means follows that tax returns are the only method of establishing financial resources. Furthermore, we do not foreclose the possibility that circumstances might justify the trial court’s refusal to allow their introduction into evidence, for good cause shown, where equally conclusive evidence of financial worth in other forms is available. However, since the exclusion in this case was not based upon any good cause shown, we must conclude that it was error for the trial court to exclude the tax returns.

Although precluded from introducing Alterman’s tax returns, the plaintiff did introduce Alterman’s latest financial statement and other evidence sufficient to show a net worth of almost $10,000,000.00, and profits for the previous year of over $1,000,000.00. The jury thus had before it ample evidence of financial worth upon which to base a much larger punitive damage award if it had chosen to do so. We note from Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975), that evidence of financial worth, although admissible, is not a requisite to an award of punitive damages, and further:

. that in determining the amount of punitive damages, the jury may consider the nature, extent, and enormity of the wrong, the intent of the party committing it and all circumstances attending the particular incident, as well as any mitigating circumstances which may operate to reduce without wholly defeating such damages, . . . (Id. at 763).

Obviously, other factors present in this case militated against a higher award. Our review of the entire proceeding convinces us that prejudice to plaintiff by the exclusion of Alterman’s tax returns has not been shown, and consequently, the error does not warrant reversal.

Plaintiff-appellant cites no authority to this court supporting his contention that his oral motion for sanctions, made during trial, warrants reversal. Sanctions should be imposed only where the refusal was willful or done in bad faith, Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971). We find the record as presented inadequate to support a finding that sanctions should have been imposed, Walker v. Senn, 340 So.2d 975 (Fla. 1st DCA 1976).

Plaintiff is correct in asserting that interrogatories are admissible into evidence, Boutwell v. Bishop, 194 So.2d 3 (Fla. 1st DCA 1967), Camerano v. Camerano, 340 So.2d 1200 (Fla. 4th DCA 1976), Florida Rules of Civil Procedure, Rule 1.340. Furthermore, although the court rejected the interrogatories in toto, a proffer was still necessary in order for this court to determine whether the error requires reversal. Mitchell v. State, 321 So.2d 108 (Fla. 1st DCA 1975), cert. dism., 345 So.2d 425 (Fla. 1977). Furthermore, since plaintiff did introduce depositions of corporate officers and expert testimony regarding Alterman’s net worth, we conclude that the information sought to be produced by means of the answers to interrogatories would be cumulative at best. All things considered, we also find this error does not require reversal.

We turn next to appellee Alterman’s cross-appeal seeking reversal of the award of punitive damages. Appellee contends that the evidence tending to show that its driver, Penley, was intoxicated when he appeared at the terminal on the morning of the accident, and that Alterman either knew or in the exercise of reasonable care should have known of his condition when he took charge of the truck, demonstrates at best only gross negligence, which is insufficient for the award of punitive damages, citing Ellis v. Golconda Corporation, 352 So.2d 1221 (Fla. 1st DCA 1977), and Clooney v. Geeting, 352 So.2d 1216 (Fla. 2nd DCA 1977).

In Ellis v. Golconda, supra, this court held that the evidence did not rise to the level of that wanton, reckless, malicious or oppressive character required to support an award of punitive damages against the corporate employer. However, since the facts are not remotely similar to the facts in this case, no comparison of the two cases can be made so as to be of any assistance in deciding this case.

In Clooney v. Geeting, supra, the court held that the trial judge did not commit error in striking Clooney’s claim for punitive damages against a corporate employer based on allegations that the employer knew that its driver, Geeting, was neither physically nor mentally able to properly drive the truck on the day of the accident, and that its safety manager had pointed this out prior to the accident. At first glance these allegations seem to present facts similar to this case. However, one important factor distinguishes the cases: In Clooney, there were no allegations that the driver, for whose actions the corporate employer was liable, was himself guilty of willful, wanton or outrageous conduct in causing the accident; whereas, such allegations and proof of willful, wanton or outrageous conduct on the part of the driver were present in this case.

There was ample evidence that the driver, Penley, in this case was intoxicated at the time of the accident. Florida law now clearly holds that juries may award punitive damages against an intoxicated driver who is involved in an accident without regard to external proof of carelessness or abnormal driving, because “the voluntary act of driving ‘while intoxicated’ evinces, without more, a sufficiently reckless attitude for a jury to be asked to award punitive damages if it determines liability exists for compensatory damages.” Ingram v. Pettit, 340 So.2d 1922 (Fla.1976). In our prior decision, Alexander v. Alterman, 327 So.2d 860 (Fla. 1st DCA 1976), hereafter Alterman I, we followed the same reasoning as did the court in Clooney v. Geeting, supra, in holding that “bare allegations of gross negligence” on the part of an employee in operating an employer’s motor vehicle are not sufficient to sustain a claim for punitive damages against the employer. This element of pleading and proof, as required by our prior decision, was fully satisfied in this case. Furthermore, as examination of the opinion will show, there is nothing in our second decision involving this case, Alexander v. Alterman Transport Lines, Inc., 350 So.2d 1128 (Fla. 1st DCÁ 1977), hereafter Alterman II, that requires willful, wanton or outrageous conduct on the part of the employer, Alterman, independent of the willful, wanton or outrageous conduct of its driver, as a prerequisite for an award of punitive damages against Alterman. In Alterman II, this court held the complaint was insufficient as a basis for punitive damages against Alterman, stating (Id. at 1130):

. But, what wrong did Alterman commit that demanded it be punished? According to the third amended complaint, Alterman’s gross negligence was solely the act of operating a trucking business. Not a single allegation is found as to Alterman’s negligently failing to investigate or to otherwise verify Pen-ley’s ability to operate its truck in a law abiding manner; there is not a single allegation that Alterman knew or should have known Penley’s propensity to consume alcoholic beverages; there is not a single allegation that Alterman knew or should have known that Penley would operate its truck in a “grossly negligent manner and with outrageous, willful, wanton and utter disregard for other vehicles and users.”
* * * * * *
Query: What knowledge, actual or constructive, did Alterman possess of the likelihood that its driver would engage in such conduct that Alterman would be subjected to a punitive civil penalty for the criminal actions of its employee?

Although from examination of this court’s Alterman II opinion it appears that the court rejected the possibility of Alterman’s vicarious liability for punitive damages under the doctrine of respondeat superior, based upon allegations that Penley drove while under the influence of alcohol and at such a speed as to be adjudicated guilty of manslaughter, the opinion as above quoted clearly recognized the possibility of Alter-man’s liability for punitive damages based upon negligent hiring or entrustment.

Our examination of the record confirms that both the evidence and the jury instructions upon which the award of punitive damages against Alterman was based conform to the requirements of the law as set forth in our two prior opinions. Upon remand, following our opinion in Alterman II, the plaintiff again amended the complaint, alleging, among other things:

(f) Defendant Alterman Transport Lines, Inc., knew or, in the exercise of reasonable care, should have known that . on the day of the incident herein alleged . immediately prior to embarking on his work assignment, defendant Pen-ley was in no condition to drive and operate said tractor-trailer truck since he was under the influence of alcohol or some other drug or narcotic to the extent that his normal faculties were impaired, making it unsafe for him to drive and operate said vehicle and with utter disregard to Margaret M. Alexander and the other vehicles and users of said roadway.

The evidence conclusively established that Alterman’s driver was visibly drunk at the time of the accident, and, although conflicting on this point, there was evidence from which the jury could have concluded that Penley was visibly intoxicated when he left Alterman’s Orlando terminal at noon on that day. Penley himself testified that he had been out drinking until late the night before, had consumed alcohol again that morning before going to the terminal, and that he had consumed no alcohol from the time he left the terminal in the truck up to the time of the accident.

Furthermore, the issue of Alterman’s knowledge of Penley’s condition was squarely presented to the jury under the following jury instructions:

If you find for Hooper Alexander, III, and find also that either defendant whom you found to be liable to Hooper Alexander, III, acted with malice, moral turpitude, wantonness, willfullness, or reckless indifference to the rights of others, you may in your discretion assess punitive damages against such defendants as punishment and as a deterent to others.
* * * * * *
If you find that the defendant, Alterman Transport Lines, Inc., knew or in the exercise of reasonable care should have known that Charles E. Penley had a record for driving recklessly and carelessly or had a chronic drinking problem or was under the influence of alcohol immediately prior to embarking on his work assignment, then you may find the defendant Alterman Transport Lines, Inc. liable for punitive damages to the plaintiff.

We conclude that the punitive damage issue was one for resolution by the jury, and was properly submitted to it under our prior decisions governing this case.

Accordingly, the judgment is AFFIRMED.

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

ERVIN, J., specially concurs with opinion.

ERVIN, Judge,

specially concurring.

I concur in the views expressed by the majority as to the points raised by plaintiff’s appeal. As to defendant’s cross-appeal, I concur in the result only. I remain of the same view, expressed in my dissent to Ellis v. Golconda Corp., 352 So.2d 1221, 1229 at n. 1 (Fla. 1st DCA 1977), that Alexander v. Alterman Transport Lines, Inc., 350 So.2d 1128 (Fla. 1st DCA 1977), incorrectly rejected a claim for punitive damages, which was based upon a theory of respondeat superior.

      . A directly contrary view has been applied by the Third District in Mercury Motors Express, Inc. v. Smith, 372 So.2d 116 (Fla. 3rd DCA 1979).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Manuel VELASQUEZ, Appellant, v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY and Tropical Chevrolet, t/a Tropical Leasing, Inc., Appellees.
    No. 79-1381.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Mandina & Lipsky and Philip J. Mandina, Miami, for appellant.
    Jeanne Heyward, Peters, Pickle, Flynn, Neimoeller, Stieglitz & Hart, Quinton, Lummus, Dunwody & Adams and James D. Adams, Miami, for appellees.
    Before HENDRY and BASKIN, JJ. and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Manuel Velasquez, a minor, was struck by an unidentified motorist while he was walking on a highway. He claimed uninsured motorist coverage from the appellee American Manufacturers Mutual Insurance Company, the insurance carrier for Tropical Chevrolet, and in the alternative, he claimed damages against Tropical Chevrolet for failure to provide contracted insurance coverage. The trial judge heard the testimony and examined the evidence submitted and found that Velasquez was not entitled to insurance coverage under either theory. This appeal is from that judgment. We affirm.

The following facts were supplied by stipulation. Raul Velasquez rented an automobile on July 9, 1975, from Tropical Chevrolet, Inc. The rental was necessitated because Raul’s vehicle was being repaired by Tropical Chevrolet, Inc., at the time. On his personal vehicle he carried the standard auto insurance policy including uninsured motorist coverage. On July 17,1975, Raul’s son, Manuel Velasquez, had driven the vehicle into the area of 72nd Avenue and 42nd and 43rd Streets, wherein the vehicle ceased to operate and was left off the roadway in a grassy area. Manuel started walking toward a service station which he knew to be in the area. During his journey, as a pedestrian, toward the service station, he was struck by a vehicle which immediately left the scene of the accident. Manuel Velasquez was a pedestrian when he was struck by a vehicle which immediately left the scene of the accident, as indicated, and therefore Manuel Velasquez was injured while walking as a pedestrian. The rental agreement which was signed by Raul Velasquez, Manuel’s father, specifically states: “the operation of the vehicle by any driver under 21 years of age is prohibited. Liability insurance does not protect lessee or driver if driver is under 21.” Manuel Velasquez was 17 years old on or about July 17, 1975, when the accident, which is the subject matter of this lawsuit, occurred. It was as a direct result of Manuel Velasquez’ operation of the rental vehicle that he found himself in the vicinity where the accident occurred. Paragraph 4 on the reverse side of the rental agreement states: “Lessee is covered by an automobile liability insurance policy, copy of which will be made available for inspection upon request by Lessee, said policy does not apply to . (b) any liability of Lessee or other bodily injury, sickness, disease or death, or damage to property caused directly or indirectly as a result of violation of this rental agreement.”

The point involved as stated by the appellant is:

“Whether or not Manuel Velasquez would be covered by the insurance afforded in the rental agreement, as a pedestrian injured by a hit and run driver which created an uninsured motorist situation.”

The appellant has relied upon Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), and cases which have followed and applied the decision in Mullís as authority for coverage under the instant facts. In Mullís, it was held that a son who resided in his father’s household and was injured while riding in an uninsured motor vehicle owned by his mother was entitled to uninsured motorist coverage under his father’s policy. In Main Insurance Company v. Wiggins, 349 So.2d 638 (Fla. 1st DCA 1977), it was held that a pedestrian was covered by the uninsured motorist provisions of policies issued to his son and daughter when the policies extended coverage to relatives of the owner residing in the same household.

These holdings do not authorize the extension of uninsured motorist coverage to Manuel Velasquez in the present case. The policy in the present instance was not issued to Manuel’s father. It was issued to Tropical Chevrolet. Tropical was the owner. By special provision of the policy, uninsured motorist protection was extended to any person while occupying the insured automobile. This provision did not limit the statutorily required coverage to owners but was in addition thereto. Neither this court nor the trial court is authorized to extend coverage beyond the plain language of the policy in the absence of ambiguity, waiver, estoppel or contradiction of public policy. Rigel v. National Casualty Company, 76 So.2d 285 (Fla.1954); United States Fire Ins. Co. v. Morejon, 338 So.2d 223 (Fla. 3d DCA 1976). None of these exceptions were proved in the trial court.

In addition, it should be pointed out that we are not unmindful that appellant’s tenuous thread of contention to the policy of Tropical Chevrolet was further strained by the fact that his operation of the automobile was a direct violation of the terms of the policy and the rental agreement. We do not reach that issue.

Affirmed.


author: COBB, Judge.

text:
    Harry L. RIGNEY and Kathleen L. Rigney, his wife, Appellants, v. Chris C. RANEY and Oma Raney, his wife, Appellees.
    Nos. 79-111/T2-7, 79-491/T2-7A.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    Rehearing Denied Sept. 11, 1980.
    Marcia K. Lippincott, Sanford, for appellants.
    E. C. Watkins, Jr., of Watkins & Williams, Plant City, for appellees.
   COBB, Judge.

Appellants sued the appellees and alleged that they had a right to use a road running across the appellees’ property on the theory of public prescriptive easement. At the close of the evidence, the appellants moved to amend their complaint to include the allegations of a private prescriptive easement. The trial court granted the motion.

Subsequent to the trial, the trial court notified the parties by letter that it was construing the motion to amend the pleadings as a motion to amend the pleadings generally to conform to the evidence and therefore the trial court was considering the complaint to be amended to include a prayer for a statutory way of necessity. The trial court then entered a judgment in which it found that the appellants had failed to prove a right to use the road by either public or private prescriptive easement, but that the appellants had established a right to use the road as a statutory way of necessity. The appellees moved to alter the judgment on the ground that the issue of statutory way of necessity had not been tried and they should be allowed an opportunity to present evidence on that issue. The trial court denied that motion.

The appellants appealed that portion of the final judgment that denied them a prescriptive easement. The appellees cross-appealed that portion of the final judgment that granted the appellants a statutory way of necessity.

There was sufficient evidence presented at trial showing that the use of the road was permissive to support the trial court’s finding that the appellants failed to prove either a public or private prescriptive easement. We affirm that judgment insofar as it denied a prescriptive easement. See Downing v. Bird, 100 So.2d 57 (Fla. 1958); City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla.1974).

On the other hand, we find merit in the appellees’ cross-appeal. The issues and evidence involved in an attempt to establish a statutory way of necessity are different from the issues and evidence involved in an attempt to establish a prescriptive easement. The appellees should have been given the opportunity to present their case on those matters. We reverse that portion of the judgment granting a statutory way of necessity without prejudice to the appellants’ right to properly raise that issue in a subsequent proceeding.

AFFIRMED in part; REVERSED in part.

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

      . Section 704.01, Florida Statutes.


author: CAMPBELL, Judge.

text:
    Samuel J. COLDING, Appellant, v. R. O. KLAUSMEYER, Appellee.
    No. 80-103.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1980.
    Rehearing Denied Sept. 9, 1980.

      Donald A. Pickworth, Collier County Atty., Naples and Gaylord A. Wood, Jr., Fort Lauderdale, for appellant.
    J. Patrick McElroy and Richard W. Blyler of Greene, Mann, Rowe, Stanton, Mastry & Burton, Clearwater, for appellee.
   CAMPBELL, Judge.

This appeal is brought by the defendant in the trial court, the Collier County Tax Assessor, and requires us to determine whether certain improvements constructed by appellees were “substantially completed” as of January 1, 1978. We conclude that they were and reverse the trial court’s determination to the contrary.

Appellees are developers of “regional” shopping malls. In 1976, they applied to the city of Naples for a building permit to construct what they characterized as a “shell only” for a shopping mall. By September of 1977, appellees had constructed the shell according to the plans which they had submitted with their application, and a Certificate of Occupancy was issued by the city on September 21. At that point, twenty-three of the seventy-five stores which had been contemplated, occupying approximately one-third of the total planned tenant space, were occupied by tenants.

The developers subsequently declared only the value of the unimproved land for property tax purposes, claiming that the mall was not substantially completed as of January 1, 1978. The Collier County Tax Assessor rejected that claim and assessed the value of the unimproved land and the completed, partially occupied shell. The developers paid the tax due on the unimproved land and filed a complaint in the circuit court to compel the tax assessor to reduce the assessed value.

The issue at trial and on appeal is whether the “regional” shopping mall was substantially completed as of January 1, 1978. The developers contend, in essence, that the intended use of the mall was as a “total retail complex”, and that this use would not be realized until the shell and all of the tenant spaces had been completed. The tax assessor, on the other hand, maintains that the developers had intended to construct a shell building, and that they had substantially completed that improvement by September, 1977, as evidenced by the Certificate of Occupancy.

The Coastland Mall in Naples was described by the developers’ chief witness as a “regional shopping center” and was distinguished from a “strip center”. Developers of “strip centers” complete both the shell and the individual stores within before they lease the stores. When developers apply for a permit to construct such shopping centers, the plans which they submit generally show everything that is to go into the structure, including the completed tenant spaces. When the structure is complete, the tenant moves in and begins paying rent, with only interior decorating remaining to be done by the tenant.

A “regional” shopping center, on the other hand, was described as a shell building generally anchored on either end by “first-line” stores. The shell consists of everything but the completed tenant spaces. When the developers procure a tenant, the tenant prepares its own plans and specifications according to its unique needs, applies for its own building permit, constructs the improvements and receives a Certificate of Occupancy. The cost of these individual improvements was paid for by the developers in the instant case in the form of an allowance to each tenant. When the tenant space has been completed, the tenant begins paying a guaranteed minimum rent plus a percentage of its gross sales as reimbursement to the developers for the allowance.

As of January 1, 1978, twenty-three tenant spaces had been completed in the Coastland Mall. Since this was less than one-third of the spaces contemplated, the developers assert that the total retail complex was not substantially completed. In making that assertion, the developers gloss over two facts: they applied for a permit to construct, and received a Certificate of Occupancy for, a shell structure; and the value placed by the tax assessor on the property and improvements would have been much higher had all of the tenant spaces been completed.

Section 192.042(1), Florida Statutes (1977), provides that substantially completed means “that the improvement or some self-sufficient unit within it can be used for the purpose for which it was constructed.” Although the developers here may have had other purposes in mind when they decided to construct the Coastland Mall, their immediate and primary purpose was to erect a “shell building” within which individual stores would be constructed. This they had done by the January 1 tax date, and the value of that structure, along with the value of the twenty-three completed stores, was assessed. The fact that 52 other spaces remained to be leased to and completed by tenants is irrelevant.

While occupancy may be the single most telling indication of completion ., we do not believe that this statement should be strictly applied to a structure planned and built as a “shell building” which is to be used for rental purposes and in which the interior space is to be completed, or finished, only when a tenant leases the space and where separate plans and building permits are required for completion of this space.

Metropolitan Dade County v. Colsky, 241 So.2d 440, 442 (Fla. 3d DCA 1970). See also Manufacturers National Corporation v. Blake, 287 So.2d 129 (Fla. 3d DCA 1973).

We also point out that a “tax assessment is presumed to be correct and, in order to sustain his burden of proof in challenging a tax assessment, the taxpayer must present proof which excludes every reasonable hypothesis of a legal assessment.” Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla.1969). The taxpayer here fails to show that the assessment was illegal. Accordingly, the case is reversed with instructions to reinstate the tax assessor’s assessment.

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

      . In this case, Maas Brothers and Sears, Roebuck & Company were the anchor stores. They own the land and the improvements constructed thereon and are taxed separately.


author: ROBERT P. SMITH, Jr., Judge.

text:
    PEOPLES BANK OF ST. AUGUSTINE, Appellant, v. DEPARTMENT OF BANKING AND FINANCE, and Atlantic Bank of St. Augustine, Appellees.
    No. SS-73.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1980.
    Rehearing Denied Sept. 24, 1980.

      John E. Hankal, St. Augustine, for appellant.
    Walter W. Wood, Asst. Gen. Counsel, Tallahassee, for appellee Department of Banking and Finance.
    Roger A. Larson and Leslie M. Conklin of Graham, Hodge & Larson, Fort Lauderdale, for appellee Atlantic Bank.
   ROBERT P. SMITH, Jr., Judge.

The Department having implemented the policies of Section 659.06(1), Florida Statutes (1979), through Rule 3C-13.041, Fla. Admin.Code, prescribing standards for ascertaining the public convenience and necessity for branch banking, it was unnecessary for the Department, in its final order approving Atlantic’s branch bank over the objection of protestant Peoples, to explain in terms of record evidence its reasons for rejecting an additional standard proposed as a matter of policy by Peoples. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). No other error appears.

AFFIRMED.

SHIVERS, J., and ERNEST E. MASON (Retired), Associate Judge, concur.


author: NESBITT, Judge.

text:
    William Stewart LOEB, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1385.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Rehearing Denied Sept. 26, 1980.

      Alfonso C. Sepe and Alan R. Soven, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   NESBITT, Judge.

The issue before us is whether the trial court had jurisdiction, following dismissal of the defendant’s appeal from an order of probation and issuance of a mandate affirming his conviction, to revoke defendant’s probation for conduct which occurred while the appeal was pending and imposition of the terms of probation was stayed pending review. We hold that the trial court had jurisdiction and affirm the order which denied defendant’s motion, made pursuant to Florida Rule of Criminal Procedure 3.850, to vacate the order of revocation.

The factual background and pertinent dates which are essential to an understanding of this appeal are:

In August of 1976, defendant was charged with selling counterfeit “Super Bowl” tickets.

On August 31, 1976, a jury found him guilty of that offense.

On October 13, 1976, defendant was sentenced to five years probation with a special condition of sixty days in the county jail.

In November, 1977, defendant was charged with several counts of petit larceny. About the same time, an affidavit of violation of probation was filed. The defendant was subsequently acquitted on all counts of petit larceny.

On December 1, 1977, however, he was adjudicated in violation of his probation.

On December 6, 1977, he was sentenced to five years probation with a special condition of probation that he be confined to the county jail for a period of one year. To review that judgment, an appeal was taken to this court and sentence was stayed pending review by the posting of a supersedeas bond.

On April 25,1978, defendant’s appeal was dismissed by this court.

On May 22, 1978, the mandate of this court was issued.

On June 27, 1978, defendant was charged in a three-count information for perjury which had occurred on May 17, 1978, during the period his prior judgment was stayed pending the review of this court.

On July 21, 1978, an affidavit of probation violation was filed in the original case.

On August 7, 1978, defendant entered into a negotiated plea where he was allowed to plead guilty to the perjury information and admitted violation of the terms and conditions of his probation in the prior case. He was sentenced to a four-year term on the perjury count and a four-year term for violation of his probation. These sentences were to be served consecutively.

On June 17, 1979, defendant filed a motion to vacate the sentence imposed on revocation of his probation based upon an alleged impediment of the trial court’s jurisdiction to entertain the proceeding and accept his guilty plea.

On June 29, 1979, the motion was denied and this appeal ensued.

At common law, under writ of error practice, the issuance of a writ, ipso facto, operated as a supersedeas. Rabon v. State, 7 Fla. 10 (1857). Gratuitous stays have now been abrogated and are controlled entirely by statute or rule of court. City of Jacksonville v. Brentwood Golf Course, Inc., 338 So.2d 1105 (Fla. 1st DGA 1976).

It is established that, “the filing of a notice of appeal in the manner and within the time prescribed by the . . . rules [promulgated by the Supreme Court] vests in the appellate court complete and exclusive jurisdiction of the subject matter and of parties to the appeal.” State ex rel. Faircloth v. District Court of Appeal, Third District, 187 So.2d 890, 891 (Fla.1966).

Supersedeas, or stay pending review, as it is more aptly described under current practice, occurs with the filing of an appeal from a judgment or sentence and the posting of a supersedeas bond. The sufficiency and adequacy of the bond is to be approved by the trial court. In a like manner, when a defendant appeals an order granting probation he is entitled to a stay pending review. This is so because “[a]n appeal of an order granting probation shall proceed in the same manner and have the same effect as an appeal of a judgment or conviction.” § 924.06(2), Fla.Stat. (1979); Murphy v. State, 231 So.2d 263 (Fla. 4th DCA 1970). A supersedeas bond in a criminal appeal (except where the sentence is only for a monetary fine) is nothing more than a bail bond by a different name. § 924.065, Fla.Stat. (1979); Cash v. State, 73 So.2d 903 (Fla.1954).

The effect of a stay pending review in a criminal appeal is preventive in nature. It preserves the status quo of the litigation pending appellate review and suspends the power of the lower court to issue execution of the judgment or sentence. Bateh v. State, 101 So.2d 869, 875 (Fla. 1st DCA 1958), cert. discharged, 110 So.2d 7 (Fla.), cert. denied, 361 U.S. 826, 80 S.Ct. 74, 4 L.Ed.2d 69 (1959). Stated differently, stay pending review has the effect of suspending proceedings in the lower court in relation to the order appealed from but, unlike reversal, does not annul or cancel the order. Powell v. Florida Land & Improvement Co., 41 Fla. 494, 26 So. 700 (1899). The affirmance or the dismissal of an appeal does not detract from the power of the lower court to enforce its judgment by arrest and commitment after re-investiture of its jurisdiction. Ex Parte Peacock, 25 Fla. 478, 6 So. 473 (1889).

An order granting probation is not a sentence; it is the grace of the state, in lieu of a sentence, granted in hopeful anticipation of a defendant’s rehabilitation. Freeman v. State, 382 So.2d 1307 (Fla. 3d DCA 1980); Russell v. State, 342 So.2d 96 (Fla. 3d DCA 1977). As we have stated, an order granting probation may be stayed pending review as may a judgment or sentence on appeal. Therefore, it follows that upon affirmance or dismissal of the appeal and re-investment of the trial court’s jurisdiction, the trial court has the power to conduct a revocation hearing for violations of probation which occurred during the pendency of the appeal even though probation had been stayed pending review. Otherwise, the appeal of an order granting probation, which is stayed pending review, would constitute a license to flaunt the authority of the court with impunity.

We have previously held that a trial court does not have jurisdiction, pending appeal of an order which has been stayed, to conduct a probation revocation hearing. State ex rel. Brenner v. Dubitsky, 347 So.2d 777 (Fla. 3d DCA 1977). Conversely, we have held the trial court does have jurisdiction to conduct a revocation hearing on an order of probation which has been appealed but not stayed pending review. Bush v. State, 369 So.2d 674 (Fla. 3d DCA 1979). Bush is consistent with the view that the trial court may enforce its orders and judgments which are not stayed pending review. 3 Fla.Jur.2d Appellate Review § 132 (1978). However, there is a difference between a situation whereby a trial court seeks to enforce rather than modify its unstayed order or judgment pending appeal. In the latter situation, the trial court interferes with the subject matter of the appeal which has been withdrawn until the appeal is heard and determined or the interim actions of the trial court are authorized by the appellate court. State ex rel. Salomon v. Sandstrom, 349 So.2d 696 (Fla. 3d DCA 1977).

For the foregoing reasons, there was no jurisdictional impediment to prohibit the trial court from entertaining an affidavit of probation violation and accepting the defendant’s plea to violation of the terms and conditions of the probation order and subsequently sentencing him.

Accordingly, the denial of the motion to vacate the defendant’s sentence imposed on this plea to an affidavit of probation violation is affirmed.

      . Loeb v. State, 358 So.2d 1201 (Fla. 3d DCA 1978). The effect of the order of dismissal was to leave the original order as if no appeal had been taken. Gaskins v. Mack, 91 Fla. 284, 107 So. 918 (1926).

      . Fla.R.App.P. 9.340(a).

      . Fla.R.App.P. 9.310(a).

      . § 924.14, Fla.Stat. (1979).

      . § 924.065, Fla.Stat. (1979).

      . Fla.R.Crim.P. 3.691(e).

      . § 921.15, Fla.Stat. (1979).


author: GLICKSTEIN, HUGH S., Associate Judge.

text:
    CAPE PUBLICATIONS, INC., Gannett News Service, Inc., Scott Maclay, and Robert Brown, Petitioners, v. Hilda BRIDGES, Respondent.
    No. 79-1568/NT-89.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.
    Rehearing Denied Sept. 25, 1980.

      David M. Schraver of Nixon, Hargrave, Devans & Doyle, Palm Beach, for petitioners.
    Edward A. Perse of Horton, Perse & Ginsberg, Miami, and Nance, Cacciatore & Sisserson, Melbourne, for respondent.
    Sanford L. Bohrer of Paul & Thomson, Miami, and Robert, Miller, Bagget, LaFace, Richard & Wiser, Tallahassee, for amici curiae The Miami Herald Pub. Co. and Florida Soc. of Newspaper Editors.
   GLICKSTEIN, HUGH S., Associate Judge.

Respondent, plaintiff below, filed a second amended complaint against petitioners for compensatory and punitive damages arising out of an alleged (a) invasion of privacy, (b) trespass, and (c) intentional infliction of emotional distress. Count I alleged that respondent was abducted at gunpoint by her estranged husband and was transported to an apartment co-leased by respondent and her husband; that she was held against her will, repeatedly beaten and forced to disrobe; that she was later involuntarily and/or forcibly removed in a state of shock, emotional distress, and nudity, save for a mere towel, from the apartment by the police following the suicide of her husband; that the defendants “Maclay” and/or “Brown,” took photographs of the respondent in her state of nudity and distress and turned over the photographs to defendants “Cape” and “Gannett”; that “Cape” and/or “Gannett” owned the TODAY newspaper, published the photographs in said newspaper without respondent’s knowledge or consent, and provided copies of the photographs to defendants “AP” and “Gannett”; that the two last mentioned defendants distributed the photographs to other subscribing news media services resulting in publication by other newspapers and television without the consent and knowledge of respondent; and that the act of photographing of the respondent by defendant “Maclay” and/or “Brown” in the state of nudity under the circumstances constituted an invasion of her right to her privacy of her physical person.

Count II incorporated by reference most of the foregoing allegations and also averred, inter alia:

The act of taking, publishing and distributing the photographs . . . was a deliberate, malicious and concerted act by the Defendants “Maclay,” “Brown,” “Cape,” “Gannett” and “AP” especially calculated to cause severe emotional distress and mental pain and anguish to the Plaintiff, a person of ordinary and reasonable sensibilities such being conduct exceeding all bounds of propriety and reasonable sensibility reasonably foreseen to cause emotional distress and mental pain and anguish and that it would not be tolerated by society and did contribute directly and proximately to the embarrassment and humiliation caused to the Plaintiff and the damages more specifically stated hereinafter."

Count III incorporated most of the allegations contained in Count I and also alleged, inter alia:

In taking the photographs the Defendant “Maclay” and/or “Brown” did enter upon the property and appurtenances which is the subject of the aforesaid lease agreement between the Plaintiff and the owners of the said property and did so without the consent of the Plaintiff, or any other tenants, or the owner thereof, or any other person authorized to grant such consent and without the consent or or [sic] authorization of any of the law enforcement agencies at the scene. Such entry upon this property constituted a trespass and aided the Defendants “Maclay” and/or “Brown” to carry out the aforesaid activities and contributed directly and proximately to the damages more specifically stated hereinafter.

On June 8, 1979, the trial court, over petitioners' objection, ordered Scott Maclay to produce the following within twenty days:

1. Any and all photographs, negatives and prints taken by the Defendant, Scott MaClay concerning the incident described in the Complaint.

It also required Maclay to answer twenty-two questions posed to him in his deposition. The same order required Cape Publications and Gannett News Services to produce the following:

1. Any and all photographs, negatives and prints taken by the Defendant, Scott MaClay, concerning the incident described in the Complaint.
2. Any and all news articles, stories, news releases or other items published by the Defendant, Cape Publications, Inc., and Gannett News Services, Inc., concerning the incident described in the Complaint.
3. Any and all copies of the news releases or other information or data provided by Cape Publications, Inc., or Gannett News Services, Inc., to Associated Press.

and:

Any and all notes, memorandum, rough draft, stories and all other materials in the possession of the Defendants, Cape Publications, Inc., and Gannett News Services, Inc. regarding the news story and investigation regarding the incident described in the Complaint.
Any and all photographs, negatives and prints taken by its servants and employees of the Defendants, Cape Publications, Inc., and Gannett News Services, Inc. Any and all photographs, negatives and prints in the possession of the Defendants, Cape Publications, Inc., and Gannett News Services, Inc., regarding the incident described in the Complaint.
Any and all photographs, negatives and prints purchased by the Defendants, Cape Publications, Inc., and Gannett News Services, Inc., involved in the incident described in the Complaint.

The trial court based its order on Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979), a defamation action. The Supreme Court upheld the district court’s order compelling one of the deposed defendants to answer questions which inquired into the editorial process and state of mind of those responsible for the publication of a report involving the plaintiff on the television program, “60 Minutes,” and in a subsequent article in Atlantic Monthly.

We concur with the trial court and its reliance upon Herbert, supra, which cited Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), and said:

Reliance upon such state-of-mind evidence is by no means a recent development arising from New York Times [376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)] and similar cases. Rather, it is deeply rooted in the common-law rule, predating the First Amendment, that a showing of malice on the part of the defendant permitted plaintiffs to recover punitive or enhanced damages. In Butts, the Court affirmed the substantial award of punitive damages which in Georgia were conditioned upon a showing of “wanton or reckless indifference or culpable negligence” or “ill will, spite, hatred and an intent to injure . . . .” 388 U.S. [130] at 165-166, [87 S.Ct. 1975, 1997, 18 L.Ed.2d 1094]. Neither Mr. Justice Harlan, id., at 156-162, [87 S.Ct., at 1997, nor Chief Justice Warren, concurring, id., at 165-168, [87 S.Ct., at 1996-1998], raised any question as to the propriety of having the award turn on such a showing or as to the propriety of the underlying evidence, which plainly included direct evidence going to the state of mind of the publisher and its responsible agents, (footnotes omitted). 441 U.S. at 161-163, 99 S.Ct. at 1641-1642.

The Supreme Court added:

Courts have traditionally admitted any direct or indirect evidence relevant to the state of mind of the defendant and necessary to defeat a conditional privilege or enhance damages. The rules are applicable to the press and to other defendants alike, and it is evident that the courts across the country have long been accepting evidence going to the editorial processes of the media without encountering constitutional objections, (footnotes omitted). 441 U.S. at 165, 99 S.Ct. at 1643.

In Florida, punitive damages are defined as:

[Djamages which are given as an enhancement of compensatory damages because of the wanton, reckless, malicious or oppressive character of the acts complained of. Ellis v. Golconda Corp., 352 So.2d 1221, 1225 (Fla.1st DCA 1977), cert. denied sub nom. Peterson v. McKenzie Tank Lines, Inc., 365 So.2d 714 (Fla.1978).

Respondent has sought punitive damages in each count of her second amended complaint. We do not perceive any reason to exclude actions for invasion of privacy, trespass or intentional infliction of emotional distress from the above recited principles when the issue of punitive damages is pending before the trial court.

Accordingly, the petition is denied.

LETTS, GAVIN K., and ANSTEAD, HARRY LEE, Associate Judges, concur.

      . Associated Press was also a named defendant.

      . The order recited that whatever applied to Scott MaClay was also required of Robert Brown.

      . We note in passing that this paragraph does not limit the discoverable matter articulated therein to information concerning the incident described in the complaint and therefore seems to be overbroad. However, we shall not consider the issue further since petitioners have not raised it.

      . See note 3, supra.

      . The objectionable inquiries were:
      “1. Lando’s conclusions during his research and investigations regarding people or leads to be pursued, or not to be pursued, in connection with the ‘60 Minutes’ segment and the Atlantic Monthly article;
      “2. Lando’s conclusions about facts imparted by interviewees and his state of mind with respect to the veracity of persons interviewed;
      “3. The basis for conclusions where Lando testified that he did reach a conclusion concerning the veracity of persons, information or events;
      “4. Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication; and
      “5. Lando’s intentions as manifested by his decision to include or exclude certain material.” Herbert v. Lando, 568 F.2d 974, 983 (CA 2 1977).

        Herbert v. Lando, 441 U.S. 153, 157 fn.2, 99 S.Ct. 1635, fn.2, 60 L.Ed.2d 115 (1979).

      . Malice is not an essential element of a cause of action for compensatory damages arising out of trespass, 32 Fla.Jur., Trespass §§ 5, 15; or out of invasion of privacy. Santiesteban v. Goodyear Tire & Rubber Company, 306 F.2d 9, 12 (5th Cir. 1962). However, if the action for invasion of privacy arises out of publication of matter which places a claimant in a “false light,” it is necessary that there be proof that publication was made with knowledge of its falsity or in reckless disregard of the truth. This has been described as “actual malice.” Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974).
      Malice is implicit in an action for intentional infliction of emotional distress, which action permits not only punitive damages but also damages for mental suffering. Dowling v. Blue Cross of Florida, Inc., 338 So.2d 88 (Fla.1st DCA 1976); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950).


author: DAUKSCH, JAMES C„ Jr., Associate Judge. DOWNEY, Judge,

text:
    Sterling J. PLANCK, Sr., and Southport Boat Storage and Sales, Inc., a Florida Corporation, Appellants, v. TRADERS DIVERSIFIED, INC., a Florida Corporation, Appellee.
    No. 77-1132.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1980.
    Rehearing Denied Sept. 23, 1980.

      Wilton L. Strickland and Carey M. Fischer of Ferrero, Middlebrooks & Strickland, Fort Lauderdale, for appellants.
    Richard W. Wasserman, Miami Beach, for appellee.
   DAUKSCH, JAMES C„ Jr., Associate Judge.

This is an appeal from a judgment in favor of a broker and against a seller of real estate. The question on appeal is whether the broker had an exclusive listing agreement entitling him to a commission no matter who sold the property to whom dúr-ing the time period of the listing agreement.

The listing agreement gave the broker one month from this date (and thereafter until this agreement is revoked by ten days’ written notice delivered to you), the sole right and authority to find a purchaser for the above described property at the following price and terms, or at any other price and terms acceptable to me:
Price: $895.000.00c Terms: $295.000.-_00c cash, and Purchase money Mort. of _$600.000.00(t or all cash. Mort. will _be held at a rate of 9%. pavmt. of _$6000.00 per, mo._
# # # This Listing Agreement pertains only _to the above named property to be of-_fered for sale to Mr. Phillip Slack of Chicago Ill.

The portion of the agreement which says “# # # This Listing Agreement pertains only to the above named property to be offered for sale to Mr. Phillip Slack of Chicago, Ill.” is typed in, as are some other portions of this apparently rather standard printed agreement. This typed part of the agreement limits the right of the broker to negotiate a sale to Phillip Slack. However, in the first part of the agreement, which is part of the printed form, the agreement does not limit the broker’s authority and would give the broker the right to collect a commission no matter who sold the property to whom. Thus there is a conflict in the agreement as to the extent of the broker’s right. It has been generally held that typed portions of a contract which are at variance or in conflict with printed provisions take precedence and are controlling. MacIntyre v. Green’s Pool Service, Inc., 347 So.2d 1081 (Fla.3d DCA 1977).

The dispute arose in the case because the seller, Planck, sold the property to someone other than Slack during the thirty day period of the listing agreement. Ap-pellee filed suit for a commission on account of that sale. The issue went to trial and a jury returned a verdict for the broker which verdict was reduced to judgment. Appellant urges the trial court erred in denying his motion for directed verdict and erred in entering the judgment. We agree and reverse. In interpreting the agreement, we have applied the standard relating to typed versus printed provisions in a contract. MacIntyre v. Green’s Pool Service, Inc., 347 So.2d 1081 (Fla.3d DCA 1977). We have also considered the law which says ambiguities in a contract are more strictly construed against the drafter. MacIntyre v. Green’s Pool Service, Inc., 347 So.2d 1081 (Fla.3d DCA 1977); American Agronomics Corporation v. Ross, 309 So.2d 582 (Fla.3d DCA 1975). This rule is especially true when the drafter stands in a position of trust, or greater professional or business knowledge, such as a real estate broker. Falovitch v. Adrienne Realty, Inc., 345 So.2d 839 (Fla.3d DCA 1977). The broker in this case drafted the listing agreement so we interpret it in favor of the client/appellant. This leads us to the decision that the agreement limited the broker to the right to collect a commission only if he secured the offer to purchase from Slack within the thirty days and before the appellant sold the property to anyone else. The evidence is clear the broker did not secure the ultimate purchaser, did not produce a contract offer from Slack before the sale to the ultimate purchaser and is entitled to no commission. See also Wilkins.v. W. B. Tilton Real Estate and Insurance, Inc., 257 So.2d 573 (Fla. 4th DCA 1971).

REVERSED.

ANSTEAD, J., concurs in conclusion .only.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting:

The final judgment based upon a jury verdict awarding appellee a real estate brokerage commission should, in my judgment, be affirmed.

The evidence reflects that appellant Planck entered into a listing agreement with appellee Traders Diversified, authorizing Traders to sell appellant’s property for a period of thirty days upon certain terms and conditions. The contract provided that appellee was only authorized to sell the property to a specific person, Phillip Slack. However, the contract further provided that a commission would be due appellee whether the purchaser was secured by ap-pellee or Planck. The pertinent portions of said contract are reproduced herein for the sake of clarity:

EXCLUSIVE LISTING AGREEMENT# # #
Date: May 18.1976
1. In consideration of your agreement to list and to use your efforts to secure a purchaser for the property described as:
Southport Marina. 1335 S.E. 16th Street Fort Lauderdale Fla.
I hereby give you for a period of one month from this date (and thereafter until this agreement is revoked by ten days’ written notice delivered to you), the sole right and authority to find a purchaser for the above described property at the following price and terms, or at any other price and terms acceptable to me:
Price: $895.000.00<t Terms: $295.-_000.00(E cash, and Purchase money _Mort. of $600.000.00<t or all cash. _Mort. will be held at a rate of 9%. _pavmt. of $6000.00 per, mo._
# # # This Listing Agreement pertains only _to the above named property to _be offered for sale to Mr. Phillip Slack of Chicago Ill.
Interest on encumbrances, taxes, insurance and rents shall be adjusted prorata at date of closing. Improvement liens are to be paid by me.
3. For finding a purchaser for the above property:
A. I agree to pay you a commission of SIX % of the sales price.
B. The commission is to be paid whether the purchaser be se-sured by you or me, or by any other person, at the price and upon the terms mentioned or at any other price or terms acceptable to me; or if the property is afterwards sold within three (3) months from the termination of this agency, to a purchaser to whom it was submitted by you, or a co-operating broker during the continuance of the agency, and whose name has been disclosed to me.

The contract in question, prepared by Traders Diversified is a form contract which contained blank spaces for specified information to be filled in. The underlined portions of the contract as set out above are the sections completed and typed in by ap-pellee.

Within the thirty day period provided in the contract Russell, a broker representing the appellee, presented Planck with a signed contract from Slack and a check for $10,000 earnest money; however, Russell was then advised by Planck that the property had been sold to another purchaser during the thirty day period. Since the contract provided in Section 3B that a commission would be owed whether a purchaser was secured by Traders or another party, the appellee demanded a 6% commission from Planck. The demand was refused and this litigation ensued.

Appellants contend that the typewritten provisions of the contract, specifically that portion which restricted the prospective purchasers to Mr. Phillip Slack, and paragraph 3B thereof are incompatible, thus creating an ambiguity. With regard to that ambiguity appellants cite several rules of construction which they feel compel a decision of the issue in appellants’ favor. First, appellants cite the rule which provides that a contract will be construed most strictly against the party who prepared the contract; i.e., in this case the appellee. Tannen v. Equitable Life Insurance Company of Washington, D.C., 303 So.2d 352 (Fla. 3rd DCA 1974). Secondly, appellants rely on the rule that typewritten portions of a contract must prevail where they are inconsistent with printed portions of the contract. McDonald v. Connell, 158 So.2d 780 (Fla.2d DCA 1963). Construing the contract in the light of those rules the appellants conclude that the appellee was clearly not entitled to recover a commission.

My consideration of the briefs, record and pertinent case law leads me to believe that the judgment appealed from should be affirmed upon either of two theories. The first theory is that the contract was not ambiguous and by its terms the appellee had the exclusive right to sell for thirty days. The contract was clear that the ap-pellee could only sell to Phillip Slack. Any sale, however, by another within the time specified entitled appellee to a commission. But even if one proceeds on the premise that the contract is ambiguous, the final judgment still should be affirmed. Where a contract is ambiguous parol evidence is admissible to explain the intention of the parties. Royal American Realty Inc. v. Bank of Palm Beach & Trust Co., 215 So.2d 336 (Fla. 4th DCA 1968). In this case parol evidence was admitted during trial concerning the intention of the parties in contracting as they did. Furthermore, the court charged the jury upon the proper manner for them to resolve ambiguities in a contract, specifically instructing the jury concerning the two rules of construction relied upon by appellants. The jury applied these instructions to the evidence adduced and found in favor of the appellee.

Adverting once again to the first theory, I am persuaded that this contract is not ambiguous. The contract appears to be one containing an exclusive right to sell as opposed to an exclusive agency to sell. Briefly, the distinction is that an exclusive right to sell divests the owner of his right to dispose of the property for the period designated in the contract, whereas an exclusive agency to sell does not prevent the owner himself from selling the property during the agency period. Of course, if the owner has an opportunity to sell the property during the period of an exclusive right to sell, he could sell it himself but he would be liable to the broker for a commission. This is to be distinguished from an exclusive agency where the owner could sell his property within the contractual period with impunity as far as a commission is concerned.

My conclusion that this contract contained an exclusive right to sell is based upon the reasoning found in Flynn v. McGinty, 61 So.2d 318 (Fla.1952). Therein the court was called upon to construe a brokerage contract and held:

In the instant case there can be no doubt as to what the parties meant by their agreement. It is plainly and unequivocally stated that commission will be earned whether the property was sold “by myself, or through your instrumentality or any other person”. These words leave no room for construction or interpretation. Supra 320.

The language upon which the Flynn court predicated its determination is very similar to that found in the contract involved in this case. As noted above, that contract stated: “the commission is to be paid whether the purchaser be secured by you or me or by any other person.” It seems to me such language is clear and unambiguous.

Based on the foregoing I believe this contract gives appellee a thirty day exclusive right to sell the property to Phillip Slack. Appellant agreed to pay appellee a commission of 6% of the sales price, which commission would be payable during the thirty day period even if Planck or someone else produced the purchaser. Construing the contract in that way, appellee was entitled to a commission on the facts of this case.

As I previously stated however, if the contract is ambiguous, there is nevertheless evidentiary support in the record and under the instructions of the court to find in favor of the appellee.

In their verdict favorable to the appellee the jury decided that they would not give the appellee interest on the commission (although the court had instructed them they should). However, appellee does not complain of that departure from the instruction, appellant does! It is the appellant’s contention that this jury aberration demonstrates that the jury did not understand nor exercise its function properly. This may be true regarding the allowance of interest, but I do not believe that is something the appellant can resort to for a reversal of the judgment.

Accordingly, I would affirm the judgment appealed from.


text:
    Thomas David McGRAW, Appellant, v. STATE of Florida, Appellee.
    No. NN-438.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.
    Rehearing Denied Sept. 16, 1980.

      Michael J. Minerva, Public Defender, and Harold W. Long, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., for appellee.
   PER CURIAM.

McGraw appeals the denial of his motion to dismiss a charge of carrying a concealed firearm; the denial of his motion to suppress marijuana and a firearm seized from his truck; and the imposition of an allegedly illegal sentence. We reverse.

The pertinent facts are as follows: On December 28, 1978 McGraw was stopped by Officer Richardson for driving in an erratic manner. Richardson made McGraw step to the rear of his truck, where he told McGraw why he had been stopped. McGraw returned to his vehicle, at which time, Officers Brown and Andreason arrived at the scene.

Richardson again asked McGraw to step out of his truck, where he conducted a field sobriety test on McGraw. During this test, Andreason walked to the passenger side of the vehicle and looked in the window. He saw a pistol partially covered by a wet suit on the front seat. A cigar box was on top of the wet suit. Andreason called Richardson over to look in the passenger window. Richardson testified that he too saw the pistol. He testified that he did not see the pistol on the two occasions he had been on the driver’s side of the vehicle. The two officers’ testimony revealed they immediately recognized the object partially covered by the wet suit as a pistol.

Richardson returned to the rear of the truck and informed McGraw, who was standing with Officer Brown, he was under arrest for carrying a concealed firearm. After the arrest, Andreason removed the cigar box from the truck, opened it, and seized the marijuana he found inside.

McGraw was charged with carrying a concealed firearm contrary to Section 790.-01(2) Florida Statutes (1977); possession of more than five grams of marijuana contrary to Section 893.13(l)(a)(3) Florida Statutes (1977); and driving with a suspended drivers license contrary to Section 322.34 Florida Statutes (1977). He filed a motion to suppress the pistol and the marijuana, arguing they were illegally seized since there was no probable cause to search the vehicle. He filed a motion to dismiss the firearm charge because the state did not prove concealment. The motions were denied. Subsequent to this denial, he pleaded nolo contendere to the two charges reserving the right to appeal the denial of these motions. McGraw was sentenced to three years probation on each of the three counts provided he served three months in county jail.

The trial court erred in failing to dismiss the charge of carrying a concealed firearm. The facts reveal that neither officer had any difficulty in identifying the object on the front seat as a pistol. They knew immediately it was a pistol. While Richardson might not have been able to see the firearm from one side, he clearly saw the firearm from the passenger side. It is obvious that an object might be seen better from one angle than another.

The state relies on State v. Ensor, 375 So.2d 13 (Fla. 4th DCA 1979), for the proposition that concealed does not mean totally concealed from sight. Ensor, supra held:

[Tjhat a portion of an unidentified object may be in plain view and yet a reasonable inference can be raised that the unseen portion is such that the object is a concealed firearm within the content of Section 790.01 Fla.Stat. (1977). The question the trial judge must ask in ruling on a motion to dismiss in this type of case is whether the firearm could have been concealed from the ordinary sight of another person and thus not be recognized as a firearm. (Emphasis supplied.)

While we agree with the holding in Ensor, supra, the facts of the instant case are distinguishable. Here, there was no unidentified object, and the officers recognized the object as a firearm immediately.

The instant case seems controlled by Powell v. State, 369 So.2d 108 (Fla. 1st DCA 1979) and State v. Day, 301 So.2d 465 (Fla. 1st DCA 1974). Since the officers saw what they knew to be a firearm, the weapon was not concealed within the meaning of the statute.

As to the motion to suppress, the state has taken inconsistent positions. Here, it argues the officers had probable cause to search McGraw’s vehicle because he was arrested for carrying a concealed firearm. Since the firearm was in plain view, the officers had probable cause to make a more extensive search for other weapons. Therefore, they argue the seizure of the marijuana was proper. How can a concealed weapon automatically be transformed into a weapon in plain view to justify a search? We hold it cannot. See State v. Day, supra. Since the arrest for carrying a concealed firearm was error, the subsequent search based upon that arrest was invalid.

The trial judge imposed an illegal sentence upon McGraw when he sentenced him to three years probation for driving with a suspended drivers license. The maximum period of incarceration for this offense is one year in jail. Section 322.34(1) Florida Statutes (1977); Section 775.-082(4)(a) Florida Statutes (1977). The sentence of three years probation is illegal since periods of incarceration and probation cannot exceed the maximum allowable sentence for the offense charged. State v. Holmes, 360 So.2d 380 (Fla.1978). The trial judge shall modify the sentence for driving with a suspended drivers license in accordance with Holmes, supra.

Therefore, we reverse and remand for the entry of an appropriate order and sentence consistent with this opinion.

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

BOOTH, J., dissents (without written opinion).


author: LARRY G. SMITH, Judge.

text:
    MANATEE COUNTY, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Manatee County Municipal Employees, Local 1584, AFSCME, AFL-CIO, Appellees.
    No. OO-1.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.

      James M. Blue of Hogg, Allen, Ryce, Norton & Blue, Tampa, for appellant.
    Michael G. Cañar, Fort Lauderdale, for AFSCME; and Martha A. Curtis, Tallahassee, for Public Employees Relations Commission.
   LARRY G. SMITH, Judge.

Manatee County appeals the order of ap-pellee, Florida Public Employees Relations Commission, which certified Manatee County and Municipal Employees, Local 1584, AFSCME, as the exclusive collective bargaining agent for a group of county employees. We find merit in what we consider to be the major point presented, that is, the County’s contention that the certification proceedings should be invalidated because of PERC’s procedural error in denying the County the opportunity to present evidence supporting the agreement of the County and the Union to exclude Comprehensive Employment Training Act (CETA) employees from the proposed bargaining unit. We reverse.

Local 1584’s petition for certification sought representation of a proposed “blue collar” bargaining unit. The petition specifically excluded from the proposed unit, “supervisory and managerial personnel and CETA workers.” These exclusions were agreed to by the County. A hearing was held on October 13, 1976, pursuant to Rule 8H-3.18, Florida Administrative Code, following which the hearing officer issued his report. After receipt and review of the hearing officer’s report, on May 27, 1977, PERC issued its analysis and proposed order, which included a finding and ruling, contrary to the Union and the County’s stipulation, that CETA employees should properly be included in the bargaining unit.

On June 22, 1977, the County filed its exceptions to PERC’s order and requested a further evidentiary hearing to present evidence supporting the stipulation to exclude CETAs. PERC denied the request. The County repeatedly renewed its request for a further hearing, but PERC adamantly refused to permit it, even though it ordered a further evidentiary hearing on other matters. Significantly, a period of more than thirteen months elapsed between the date of the County’s first request for a further hearing and the election itself, which was finally held on July 28, 1978.

In capsule form, the County’s contentions before this court may be summarized briefly as follows: The Union filed a petition excluding CETA employees; the County agreed to the exclusion; a hearing was held at which neither the County nor the Union sought to introduce evidence on the reasons for exclusion of CETA employees; and after the close of the hearing the Commission ignored the petition and stipulation and included CETA employees in the bargaining unit.

PERC’s May 30,1978 order finally rejected the County’s objections to inclusion of CETA employees, denied the County’s request for an opportunity to present further ' evidence on the question, and ordered an election. The order stated, in part:

With respect to the CETA issue, the County asserts that it was duped into not litigating the status of CETA employees by its alleged stipulation with AFSCME as to the exclusion of CETA employees from the unit. The County lugubriously avers that, as a result of its agreement with AFSCME, it “. . . considered it totally unnecessary to submit testimonial evidence during the Representation Hearing held on October 13, 1976, to support the exclusion of CETA workers. . .”
In Orange County P.B.A. and City of Sanford, 4 FPER § 4119 (1978), the Commission held:
Section 447.307(4)(a-h) contains a list of criteria which the Commission must consider when it defines bargaining units proposed by petitions for certification. It is elementary that, in order for the Commission to consider these enumerated criteria, evidence with respect to the application of these criteria to the facts of each case must be adduced for Commission consideration. The Commission’s statutory responsibility to consider such evidence exists independently of the willingness of the parties in representation cases to present such evidence. Where no party is willing to present evidence as to one of the enumerated statutory criteria, it is incumbent upon the PERC Hearing Officer, whose duty it is under Fla.Admin.Code Rule 8H-3.18(c) “. . .to inquire fully into all matters at issue and to obtain a full and complete record . . . ”, to shed light upon relevant areas which, absent his inquiry, would remain enshrouded in mystery with the connivance of the parties. 4 FPER, at p. 228.
Since neither the County nor AFSCME desired to present evidence concerning CETA employees, it was incumbent upon the Hearing Officer to inquire into the issue; he did so. The County’s failure to adduce additional evidence beyond that adduced via the Hearing Officer’s questioning does not constitute a Commission denial of due process to the County. (PERC’s order, May 30, 19.78)

PERC’s view, according to the order, is that stipulations by the parties are not “stipulations of fact”; they are simply “statements of coincidence of position” by the parties, “which do not in any way bind this Commission . . . ,” and further:

. The Commission, not the parties, is mandated by Section 447.307(3) to define appropriate bargaining units. All such unit “stipulations” must be subjected to Commission scrutiny based on competent evidence in the record. Should representation case parties fail to submit evidence in support of their “stipulation,” no jurisprudential sleight of words may transmute their failure to present evidence in support of their position into a Commission denial of the opportunity to present such evidence. (PERC’s order, May 30, 1978)

Upon review of the record and consideration of the briefs and arguments presented by the parties, we are convinced that PERC’s stated position with respect to “stipulations” is not in accord with its previous pronouncements, or, even if viewed as arguably consistent, it was misapplied in this case; and we are not persuaded by PERC’s argument that the County’s right to present further evidence on the CETA issue was forever foreclosed by PERC’s assertion of paramount right, under Section 447.307(3)(a)(l), to unilaterally restructure a bargaining unit based upon its own independent inquiry into the appropriateness of the proposed unit. We are aware that this court, in School Board of Marion County v. Public Employees Relations Commission, 330 So.2d 770 (Fla. 1st DCA 1976), drew a distinction, so far as PERC’s unit-defining authority is concerned, between so-called “voluntary recognition situations,” under Section 447.307(1), Florida Statutes, and “non-voluntary certification petitions” under Section 447.307(2), et seq., Florida Statutes. Our ruling in this case does not in any way disturb the holding of the Marion County case. PERC’s order acknowledges the requirement that the discharge of its duties in defining bargaining units requires that its decisions be based upon evidence presented. It is a fundamental rule of administrative law that agencies required to make a determination upon or after a hearing, in the exercise of a quasi-judicial function, cannot act solely on their own information. Thorn v. Florida Real Estate Commission, 146 So.2d 907 (Fla. 2nd DCA 1962); Coleman v. Watts, 81 So.2d 650 (Fla.1955); 1 Fla.Jur. Administrative Law, § 86. See also City of Titusville v. Florida Public Employees Relations Commission, 330 So.2d 733 (Fla. 1st DCA 1976).

The Administrative Procedures Act provides that, unless precluded by law, informal dispositions may be made of any proceeding by stipulation, agreed settlement, or consent order. Section 120.57(3), Florida Statutes. We take judicial notice of the frequent, customary and mutually beneficial practice, in both judicial and administrative proceedings, of disposing of all or part of the issues by stipulations. It is necessary, therefore, for the administrative agency to take into account due process considerations when dealing with stipulations or agreements of the adversarial parties submitted during the course of administrative hearings. This court ruled in Gandy v. Department of Offender Rehabilitation, 351 So.2d 1133 (Fla. 1st DCA 1977), that it is “axiomatic” that neither a hearing examiner nor a court may, in the absence of consent, either express or implied, consider evidence received over objection which is outside the issues and then rely upon that evidence as the basis for his or its ultimate order. Further, said the court, “when the issues have been narrowed by stipulation and a party thereby lulled into responding to evidence adduced over his objections outside the issues, such evidence may not be used to his detriment.”

PERC’s contention that the County had full opportunity to present evidence supporting the agreed exclusion of CETA employees is correct, in the sense that no one prevented either the County or the Union from producing such evidence at the October, 1976 hearing. However, for us to limit our consideration to such a narrow review in this ease would require us to overlook factors which to us have an important bearing upon the fairness and integrity of the decision-making process followed here. The County’s reliance, with or without justification, upon its stipulation with the Union as precluding the necessity for presenting evidence on the CETA issue, at the October 1976 hearing, is not the only consideration. We have therefore considered the record, including the timeliness of the County’s assertion of its reliance upon the stipulation, and the timeliness of its numerous requests for the opportunity for a full presentation on the issue; the extent to which the County’s request for a further hearing would have unduly prolonged the decision-making process, or unduly delayed or prejudiced the rights of the opposing party; the extent to which the evidence actually presented on the CETA issue measures up to the requirements of PERC’s own rules; and the sufficiency of the evidence as the basis for a reasoned decision on the inclusion or exclusion of CETA employees from the bargaining unit. We have also considered whether the prejudice to the County resulting from denial of its request to present further evidence is sufficient to warrant setting aside the election and certification of the Union.

We think the record demonstrates the County’s reliance upon its stipulation to exclude CETAs, and that, pursuant to that reliance it elected not to fully develop an evidentiary basis for CETA exclusion. At the hearing, James Brady, the AFSCME business agent, testified on cross-examination that it was not the intention of the Union to include any CETA employees in the bargaining unit, “Not at this time, or ever.” He explained that while the Union was aware that CETAs do have collective bargaining rights, because of the nature of their employment it was the thinking of the Union that any attempt to organize CETA workers should be on the basis of a CETA unit, “since they have things in common other than what the public employees have.” At a later point in his testimony, after the hearing officer presented further questions concerning CETA employees, the County attorney objected, contending that testimony about CETA would be immaterial. Then the following exchange between the hearing officer and counsel took place:

HEARING OFFICER: Well I think it is — I think there is testimony that there are employees of Manatee County who are employed under the CETA program; that we had [sic] some testimony on the record for Commission determination of their status.
MR. FAYE: Would the hearing officer like then to have somebody who is in charge of the CETA employees be here to tell us what the CETA employees do? HEARING OFFICER: I would appreciate that very much. In light of the fact that we will be getting someone from the City [sic], I won’t ask any further questions on this.

In response to the hearing officer’s request, the County produced Regis Chapman, Director of the Manatee County Department of Human Resources, which has responsibility for the CETA program. Mr. Chapman briefly explained the CETA program, and the number and status of CETA employees employed by the County. At the conclusion of his brief testimony on direct, consisting of some five pages, the County’s attorney inquired of the hearing officer as follows:

MR. FAYE: Mr. Hearing Officer, actually I am presenting this testimony of this witness to the benefit of the Commission because there was some request that we have some information about CETA.
So, I really don’t know how extensive you want my examination to be on what a CETA employee is.
Would you like for me to inquire further, in more detail?
HEARING OFFICER: No. I think we certainly established the important points.

Notwithstanding PERC’s argument on this appeal that the County attorney called and examined witnesses on the CETA issue, our review of the evidence and the dialogue between the County attorney and the hearing officer, above quoted, demonstrates that neither the Union nor the County viewed the CETA issue as a matter in controversy.

PERC’s position concerning the effect of stipulations has been expressed in prior cases by PERC itself. In Hillsborough County Aviation Authority, 2 FPER 54 (1976), the hearing officer accepted the stipulation of the parties concerning the composition of the appropriate collective bargaining unit, as a result of which no evidence was offered or taken, nor was any sought. In approving the order, while at the same time expressing reservations about the procedures followed, the Commission stated:

We have long held that this Commission will not reject agreements or stipulations entered by the parties unless the agreements or stipulations are repugnant to the language or policies of the act.

To the same effect was PERC’s decision in State University System Board of Regents, 3 FPER 39 (1977), in which the Commission stated:

Although the composite stipulation entered into by the parties is not binding on this Commission, it has long been held that a stipulation will not be rejected unless it is contrary to the language or intent of Chapter 447, Part II, Florida Statutes (1975) (hereinafter the Act). The Commission concludes that the Composite Stipulation of August 20, 1975 is not repugnant to any of the provisions of the Act or Fla.Admin. Code Chapters 8H-129 (Commissions Rules and Regulations).

We have examined PERC’s order in this case in the light of the foregoing decisions to determine whether the order expresses any finding that the agreement to exclude CETAs is “repugnant to the language or policies of the Act” (Hillsborough County Aviation Authority, supra), or “contrary to the language or intent of Chapter 447, Part II, Florida Statutes (1975)” (State University System Board of Regents, supra). There is no such finding, nor any other policy or practical reason given by the Commission for rejecting the stipulation. The County insists, and we are persuaded that it does so with good reason, that PERC “routinely” accepts bargaining units involving a stipulated exclusion of CETA employees, as in Federation of Public Employees and Collier County, RC-77-071. CETA employees have, however, also been included in bargaining units, as in Federation of Public Employees v. City of Tamarac, 4 FPER # 4070 (1978); and PERC cites authority from another jurisdiction for the proposition that the agency need not accept stipulations contrary to the Public Employees Relations Act or its policy, County Commissioners of Mifflin County v. Pennsylvania Labor Relations Board, 102 LRRM 2735 (July 5, 1979). We note from a reading of this latter case, however, that the stipulation for exclusion of CETA employees there had been withdrawn prior to being acted upon by the agency. We have also noted Evergreen Legal Services and Washington Legal Workers, 103 LRRM 1028 (1979), in which CETA employees were included in a bargaining unit. This case is of doubtful application in the present controversy, however, in view of what we perceive as vast dissimilarities between employees of a typical Florida county, and employees of Evergreen, a publicly-funded legal services program furnishing legal services to low income persons in the State of Washington, in which all employees, CETA and non-CETA, are “dependent on the exigencies of revenues from federal, state, and municipal sources which are generally reviewed annually.” (Id. at 1030) And see particularly Hillsborough County Board of County Commissioners, 5 FPER # 10019 (1979), in which the Commission, applying amendments to the CETA program effective October 11, 1978, found that the conditions that warranted inclusion of CETAs in the City of Tamarac case, supra, no longer applied, and that such amendments would, in fact, require exclusion of CETA employees. Under the Hillsborough County decision, it is clear that PERC’s present position is that CETA employees lack community of interest with regular employees and such employees do not possess a reasonable expectation of continued employment so as to justify their inclusion in a unit of regular employees. It therefore appears that the inclusion or exclusion of CETA employees is an issue on which the County is entitled to be fully heard.

The standards for review of agency action in PERA cases as set forth in Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977), preclude substitution of our judgment for that of the agency. Our concern with the evidence, therefore, is solely for the purpose of determining the merits of the County’s contention that PERC improperly denied its request to present further evidence on the CETA issue. We note at the outset that PERC’s findings regarding the County’s CETA employees do not mesh completely with those made by the hearing officer. The hearing officer found that all CETA personnel are on OPS (Other Personnel Services) status. His order recites: “Chapman testified that in all other respects CETA employees are treated identically with other OPS employees.” PERC’s order found: “Such employees are treated as regular employees.” The hearing officer found that no social security contributions are withheld from compensation paid to CETA employees, and they do not qualify for unemployment compensation by virtue of work in a CETA program. PERC’s order is silent on these matters. The hearing officer pointed out that CETA employees have a grievance procedure “that runs through the Department of Human Resources to the Department of Labor in Atlanta, different from regular employees.” PERC’s order fails to mention this distinction.

The County’s exceptions to PERC’s analysis and proposed order pointed out the need for evidence on other matters in order for PERC to carry out its responsibilities under Section 447.307(4)(a) through (h), Florida Statutes, which sets forth specific criteria to be considered in determining the appropriateness of a bargaining unit. The County's exceptions pointed out the difference in the grievance procedure applicable to CETA employees; the temporary nature of CETA employment, and the inapplicability of important collective bargaining provisions such as seniority and promotions, layoff, and recall; the use of CETA employees on non-profit corporation or service organization projects, completely removed from regular County jobs; the regular transfer or interchange of CETA employees with constitutional County officers such as the Sheriff, Tax Collector, Property Appraiser, and Supervisor of Elections, as well as with various state departments and agencies, whereas no such exchange occurs with regular County employees; and other matters.

Our conclusion from the foregoing discussion is simply that while we would not venture so far as to declare the evidence insufficient to justify inclusion of CETA employees in the bargaining unit in the absence of any stipulation for their exclusion, we are of the opinion that the evidence is insufficient to justify PERC’s overriding of the stipulation between the parties, particularly in the absence of any explanation for doing so that is rooted in the language, intent or policies expressed in Chapter 447, Part II, Florida Statutes.

PERC’s insistence that it adheres to a strict rule requiring evidence in the structuring of bargaining units is refuted by its own actions in this proceeding. Neither its analysis and proposed order of May 27, 1977, nor its order 77E-480 issued November 29, 1977, which included Title II and Title VI CETA employees in the bargaining unit, made any reference to the distinction between CETA employees in “public service employment positions,” and those who are “special project employees.” This distinction was first injected into the record during the reopened hearing on January 27, 1978 by counsel for the Union, who proposed that the County prepare a list of special project CETA employees, and that the Union would join the County in a stipulation to be submitted to PERC for the purposes of identifying and excluding those employees from the bargaining unit. The hearing officer then stated:

HEARING OFFICER:
I will say at this time the Commission’s consistent position, as revealed in a number of recent orders, specifically the City of Tamarac and the City of Tampa, is that CETA employees who occupy public service employment positions or grant CETAs would be included in bargaining units and those who are employed as special project employees with a limited duration of employment would be excluded.

Despite the County attorney’s contention that all CETAs should be “treated the same,” he nevertheless agreed to submit a list of special project CETA employees for the benefit of the Commission. Consistent with the Union’s proposed stipulation, and the County’s cooperation in submitting a list of those employees, PERC’s order 78E-188, issued May 30, 1978, excluded “CETA project employees” from the bargaining unit. Thus, after having denied the County the opportunity to present evidence on the CETA issue, the Union was nevertheless permitted to reopen the issue by its proposed stipulation, which the hearing officer and PERC accepted, without evidence.

We disapprove any rule of procedure which would permit an agency to pick and chose which stipulations of the parties it desires to honor in an after-the-fact fashion. Section 120.57(3), Florida Statutes, previously referred to, recognizes the practicability of stipulations. Consistent with the statutory provision and the rulings on the various matters presented in this proceeding, although we do not adopt any “hard-and-fast” rule on the issue, we suggest that in order to avoid the creation of conflicts such as we have been compelled to resolve in this case, it would appear advisable for the agency to declare in advance of the hearing its position with respect to nonacceptance of stipulations on any subject, or, in the absence of such advance notice, no stipulation not otherwise precluded by law should be rejected without giving adequate reasons for it, and any party prejudiced by such rejection should be given a reasonable opportunity to present the evidence or arguments it would have presented in the absence of such stipulation. Compare Gandy v. Department of Offender Rehabilitation, supra. See also Florida Power Corp. v. Lewis, 381 So.2d 1193 (Fla. 2nd DCA 1980).

In accordance with the reviewing authority provided by Section 120.68(8) and (12), Florida Statutes, we hold the proceedings below were fatally defective for the reasons above set forth, and the certification proceeding must be set aside.

In view of our determination on the procedural point, we find it would serve no useful purpose to extensively discuss the remaining issues. We find no error in the Commission’s rejection of the County’s request for a reopened hearing for the purpose of presenting evidence on a proposed “blue collar-white collar” bargaining unit, nor in the Commission's failure to designate certain employees as managerial or confidential under Section 447.203(4) and (5), Florida Statutes, as urged by the County. Further, while we do not condone the activities engaged in by the Union representatives, as alleged in the County’s objections based on unfair labor practices (Sections 447.301(1), (2) and 447.509(l)(a) and (b), Florida Statutes) nor do we necessarily agree with the reasoning and legal basis for PERC’s decision on these issues, we are of the opinion that the most the County would be entitled to on the record before us would be to compel an evidentiary hearing on these objections; and since we have ordered that the election and certification proceeding itself should be set aside on other grounds, such a hearing would obviously be a useless exercise.

REVERSED and REMANDED.

McCORD and SHIVERS, JJ., concur.

      . Mr. Chapman testified, in part: “They [CE-TAs] are treated as equal to all other employees, except for the fact that they are under what we call Other Personnel Services, OPS category. Otherwise, their pay grades, and their classifications are identical to regular employees.”

      . Without implying any criticism of the hearing officer or the manner in which he discharged his duties, we suggest that a legitimate question may exist whether the mandate of PERC’s Rule 8H-3.18(c), Fla.Admin.Code, requiring the hearing officer to ", . inquire fully into all matters at issue and obtain a full and complete record . . was observed, if the stipulation of the parties is disregarded. The record accepted by PERC as the basis for its decision appears also to fall short of what would appear to be necessary according to PERC’s own assessment of its responsibilities, as stated in Hillsborough County Board of County Commissioners, 5 FPER # 10019 (1979) at page 19:
      Furthermore, in light of the unique nature of each public employer’s organization and operation and the special conditions of employment resulting from each such unique employment situation, the Commission is statutorily mandated by Section 447.-307 to define units on a case by case basis, taking into consideration the special facets of a particular situation.

      .See the Legislature’s declaration of public policy, Section 447.201, Florida Statutes, and powers and duties conferred upon the Commission, Section 447.207, Florida Statutes.

      . Although the nonacceptance of stipulations is not suggested or encouraged, the position of the agency might well be a matter requiring adoption of a rule, Section 120.54, Florida Statutes, or at the very least, included in the notice of hearing, Section 120.57(l)(b)2, d, Florida Statutes. We make no ruling on these issues since they are not presented for consideration by either party.