text:
    Malcolme N. NEWKIRK, Appellant, v. BALBOA INSURANCE COMPANY, Appellee.
    No. 80-2073.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 27, 1981.

      Joel V. Lumer, Miami, for appellant. Lawrence, Griffin & Dick and Harry W. Lawrence, Orlando, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff Malcolme Newkirk appeals from a summary final judgment entered in favor of defendant Balboa Insurance Company. Balboa was the surety for an automobile dealership, Florida City Auto Sales, Inc., from whom plaintiff Newkirk purchased a used automobile. Balboa had posted a surety bond on behalf of Florida City with the Florida Division of Motor Vehicles to protect Florida City’s motor vehicle purchasers against loss or damage resulting from violations of Chapters 319 and 320 of the Florida Statutes.

In an action in the United States District Court for the Southern District of Florida, brought prior to the present action, plaintiff Newkirk recovered a judgment against Florida City for a violation of the federal Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq. (1976). The specific violation in that action concerned the failure of Florida City to disclose certain credit terms to the plaintiff. The thrust of the plaintiff’s present action against Balboa, Florida City’s surety, was to recover the liquidated damages, costs and attorney’s fees awarded in the federal action. The complaint, in general terms, does allege a violation of the Florida Statutes and contains a prayer for damages.

Insofar as the present complaint sought recovery on the federal judgment with regard to the failure to disclose under the federal Consumer Credit Protection Act, the trial .judge correctly determined, as a matter of law, that such failure in and of itself was not sufficient to show a violation of Section 320.27, Florida Statutes (1975). This is so because the Florida statute requires an affirmative act of misrepresentation or fraud. Nevertheless, the issue of the plaintiff’s right to recover for such an alleged act has not been determined. On a motion for summary judgment, where it appears from the pleadings that the plaintiff may have a cause of action, although not properly pleaded, he should be given an opportunity to plead further. See Firestone Tire & Rubber Co. v. Thompson Air craft Tire Corp., 353 So.2d 137 (Fla.3d DCA 1977); and Heinlein v. Metropolitan Dade County, 216 So.2d 473 (Fla.3d DCA 1968).

Accordingly, we affirm that portion of the appealed order which denies the plaintiff’s right to recovery solely upon the United States District Court’s judgment against Florida City, we reverse that portion of the appealed order which enters a final judgment and we direct the trial court to enter an order granting the plaintiff a reasonable time to amend his complaint in accordance with the views expressed herein.

Affirmed in part, reversed in part and remanded.

      . § 320.27(9)(e), Fla.Stat. (1975) prohibits: “Misrepresentation or false, deceptive, or misleading statements with regard to the sale or financing of motor vehicles which any motor vehicle dealer has, or causes to have, advertised, printed, displayed, published, distributed, broadcast, televised, or made in any manner with regard to the sale or financing of motor vehicles.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gregory Roy BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 79-639/T4-460.
    District Court of Appeal of Florida, Fifth District.
    April 8, 1981.
    Rehearing Denied May 7, 1981.
    Richard L. Jorandby, Public Defender and Denise Banjavic, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981).

ORFINGER, COBB and SHARP, JJ., concur.


author: ORFINGER, Judge.

text:
    STATE of Florida, Appellant, v. Roosevelt EDGE, Appellee.
    No. 79-222.
    District Court of Appeal of Florida, Fifth District.
    April 8, 1981.
    Rehearing Denied May 8, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    John A. Baldwin of Baldwin & Dikeou, Fern Park, for appellee.
   ORFINGER, Judge.

Appellee was charged with manslaughter under section 860.01(2), Florida Statutes (1979), (causing the death of a human being by virtue of driving a motor vehicle while intoxicated.) The trial court granted a motion to suppress a blood sample taken from appellee, and the State appeals.

Appellee was involved in a motor vehicle accident in the early morning hours of October 22, 1978. When the accident was reported, Highway Patrol Trooper Morris was dispatched to investigate the accident and Trooper Barley was dispatched to control traffic and handle spectators. Later, Trooper Gill, a homicide investigator, was called from home at about 4:30 A.M. to investigate the death of the occupant of the other vehicle.

When Trooper Gill arrived at the scene, appellee had already been removed to the hospital, but because of information relayed to him by Trooper Morris and because of beer cans found in appellee’s vehicle, Trooper Gill, as homicide investigator, asked Trooper Barley to go to the hospital to obtain a blood sample from appellee.

When Barley arrived at the hospital, he located appellee and asked for his permission to cause a blood sample to be drawn. Barley advised appellee that his consent was needed before the sample could be drawn and that he was not required to give his consent. Barley did not place appellee under arrest, and although not specifically advising appellee of the death of the other driver, he told appellee that he was requesting the blood sample for the homicide investigator and that the sample would be taken for possible criminal charges against appel-lee, depending on the outcome. Appellee told Barley that he wanted to be of assistance and gave his written consent to the test. An analysis of the blood sample taken at the hospital revealed a content of alcohol by weight at .30 percent.

The order granting appellee’s motion to suppress was based on what the trial judge perceived to be the privilege accorded by section 316.066, Florida Statutes, and the application to the facts of this case of the following cases: Cooper v. State, 183 So.2d 269 (Fla. 1st DCA 1966); State v. Coffey, 212 So.2d 632 (Fla.1968); Coffey v. State, 205 So.2d 559 (Fla. 1st DCA 1968); and Elder v. Ackerman, 362 So.2d 999 (Fla. 4th DCA 1978).

Reviewing the cases relied upon by the trial court, we find them easily distinguishable on their facts. In Cooper v. State, the blood sample taken from the defendant was taken for the express purpose of completing the investigating officer’s traffic accident report. It was requested by the officer investigating the accident. The court held that the report was made confidential by the applicable statute, so the information used as a basis for making the written report was confidential also.

In Coffey v. State, 205 So.2d 559 (Fla. 1st DCA 1967), relying on Cooper, the court held that evidence of the alcoholic content of a blood sample was inadmissible even though consented to by defendant, because the test was requested by the officer investigating the accident, notwithstanding the advice by the officer that he was now making a criminal investigation. The Supreme Court reversed, State v. Coffey, 212 So.2d 632, pointing out the reasons for the rule, saying:.

It is well settled that the statements made by the driver of a vehicle (or the owner or an occupant if the driver is incapacitated, sec. 371.141, Fla.Stat., F.S.A.) to the investigating officer following an accident, relating his version of the accident and forming the basis for the investigating officer’s report to the Department of Public Safety, are sufficient to discharge the driver’s statutory duty insofar as the written report required by Sec. 317.131(1), supra, is concerned. See Stevens v. Duke, Fla.1949, 42 So.2d 361; Herbert v. Garner, Fla.1955, 78 So.2d 727. And it is only such statements — that is, those that the driver of the vehicle (or owner or occupant) is compelled to make in order to comply with his statutory duty —that are clothed with statutory immunity under Sec. 317.171, supra, (emphasis supplied).
* * * * * *
There is nothing in Cooper v. State, supra, 183 So.2d 269, relied upon by the appellate court in the instant case, which requires a different conclusion. In that case the same appellate court which rendered the decision sub judice was concerned with the admissibility of the results of a blood alcohol test that was taken by the investigating officer for the declared purpose of continuing his investigation of the accident and completing his accident report.... (emphasis supplied).

212 So.2d at 634. The court then explained that absent compulsion and when consent was shown, the result of a medical examination of an accused taken for purposes of prosecution was admissible. It then held that even when done by the same officer, where it was clearly made to appear to the defendant that the officer’s traffic investigation had ceased and he had “changed hats” and was now a criminal investigator, the evidence resulting from the criminal investigation was as “admissible in this type of case as in any other.” 212 So.2d at 635.

The other case relied on by the trial court was Elder v. Ackerman, and this case is less like the case sub judice than any other. There, the statements made by the defendant to one of the officers at the accident scene were attempted to be introduced to impeach him, and the evidence revealed that no attempt was made to advise him that the accident investigation had ended and a criminal investigation had begun. The court correctly held that since the report was required of defendant, he was entitled to the protection of the statute making his report inadmissible. Those facts are not present here.

The statute making accident reports privileged and thus inadmissible was designed to protect the constitutional right against self incrimination, while "at the same time requiring persons involved in accidents to make a true report thereof. Coffey, 212 So.2d at 635. Blood tests are not testimonial evidence protected by either the fourth or fifth amendments. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Neither is it necessary that an accused be placed under arrest before the blood can be drawn for testing. State v. Mitchell, 245 So.2d 618 (Fla.1971). In addressing the privilege of the accident report, the Supreme Court made clear what it had said in Coffey, that:

The test for the statutory exclusion under Florida Statutes § 317.171, F.S.A., is whether the information sought to be excluded was taken by the investigating officer for the purpose of making his accident report and formed a basis for that report. The mere fact that the report is filed or completed subsequent in time to the taking of the blood alcohol test, does not justify an inference that the results of the test were taken for, or formed a basis for, the report. In the Coffey case, supra, this Court distinguished Cooper v. State, a case holding blood test results inadmissible, on the grounds that the blood test in Cooper was taken by the investigating officer for the “declared purpose” of completing his accident report, (emphasis supplied).

Mitchell, 245 So.2d at 623.

One more distinction is worthy of note. Apparently our Supreme Court has sanctioned the drawing of blood for testing of alcohol content even in the absence of consent, Mitchell, supra; Filmon v. State, 336 So.2d 586 (Fla.1976), cert. dismissed, 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375. So long as there is not an affirmative refusal to take the test. Sambrine v. State, 386 So.2d 546 (Fla.1980). Even the failure to advise the driver of his right to refuse is no impediment to the lawful administration of the test. Id.

With certain very limited exceptions, the privilege accorded by section 316.-066, Florida Statutes (1979), and its predecessors applies only to “statements” the driver is compelled to make in order to comply with his statutory duty and the statute, being in derogation of common law, must be strictly construed “in the sense that no situation should be held within its operation to which the Legislature did not clearly intend to accord the privilege.” State v. Coffey, supra, at 635. The cases which have considered this question hold that the result of a blood alcohol test of a driver of a motor vehicle is not admissible (assuming that the testing procedure itself is otherwise valid) only under these very narrowly defined limits: (a) where the blood is taken by or at the request of the officer making the traffic investigation for the purpose of making his accident report and it forms the basis for the report, State v. Mitchell, supra; or (b) the driver affirmatively refuses to take the test and it is nevertheless done over his explicit refusal. Sambrine v. State, supra. These cases have drawn a very limited exception to the rule that only testimonial statements are privileged under the reporting statute, and courts should not extend this exception further without a clear express from the Legislature that it intended to extend the privilege that far. See Woodward v. Duval Motor Co., 391 So.2d 700 (Fla. 1st DCA 1980).

Neither of the circumstances giving rise to the privilege exists here. The trooper who arranged for the taking of the blood sample was dispatched to the hospital by the homicide investigator. Neither he nor the homicide investigator was responsible for making the traffic accident report, which duty was assigned to still another trooper. Appellee was specifically told that the blood sample was needed for the homicide investigator and that criminal charges might result, depending on the outcome of the test. Appellee gave his written consent to the test, and it was thus error for the trial court to suppress the results. The order suppressing the blood sample is reversed, and the case is remanded to the trial court for further proceedings.

REVERSED and REMANDED.

DAUKSCH, C. J., and COWART, J., concur.

      . Fla.R.App.P. 9.140(c)(1)(B).

      . Section 322.262(2)(c), Florida Statutes (1979) states that a finding of .10 percent or more by weight of alcohol in a person’s blood is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.

      . “There can be no question but that the taking of the blood sample was intended as a part of the investigation for the purpose of completing the report, required of the officer” (emphasis in original). 183 So.2d at 272.

      . Of interest is the statement in Mitchell that the defendant did not give his consent to the extraction of blood, whereas in the case sub judice the defendant gave his written consent.


text:
    SUN FIRST NATIONAL BANK OF ORLANDO, a national banking association, Appellant, v. Randy MILLER, as Executive Director of the Department of Revenue, State of Florida, Appellee.
    No. 80-26.
    District Court of Appeal of Florida, Fifth District.
    April 8, 1981.
    Rehearing Denied May 8, 1981.
    Patrick T. Christiansen of Akerman, Sen-terfitt & Eidson, Orlando, for appellant.
    Martha J. Cook, Legal Division, Dept, of Revenue, Tallahassee, for appellee.
   PER CURIAM.

This is an appeal of a final judgment which ruled that a lien of the Department of Revenue of the State of Florida (department) on two motor vehicles was superior to the security interest of appellant, Sun First National Bank of Orlando (Sun Bank). The judgment directed the proceeds from the sale of these two vehicles be paid first to the Department of Revenue and, if any money remained after satisfaction of the department’s claim, then to Sun Bank. We find that this ruling is correct and affirm.

George Claing executed a security agreement granting Sun Bank a security interest in two motor vehicles on February 15,1978. Sun Bank did not take any action to have this security interest noted on the certificates of title of these two vehicles until May 21,1979. On this date, Sun Bank filed the necessary papers with the Division of Motor Vehicles, thereby perfecting its security interest in the vehicles. Sec. 319.27, Fla.Stat. (1979); Sec. 679.302(4), Fla.Stat. (1977).

Meanwhile, on May 8, 1979, the Department of Revenue of the State of Florida filed a tax warrant against George Claing for unpaid taxes. Pursuant to law, instructions to levy and seize the two vehicles were delivered to the Sheriff of Orange County and the Sheriff seized the two vehicles on May 22,1979. The department then sought a declaratory judgment concerning the priorities of the parties’ rights in these two vehicles.

Sun Bank’s security interest in the two motor vehicles is governed by the provisions of Florida’s Uniform Commercial Code (UCC), Chapter 679, Florida Statutes. Sec. 679.102, Fla.Stat. (1977). Claing’s security agreement with Sun Bank gave the bank an unperfected security interest in the two vehicles which was superior to the rights of future purchasers or judgment creditors. Sec. 679.201, Fla.Stat. (1979). Sun Bank’s unperfected security interest was inferior to the later rights of a lien creditor. Sec. 679.301(l)(b), Fla.Stat. (1977).

The Department of Revenue acquired a statutory lien on the vehicles on May 8, 1979, when it filed a tax warrant with the clerk of the circuit court and delivered a writ of execution to the sheriff. Although the UCC contains provisions concerning the rights of lien creditors, section 679.102(2) says that Chapter 679 (Uniform Commercial Code — Secured Transactions) “does not apply to statutory liens except as provided in s. 679.310.” Section 679.310 concerns liens for services and materials performed upon certain goods subject to a security interest. It has no application to this case. Consequently, the provisions of the UCC do not apply to the state’s statutory tax lien.

However, the UCC provides that any person becoming a lien creditor before the perfection of a security interest takes priority. Sec. 679.301, Fla.Stat. (1977). Since the department became a lien creditor on May 8, 1979, and Sun Bank did not perfect its security interest in the two vehicles until May 21,1979, the trial court correctly found the lien of the department to be superior to that of Sun Bank.

AFFIRMED.

DAUKSCH, C. J., ORFINGER, J. and EVANS, VERNON W., Jr., Associate Judge, concur.

      . Sec. 212.15(3), Fla.Stat. (Supp. 1978).

      . Love v. Williams,4 Fla. 126 (1850); Hawthorne v. Shepherd, 330 So.2d 75 (Fla. 1st DCA 1976).

      .Sec. 679.301, Fla.Stat.


author: BERANEK, Judge.

text:
    E. C. FOGG, III, Alan S. Fogg, and Elizabeth Lane Fogg, Appellants, v. BROWARD COUNTY, a Political Subdivision of the State of Florida, et al., Appellees.
    No. 79-205.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Rehearing Denied May 27, 1981.

      Alan S. Gold, Dexter W. Lehtinen, and Clifford A. Schulman of Greenberg, Trau-rig, Askew, Hoffman, Lipoff, Quentel & Wolff, P. A., Miami, for appellants.
    Gaylord A. Wood, Jr., Fort Lauderdale, for appellee, Markham.
    Harry A. Stewart, Gen. Counsel, John Franklin Wade, Asst. Gen. Counsel, and Alexander Cocalis, Deputy Gen. Counsel, Fort Lauderdale for appellee, Broward County.
    Jim Smith, Atty. Gen., and William D. Townsend, and E. Wilson Crump, Asst. At-tys. Gen., Tallahassee, for appellee, Department of Revenue.
   BERANEK, Judge.

This case involves the tax status of approximately 270 acres of land in the Town of Miramar, Broward County, Florida. The basic issue is whether the land in question should be classified as agricultural for ad valorem tax purposes pursuant to Section 193.461, Florida Statutes (1973).

Appellants, E. C. Fogg, III, Alan S. Fogg, and Elizabeth Lane Fogg, appeal from a final judgment entered in favor of appel-lees, Broward County, the Broward County Property Appraiser, and other public entities. This final judgment denied appellants’ requested agricultural classification. We reverse and remand.

Appellants brought two actions for declaratory judgment and injunctive relief seeking to have their property classified and taxed as agricultural land for the years 1974 and 1975. The trial court upheld the denial of the agricultural classification by a detailed order and final judgment filed December 26, 1978 and appellants/landowners appeal urging numerous errors. The appel-lee, property appraiser, contends the property was not used for bona fide agricultural purposes, but was instead being held for and used in the active process of development as a high density residential community and that the property is thus appropriately taxed at its fair market value rather than at the lower agricultural assessment.

The facts surrounding the property are disputed. Depending upon interpretation and resolution of conflicts, the property may be viewed as a family farm or in the alternative as a development tract for single family residences to be built. Appellants assert the property was purchased in 1943 for $75,000. There were initially 500 acres purchased which were in turn divided into three parcels; “Pembroke” (180 acres), “Fogg” (270 acres), and the third “Contiguous” parcel (31 acres). Prior to 1974, all three parcels were classified as agricultural land and taxed as such. On January 1, 1974, the Tax Assessor reassessed the property, continuing to classify “Pembroke” and “Contiguous” as agricultural but reclassifying the “Fogg” parcel as nonagrieultural.

As indicated, conflict exists in the possible interpretation of the evidence. The ap-pellees contend the property was actually acquired in a corporate dissolution occurring in 1971, whereby appellants became responsible for $580,000 in mortgage indebtedness against the property. Appellees contend that appellants made the decision to sell the property in 1972, and since that time have engaged in only incidental agricultural use while in the process of selling the property and fully cooperating in its development. These activities included contracts for sale, applications of rezoning, hearings before the City Council, an application for approval of the University Park project to the South Florida Regional Planning Council, engineering studies, approvals of solid waste plans and the approval of bonds to be issued for improvements by the Hollywood Reclamation District. The ap-pellee, property appraiser, argues the property is more aptly described as the “College Park Planned Unit Development” rather than the “Family Farm.”

In any event, agricultural pursuits were clearly being carried out on the property at all times in question. Cattle were being grazed by a tenant of the owner under a lease which required the tenant to keep livestock on the property. The lease was cancelable on 90 days’ notice from the owner. In addition, private owner horses were boarded by the owner plaintiffs on approximately 100 acres which was not leased. Simply put, the property was being used agriculturally while the paper, permit and financial work was being done to turn it into a planned unit development.

The trial involved the application of Section 193.461(3)(b), (4)(a)(3) and (4)(c). These statutes provide in relevant part as follows:

193.461 Agricultural lands; classification and assessment.—
******
(3)(b) Subject to the restrictions set out in this section, only lands which are used primarily for bona fide agricultural purposes shall be classified agricultural. “Bona fide agricultural purposes” means good faith commercial agricultural use of the land. In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration.
1. The length of time the land has been so utilized;
2. Whether the use has been continuous;
3. The purchase price paid;
4. Size, as it relates to specific agricultural use;
5. Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;
6. Whether such land is under lease and, if so, the effective length, terms and conditions of the lease; and
7. Such other factors as may from time to time become applicable.
******
(4)(a) The assessor shall reclassify the following lands as nonagrieultural:
******
3. Land that has been zoned to a non-agricultural use at the request of the owner subsequent to the enactment of this law; or
******
(c) Sale of land for a purchase price which is three or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for bona fide agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted.

The final judgment discusses these various statutes and concludes the case is primarily governed by Section 193.461(4)(c), Florida Statutes (1972 Supp.). The court found that a sale at more than three times. the value of the agricultural assessment had occurred. As a result of this statute, the court relied upon the presumption provided therein and concluded the landowners had not shown the special circumstances required under, the statute to consider the property as agricultural.

The final judgment also holds that a rezoning to a nonagricultural use had occurred. As a result, Section 193.461(4)(a)3, Florida Statutes (1972 Supp.), was found applicable, but the judgment is not couched in terms of reliance upon this statute which is mandatory in nature.

The final judgment also concludes that the property was not used for “bona fide agricultural purposes” within the statutory definition of “good faith commercial agricultural use of the land.” The latter finding appears to be an independent factual determination which is not based on either the sale statute or the rezoning statute.

The tension between real estate development and continued agricultural use of land for tax purposes has promoted substantial litigation in the growing geography and case law of Florida. Although presented in slightly different factual contexts, the prevailing question is whether property soon to be used in nonagricultural development may be maintained as agricultural land and so taxed until the first shovel is actually turned in nonagricultural pursuits. We start by surveying the cases on the subject.

In Straughn v. Tuck, 354 So.2d 368 (Fla.1978), the Supreme Court considered the constitutionality of Section 193.461(3), Florida Statutes (1973). The Court concluded that the statute was constitutional and that “use is still the guide post in classifying land” for agricultural purposes under the taxing statutes. The Court concluded as follows:

Agricultural use is now and has always been the test. “Commercial agricultural use” simply adds another factor, i. e., profit or profit motive, which may be considered by the tax assessor in determining whether or not a claimed agricultural use is bona fide. It does not, as appellees suggest, limit agricultural classification to commercially profitable agricultural operations.

Shortly after the Tuck decision, the Supreme Court decided Roden v. K & K Land Management, 368 So.2d 588 (Fla.1978). There, K & K Land Management bought approximately 350 acres of producing citrus groves for six times the agricultural assessment. Twenty-five acres of highway frontage contained in the 350 acres were developed into an amusement park. The remainder of the grove was used for continued citrus production. The issue before the trial court was whether the taxpayer had overcome the presumption on nonagricul-tural use established by the sale statute, Section 193.461(4)(c), Florida Statutes (1979). The trial court concluded the property should be classified agricultural and so taxed. On review, the Court again stressed that agricultural use was the crucial consideration and that profit or profit motive was not a necessity. The decision in First National Bank of Hollywood v. Markham, 342 So.2d 1016 (Fla. 4th DCA 1977), holding that commercial agriculture meant profitable agriculture was disapproved. In Fisher v. Schooley, 371 So.2d 496 (Fla. 2d DCA 1979), the Second District Court of Appeal considered a situation where property was bought at more than three times its agricultural assessment for purposes of shopping center development. Before the sale and as a condition thereof, the zoning on the property was changed from “agricultural” to “commercial.” The zoning change occurred in 1971 prior to the effective date of Section 193.461(4)(a)3, Florida Statutes (1972 Supp.). After the rezoning and purchase, the new owner attempted to develop the property as a shopping center. The services of a land planner were engaged and market, population and traffic studies and surveys were done. Tentative commitments from prospective tenants of the planned shopping center were solicited. Early loan commitments were secured and financial preparation was done. The owner had every intention of devoting the property to future development as a shopping center as soon as possible. While engaged in these processes, the land was actually used for' the growing of vegetables. Both before and after the sale, the property was leased to the same vegetable farmer who grew crops on it. In short, the property was being used for agriculture while the paperwork was being done to build a shopping center on it. The court held the proper classification to be agricultural and concluded actual use was the determinative factor rather than future motive or expectancy. To the same effect is Department of Revenue v. Goembel, 382 So.2d 783 (Fla. 5th DCA 1980). The land in question there was bought for more than three times its agricultural assessment and in an attempt to establish an agricultural classification, the owner showed continued agricultural use as a citrus grove at a minimal profit. Once again, it was held that commercial success was not required for an agricultural classification and that use as a grove while fully engaged in paper attempts at future development did not require a nonagricultural classification.

A different line of cases is presented in Bass v. General Development Corporation, 374 So.2d 479 (Fla.1979), and Harbor Ventures, Inc. v. Hutches, 366 So.2d 1173 (Fla.1979). In Bass the real estate was under a cattle grazing lease and was exclusively devoted to agricultural activity. The landowner filed a subdivision plat for a portion of the land and relying upon Section 193.-461(4)(a)4, Florida Statutes (1975), the property appraiser reclassified it as nonagricul-tural. The Supreme Court considered the case and found Section 193.461(4)(a)4, Florida Statutes (1975), to be unconstitutional in that it created an irrebuttable presumption of nonagricultural use based upon the mere recording of a subdivision plat. The Court found that the recording of a subdivision plat had no real or substantial relationship to the actual use of the land. In Bass the platting statute was the sole basis for reclassification of the property as nonagricul-tural and the statute was held unconstitutional. In Harbor Ventures, Inc. v. Hutches, supra, the Court declined to decide a constitutional attack on Section 193.-461(4)(a)3, Florida Statutes (1973), the zoning subsection which requires reclassification as nonagricultural when land “has been zoned to a nonagricultural use at the request of the owner.... ”

We now apply the above precedents in reviewing the present judgment. With all respect for the trial court, we conclude the sale statute, Section 193.461(4)(c), Florida Statutes (1972 Supp.), was improperly applied. The judgment makes it clear that although various contracts were signed on the property, no closing ever occurred and legal title never actually passed from the present owners to the various prospective purchasers who intended to develop the property. The owners, who have not yet sold the property, are the contesting taxpayers here and the sale statute applies as against a purchaser of the property. See Bass v. General Development Corporation, supra, and Roden v. K & K Land Management, Inc., supra. Appellees argue that a contract purchaser holds equitable title and that a “sufficient sale” occurred under the facts of this case to invoke the presumption under the sale statute. We disagree and hold that Section 193.461(4)(c), Florida Statutes (1972 Supp.), applies only to a completed sale of realty. The effective transfer of legal title is thus a necessity before the new owner has the burden of showing “special circumstances” warranting an agricultural classification. The practicality and necessity of this ruling is demonstrated by the facts in this case. At least four presumably binding contracts were signed by appellants but each contract expired without a closing. We do not believe the Legislature intended to bar land from an agricultural classification for tax purposes upon the mere signing of a contract to sell it. The statute uses the words “sale of land for a purchase price” and we hold this language means a completed sale rather than the signing of a contract for a future sale. We believe this limited and more narrow construction of the statute is consistent with the legislative purpose. The trial court thus erred in employing the presumption established by the sale statute before a sale actually took place.

We next consider the rezoning statute, Section 193.461(4)(a)3, Florida Statutes (1972 Supp.), which the trial court also found applicable. The court concluded that the property had been rezoned from “agricultural” to “planned unit development” (PUD). This PUD classification was residential in nature. The City of Miramar clearly granted the rezoning request and did in fact rezone the property “P” on the City’s zoning records. Appellants urge the rezoning was subject to various conditions including the dedication of certain land for public recreational purposes and compliance with future recommendations of city officials and all manner of future city ordinances and other uncertain future requirements. Appellants thus contend the trial court erred in concluding that the property had been rezoned because numerous steps and other conditions were necessary before the property could actually be used, that is, before buildings could actually be constructed upon it. The question of whether the property was actually rezoned was a mixed dne of fact and law. The trial court determined it based upon the statute and from the conflicting evidence presented. Abundant evidence appears in the record supporting the trial court’s conclusion that the property was in fact rezoned and we are not prepared to reverse this factual or legal conclusion. Affirmance of the finding of rezoning, unfortunately, does not answer the question. The statute speaks in terms of land zoned to a “nonagricultural use.” The statute is not clear as to whether this means that agriculture is barred from being carried on or whether it means that agriculture and other nonagricultural pursuits may be simultaneously carried on. Hypothetically, if property is rezoned from “agricultural” to a single family residence classification and the new zoning is strictly enforced, then the agricultural use must cease. In the instant case, the City’s ordinance on PUD zoning clearly does not contemplate agricultural use within the residences, professional offices and open spaces required in the PUD zone. Notwithstanding the terminology of the PUD ordinance, other documentation in the record shows that the City of Miramar herein condoned the continued agricultural use on the property in question at least pending its actual use as a residential development under the PUD zoning. Thus, although perhaps the cows should have gone, they were allowed by the City to stay for at least the two years in question.

This leads us to a constitutional question regarding the rezoning statute. Although not raised before the trial court, Bass v. General Development Corporation, supra, is urged by appellants in support of an argument that the rezoning statute is unconstitutional for the same reasons as the platting statute. By analogy, appellants argue that if platting has nothing to do with actual use then zoning should be similarly considered and the zoning statute is equally unconstitutional. Obviously, if “nonagricul-tural” means that agriculture is actually bailed and may not be carried on, then the statute appears reasonable. On the other hand, if a change to “nonagricultural” zoning does not interfere with actual existing agricultural pursuits on the land, then the reasoning of Bass v. General Development Corporation, supra, would appear applicable. Since these issues were not presented or tried before the Circuit Court, we decline to answer the constitutional question which appellants now urge. We conclude that the rezoning here did not have any effect on the actual use of the property in agriculture and that the change in zoning from one designation where agriculture was permitted to another designation where agriculture was also permitted did not require the reclassification of the property as nonagri-cultural as a matter of law pursuant to the statutory rezoning provisions.

The third finding of the trial court was that the property in question was simply not used for bona fide agricultural purposes because it was not in good faith commercial agricultural use. We conclude that this finding cannot stand in view of the trial court’s erroneous reliance upon both the sale statute and the rezoning statute. Since the trial court improperly employed these two statutory provisions, the further factual conclusion as to lack of good faith commercial agricultural use must fall. We conclude that the property in question was actually being used at all times in question in agriculture. Although the property had been rezoned, the rezoning did not disturb its agricultural use. Although contracts had been signed for the sale of the property, it had not been actually sold. Under the statutes and the precedents construing them, actual use remains the test and we conclude that the owners herein were entitled to the agricultural classification for the years in question. We, therefore, reverse the judgment herein and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

DOWNEY and GLICKSTEIN, JJ., concur.


author: LETTS, Chief Judge. WESSEL, JOHN D., Associate Judge,

text:
    J. H. MEDLIN and Artelle G. Medlin, his wife, Appellants, v. Tommy T. RUCKS et al., Appellees.
    No. 79-2198.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Rehearing Denied May 29, 1981.

      Ben E. Hendricks, Jr., of Hendricks & Hendricks, Coral Gables, for appellants.
    James W. Winters of Winters, Brackett, Held & Cook, West Palm Beach, and B. F. Paty, Jr., of Paty, Downey, Lewis, Fick & Martin, Palm Beach, for appellees.
   LETTS, Chief Judge.

This appeal evolves from a non jury trial over a boundary dispute in Township 47 South Range 41 East, concerning the true location of the line supposedly delineating the South line of Section 13, the North line of Section 24 and the South line of certain tracts of the Florida Fruit Lands Company subdivision No. 2.

The trial court reserved ruling on a motion for a directed verdict by the defendants, but at the conclusion of the trial granted same upon the premise that the plaintiffs (the property owners to the North) had failed, by a preponderance of the evidence, to establish the South line of the Florida Fruit Lands tracts first above referred to and that, in consequence, they had failed to establish that the defendants (the property owners to the South) were in possession of the lands claimed by the plaintiffs. Having thus disposed of the matter, the trial judge further held it unnecessary to consider the defendants’ affirmative defenses. We affirm, being of the opinion that the trial judge was right for the wrong reason.

As to the trial judge’s ruling on the failure to establish the South line of the tracts included in the Florida Fruit Lands subdivision, we are of the opinion that it was in error. This particular aspect of the dispute before us is controlled by the Supreme Court case of Hardee v. Horton, 90 Fla. 452, 108 So. 189 (1925) which coincidentally dealt with the very same patent from the United States Government as is before us now. Simply stated, Hardee stands for the proposition that a subsequent detailed survey will prevail over a prior Government Land Office version done by projection rather than actual survey. It is argued that the detailed survey in the instant case was improperly performed and was actually intended to track the Government Land Office version. Even so, we are persuaded by another Supreme Court case Addis v. Hoagland, 150 Fla. 694, 8 So.2d 655 (1942) which said:

“... where the surveyor does not follow the rules in making his survey, ‘ * * * in re-establishing the lines, they are to be run as he ran them when making his survey, and not as he ought to have run them.’ Galt v. Willingham, D.C.Fla., 300 F. 761.”

In the light of the above cited cases we believe the evidence was sufficient to establish that the defendants were, and are, in possession of the disputed triangular parcel claimed by the appellants who were the plaintiffs below.

Notwithstanding the forgoing, we are of the opinion that the record presented, establishes clear unrebutted evidence as to the presence of a boundary line agreement of at least 15 years duration by way of mutual recognition, conduct and acquiescence. See Shaw v. Williams, 50 So.2d 125 (Fla.1951); Watrous v. Morrison, 33 Fla. 261, 14 So. 805 (1894); and King v. Carden, 237 So.2d 26 (Fla. 1st DCA 1970). This being so and such agreement by acquiescence being pled, we are of the opinion that the adjoining landowners agreed permanently as to the extent of their respective lands. See Watrous, Id. 33 Fla. at 267, 14 So. 805 and Shaw, Id. at 127.

At oral argument before this Court, counsel for appellants argued that because the trial court did not address the factual affirmative defenses in its final judgment, we are without power to do so on appeal. Our research indicates to the contrary. As our Supreme Court said in Firestone v. Firestone, 263 So.2d 223, 225 (Fla.1972) “... a trial court’s judgment, even if insufficient in its findings, should be affirmed if the record as a whole discloses any reasonable basis, reason or ground on which the judgment can be supported.” See also Goodman v. Goodman, 204 So.2d 21 (Fla. 4th DCA 1967).

The record presented can lead to but one conclusion and that is that all parties, and their predecessor in title, were under the long-time impression that the existing road, hedge and ditch constituted the boundary line of their respective properties and that they acted accordingly. So be it.

AFFIRMED.

BERANEK, J., concurs.

WESSEL, JOHN D., Associate Judge, dissents with opinion.

WESSEL, JOHN D., Associate Judge,

dissenting.

I would concur with the majority as to the boundary line as established by Hardee v. Horton, 90 Fla. 452, 108 So. 189 (1925). I cannot agree with the conclusion of the majority as to the application of the doctrine of boundary by acquiescence inasmuch as there is a serious question as to the existence of a dispute as to the boundary line. Blackburn v. Florida West Coast Land and Development, 109 So.2d 413 (Fla. 2d DCA 1959).

The Trial Court never reached the issues raised by the affirmative defenses (boundary by acquiescence and adverse possession), and this Court is precluded from disposing of this case on the record before us.

Accordingly, I would reverse and remand the case to the Trial Court for a determination of the issues raised by the affirmative defenses, consistent with our opinion as to the survey line.

      . Not to mention the period during which the common grantor owned both parcels.

      . Finding the boundary by acquiescence doctrine adequate to support our conclusion we have not taken time to fully explore the appel-lees further argument on adverse possession. However, that argument superficially appears also persuasive. See Kerrigan v. Thomas, 281 So.2d 410 (Fla. 1st DCA 1973).


author: HERSEY, Judge.

text:
    George HUTCHINSON and Sylvia Hutchinson, his wife, Appellants, v. CAPELETTI BROTHERS, INC., a Florida Corporation, Appellee.
    No. 80-632.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Rehearing Denied May 27, 1981.

      Fred J. Ward of Fred J. Ward, P. A., Hallandale, for appellants.
    Clark J. Cochran, Jr., of Hainline & Billing, P. A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

This is an appeal from a final judgment which determined that the doctrine of strict liability for the hazardous use of land is not recognized in the state of Florida. We reverse.

Appellee, in the process of constructing a bridge for the Florida Department of Transportation, engaged in pile-driving activity which damaged the residence of appellants. Appellee construction company was not negligent in its operation nor is there any suggestion of wanton and willful misconduct. Therefore, liability, if it is to be imposed, must rest on some other rationale.

The logic and fundamental fairness of the imposition of liability here is illustrated by language from a Connecticut case involving this issue:

The defendant actor, even when he uses due care, takes a calculated risk which he, and not the innocent injured party, should bear. He “is not regarded as engaging in blameworthy conduct. He is creating hazards to others, to be sure, but they are ordinary, and reasonable risks incident to desirable social and economic activity. But common notions of fairness require that the defendant make good any harm that results even though his conduct is free from fault.” Whitman Hotel Corporation v. Elliott & Watrous Engineering Co., 137 Conn. 562, 567, 79 A.2d 591, 594, quoting from Harper, Torts, p. 408; see 2 Harper & James, Torts, § 14.7.

Caporale v. C. W. Blakeslee and Sons, Inc., 149 Conn. 79, 175 A.2d 561, 564 (1961). The court in Caporale held that pile-driving was an intrinsically dangerous operation.

There is a certain balancing process which must be engaged in before the burden of loss for damage occasioned by non-negligent conduct may be shifted from the damaged property owner to the non-negligent actor. We adopt the approach taken by Cities Service Co. v. State, 312 So.2d 799 (Fla.2d DCA 1975) which is to weigh and consider each of the following factors before imposing liability: (1) whether the activity involves a high degree of risk of harm to the property of others; (2) whether the potential harm is likely to be great; (3) whether the risk can be eliminated by the exercise of reasonable care; (4) whether the activity is a matter of common usage; (5) whether the activity is inappropriate to the place where it is conducted; and (6) whether the activity has substantial value to the community. This process originally emanated from the treatment of this subject in' Tentative Draft No. 10 of the Restatement (Second) of Torts.

Obviously then we are not the first Florida court to conclude that strict liability - attaches for hazardous use of land. Cities Service Co. v. State, supra.

On balance we find that while the damage-causing activity involved in this case has substantial value to the community it involves a high degree of risk of harm to the property of others. Thus, it is appropriate that the loss occasioned by that non-negligent activity be shifted to appellee construction company. It is a cost of doing business and we have no doubt that it is a cost which may be passed' on to the ultimate user as well as a risk which may be insured against.

For these reasons we reverse the final order dismissing appellant’s second complaint with prejudice and remand with instructions to reinstate that complaint and for further proceedings.

REVERSED AND REMANDED.

LETTS, C. J., and ANSTEAD, J., concur.


author: ANSTEAD, Judge.

text:
    GREENWAY VILLAGE SOUTH CONDOMINIUM ASSOCIATIONS I, II, III AND IV, INC., Appellants, v. David ROACH et al., Appellees.
    No. 80-1294.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Rehearing Denied May 29, 1981.
    Richard W. Glenn of Albury, Park & Glenn, West Palm Beach, for appellants.
    Samuel H. Adams of Adams, Coogler, Watson & Smith, P. A., West Palm Beach, for appellee Integon General Ins. Corp.
   ANSTEAD, Judge.

This is an appeal from a judgment finding that there was no coverage under a policy of liability insurance issued to the appellee, David Roach, by the appellee, In-tegon General Insurance Company.

In 1975 Greenway Village South Condominium Associations I, II, III, and IV hired David Roach, a contractor, to install gutters and downspouts on their buildings to facilitate drainage. Mr. Roach’s installation technique caused extensive damage to certain metal strips which sealed a portion of the mansard roofs of the buildings, and as a result the roofs lost their water-tight character and the strips had to be replaced. The proof showed that Roach’s employees actually used heavy wrecking bars to force-ably pry up the metal seals. The damage was not discovered until after Roach had finished installing the gutters.

Greenway brought suit for damages against Roach and his liability insurer, In-tegon General Insurance Corp. In a non-jury trial, the trial court found Roach liable to appellants for the property damage caused to the roofs:

[T]he court is convinced from the preponderance of the evidence and the clear and convincing evidence that the manner in which these wrecking bars were used caused the leaks in all of these respective buildings.

However, Integon contended and the trial court agreed that exclusion (p) of Integon’s policy precluded any finding of its liability to Green way. Exclusion (p) provides:

This insurance does not apply ... (p) to bodily injury or property damage included with the completed operations hazard or the products hazard.
“Completed operations hazard” is earlier defined as follows:
“completed operations hazard” includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. “Operations” include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed.
(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed. (Emphasis supplied).

In support of the trial court’s ruling, In-tegon relies on Sandpiper Construction Co., Inc. v. United States Fidelity & Guaranty Co., 348 So.2d 379 (Fla.2d DCA 1977). In Sandpiper, the roof of a building collapsed six months after construction had been completed, and the owner sued both the contractor and the contractor’s insurer for damages. Based on an exclusionary clause identical to exclusion (p), the insurer was held not liable. Greenway, in turn, argues that the two cases are distinguishable because in Sandpiper, the actual damage, i. e., the collapse of the roof, occurred subsequent to the conclusion of the contractor’s operations, whereas here the actual damage, i. e., the damage to the metal seals, occurred during the contractor’s operations. We agree.

It is undisputed here that the damage to the appellants’ property, i. e., the damage to the metal seals, occurred before this project was completed. It is also undisputed that the only claim made against the insured was for the repair of that damage as opposed to the damage that occurred to the interior of the buildings as. a result of the extensive leaking when it rained. Accordingly, we do not believe the exclusion applies to the appellants’ claim.

By the use of the words “arising out of operations or reliance upon a representation or warranty made at any time with respect thereto” and “operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency,” it appears that the purpose of this exclusion was to absolve the insurer from responsibility for damage caused by defective work or breach of warranty by the insured. The exclusion would not appear to apply to actual damage caused by the insured during the course of his work, hence the limiting language “but only if the bodily injury or property damage occurs after such operations have been completed or abandoned.” This of course is consistent with the primary purpose of the policy, to provide general liability insurance for the insured for damage he causes to persons and property.

In our view the Sandpiper case represents a fairly clear example of the application of the purpose for which the exclusion was written. The roof in Sandpiper was apparently defectively constructed. In Florida a contractor is responsible for breach of warranty for defective work. Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), affirmed 264 So.2d 419 (Fla.1972). The damage in Sandpiper, i. e., the collapse of the roof, occurred after the job was completed and the insurer was absolved of liability for damage caused by the defective work and breach of warranty. In the case at hand the insured negligently (the trial court characterized the insured’s action as “reckless and negligent”) damaged an existing structure before the project was completed. Integon’s liability insurance policy covered him for such damage absent a clear exclusion. We find no such clear exclusion in paragraph (p).

Even if we were to determine that the exclusion was ambiguous and could be construed to apply here we would still have to find coverage. Under Florida law we must construe the terms of the policy most favorable to the insured. Nixon v. United States Fidelity & Guaranty Co., 290 So.2d 26 (Fla.1973). In doing so it is obvious from the above discussion that we believe at least one reasonable construction of the policy is that the exclusion does not apply.

Accordingly, the judgment of the trial court is reversed and this cause is remanded with directions for further proceedings consistent herewith.

LETTS, C. J., and STONE, BARRY, J., Associate Judge, concur.

      . The Sandpiper interpretation was followed in Prieto v. Continental Insurance Co., 358 So.2d 851 (Fla.3d DCA 1978).


text:
    Charlie JONES and Jessie Jones, Appellants, v. METROPOLITAN DADE COUNTY, a Florida municipal corporation, d/b/a Metropolitan Dade County Department of Housing & Urban Development, Appellee.
    No. 80-2052.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Rehearing Denied May 20, 1981.
    Morton R. Goudiss, Erskine & Fleisher, Miami Beach, for appellants.
    Robert A. Ginsburg, County Atty., and Eileen Ball Mehta, Asst. County Atty., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Arnold v. Shumpert, 217 So.2d 116 (Fla.1968); McPhee v. Dade County, 362 So.2d 74 (Fla. 3d DCA 1978); Armetta v. Clevetrust Realty Investors, 359 So.2d 540 (Fla. 4th DCA 1978), cert. denied, 366 So.2d 879 (Fla.1978); Schaeffer v. Gilmer, 353 So.2d 847 (Fla. 1st DCA 1977); Rice v. First Federal Savings and Loan Association of Lake County, 207 So.2d 22 (Fla. 2d DCA 1968), cert. denied, 212 So.2d 879 (Fla.1968).


author: BASKIN, Judge.

text:
    CONTINENTAL CIGAR CORPORATION, Appellant, v. EDELMAN & COMPANY, INC. and Dos Gonzalez Cigars, Inc., Appellees.
    Nos. 80-581, 80-648.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Rehearing Denied May 20, 1981.
    Jay M. Levy and Henry Lopez-Aguiar, Miami, for appellant.
    Joseph A. McGowan, Miami, for appel-lees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Continental Cigar Corporation appeals a summary judgment entered in proceedings supplementary to execution pursuant to section 56.29, Florida Statutes (1977). Edelman and Company, Inc., holder of a judgment in the amount of $9,907.11 and costs of $57.50 against Dos Gonzalez Cigars, Inc., an insolvent corporation, sought to trace assets belonging to Dos Gonzalez Cigars.

The trial court order Dos Gonzalez Cigars to be examined concerning its trademark “Dos Gonzalez” and logo. Dos Gonzalez Cigars was then order to appear before a master who decided that the trademark and logo were assets belonging to Dos Gonzalez Cigars. The court issued a summons and rule to show cause why the trademark and logo should not be declared assets of Dos Gonzalez Cigars. Following a hearing, the court entered its Final Summary Judgment deciding that the trademark “Dos Gonzalez” and logo were assets of Dos Gonzalez Cigars, Inc. and not the property or assets of Continental Cigar Corporation which claimed ownership. The court order Continental Cigar Corporation to execute documents necessary to quitclaim its right to the trademark and logo to Dos Gonzalez Cigars, Inc. and retained jurisdiction to appoint a receiver for Dos Gonzalez Cigars, Inc. In addition, the court enjoined Continental Cigar Corporation from further use of the trademark and logo. We affirm.

Appellant argues that the trademark and logo are not amenable to execution and therefore cannot be the subject of an unsatisfied execution without which, it contends, supplementary proceedings may not be instituted. Appellant has misinterpreted section 56.29(1), Florida Statutes (1977). It states:

When any sheriff holds an unsatisfied execution, the plaintiff in execution may file an affidavit so stating and that the execution is valid and outstanding and thereupon is entitled to the proceedings supplementary to execution.

It is quite clear that section 56.29 requires only the filing of an affidavit showing a valid unsatisfied writ of execution on any assets prior to instituting supplementary proceedings. That procedure was followed in this case. Judges have both the power and the duty to bring in third parties when relief against them may be warranted. General Guaranty Insurance Co. of Florida v. DaCosta, 190 So.2d 211 (Fla. 3d DCA 1966), rehearing granted on other grounds, 226 So.2d 104 (Fla.1969). Relief against impleaded third parties may encompass a chose in action. Puzzo v. Ray, 386 So.2d 49 (Fla. 4th DCA 1980); General Guaranty Insurance Co. of Florida v. DaCosta, supra.

Appellant also argues that its ownership of the trademark and logo were established by the fact that it registered them with the Secretary of State. We disagree. We find that the court correctly ruled that no genuine issue of material fact existed and that the assets were shown by the testimony, which includes an admission by Dos Gonzalez’ representative, Carmelo Gonzalez, to belong to Dos Gonzalez Cigars. Appellant’s remaining contentions lack merit.

Affirmed.

      . Appellant filed both an interlocutory and plenary appeal which have been consolidated.


author: BARKDULL, Judge.

text:
    The PADDINGTON CORPORATION, etc., Appellant, v. SOUTHERN WINE AND SPIRITS, INC., etc., Appellee.
    No. 80-2165.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Rehearing Denied May 27, 1981.
    Steel, Hector & Davis and Sheila A. Hal-pern and Barry R. Davidson, Miami, for appellant.
    Lee, Schulte, Murphy & Coe and Jack M. Coe, Jupiter, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   BARKDULL, Judge.

Southern Wine and Spirits, Inc., a distributor [as defined in Section 561.14(2), Florida Statutes (1979)] of an alcoholic product known as Bailey’s Irish Cream, had its supply of this beverage cut off. It subsequently brought a suit contending that, as a distributor of this product, it was entitled to a mandatory injunction requiring The Paddington Corporation as the then manufacturer or representative [as defined in Section 561.14(1), Florida Statutes (1979)] to continue supplying Southern with Bailey’s Irish Cream because no proceedings had been had pursuant to Section 565.095(5), Florida Statutes (1979) to withdraw this registered brand from Southern.

The complaint alleged that Southern became the distributor of this brand in the fall of 1979 and that the withdrawal occurred in the summer of 1980. The trial court issued a temporary mandatory injunction requiring Paddington, as the manufacturer or representative in Florida for the distribution of the product, to distribute to Southern pending a final hearing. A motion to dismiss was argued, denied and the order continued the temporary mandatory injunction. This interlocutory appeal ensued. We affirm.

The complaint stated a cause of action; Southern had a right to preserve its status quo as a distributor of Bailey’s Irish Cream pending a withdrawal of distribution pursuant to the statute. Everybody concedes that it is up to the Division of Alcoholic Beverages and Tobacco, State Department of Business Regulation to conduct a hearing under the statute to determine whether or not the distribution of the product may be withdrawn; this is a question which initially must be decided by the administrative agency and is then subject to administrative review.

The appellant principally argues that a private individual may not seek redress under the statute, but only the Department. We find this argument without merit for a number of reasons: (1) The product is unique. Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975). (2) It is an essential part of the plaintiff’s business. Wilson v. Sandstrom, supra. (3) The mere fact that the Agency is charged with the enforcement of the statutes does not prevent a private right of action. Compare, Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla.1969); Choctawhatchee Electric Cooperative, Inc. v. Gulf Power Company, 265 So.2d 417 (Fla. 1st DCA 1972); Ray Baillie Trash Hauling, Inc. v. Kleppe, 477 F.2d 696 (5th Cir. 1973); Wolfson v. Baker, 444 F.Supp. 1124 (M.D.Fla.1978).

Therefore, for the reasons above stated, the order denying the motion to dismiss be and the same is affirmed. The stay heretofore entered in this cause be and the same is hereby vacated and set aside.

Affirmed.

      . The opinion in Park Benziger & Co., Inc. v. Southern Wine & Spirits, Inc., 391 So.2d 681 (Fla. 1980) recognized that the statute would be applicable.


author: SCHWARTZ, Judge.

text:
    BRICKELL BAY CLUB CONDOMINIUM ASSOCIATION, INC., Appellant/Cross Appellee, v. Michael FORTE et al., Appellees/Cross Appellants.
    No. 79-2148.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Rehearing Denied May 20, 1981.

      Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul E. Gifford and Paul A. Louis, Miami, for appellant/cross appel-lee.
    Hall & Hauser and Richard F. O’Brien, III and Andrew C. Hall, Miami, for ap-pellees/cross appellants.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

There is no merit whatever in the appellant, Brickell Bay Club Condominium Association, Inc.’s claims of error in the entry of judgment against, it, after non-jury trial, in an action seeking rescission of two agreements between the association and the ap-pellees. Consequently, we affirm as to the appeal.

By cross-appeal, the appellees challenge the trial court’s failure to award them reasonable attorney’s fee and costs, notwithstanding a specific term of one of the pertinent contracts which stated

In connection with any litigation arising out of this Contract, the prevailing party shall be entitled to recover all costs incurred, including reasonable attorneys’ fees.

The trial court apparently made its determination because the action had been brought in good faith and on fairly debatable grounds. This ruling was erroneous. The agreement which has been quoted gave those of the appellees who were parties to it, since they prevailed in the litigation below, a clear and unequivocal right to the recovery of both attorney’s fees and costs. The courts have no discretion to decline to enforce such an undertaking, any more than any other contractual provision. Ritter’s Hotel, Inc. v. Sidebothom, 142 Fla. 171, 194 So. 322 (1940); Kendall East Estates, Inc. v. Banks, 386 So.2d 1245, 1247 (Fla. 3d DCA 1980); Silver Blue Lake Apts., No. 3, Inc. v. Manson, 334 So.2d 48 (Fla. 3d DCA 1976). Accordingly, the cause is remanded for the sole purpose of determining the amounts of attorney’s fees and costs to be awarded under the provision in question.

Affirmed in part, reversed in part.

      . See, Brickell Bay Club Condominium Association, Inc. v. Forte, 379 So.2d 1334 (Fla. 3d DCA 1980).

      . Absent the agreement, the court would have discretion to deny costs to either side in an equitable action like this. Wilhelm v. Adams, 102 Fla. 669, 136 So. 397 (1931); International Center of the Americas, Inc. v. Dade Fashions, Inc., 391 So.2d 383 (Fla. 3d DCA 1980).

      .Consistent with this holding, we have granted the motion for attorney’s fees on appeal and assessed the sum of $15,000.


author: COWART, Judge.

text:
    STATE of Florida, Petitioner, v. William Allen LAURY, Respondent.
    No. 81-1.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for petitioner.
    Kirk N. Kirkconnell of Muller & Kirkcon-nell, P. A., Winter Park, for respondent.
   COWART, Judge.

The State petitions for a writ of certiora-ri to quash a judgment and sentence.

Respondent was charged with first degree murder and also two separate but related manslaughter charges. The charges were severed. After the jury found respondent guilty of the manslaughter charges he entered a negotiated nolo contendere plea to second degree murder as a lesser included offense under the first degree murder charge. The trial court found a factual basis for the plea (Fla.R.Crim.P. 3.170(j)) and accepted it but did not then adjudicate guilt. Later at sentencing, after considering the facts learned during the trial of the manslaughter case and additional facts presented by the presentence investigation and a sentencing brief, the trial judge, apparently relying on Florida Rule of Criminal Procedure 3.170(h) and State v. Febre, 156 Fla. 149, 23 So.2d 270 (1945), reconsidered and decided that a lesser degree of homicide more appropriately fit the facts. He reversed his previous finding of second degree murder, found and adjudicated respondent guilty of manslaughter and imposed the maximum sentence for manslaughter. The State seeks to quash the manslaughter judgment and sentence based on the nolo contendere plea to second degree murder, arguing that language in Vinson v. State, 345 So.2d 711 (Fla.1977) (reviewing State v. Vinson, 320 So.2d 50 (Fla.2d DCA 1975)), purporting to modify Febre, is not obiter dictum merely because the district court decision was approved and the writ of certiorari was discharged by the Florida Supreme Court.

We do not approve of the trial court’s accepting a plea resulting from a negotiated agreement between the State and defense counsel and then, over the objection of the State, further reducing the degree of the offense for which the accused can be punished. Where, as here, after accepting a negotiated plea, if upon further consideration the trial judge cannot conscientiously maintain his concurrence with the plea agreement he should disapprove the agreement and return the parties to the position they occupied before their agreement. The parties can then either try the case on the charges or tender a new plea agreement to the trial court.

Florida Rule of Criminal Procedure 3.170(h) appears to have been carried over into the present rules from statutes relating to criminal procedure long ago. It is difficult to imagine an information or indictment charging an offense divided into degrees that complies with Florida Rule of Criminal Procedure 3.140(d)(1) that does not adequately specify the degree of the offense charged. In any event, here the information specified the degree of homicide charged and the plea was specifically to second degree murder. We are troubled by the State’s argument that it has been effectively deprived of a part of its plea agreement and that, during the plea taking, the State did not present as complete a picture of the facts as it might have presented upon full trial. Nevertheless, we are concerned here because respondent was placed in jeopardy for the offense in question by the acceptance of his plea to second degree murder, and the trial court’s adjudication and sentence of the lesser included offense of homicide disposed of those charges against him. The court’s reduction of the charge from second degree murder to manslaughter was made on its own initiative and not at the request of the respondent. The respondent has made no motion to set aside his plea and has not taken any other action that can be construed to be a waiver of his constitutional rights. Unlike the defendant, the State has no right of appeal from a final judgment adjudicating guilt. See Fla.R.App.P. 9.140(b)(1)(A) and 9.140(c)(1). The defendant has not appealed his judgment of conviction. See Fla.R.App.P. 9.140(c)(1)(H).

Further, as a practical matter, we must recognize that under our system of criminal justice the trial judge not only has the exclusive responsibility for the sentence determination, but is necessarily entrusted with making decisions of law involving the criminal charge which are effectively final and binding on the State. If we should quash the judgment and sentence of manslaughter, respondent can either plead guilty as charged or go to trial. If he pleads guilty as charged the trial court has the discretion and duty to reject his plea if, as here, the court does not believe the factual basis fits the plea (Fla.R.Crim.P. 3.170(j); 3.172(a)), and require the case to be tried. If, during any trial, the court is of the opinion that the evidence is insufficient to warrant a conviction it may on its own initiative enter a judgment of acquittal as to any charge. Fla.R.Crim.P. 3.380(a). Even after verdict, if the trial court is of the opinion that the evidence does not sustain the verdict the court must find or adjudicate the defendant guilty only of such lesser degree or lesser offense necessarily included in the charge which, in the opinion of the court, is sustained by the evidence. Fla.R.Crim.P. 3.620. Because of constitutional double jeopardy guarantees these rulings of the trial judge are final. If, under constitutional concepts, the trial judge has such final authority in criminal cases then it is obviously not essential to law that his every departure from procedure be redressed by certiorari.

The petition for certiorari is

DENIED.

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

      .The respondent, fleeing in an automobile from the scene of the alleged murder, struck another vehicle, resulting in the second and third homicides.

      .“Straight up without a reservation,” meaning a plea without express reservation of right of appeal. Fla.R.Crim.P. 3.172(c)(iv).

      .Fla.R.Crim.P. 3.171(b)(1).

      . See Fla.R.Crim.P. 3.171(d).


text:
    Murray H. GOODMAN, Appellant, v. William J. M. POLAN, Appellee.
    No. 80-214.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied May 19, 1981.
    Leigh E. Dunston of Gunster, Yoakley, Criser & Stewart, Palm Beach, for appellant.
    James W. Winters of Winters, Brackett, Held & Cook, West Palm Beach, for appel-lee.
   ANSTEAD, Judge.

At issue on appeal is whether the enactment of a governmental moratorium on commercial construction constitutes adequate grounds for the recision of an execu-tory contract, wherein the seller warrants the commercial zoning of the property and the absence of governmental restrictions or prohibitions interfering with the use of the property under such commercial zoning.

On January 17, 1979, appellant, Murray Goodman, entered into a contract with William Polan for the purchase of an unimproved lot in the town of Palm Beach. Goodman deposited $45,000 of the $450,000 purchase price. At the time of the contract’s execution, the property was zoned CA-Commercial. The contract contained the following pertinent provisions:

1. Seller represents that the property can be used for the following purposes: CA-Commercial.
* * * * J|c *
8. RESTRICTIONS AND EASEMENTS: The buyer shall take title subject to (a) Zoning and/or restrictions and prohibitions imposed by governmental authority, (b) Restrictions and matters appearing on the plat and/or common to the subdivision, (c) Public utility easements record, provided said easements are located on the side or rear lines of the property and are not more than six feet in width, (d) Other... None... Further provided that none of the foregoing interferes with the use of the property for the purposes as stated in this contract.

(Emphasis added)

On February 13,1979, thirteen days prior to the closing date designated in the contract, the• Palm Beach Town Council enacted Emergency Ordinance No. 5-79, which declared a moratorium on the construction of commercial buildings of any description as set forth in the list, of permitted uses in CA commercial zoning districts. This moratorium remained in effect through the scheduled closing date.

On February 14, 1979, Goodman advised Polan that he did not believe he was bound to go forward with the closing because of the moratorium ordinance and requested the return of his deposit. Polan refused and this action by Goodman followed. The trial court held that Goodman was not entitled to the return of his deposit.

Goodman contends that the court erred in construing paragraphs 1 and 8 of the contract to mean that the purchaser would be excused from performance only if the zoning classification on the property was actually changed. He contends that the moratorium had the same practical effect as a zoning change. We agree.

Both parties rely on previous decisions from this court. Goodman cites Evenline Construction Corporation v. Miller’s Plantation Development Company, 349 So.2d 686 (Fla. 4th DCA 1977), cert. denied 357 So.2d 186 (Fla.1978), and Polan cites J. C. Penney Company, Inc. v. Koff, 345 So.2d 732 (Fla. 4th DCA 1977). In the Evenline case, we held that a purchaser was entitled to terminate the contract and to the return of any deposit where the seller had specifically represented that the property was zoned under a classification which permitted a certain number of residential units per acre and subsequently, before closing, the property was rezoned to a less dense category. The number of units permitted under the zoning category involved was set out in the representation. In the J. C. Penney case, the representation of the seller only alluded to the zoning category without reference to the number of units per acre permitted under such category, and a subsequent reduction in density under the same zoning category enacted before closing was held not to conflict with the seller’s representations. Neither of these cases is controlling.

Here, it is obvious that the parties intended that any loss arising from a zoning reclassification to non-commercial uses would be shifted to Polan. The provisions of paragraph 1 and paragraph 8 clearly and unambiguously warranted that at the time of closing the property could be used for commercial purposes as provided in zoning category CA-Commercial. However, under the moratorium ordinance in effect at the time of closing, the property could not be used of for any such commercial purposes. The ordinance operated to bar commercial construction just as effectively as if the property had been rezoned to another category which prohibited commercial construction. Polan contends that he warranted only that the property would be zoned commercial and that since the property remained technically zoned commercial at the time of closing, he has not breached his warranty. This contention may have some appeal in form but it is completely lacking in substance. We agree that the warranty here may not have been a warranty of a specific use, such as was involved in Evenline, supra. But however broadly or narrowly we construe the warranty, the fact remains that the moratorium prohibited all commercial uses under the commercial zoning.

Accordingly, the judgment of the trial court is reversed with directions for further proceedings consistent herewith.

HURLEY, J., and WARREN, LAMAR, Associate Judge, concur.


author: BERANEK, Judge. HURLEY, Judge,

text:
    Gary D. LYONS and Nancy D. Lyons, his wife, Appellants, v. Donald KING, James Carpenter, S. L. Stangle, Nicholas LaRosa, Laura Downs, Sioux Brown, Gaylord Ridenour, Maurice Henry, individually and as members of the Board of Directors of Plaza East Association, Inc.; Plaza East Association, Inc., a Florida corporation not for profit; Donald McMurray and Alice McMurray, Appellees.
    No. 78-2495.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied May 19, 1981.

      Tobias Simon and Theodore L. Tripp, Jr., of Tobias Simon, P.A., Miami, for appellants.
    Welcom H. Watson, Jr., of Watson, Hubert & Davis, Fort Lauderdale, for appel-lees other than appellees McMurray.
    James 0. Murphy, Jr., of Rimes, Greaton, Murphy & Batchelder, P.A., Fort Lauder-dale, for appellees, McMurray.
   BERANEK, Judge.

This is an appeal by plaintiffs from a final judgment entered in favor of defendants after a non-jury trial. Plaintiffs were the prospective purchasers of a condominium unit in the Plaza East Condominium. Defendants were the prospective sellers of the condominium unit and the condominium association. Plaintiffs contracted with the owner to purchase a condominium unit, but the sale did not close due to the Condominium Association’s refusal to approve plaintiffs as purchasers.

The purchasers filed suit in three counts. Count I sought specific performance of the sales contract. Count II sought a declaratory judgment to the effect that the restrictions in the condominium documents were void as an unreasonable restraint on alienation of property. Count III sought an injunction against enforcement of the rules and regulations of the Condominium Association. The trial court ruled in favor of the defendants on Counts II and III and found Count I to be moot.

On appeal plaintiff s/appellants contend the court erred in not invalidating the Association’s disapproval of them as purchasers. They assert the Condominium Association was guilty of an unreasonable and arbitrary restraint on the alienation of property.

The condominium documents provided in relevant part as follows:

XI. Maintenance of community interests. In order to maintain a community of congenial residents who are financially responsible and thus protect the value of the apartments, the transfer of apartments by any owner other than the Developer shall be subject to the following provisions so long as the condominium exists and the apartment building in useful condition exists upon the land, which provisions each apartment owner covenants to observe:
A. Transfers subject to approval.
1. Sale. No apartment owner may dispose of an apartment or any interest therein by sale without approval of the Association except to an apartment owner.
2. Lease. No apartment owner may dispose of an apartment or any interest therein by lease without approval of the Association except to an apartment owner.
* * * * * *
B. Approval by Association. The approval of the Association which is required for the transfer or ownership of apartments shall be obtained in the following manner:
1. Notice to Association.
(a) Sale. An apartment owner intending to make a bona fide sale of his apartment or any interest therein shall give to the Association notice of such intention, together with the name and address of the intended purchaser and such other information concerning the intended purchaser as the Association may reasonably require. Such notice at the apartment owner’s option may include a demand by the apartment owner that the Association furnish a purchaser of the apartment if the proposed purchaser is not approved; and if such demand is made, the notice shall be accompanied by an executed copy of the proposed contract to sell.
(b) Lease. An apartment owner intending to make a bona fide lease of his apartment or any interest therein shall give to the Association notice of such intention, together with the name and address of the intended lessee, such other information concerning the intended lessee as the Association may reasonably require, and an executed copy of the proposed lease.
* * # * * *
C.Disapproval by Association. If the Association shall disapprove a transfer or ownership of an apartment, the matter shall be disposed in the following manner:
1. Sale. If the proposed transaction is a sale and if the notice of sale given by the apartment owner shall so demand, then within 30 days after receipt of such notice and information the Association shall deliver or mail by registered mail to the apartment owner an agreement to purchase the apartment concerned by a purchaser approved by the Association who will purchase and to whom the apartment owner must sell the apartment upon the following terms:'
(a) At the option of the purchaser to be stated in the agreement, the price to be paid shall be that stated in the disapproved contract to sell or shall be the fair market value determined by arbitration in accordance with the then existing rules of the American Arbitration Association, except that the arbitrators shall base their determination upon an average of their appraisals of the apartment; and a judgment of specific performance of the sale upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The expense of the arbitration shall be paid by the purchaser.
(b) The purchase price shall be paid in cash.
(c) The sale shall be closed within 30 days after the delivery or mailing of said agreement to purchaser, or within 10 days after determination of the sale price if such is by arbitration, whichever is the later.
(d) A certificate of the Association executed by its president and secretary and approving the purchaser shall be recorded in the public records of Broward County, Florida, at the expense of the purchaser.
(e) If the Association shall fail to provide a purchaser upon the demand of the apartment owner in the manner provided, or if a purchaser furnished by the Association shall default in his agreement to purchase, then notwithstanding the disapproval the proposed transaction shall be deemed to have been approved and the Association shall furnish a certificate of approval as elsewhere provided which shall be recorded in the public records of Broward County, Florida, at the expense of the purchaser.

By virtue of these documents, the Condominium Association had the right to approve prospective purchasers of apartments. In ease of disapproval, the Association was required to provide another purchaser upon demand of the apartment owner and upon the Association’s failure to provide a purchaser, the Association was required to approve the initial sale. These provisions, in effect, constituted a right of first refusal. Other condominium rules provided specific limitations on the right of owners to lease individual units. The documents also required that the Association approve prospective lessees. All lease arrangements were required to be submitted to the Board of Directors for approval. Units could be leased only once during a given calendar year. Leases were to be for a minimum of 6 months and a maximum of one year.

Under these various provisions, the trial court found that the Condominium Association acted within its legal rights in rejecting plaintiffs as applicants for purchase of an apartment.

The appellants admit that the restrictions are reasonable as written but contend that they were arbitrarily and unreasonably applied by the Association in the approval procedure herein. The question of whether the regulations were applied in an arbitrary and unreasonable manner was a factual determination. These issues were tried before the court on the testimony of numerous individuals. There was conflicting testimony subject to different interpretations and inferences. In construing the facts most favorably to the appellee/Associ-ation, the following appears. The condominium building in question was of a residential nature and was owner-occupied. There were no apartments held for investment and leased to nonowners. Contrary to the established pattern the appellants did not intend to occupy their apartment for the first four or five years of ownership. Instead, appellants intended to rent the apartment during this period because they could not afford the mortgage obligation on the apartment and the other financial obligations which they had outside the State of Florida. Appellants owned a home and a business in the North, were not ready to retire, and did not intend to occupy the condominium unit as their residence for a number of years, if at all. There was evidence that they wanted the apartment merely as a hedge against inflation with the rental income to be offset against the mortgage. Mr. Lyons indicated he would like to find a long term tenant during the first 5 years who “would be like a resident.” Mr. Lyons assured the screening committee he would not need the unit even for brief vacation periods because his brother-in-law owned an apartment at another location in Florida which he would use for vacations. There was also conflicting evidence indicating that the unit was being purchased only as an investment. The Association refused the application to purchase for these reasons.

The trial consisted of a detailed review of exactly how and why the rejection of appellants occurred. It was appellants’ contention that they should have been allowed to purchase the condominium despite the fact they intended to lease it and not occupy it. Appellants assert that since the Condominium Association also had the right under the documents to disapprove prospective tenants and lease arrangements, that the Association was being unreasonable in rejecting them as purchasers. In other words, the condominium documents anticipated leasing and the approval of lessees would have been sufficient protection to the Condominium Association. We do not accept this argument.

Much of the testimony related to the residential nature of this particular condominium. During the ten years that the Plaza East had been occupied, there had been only five applications for approval of leases, four of which were approved. Of these four leases which were approved, two involved separate unit owners, each of whom desired to sell their units but were unable to do so because of a depressed real estate market at the time. The Association’s approval of these two leases was based on this particular hardship. The other two approved leases concerned the same units and the same lessees with the second leases being merely renewals. There were no units held by an absent landlord solely for rental purposes. Substantial evidence indicated difficulty with tenants who would have no ownership interest in the building. Construing the evidence in favor of appel-lees, the purchase of the unit may have been an investment only, and one which was beyond the financial ability of appellants. We recognize that appellants offered to purchase for cash, by the time of trial, but this later change in financial position was irrelevant.

Under all of these circumstances, we cannot say that the trial judge erred as a matter of law when he reached the factual conclusion that the Association did not act in an arbitrary and unreasonable manner in applying the approval provisions of the documents.

Under the declaration, the Association, upon disapproval of a proposed sale, had to provide a purchaser within thirty days or the sale would be deemed approved. Stricter limitations upon leasing of condominium units were held not an unreasonable restraint on alienation in Seagate Condominium Association v. Duffy, 330 So.2d 484 (Fla.4th DCA 1976). Further, rights of first refusal in a condominium context have generally been held proper. Chianese v. Culley, 397 F.Supp. 1344 (S.D.Fla.1975). As the Florida Supreme Court stated in White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979), “reasonable restrictions concerning use, occupancy and transfer of condominium units are necessary for the operation and protection of the owners in the condominium concept.” The trial court’s order, which was basically a factual determination, is affirmed. Although not specifically addressed on appeal, we note but do not decide the issue as to whether the plaintiffs herein had standing to assert this cause of action. In Backus v. Smith, 364 So.2d 786 (Fla.1st.DCA 1978), it was held that prospective purchasers of a condominium had no standing to challenge the failure of the condominium association to abide by certain procedural requirements of the declaration in exercising the association’s right of first refusal. The trial court’s judgment herein was not based on standing which issue was not raised below. We thus conclude appellants' standing to sue was waived and we do not decide the issue. Cowart v. City of West Palm Beach, 255 So.2d 673 (Fla.1971).

AFFIRMED.

MOORE, J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

The guiding principle for this case was set down by the Supreme Court in White Egret Condominium, Inc. v. Franklin, 379 So.2d 346, 350 (Fla.1979), when it held that “a condominium restriction or limitation ... may be enforced if it serves a legitimate purpose and is reasonably applied.” Here the restriction is one which requires condominium board approval of all unit sales. Appellants do not contest its legitimacy, but claim it was unreasonably applied when the board of directors arbitrarily and capriciously withheld its approval. I agree.

“Reasonableness” implies the exercise of sound discretion; it is not a code word for impermissibly restrictive, arbitrary or capricious behavior. We spoke to this issue in Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla.4th DCA 1975), when we discussed the legitimate scope of association action and said:

... the association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. Id. at 182.

Likewise, action by a condominium board of directors must be reasonable. White Egret Condominium, Inc. v. Franklin, supra; Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637 (Fla.4th DCA 1981). Indeed, this is the operative principle of today’s majority decision. Nonetheless, I find the court’s analysis incomplete since it fails to consider a second crucial corollary which circumscribes all board action: the declaration of condominium and the by-laws of the association delimit the scope of authority for a board of directors. This rule of limitation is rooted in the fact that “condominium unit owners comprise a little democratic sub society,” Hidden Harbour Estates, Inc. v. Norman, supra at 182, which is authorized by statute to amend its declaration of condominium (the constitution of the condominium), and to enact by-laws for its self-governance. See Sections 718.110 and 718.-112, Florida Statutes (1979). In other words, the will of the unit owners is paramount and the directors are charged with a fiduciary duty to implement it. See Section 718.111(1), Florida Statutes (1979). Therefore, “reasonable board action” is that which is consistent with the declaration and by-laws. Put another way, board action is per se unreasonable if it contravenes the democratically-expressed will of the unit owners as contained in the declaration and by-laws.

A hypothetical example may be helpful in illustrating this point. Imagine a provision in a declaration of condominium or by-laws which expressly permits children to reside in the condominium. Imagine, further, that the condominium has a sale-approval clause similar to that in the case at bar. To complete the scenario, assume that a couple with a child applies for board approval only to find that a majority of the board disfavors children on the premises and, therefore, disapproves the sale solely because of the child. Such action, in my view, would be per se unreasonable for it constitutes a silent amendment or negation of an express policy of the association’s membership.

So too in the case at bar. The declaration of condominium for Plaza East Condominium expressly permits unit owners to lease their apartments subject to prior approval by the board of directors. The rules and regulations (by-laws) of the association further define conditions for leasing:

a. Owners may lease their apartment only once during the calendar year, these leases to be for no less than (6) months duration, nor more than one year. The lease may be renewed.
b. Lease arrangements must be submitted to the Board of Directors for approval. A maximum charge of $50.00 will be made for investigation of proposed Lessee.
c. Each Owner is responsible to acquaint the Lessee with the Rules, and the Owner is responsible for the Lessee’s compliance with the Rules.
d. Owner will be held responsible for any damage to common elements caused by Lessee.

Since the declaration and by-laws guarantee a conditional right to lease, it is my view that the board of directors acted arbitrarily and unreasonably when it disapproved appellants’ application solely because they intended to exercise this conditional right.

An underlying premise of the majority’s opinion is that “[tjhere was conflicting testimony [below which was] subject to different interpretations and inferences.” Ante at 967. In other words, the court suggests that there are several factors which may be deduced from the evidence and which, if relied upon by the board, would justify its action. The fault with this theory, however, is that it was rejected by its beneficiaries. The board’s trial counsel and all of the members of the board who testified stated unequivocally that appellants’ intent to lease was the sole ground for their rejection.

In his opening statement, the board’s trial counsel told the court, “There has never been an apartment purchased for the purpose of rental and this is the basis — the main basis why the screening committee and the Board of Directors rejected them.” (Tr. 5). Four members of the board of directors — three of whom comprised the screening committee — testified at trial. The following exemplifies their testimony. Mr. James H. Carpenter: “The Board rejected the application.... The reason was that they did not look with favor upon the rental of an apartment for that period of time.... That’s the only reason I know of.” (Tr. 29). Mr. Maurice Henry: “My — I voted against it.... Because they wanted to either rent or lease the apartment.” (Tr. 40). Mr. Nicholas LaRosa: “We had it in their file that they were financially able.... [The fact they were going to lease it for five years] was the only reason I was in doubt of it.” (R. 397). Mr. Donald King: “The reason [for rejection] was the same one that we’ve been going over and over, which is that they were rejected because they intended to lease the apartment....” (Tr. 66-67).

The record admits no other inference and so, I submit, we are compelled to evaluate the board’s action on the basis of its expressed rationale. Appellants were disapproved solely because they intended to lease the unit. Since the rules and regulations (by-laws) expressly contemplated yearly rentals which, if approved, could be renewed, the board’s disapproval was unreasonable because it negated the availability of a conditional right established by the membership of the condominium association.

As for appellants’ standing, I concur with the court that appellee waived this issue by failing to object in the trial court. Cowart v. City of West Palm Beach, 255 So.2d 673 (Fla.1971). Moreover, I am persuaded that by virtue of the sale-approval clause in the declaration of condominium and by-laws, the board became a necessary party to all sale contracts and, consequently, in my opinion, it could not successfully assert lack of standing to shield itself from suit by a prospective purchaser.

Accordingly, I respectfully dissent.

      . Mr. Henry also gave the following answers to these questions:
      Q. Did you have any problem at all with their financial responsibility?
      A. None, as I recall.
      Q. Any problems at all with their social compatibility?
      A. None at all.
      Q. And you opposed them because they were going to be — they were not going to be full-time residents of the Plaza East Condominium?
      A. Basically, that they were going to lease it. (Tr. 43).