author: DOWNEY, Judge.

text:
    LORD CHUMLEY's OF STUART, INC., Lord Chumley's of Jupiter, Inc., Flame Meats, Inc., and Flame of North Palm Beach, Inc., Appellants, v. DEPARTMENT OF REVENUE, State of Florida, Appellee.
    No. 79-640.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Linda F. Albritton of Haines & Rossow, North Palm Beach, for appellants.
    Jim Smith, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for appellee.
   DOWNEY, Judge.

Appellants seek review of a final agency action in the form of approval by the Cabinet, sitting as the Department of Revenue, of a Recommended Order of the Department of Revenue. The Recommended Order in question approved in part and rejected in part the findings and recommendations of a Hearing Examiner.

The administrative proceeding giving rise to the final agency action in question was commenced when appellants filed a petition for administrative hearing to determine the validity of assessments made by the appel-lee against appellants for sales taxes, penalties, and interest in the total amount of $31,666.31. The primary issue between the parties is whether appellants were in the business of renting or leasing real property within the meaning of Section 212.031, Florida Statutes (1977), so as to require that a four percent sales tax be paid on all rentals accruing under said arrangement.

The evidence adduced by the appellants or stipulated to by the parties indicates that Peter G. Makris purchased four parcels of real property. Subsequent to the purchase of said properties Makris formed the four appellant corporations for the purpose of operating three separate restaurants, and a meat market and liquor store on the respective parcels of property. The title to three of the parcels of property was placed in the name of Peter G. Makris, as trustee, while the fourth was taken in the name of Makris and wife. Each of the appellants operated one of the aforementioned businesses on one of said parcels. During the audit period involved herein each of the corporations made the mortgage, real estate tax, and insurance payments due on the parcel of property on which its business was operated. Makris made no payments on said properties during said period. Although each corporation had exclusive possession of one of said parcels, there were no written or oral leases between the corporations and Makris, nor were any payments made by the corporations to Makris as rent, or otherwise.

At the hearing before the Examiner Mak-ris testified that he was in the restaurant business and not the business of renting property to others; that title to the properties was held by him as trustee and by him and his wife for the corporations; that no payments had ever been made to him by way of rent, or otherwise; that the corporations took depreciation on the properties for Federal Income Tax purposes. Makris also testified that when he bought the properties the corporations had not yet been formed. After the tax assessment Makris conveyed the properties to the respective corporations by quit claim deeds subject to the mortgage encumbering each parcel without payment of any consideration to him or his wife.

Based upon the foregoing, the Examiner found that Makris purchased the properties for the sole purpose of operating the businesses in question and that he held title for the corporations; he did not enjoy any of the benefits of ownership. No rent was paid to Makris. The corporations occupied and controlled the properties and paid all of the expenses of carrying the properties. Subsequent to the audits Makris conveyed the properties to the corporations without consideration. Therefore, the Examiner considered that Makris was not engaged in the business of renting the properties and that the payments made by the corporations for mortgage installments, taxes, insurance, etc., were not rent payments.

Appellee filed exceptions to portions of the Examiner’s Recommended Order, the basis of said exceptions being that 1) many of the findings of fact are not supported by substantial competent evidence, or 2) the Examiner’s conclusions of law were erroneous. Appellee contended, for example, that Makris’s motives and intention in purchasing the property were immaterial. Furthermore, appellee says that Makris did benefit from the monies paid by the corporations for mortgage payments, taxes and insurance and thus those payments constituted rent for the corporate use of the property.

However, we are persuaded that the Hearing Examiner’s findings and conclusions do have adequate support in the record and should not have been overturned by the Governor and Cabinet acting as head of the Department of Revenue.

The issue tried by the Hearing Examiner was whether Makris was engaged in the business of renting, leasing or letting of real property to the four corporations, and whether the mortgage payments, property taxes and insurance payments paid by the corporations constituted rent payments.

Section 212.031, Florida Statutes (1977), provides, in pertinent part:

(l)(a) It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, or letting any real property ....
(c) For the exercise of such privilege a tax is levied in the amount equal to 4 percent of and on the total rent charged for such real property by the person charging or collecting the rental.
(d) Where the rental of any such real property is paid by way of property, goods, wares, merchandise, services or other things of value, the tax shall be at the rate of 4 percent of the value of the property, services, or other things of value.

In order to determine what is meant by a person engaging in business we look to the definition of said term in Section 212.02(9), Florida Statutes (1977):

“Business” means any activity engaged in by any person, or caused to be engaged in by him, with the object of private or public gain, benefit, or advantage either direct or indirect.. . .

In our judgment the totality of the record before the Hearing Examiner justified his findings of fact, as well as his conclusions of law. The purpose of Section 212.031 is to levy a tax upon the privilege of engaging in the business of renting real property. The finding that Makris was not engaged in such a business is borne out by the record and thus under Section 120.57(l)(b)9, the Cabinet, sitting as the Department of Revenue, abused its function because the Hearing Examiner’s findings and conclusions were not clearly erroneous. Inter. Minerals & Chem. Corp. v. Mayo, 336 So.2d 548 (Fla.1976); Venetian Shores Home & Prop. Own. v. Ruzakawski, 336 So.2d 399 (Fla. 3d DCA 1976).

Accordingly, the order appealed from is reversed and this cause is remanded to the Agency with directions to reinstate and approve the Recommended Order of the Hearing Examiner.

REVERSED AND REMANDED with directions.

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


source: Caselaw Access Project

author: THE COURT:

license: Public Domain

text:
    LORD CHUMLEY'S OF STUART, INC., et al., Appellant, v. DEPARTMENT OF REVENUE, State of Florida, Appellee.
    No. 79-640.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1981.
   BY ORDER OF

THE COURT:

ORDERED that Appellee’s petition for rehearing filed April 20, 1981, is granted with respect to the allowance of attorney’s fees only and the order of this court dated April 8, 1981, 401 So.2d 817, granting appellant’s motion for attorney’s fees on appeal is vacated and said motion for attorney’s fees is denied.


author: McCORD, Judge.

text:
    Charlie DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. WW-56.
    District Court of Appeal of Florida, First District.
    April 10, 1981.
    Rehearing Denied May 29, 1981.

      Lacy Mahon, Jr., of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., and Margie Starnes, Legal Intern, for appellee.
   McCORD, Judge.

This appeal is from appellant’s conviction of carrying a concealed firearm. He contends that the trial court erred in admitting into evidence testimony concerning an alleged attempted bribery made by appellant to the arresting officer, erred in denying appellant’s request to recall the arresting officer for additional cross-examination pri- or to the closing of the State’s case and erred in failing to give appellant’s requested instruction on the penalty. We affirm.

The State presented evidence at the trial that, on November 4, 1979, appellant was arrested on an original charge of driving while intoxicated and running a red light; that arresting officer Wright, in the course of the arrest, was offered a $10 bribe by appellant prior to appellant being transported to the county jail; that when appellant was booked at the jail, a concealed firearm was discovered in his pocket. Appellant was initially charged with attempted bribery and with carrying a concealed firearm but an information was never filed on the attempted bribery charge. The charges of driving while intoxicated and running a red light were never filed. Appellant was placed on trial on the sole charge of carrying a concealed firearm in violation of § 790.01(2), Florida Statutes. At the trial, over appellant’s objection, the State presented the testimony of Officer Wright concerning the alleged bribe, and the $10 bill was placed in evidence. Appellant argues that the admission of the evidence relating to the alleged bribe was reversible error in that it was irrelevant and was offered only to show bad character or propensity to commit a crime as proscribed by Williams v. State, 110 So.2d 654 (Fla. 1959). We disagree. This evidence was a part of the criminal episode. It was relevant for the jury’s consideration as an indication of guilty knowledge of appellant that he was carrying a concealed firearm which he knew would subsequently be discovered if he was taken to the jail. It would tend to show that the act charged was not the result of accident, mistake, or inadvertence. See Williams v. State, supra, page 661.

As to appellant’s second point, in putting on its case, the State presented the testimony of Officer Wright and followed it with the testimony of Officer Clayton, who had discovered the gun on appellant at the jail. The court sustained the State’s objection on the ground of hearsay when defense counsel inquired of Wright as to in which of appellant’s pockets Clayton had told Wright he had found the gun. In this connection, the State in opening argument had advised the jury that Clayton would testify that he had removed the gun from appellant’s right pocket. Defense counsel pointed out to the court that in a previous deposition Wright had testified that Clayton had informed him that he had removed the gun from appellant’s left pocket. Thus appellant was attempting to elicit hearsay testimony of Officer Wright to impeach testimony which he considered Clayton would later give. Clayton did subsequently testify that he removed the gun from appellant’s right pocket. Defense counsel then sought to recall Wright prior to the close of the State’s case in order to impeach the testimony of Officer Clayton on this point. The trial court refused to allow the recall, and appellant contends that such ruling was reversible error — that such ruling forced him to call Officer Wright after the State had rested and caused him to lose the right to make the opening and closing arguments by virtue of his having presented testimony other than his own. Florida Rule of Criminal Procedure 3.250. We find no abuse of discretion by the trial court. The rule does not bestow an unequivocal substantive right upon a defendant to have opening and closing arguments. The trial court is not required to exercise its discretion to allow or not allow recall by the defendant of a State’s witness for further cross-examination in such way as to give the defendant the opening and closing arguments.

At the charge conference, defense counsel requested that the jury be instructed on penalties, as provided by Florida Rule of Criminal Procedure 3.390(a). The trial court denied the request, and defendant contends that such was reversible error. We disagree. The Supreme Court in Tascano (v. State), 393 So.2d 540 (Fla.1980), ruled that pursuant to aforesaid Rule 3.390(a), it is mandatory that instruction be given on the maximum and minimum sentences which may be imposed upon defendant upon request being made therefor. Here, however, appellant did not preserve the point for review by objecting to the court’s denial of the requested instruction. See Florida Rule of Criminal Procedure 3.390(d); Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980); and Bailey v. State, 390 So.2d 24 (Fla. 3d DCA 1981).

AFFIRMED.

LARRY G. SMITH, J. and LILES, WOODIE, A., (Retired) Associate Judge, concur.

ON PETITION FOR REHEARING

Petition for rehearing is denied. See Washington v. State, 392 So.2d 599 (Fla. 1st DCA 1981).

McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A., (Retired) Associate Judge, concur.

      . The trial court correctly sustained the objection, and no point is raised by appellant as to that ruling.


author: COWART, Judge.

text:
    Richard P. NIESZ, Appellant, v. R. P. MORGAN BUILDING, CO., INC., et al., Appellees.
    No. 81-142.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.
    Richard P. Niesz, pro se.
    Wayne L. Hogeboom of Kennedy & Hoge-boom, South Daytona, for appellees.
   ON MOTION TO DISMISS APPEAL

COWART, Judge.

By order dated December 31, 1980, the trial court (1) denied a certain petition for reconsideration, (2) granted a motion to strike certain pleadings, and (3) dismissed the plaintiff Richard P. Niesz, individually as a party to the cause and dismissed all claims asserted by him as an individual party plaintiff. On January 12, 1981, the trial court entered an order scheduling a non-jury trial. Appellant’s belated objection to the order of December 31, 1980 (as proposed by appellees’ counsel) was denied by order entered January 14, 1981.

On February 2, 1981, appellant filed a notice of appeal of these three orders. Appellee Dostie Homes, Inc., moves this court to dismiss the appeal claiming all three are non-final orders and non-appeala-ble under Florida Rule of Appellate Procedure 9.130(a)(3). Appellant says the orders are final pointing out that the orders do not merely dismiss a cause but dismiss him as a party. We agree with appellee that all portions of all three orders are non-final and non-appealable except Paragraph 3 of the order entered December 31, 1980, dismissing appellant Richard P. Niesz individually as a party and dismissing all claims so asserted by him in this cause. As to that provision we must agree with appellant. The order dismissing Richard P. Niesz, individually, is final because it concludes all issues between him and the other parties and constitutes an end of the judicial labor and the cause relating to him, leaving nothing further to be done.

The motion to dismiss is granted except as to the provisions of Paragraph 3 of the order dated December 31, 1980, and as to that provision the motion to dismiss is denied.

GRANTED in part; DENIED in part.

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

      . We have used the date of the original notice of appeal notwithstanding that appellant was required to file an amended notice because of noncompliance with the Florida Rules of Appellate Procedure. We also note that in the notice of appeal appellant states that the order of the trial court dated December 31, 1980, was “rendered” on that date. If that was correct this appeal would have to be dismissed for failure of the appellant to commence the appeal within thirty days of rendition of the order to be reviewed pursuant to Florida Rule of Appellate Procedure 9.110(b). However, we have ascertained from the trial court record that the order dated December 31, 1980, was not filed by the clerk until January 5, 1981, and, therefore, was not rendered within the meaning of Florida Rules of Appellate Procedure 9.110(b) and 9.020(g) until that date.

      . See, e. g., Dustin v. Latzko, 155 Fla. 824, 21 So.2d 904 (Fla. 1945); Logan v. Flood, 346 So.2d 1243 (Fla. 1st DCA 1977); Berkan v. Brown, 231 So.2d 871 (Fla. 3d DCA 1970); and McMullen v. McMullen, 145 So.2d 568 (Fla. 2d DCA 1962), cited in Haddad, Partial ‘Final’ Judgments, The Fla.B.J., April 1979, at 204.


author: PER CURIAM. PER CURIAM.

text:
    Ruben PEDRERA, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1201.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    On Rehearing July 14, 1981.
    Carhart & McGuirk and James McGuirk, Miami, for appellant.

      Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Brown v. State, 152 Fla. 508, 12 So.2d 292 (1943); Shea v. State, 167 So.2d 767 (Fla. 3d DCA 1964); Bertone v. State, 224 So.2d 400 (Fla. 3d DCA 1969); Matire v. State, 232 So.2d 209 (Fla. 4th DCA 1970); Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971); Mendez v. State, 280 So.2d 525 (Fla. 3d DCA 1973); State v. Mullin, 286 So.2d 36 (Fla. 3d DCA 1973); Morgan v. State, 303 So.2d 393 (Fla. 2d DCA 1974); Mathis v. State, 348 So.2d 1221 (Fla. 3d DCA 1977); State v. Williams, 358 So.2d 1094 (Fla. 1st DCA 1978); State v. Sobel, 363 So.2d 324 (Fla.1978); Foster v. State, 369 So.2d 928 (Fla.1979); Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979).

ON REHEARING

PER CURIAM.

On rehearing, the appellant, for the first time, raised the legality of the sentence herein alleging that the imposing of an enhanced sentence on the conviction for aggravated battery was improper under the holding in Bell v. State, 394 So.2d 570 (Fla. 5th DCA 1981).

The State has responded to the allegation by confessing error as to the sentence on the aggravated battery conviction. The State requests that this court return the cause to the trial court, permitting the trial court to re-sentence on all counts, thereby enabling the trial court to sentence the defendant to the same term of imprisonment by merely making the enhanced sentences on the two third degree murder convictions run consecutively rather than concurrently.

Under the facts of the instant case, it does appear that the imposing of an enhanced sentence for the conviction of aggravated battery should be set aside. See: Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978); Knight v. State, 374 So.2d 1065 (Fla. 3d DCA 1979); Bell v. State, supra.

However, it does not appear that we should extend the prohibition against an enhanced sentence, set forth in the aforementioned cases, to the convictions for third degree murder for the following reason: The use of a firearm is not necessarily an element of third degree murder, as statutorily defined, and the mere fact that a firearm was used in commission of the crime does not make it a necessary element as in the case of aggravated assault, which is statutorily defined to be committed by use of a deadly weapon. Furthermore, there is no enhancement of the crime of third degree murder, whereas aggravated battery is an enhancement of the crime of battery.

Thus, on rehearing, we reduce the sentence for the aggravated battery conviction to fifteen years and adhere to the remainder of the original opinion.


author: ORFINGER, Judge.

text:
    INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES, AFL-CIO, LOCAL 1010, Appellant, v. Mary Winn ANDERSON, Appellee.
    No. 80-524.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    Rehearing Denied July 23, 1981.

      Joseph H. Williams of Troutman, Parrish & Williams, P. A., Winter Park, for appellant.
    Patricia Winn Carter of Carter & Stal-naker, Winter Park, for appellee.
    Stuart M. Lerner, Staff Counsel, Public Employees Relations Commission, Tallahassee.
   ORFINGER, Judge.

International Brotherhood of Painters and Allied Trades, AFL-CIO, Local 1010 (the Union), appeals from an order of the Public Employees Relations Commission (PERC) finding the Union guilty of unfair labor practices and ordering a new collective bargaining agreement ratification election.

On July 16, 1979, Mary Winn Anderson, appellee, filed an unfair labor practice complaint against the Union, charging that it violated Rule 38D-20.02, Florida Administrative Code, in conducting a ratification election on a new collective bargaining agreement. The Union represents a bargaining unit composed of certain non-instructional employees of the School Board of Brevard County. At the time of the ratification vote, there were approximately 1700 to 1800 members of the unit, of which about 700 were members of the Union.

Appellee, a school office clerk employed at Madison Middle School and a non-union member of the bargaining unit, brought the unfair labor practice charge in her own name. She and other non-union members of the bargaining unit claimed that the Union did not post notices of the proposed changes to the collective bargaining agreement or of the date, time and place of the ratification meeting and that they had received no personal notice of the proposed revisions. Appellee contended that the Union’s conduct violated section 447.501(2)(a), Florida Statutes (1979), by excluding from its ratification procedures the employees of the unit who were not union members.

An evidentiary hearing was held before a PERC hearing officer and the following facts were developed. A “Special Notice” was directed to Union members informing them of proposed changes in the collective bargaining agreement and of the time and place of the ratification vote. This notice was not sent to non-union members of the bargaining unit. While the Union had instructed its stewards to post Union notices on bulletin boards at worksites, the steward at appellee’s school (Madison) testified she did not post the notice and first saw it on the bulletin board after the ratification vote.

Twenty other non-union employees representing six schools were produced by appel-lee and testified they did not see any notice regarding the upcoming ratification vote or proposed changes in the agreement at locations where they customarily observed notices to employees. Some of the witnesses and appellee admitted that they read about the agreement in a local newspaper. In addition, appellee saw a copy of the “Special Notice” at least five days prior to the ratification vote and copied the proposed changes in the collective bargaining agreement. She subsequently telephoned the School Board and was informed that she was eligible to vote on ratification and in fact cast a ballot in the June 9, 1979 election.

The Union neither mailed nor posted notices to non-union members informing them of their eligibility to vote, though at no time did Union officials tell such employees that they were ineligible to vote. A secretary of the Union and a Union member testified that, when asked, they informed bargaining unit members that they were eligible to vote regardless of Union membership. The Union additionally had negotiating team members available at the election meeting to answer questions regarding the proposed changes.

The final vote indicated that a total of 166 ballots were cast, with 11 being from non-union employees and the agreement was ratified by a margin of approximately five to one.

The hearing officer issued a recommended order finding that the Union engaged in unfair labor practices and the Union filed exceptions. On May 5, 1980, PERC issued its final order in which it found, inter alia, that:

(1) Appellee had standing to file the instant unfair labor practice complaint;
(2) The Union engaged in an unfair labor practice under section 447.501(2)(a), Florida Statutes, by failing to notify non-union employees of the date, time and place of the ratification election, of their eligibility to vote, and of the terms of the proposed agreement; and
(3) by engaging in the above acts the Union interfered with, restrained and coerced non-union public employees in the free exercise of the rights guaranteed them by section 447.301(1), Florida Statutes, thereby engaging in an unfair labor practice under section 447.501(2)(a).

The Commission ordered a new ratification election and required the Union to pay appellee a reasonable attorney’s fee and costs of litigation. It did not consider the Union’s claim that Rule 38D-20.02, Florida Administrative Code, which governs ratification procedures was unconstitutionally vague and ambiguous and invades the Union’s first amendment rights by coercing “speech,” contending that it had no jurisdiction to make that determination.

We first consider the Union’s claim that Rule 38D-20.02 is unconstitutionally vague and is violative of the Union’s first amendment rights by requiring the Union to communicate with non-union members of the bargaining unit.

This rule was promulgated to effectuate the mandate of section 447.309(1), Florida Statutes, which provides that a collective bargaining agreement is not binding on a public employer until it is ratified “by public employees who are members of the bargaining unit.” Section 447.309(4) requires ratification “by a majority vote of employees voting in the unit, in accordance with procedures adopted by the Commission.”

Since the Public Employees Relations Act gives all employees of a bargaining unit the right to vote on ratification, Rule 38D-20.02 was designed to guarantee that all unit employees are provided with a reasonable opportunity to freely exercise their right to vote in an informed manner.

The Union maintains that the rule is vague in that it fails to alert the bargaining agent of what is required at a “ratification meeting.” A statute or rule will withstand constitutional scrutiny under a void for vagueness challenge if it is specific enough to give persons of common intelligence and understanding adequate warning of the proscribed conduct. Sanicola v. State, 384 So.2d 152 (Fla.1980); Reynolds v. State, 383 So.2d 228 (Fla.1980). We hold that the rule sufficiently measures up to this standard.

Here the Union’s breach of Rule 38D-20.-02 occurred because of its failure to provide adequate advance notice to all unit employees of the ratification meeting and of the fact that all were eligible to vote. The rule unambiguously requires this and hence the Union’s claim of vagueness is unconvincing.

The Union’s claim that the rule violates its first amendment rights in that it “coerces speech” refers to the requirement that the Union notify all employees of the ratification meeting and inform them of the substance of the collective bargaining agreement. It is true that in certain situations, the state is prohibited under the first amendment from requiring an individual or entity to speak or provide an opportunity for others to speak.' See, e. g., West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (compelling a school child to recite the pledge of allegiance); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (statute requiring newspaper to give political candidate equal space to respond to editorial criticism); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (statute required display on car license plate of a patriotic motto repugnant to a Jehovah’s Witness).

However, where an entity seeks a governmentally bestowed benefit which can only be granted to a limited number and whereby it serves as a proxy for others, the government may constitutionally require that the entity present divergent viewpoints as a condition of granting the benefit. See, e. g., Red Lion Broadcast Co. v. F.C.C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). Combined with this principle is the recognition by the United States Supreme Court of the fundamental importance of ensuring dissemination of information and free discussion in the realm of labor relations. See Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

In the instant case, the Union is acting in a representative capacity, as bargaining agent for all employees of the bargaining unit, both union and non-union. It has received a benefit from the state (certification and all the rights and privileges accruing thereto under Chapter 447, Part II), which carries with it the requirement that all employees be provided with an opportunity to be informed of information affecting their employment. In fact, to forbid such a requirement would “snuff out” the free speech of non-union employees who would be inhibited in receiving and discussing information related to collective bargaining agreements which directly affect them. The Union and its members’ right to their views remains undisturbed, but the Union has no constitutional right to require others to submit to its views (join the Union) or forego being informed regarding the terms and conditions of their employment.

The Union next argues that appellee lacked standing to file the charge, maintaining that she did not suffer any injury and that her rights were not affected by any action or inaction of the Union. In addressing this argument, PERC declared:

“Where, as alleged in the instant case, a certified bargaining representative unlawfully deprives a large number of unit employees of a fair and reasonable opportunity to participate in the ratification of a proposed collective bargaining agreement, each and every unit employee sustains an injury which he or she may seek to remedy by invoking the unfair labor practice procedures. . . . Where as here, the vote is in favor of ratification, the unit employees in favor of ratification are injured because the defects in the ratification process subject the agreement to potential invalidation. Unit employees opposed to ratification are injured because they have been deprived of their right to a ratification process which provides each and every unit employee a fair and reasonable opportunity to vote against ratification and to urge their fellow employees to do likewise. . . . ”

We concur. When the remedial nature of the Public Employees Relations Act is considered, Maxwell v. School Board of Brevard County, 330 So.2d 177 (Fla. 4th DCA 1976), it is clear that appellee had standing as a directly affected employee to bring the instant action.

The Union next contends that appellee failed to prove her case by a preponderance of the evidence and that PERC improperly applied the “competent, substantial evidence” standard to the hearing officer’s recommended order.

In Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1978), the court explained that in an unfair labor practice proceeding, the burden is upon the charging party to prove, by a preponderance of the evidence, a violation of Chapter 447, Part II. This is a burden before the hearing officer. However, the court said, the Commission, when reviewing the hearing officer’s recommendations, shall evaluate them pursuant to the procedure set forth in section 120.57(l)(b)(9), Florida Statutes. This provision in essence requires that before PERC reject or modify the hearing officer’s findings of fact, it first determine that such findings are not based on competent, substantial evidence. Pasco County at 118.

In the instant case, the hearing officer was therefore obliged to follow the “preponderance” test and PERC did not err in limiting its determination to the question of whether competent, substantial evidence existed to support the hearing officer’s findings. Neither did it err in concluding that there was such competent, substantial evidence before the hearing officer.

The Union also argues that no nexus exists between the lack of notice and the outcome of the election, since the failure of the twenty testifying witnesses to vote could not have affected the outcome of the election. While the twenty votes could not have affected the outcome, this argument misses the point, which is that there is sufficient evidence to support PERC’s determination that there was such a defect in notice that few of the non-union members even knew that they could vote, and thus did not participate. Since only a total of 166 votes were cast out of a total membership in the bargaining unit of 1800 employees, 1000 to 1100 of whom were not union members, we cannot say that PERC abused its discretion in determining that the lack of notice to non-union employees significantly affected the election and in ordering a new election to remedy the unfair labor practice. Sec. 447.503(6)(a), Fla.Stat. (1979).

The contention that PERC erred in concluding that the Union’s conduct constituted an unfair labor practice is likewise without merit. Under the federal National Labor Relations Act, a union has the duty, derived from its status as certified exclusive bargaining agent to represent fairly all employees in the unit, which duty applies to all workers in the unit, not merely to its own members. International Brotherhood of Teamsters v. NLRB, 587 F.2d 1176 (D.C. Cir.1978).

Breach of this duty of fair representation violates section 8(b)(1)(A) of the NLRA for it tends to encourage workers to join, or discourages them from joining, certain unions, thus restraining them in the free exercise of their section 7 rights. International Brotherhood at 1181. Where a Florida statute is patterned after a federal law on the same subject, it will take the same construction in Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of the Florida legislation on the subject. Pasco County, at 116.

PERC’s promulgation of Rule 38D-20.02 was obviously designed to effectuate the principle of fair representation. The Commission found that competent substantial evidence existed to support a finding that the Union violated this rule by failing to provide adequate notice to non-union employees. The Commission also found that the Union discriminatorily failed to provide notice to non-union members while providing notice to its own members and that this violated section 447.501(2)(a). Since this conclusion is based on competent, substantial evidence, we find no error.

Lastly, appellant complains of error in the award to appellee of attorney’s fees under section 447.503(6)(c). The Commission determined that the Union “knew or should have known that its conduct was in violation of section 447.501(2)(a),” and determined that an award of attorney’s fees was appropriate. Appellant fails to show that this constitutes an abuse of discretion by the Commission.

Having found no error, we grant appel-lee’s motion for the award of appellate costs and attorney’s fees pursuant to section 447.-504(3), Florida Statutes (1979), and remand the cause to the Commission for the determination of these costs and fees in accordance with the procedures set forth in Florida Administrative Code Rule 38D-14.-04.

The order appealed from is AFFIRMED.

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

      . Fla.R.App.P. 9.030(b)(1)(C); Section 447.-504(1), Florida Statutes (1979).

      . One of appellee’s other witnesses, Karen Con-nell, who also worked at Madison Middle School, testified she also voted.

      . Section 447.501(2) provides:
      A public employee organization or anyone acting in its behalf ... is prohibited from:
      (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part . ..

      . Section 447.301(1) provides:
      Public employees shall have the right to form, join, and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing.

      .“38D-20.02 RATIFICATION BY MEMBERS OF BARGAINING UNIT :

      (1) The certified bargaining agent shall promptly present the proposed agreement to the members of the bargaining unit for consideration and ratification. The certified bargaining agent shall give notice of any ratification meeting at least five (5) days prior to such meeting, unless otherwise allowed by the Commission. The notice shall be posted in conspicuous locations so that all members of the bargaining unit will reasonably be apprised of the meeting.
      (2) The notice shall contain the following information:
      (a) The date, time and place of the meeting;

        (b) That the meeting is open to all members of the bargaining unit regardless of membership in the employee organization;
      (c) That all members of the bargaining unit are eligible to vote; and
      (d) That a copy of the proposed collective bargaining agreement is available for inspection at a specified location.
      (3) The vote taken at a ratification meeting shall be by secret ballot of all members of the bargaining unit attending the meeting. The vote shall be publicly counted and the results announced at the conclusion of voting and counting.

      . Art. I, § 6 Florida Constitution, provides that the:
      right of persons to work shall not be denied .or abridged on account of membership or non-membership in any labor union ....

      . In its final order the Commission stated:
      Upon review of the record, the Commission finds that there is competent, substantial evidence to support all of the hearing officer’s findings of fact.

      .Section 120.57(l)(b)(9) provides:
      The agency may adopt the recommended order as the agency’s final order. The agency in its final order may reject or modify the conclusions of law . . . but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record ... that the findings of fact were not based upon competent substantial evidence. . . .

      . Title 29 U.S.C. § 151 et seq., (1974).

      . 29 U.S.C., § 158(b)(1)(A), which is the counterpart to section 447.501(2)(a), Florida Statutes.

      . 29 U.S.C., § 157, which is the Federal counterpart to section 447.301(1), Florida Statutes.

      . § 447.503(6)(c):
      The commission may award to the prevailing party all or part of the costs of litigation, reasonable attorney’s fees, and expert witness fees whenever the Commission determines that such an award is appropriate.

      .§ 447.504(3) provides in part:
      The court may award to the prevailing party all or part of the costs of litigation and reasonable attorney’s fees and expert witness fees whenever the court determines that such an award is appropriate.


author: PER CURIAM.

text:
    Robert Kent FINCHAM, Appellant, v. Bonnie Ann FINCHAM, Appellee.
    No. 80-1359.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Rehearing Denied Aug. 10, 1981.
    Ronald Sales of Law Offices of Ronald Sales, P. A., West Palm Beach, for appellant.
    James P. O’Flarity of Law Offices of James P. O’Flarity, P. A., Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

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


text:
    Michael R. SCHWARTZ, Appellant, v. Stacey Kogen SCHWARTZ, Appellee.
    No. 80-1958.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Harvey S. Swickle, Miami Beach, for appellant.
    Melvyn B. Frumkes and Cynthia L. Greene, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Lewis v. Lewis, 383 So.2d 1143 (Fla. 4th DCA 1980).


author: PER CURIAM. OWEN, WILLIAM C., Jr. (Retired),

text:
    Milton Hayes PORTER, Appellant, v. Hazel Annett PORTER, Appellee.
    No. WW-251.
    District Court of Appeal of Florida, First District.
    June 18, 1981.
    Rehearing Denied Aug. 21, 1981.
    Stephen E. Hilker, Palatka, for appellant.
    John Paul Howard, Jacksonville, for ap-pellee.
   PER CURIAM.

AFFIRMED.

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

OWEN, WILLIAM C., Jr. (Retired), Associate Judge, dissents with written opinion.

OWEN, WILLIAM C., Jr. (Retired),

Associate Judge, dissenting:

Though I hold no brief for a parent who, having the ability to do so, fails or refuses to contribute to the support of his minor child, the judgment for arrearage of child support and for modification of child support payments from which this appeal has been taken is, in my opinion, so tainted by gross violations of both substantive and procedural law that reversal is mandated.

In 1967 the parties were divorced by final judgment of the Circuit Court of Gadsden County, Florida. Appellee/Wife was awarded custody of the parties’ minor child and appellant was ordered to pay to appel-lee the sum of $20.00 per week as child support. He made the support payments timely until June, 1970, when he received a letter from his former wife stating:

[A]s far as you visiting [yo.ur daughter], you sure don’t have the right... I know the law well enough to know that no court will let you visit Daphne or attempt to harass me . . . money or no money, you are not going to come into Daphne’s life and upset her with the ideas you have as far as your being wronged.
* * * * * *
I will never write you again, when I get tired of not getting the money I will without notice call my case up and ask the judge to find you in contempt . . . you can pay only if you want to.

The letter also told the appellant not to call or to attempt to see appellee or the child again. Appellant thereafter ceased the child support payments and did not attempt to visit his daughter or to contact his former wife.

In April, 1980, nearly ten years later, appellee filed in the Circuit Court of Duval County, Florida, a pleading entitled “Petition for Enforcement of Final Decree of Child Support Money” and a separate pleading entitled “Petition to Modify a Final Decree of Divorce”. Both were given the same docket number and process was issued and forwarded to the Sheriff of Gadsden County in which appellant resided. Accompanying the process and copies of the two pleadings was a notice of hearing from appellee’s attorney directed to appellant advising that the two petitions would be brought on for hearing before a judge of the Circuit Court of Duval County in chambers at Jacksonville on May 15, 1980. Appellant was duly served with process together with a copy of the pleadings and copy of the notice of hearing on May 9, 1980. Appellant travelled to Jacksonville for the scheduled hearing, accompanied by counsel secured that day, and immediately prior to the hearing was served with the wife’s financial affidavit. We have no record of what occurred at the hearing, a flaw which in large measure may account for the majority’s unwillingness to reverse. Five days later the trial court entered a final judgment against appellant and in favor of appellee for the child support arrearage of $11,247.00, and, without a finding of any change of circumstances, modified the amount of child support appellant was required to pay by increasing it to $25.00 per week.

Assuming that at the time of filing the petitions appellee resided in Duval County (a jurisdictional matter not alleged in either of the petitions), the Circuit Court of Duval County had subject-matter jurisdiction to enforce the support order by virtue of Section 61.17, Florida Statutes, and had subject-matter jurisdiction to entertain the petition for modification of child support by virtue of Section 61.14, Florida Statutes. However, irrespective of whether this was a new action or whether it was deemed a subsequent pleading under Rule 1.110(h), Florida Rules of Civil Procedure, the issuance and service of process was necessary for personal jurisdiction over appellant. Service of process triggered the time frame for filing pleadings (as set forth in Rule 1.140, Florida Rules of Civil Procedure) and, as in other civil actions, the matter should have been set for trial pursuant to Rule 1.440, Florida Rules of Civil Procedure. See generally, Trawick, Florida Practice and Procedure, § 30-5. Here, six days after being served with process and a copy of the petitions, without sufficient opportunity to file any responsive pleading, appellant was forced to a final hearing on the merits contrary to the rules of procedure. In view of the fact that appellee waited ten years to seek enforcement of the delinquent child support payments, as well as an increase in the amount thereof for the future, the undue haste with which this matter was brought to trial contrary to the established rules of civil procedure is inexplicable.

The procedural violations are highlighted by the fact that they deprived appellant of asserting substantial defenses. The denial of visitation rights has been held, under certain circumstances, to be a defense to a claim for arrearage of child support payments accruing while visitation privileges were denied. See, e. g., Warrick v. Hender, 198 So.2d 348 (Fla. 4th DCA 1967); Denton v. Denton, 147 So.2d 545 (Fla.2d DCA 1962). Laches has also been held to bar a wife’s claim for arrearage in child support under facts substantially similar to those that exist in this case. See, e. g., Philips v. Adams, 339 So.2d 665 (Fla. 4th DCA 1976); Brown v. Brown, 108 So.2d 492 (Fla.2d DCA 1959).

The judgment should be reversed and upon remand appellant should be afforded opportunity to file appropriate responsive pleadings to the two petitions, following which this cause should proceed to trial on the merits in accordance with the rules of civil procedure.

      . If a financial affidavit was required, Rule 1.611 was also violated.


author: SHARP, Judge.

text:
    PONTE VEDRA RECORDER, INC., a corporation, and Peggy F. Bradford, Petitioners, v. Jot Thomas CARPENTER, as Personal Representative of the Estate of Gretchen Marie Carpenter, Respondent.
    No. 81-206.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.
    Rehearing Denied July 31, 1981.

      Fred C. Isaac of Lewis, Paul, Isaac & Castillo, P. A., Jacksonville, for petitioners.
    Angela B. Corey, Law Offices of Howell & Howell, P. A., Jacksonville Beach, for respondent.
   SHARP, Judge.

Petitioners seek review by certiorari of a non-final order related to discovery proceedings. The trial court entered an order denying petitioners’ motion to dismiss the amended complaint and requiring petitioners to produce certain documents pursuant to respondent’s request for production of documents. We consider only that portion of the order involving discovery, and we grant the petition.

This suit arose when respondent, as personal representative of the estate of Gretchen Marie Carpenter, sought an accounting by petitioners of the net undistributed profits for 1978 and 1979 of Ponte Vedra Recorder, Inc., a corporation allegedly formerly owned by decedent and petitioner, Bradford. Respondent’s original complaint was dismissed without prejudice. He filed an amended complaint and a request for the production of certain documents, including Bradford’s income tax returns for 1978 and 1979, other personal and business records showing Bradford’s income, and corporate records showing dividends paid to Bradford by the corporation for those years. Petitioners objected to this request and filed a motion to dismiss the complaint, but did not file an answer to the complaint. The trial court entered an order denying the motion to dismiss and requiring petitioners to produce the requested documents.

Petitioners argue, and we agree, that the order does not conform to the essential requirements of law because the pleading did not establish the respondent’s right to an accounting and the trial court did not determine respondent’s right to an accounting before it ordered discovery as to the accounting. See Charles Sales Corp. v. Rovenger, 88 So.2d 551 (Fla.1956); Giammaresi v. Parker, 326 So.2d 243 (Fla. 4th DCA 1976); Aly Handbags, Inc. v. Rosenfeld, 305 So.2d 56 (Fla.3d DCA 1974); cf. Bartolucci v. Bartolucci, 399 So.2d 448 (Fla. 5th DCA 1981) (holding that the pleadings established a right to an accounting).

For the reasons stated in this opinion, the Petition for Writ of Certiorari is granted, and that portion of the lower court’s order requiring that petitioners produce the requested documents is quashed.

PETITION FOR WRIT OF CERTIORA-RI IS GRANTED. .

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

      . Fla.R.App.P. 9.030(b)(2)(A).


text:
    UTICA MUTUAL INSURANCE COMPANY, etc., Appellant, v. John H. MITCHELL, et ux., Appellees.
    No. 80-803.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.
    Rehearing Denied July 29, 1981.

      Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellant.
    Roy B. Dalton, Jr., of Dean, Ringers, Morgan & Lawton, Orlando, for appellees.
   ORFINGER, Judge.

The judgment appealed from determined that the appellant, the compensation carrier for appellee’s employer, was not entitled to an equitable distribution of the proceeds of a settlement received by appellee from the third party tort-feasors alleged to be responsible for appellee’s injuries.

The tort action had been prosecuted in the federal district court for the Middle District of Florida. The action below was in the circuit court of Brevard County for a declaratory judgment to determine what, if any, rights the compensation carrier had in the settlement proceeds. The circuit court declared appellant’s lien invalid, and further held that it could not recover any part of its claimed lien for failure “to present any competent evidence as to the value of the lien."

We have carefully reviewed the transcript of the evidentiary hearing before the trial court and cannot find error in the court’s determination that no competent evidence was submitted to prove what the compensation carrier had paid to appellee and would be required to pay him in the future.

Appellant relies on State v. Caldwell, 388 So.2d 640 (Fla. 1st DCA 1980) for the proposition that an affidavit may be relied on when it is actually before the court although not formally introduced in evidence. The affidavit in question here is one signed by appellant’s attorney of record setting forth the amounts already advanced by appellant and those which are estimated to be advanced in the future. Without commenting on the competency of the affidavit by the attorney as evidence of the amounts paid and to be paid by his client, and although the affidavit was filed in the court file during the pleading stage of this controversy, there is nothing in the record to show that it was before the court or considered by the court or the parties during the hearing. Thus the facts here are distinguishable from Caldwell where the appellate court found that the Judge of Industrial Claims considered the affidavit in question, that all the witnesses testified with reference to it and that counsel for the parties referred to the affidavit as having been “submitted” to the Judge.

Sub judice, the trial court specifically found the absence of competent evidence to prove the value of appellant’s claim. This would negate any reliance on the affidavit. Since we cannot say that he erred on this point, we need not discuss the questions raised as to the validity of the lien, and the judgment appealed from is affirmed.

AFFIRMED.

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

      . See sec. 440.39(3)(a) and (b), Fla.Stat. (1975).


author: MOORE, Judge.

text:
    Darwin WATERS, Appellant, v. The SCHOOL BOARD OF BROWARD COUNTY, FLORIDA and James E. Maurer, Superintendent, Appellees.
    No. 79-1744.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing Denied Aug. 4, 1981.
    Richard H. Frank and Mark F. Kelly of Law Offices of Frank, Chamblee & Kelly, P. A., Tampa, for appellant.
    Edward J. Marko of Marko, Stephany, Lyons & Dow, Fort Lauderdale, for appel-lees.
   MOORE, Judge.

This is an appeal from a final order dismissing appellant’s complaint with prejudice. We hold that the complaint failed to state a cause of action and the trial court correctly dismissed it.

The appellant, Darwin Waters, was a school teacher employed by the Broward County Board of Public Instruction. Although the record is not clear, apparently there were some charges lodged by the Board against Waters which, if proved, could have resulted in his dismissal. The Board withdrew the charges pursuant to a settlement in which Waters agreed to continued employment on an annual contract basis in accordance with Section 231.851, Florida Statutes (1975). As part of the settlement, Waters agreed to “cooperate with and assist a committee to be appointed by the Broward Classroom Teachers Association and the Superintendent ... to assist Darwin Waters to improve in any areas in which such committee determines a deficiency exists.” Upon recommendation of the Superintendent, the Board refused to renew Waters’ annual contract after the first year.

Waters commenced this action against the Board seeking reinstatement to his former position as a school teacher or to a comparable position. Hi's sole ground for this relief was his allegation that the Board and the Superintendent breached the settlement agreement by not forming the committee which was to assist him in correcting any deficiencies which the committee found to exist. There was no allegation that the Board failed to provide Waters with procedural due process, nor was there an allegation that the Board did not have valid reasons for refusing to renew Waters’ contract.

The trial court dismissed the complaint with leave to amend. Waters chose not to amend. The trial court then dismissed the complaint with prejudice and this appeal followed.

Waters, in effect, sought a mandatory injunction requiring reinstatement. His complaint, however, failed to allege facts entitling him to such relief. Assuming the Board and the Superintendent were obligated to form a committee with the Classroom Teachers Association, and assuming they breached that obligation, it simply does not follow that the remedy for such a breach is reinstatement, the only relief sought by appellant. Appellant may have had a claim for damages for breach of an agreement, an issue we do not decide, but that breach will not support what is, in effect, a mandatory injunction requiring reinstatement.

Injunctive relief is an extraordinary remedy and will be granted sparingly. There must be an inadequate remedy at law, and injunctive relief will not lie unless irreparable injury will result otherwise. A complainant alleging irreparable injury must state facts which will enable the court to judge whether the injury will in fact be irreparable. Mere general allegations of irreparable injury will not suffice. First National Bank in St. Petersburg v. Ferris, 156 So.2d 421 (Fla. 2nd DCA 1963).

In the present case, the complaint merely alleged a breach of the settlement agreement. The complaint did not contain any allegations of irreparable injury. Mere loss of employment does not constitute irreparable injury. See, Dania Jai-Alai International, Inc. v. Murua, 375 So.2d 57 (Fla. 4th DCA 1979). Assuming, arguendo, a breach of contract, Waters’ complaint failed to make the requisite allegations for a mandatory injunction requiring reinstatement. The trial court, therefore, correctly dismissed the complaint.

AFFIRMED.

GLICKSTEIN and HURLEY, JJ., concur.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Thomas A. PETERS, Appellee.
    No. 80-1973.
    District Court of Appeal of Florida, Second District.
    July 1, 1981.
    As Clarified July 29, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellee.
   CAMPBELL, Judge.

The state filed a petition for forfeiture of appellee’s motor vehicle. The affidavit filed with the petition stated that appellee, at his home in Dunedin, had discussed buying one pound of marijuana with a confidential informant. In the conversation he stated he would have to purchase the marijuana in Ozona. Later appellee was seen driving in his motor vehicle to Ozona and twice exiting a business with a package. When appellee returned to his home in Dunedin, the confidential informant proceeded to make a purchase of a pound of marijuana.

Appellee was subsequently arrested and charged with sale and possession of a pound of marijuana. The motor vehicle he used to drive to and from Ozona was subsequently seized, although only three to five grams of marijuana were found in the vehicle.

The trial judge granted appellee’s motion to dismiss the state’s petition for forfeiture and in doing so stated the following:

1. Counsel for the Petitioner and counsel for the Respondent have stipulated that at the time of seizure, the captioned vehicle, now the subject of the instant forfeiture proceedings, contained no felony drug;
2. The Court has reviewed, at the urging of counsel, Florida Statute 943.43 as amended by the 1980 Florida legislature and in strictly interpreting this forfeiture statute, as required by law, this Court can only conclude that this vehicle is not the proper subject of forfeiture, in that F.S.A. 943.43, as recently amended, requires that in order that a seized vehicle be forfeited the contraband article must be located in or on the vehicle at the time of seizure. It is therefore
ORDERED AND ADJUDGED, that the Defendant’s Motion to Dismiss is well taken and the State’s Petition for Forfeiture is thereby
DENIED. . . . (emphasis added)

Because we believe that the trial judge incorrectly construed section 943.43, Florida Statutes (1980), and failed to consider sections 943.41 and 943.44, Florida Statutes (1980), we reverse.

Section 943.43, Florida Statutes (1979), read as follows:

Any vessel, motor vehicle, or aircraft which has been or is being used in violation of any provision of section 943.42 or in, upon, or by means of which, any violation of said section has taken or is taking place shall be seized and may be forfeited .... (emphasis added)

Subsequent to the passing of this statute, the Florida Supreme Court held that the mere presence of contraband inside a vehicle was not sufficient to allow the state to forfeit that vehicle. Griffis v. State, 356 So.2d 297 (Fla.1978). The court held that the state must show a nexus between the illegal drugs found in the vehicle and the furtherance of an illegal drug operation before the state could forfeit the vehicle.

Ostensibly in response to the ruling of the court in Griffis, section 943.43 was subsequently amended in 1980 to include a provision that if a vehicle contained contraband at the time of a seizure and if possession of the contraband constituted a felony, then the state could forfeit the vehicle. The legislature made an additional change in 1980 when they deleted “and may be forfeited” from the first sentence of section 943.43(1), Florida Statutes (1980).

The trial court reasoned that in deleting “and may be forfeited” the legislature intended to subject vehicles to forfeiture by the state only when they contain a felonious amount of contraband at the time of the seizure. Since there were only three to five grams of marijuana present in appellee’s vehicle at the time of the seizure, the trial judge dismissed the petition.

Section 943.41(2)(e), however, holds that a vehicle “which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony” shall be a “contraband article.” The facts of this case show that although only three to five grams of marijuana were found inside the automobile at the time of its seizure, a larger amount of marijuana was found in appel-lee’s possession and had apparently been transported in the vehicle. Since the possession of the larger amount of marijuana constituted a felony and since appellee’s vehicle had apparently been employed in the commission of that felony, upon proper proof of those facts, the vehicle would be subject to forfeiture under section 943.-41(2)(e).

Additionally, section 943.44(1) holds that a state attorney, within whose jurisdiction a vehicle has been seized because of its use or attempted use in violation of any provisions of law dealing with contraband, shall promptly proceed against the contraband vehicle by rule to show cause in the circuit court and may have the vehicle forfeited to the law enforcement agency making the seizure upon proof that the vehicle was used in violation of the provisions of the law. The state attorney for Pinellas County did so here and upon proper proof is entitled to forfeit the vehicle under the law.

The trial judge was incorrect in holding that forfeiture was only available when a felonious amount of contraband was found within the vehicle at the time of the seizure.

Accordingly, we reverse and remand to the trial court for treatment consistent herewith.

SCHEB, C. J., and GRIMES, J., concur.


text:
    Deortha A. MOORE, Appellant, v. Ronald E. MOORE, Appellee.
    No. 80-1328.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    Rehearing Denied Aug. 5, 1981.
    Ronald A. Nour, Daytona Beach, for appellant.
    Anthony J. Grezik, Daytona Beach, for appellee.
   SHARP, Judge.

The wife argues that the trial court erred in its final dissolution judgment by failing to award her a special equity in some Oklahoma real estate and by awarding her husband nominal alimony of $1.00 per year. We affirm the judgment.

Nominal Alimony

The parties had been friends from childhood. They married young and had two children. At the time of the dissolution they had been married thirty-one (31) years and the children were adults. The husband worked hard and long hours as an electrician. The wife raised the children and ran the household. The husband accumulated some modest sums he intended to invest in property or in a business, but instead the parties spent their extra funds to send the wife through junior college, and to Stetson University where she earned her masters degree. They also sent both daughters through college. The parties had not accumulated any substantial assets or property.

At the time of the dissolution, the wife had been working as an instructor at a community college in the humanities department for nine (9) years. She was fifty (50) years old and in good health, and was building an adequate retirement investment under the State system. She earned a salary of approximately $15,000 per year.

The husband was fifty-three (53) years old. He testified he was presently working as an electrician earning $14.00 per hour but he had been injured in his work and was in constant pain. Due to his “deteriorating” health, he was not certain how much longer he could continue working as an electrician. He had a minimal retirement with his current employer and his future was very insecure. The husband strongly opposed the dissolution. The wife did not fault the husband for the marital break-up. Their different values and diverging life-styles had gradually made them incompatible.

An award of periodic alimony should be based on the trial court’s finding that the paying spouse has the ability to pay a certain sum to the other and that the other has a need for the support funds. In this case, the record shows the wife is able to contribute support to the husband, since she has a good job, good health, and no other major financial commitments. However, the record fails to show the husband has any present need for support. He is working, and earning more than the wife. The record does show that in the near or foreseeable future, he may need support from her because he may not be able to work any longer at his sole trade — that of electrician, and he has no retirement and no other assets to sustain him.

Because the parties had such a long-term marriage, and the husband expended his earnings putting his family through college, foregoing building up future security for himself, we cannot say the trial court erred in concluding it should retain jurisdiction in this case to award the husband periodic alimony in the future.

We find no Florida cases directly in point, but in view of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and section 61.08, Florida Statutes (1979), and under the facts and circumstances present in this case, we see no reason why the trial court should not be empowered to reserve jurisdiction indefinitely over the parties to make an alimony award to the husband. The award of $1.00 per year alimony to the husband was an obvious device to achieve this result. It is not sustainable literally because the husband failed to prove any present need for alimony. However we shall interpret the judgment as a reservation of jurisdiction over the issue. In the future we urge that the trial courts expressly state their reservation of jurisdiction in these cases without resort to “nominal” alimony awards.

Special Equity

The wife’s parents had a large farm in Oklahoma. When the wife’s father, Mr. Hurst, suffered a serious illness in 1974, he and Mrs. Hurst executed various deeds to nine (9) parcels of the farm to their seven (7) children. The deed to appellant was made out jointly with appellee, as was a deed to another daughter and son-in-law. Mr. Hurst testified he told the lawyer how to make out the deeds and had he known of his daughter’s future dissolution, he would have put the property in her sole name.

The special equity rule set forth in Ball v. Ball, 335 So.2d 5 (Fla.1976) deals with married persons who transfer property to their spouses which they purchased with separately owned property or previously owned separately from the marital relationship. It does not address the situation in this case where the gift is made to the spouses by a third person. Because of the difficulties in dissolution eases with the application of Ball, we do not choose to extend it beyond its present scope.

Therefore, the normal rule concerning construction of deeds should apply here: the deed’s form creates a presumption that a gift to both was intended. To overcome this presumption, the person challenging the effect of the deed must come forward with evidence or testimony that there was no gift to the grantee. Here the testimony of Mr. Hurst failed to rise to this level. He now regrets putting the deed in joint names, but he was unable to testify he did not intend a conveyance to both when he executed the deed. His intent at that time, not six years later, is the critical factor.

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.

      . Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976); Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975); cf. Ferguson v. Ferguson, 243 So.2d 439 (Fla.3d DCA), cert. denied, 247 So.2d 325 (Fla.1971) (Wife was awarded $1.00 per year alimony where she was in need of financial assistance but husband was not financially able to pay adequate amount for alimony).

      . Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Chayka v. Chayka, 361 So.2d 430 (Fla. 4th DCA 1978), cert. denied, 367 So.2d 1122 (Fla.1979).

      . George v. George, 360 So.2d 1107 (Fla.3d DCA 1978).

      . Munger v. Munger, 249 So.2d 772 (Fla. 4th DCA 1971).

      . The deed to the parties was never delivered to them; they paid no taxes on the real estate and the acreage continued to be used as part of the family farm. Mr. and Mrs. Hurst continued to live on the farm, and believed they had a right to do so for Mr. Hurst’s lifetime. In another proceeding to which the Hursts are parties, these facts may call into question the effectiveness of the gift to the parties. In this case we do not reach that question.

        . Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980); Marsh v. Marsh, 399 So.2d 433 (Fla. 5th DCA 1981) (Cowart, J., dissenting).

      . Atkins v. Atkins, 326 So.2d 259 (Fla. 4th DCA 1976).

      . Lieber v. Lieber, 40 So.2d 111 (Fla.1949); Lindquist v. Lindquist, 351 So.2d 391 (Fla.2d DCA 1977); Maryea v. Maryea, 320 So.2d 882 (Fla.2d DCA 1975).


author: COBB, Judge.

text:
    Clarice FISH d/b/a Bahama Beauty Hut, Appellant, v. Frieda ADAMS, Howard J. Adams, Patricia Wiseman and Walter L. Wiseman, Appellees.
    No. 80-1093.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    Rehearing Denied July 31, 1981.

      William T. McCluan of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellant.
    George E. McCarthy, Melbourne, for ap-pellees.
   COBB, Judge.

From 1971 through 1977 Clarice Fish owned and operated the Bahama Beauty Hut in Palm Bay, Florida. In January 1978, she moved to the west coast of Florida, but she continued to own the beauty shop in Palm Bay. She left one of her beauticians, Frieda Adams, in charge of opening and closing the shop, collecting the receipts and depositing them, and notifying her of what supplies were needed.

In July 1978, Frieda Adams and one of the other beauticians, Patricia Wiseman, and their husbands, opened the Safari Styling Salon down the street from the Bahama Beauty Hut. All five of the beauticians working for the Bahama Beauty Hut quit and started working at the Safari Styling Salon. Clarice Fish returned to Palm Bay in an effort to keep her beauty shop going, but it folded about four months later.

As a result, Clarice Fish filed suit against Frieda Adams, Patricia Wiseman, and their husbands. Count I of the third amended complaint alleged that Frieda Adams had done various acts that constituted a breach of her duty of loyalty to her employer and had thereby caused damage to her employer’s business. Count II alleged that Frieda Adams, Patricia Wiseman, and their husbands had entered into a civil conspiracy to injure the appellant. Count III alleged that Patricia Wiseman had engaged in various acts that breached her duty of loyalty to her employer and had caused damages to her employer’s business.

The actions of the appellees that Clarice Fish alleged occurred while the beautician appellees were still employed by the Bahama Beauty Hut and therefore constituted breaches of employee loyalty were: (1) planning of a competing business; (2) photocopying of their customers’ permanent wave cards; (3) advertising the opening of their competing business through newspaper ads and flyers; (4) handing out their business cards to their customers and asking their customers to follow them to the Safari Beauty Salon; and (5) hiring the other beauticians away.

The case was tried before the trial court without a jury. During closing arguments, the trial court stated that since there was no contract binding the beauticians to the Bahama Beauty Hut, and since beauticians can take their customers with them, unless there were managerial duties involved, the trial court was going to rule that there was no cause of action. In its final judgment, the trial court found that Frieda Adams was not a manager, that the appellees had not breached any fiduciary duty, and entered judgment in favor of the appellees.

The general rule with regard to an employees’ duty of loyalty to his employer is that an employee does not violate his duty of loyalty when he merely organizes a corporation during his employment to carry on a rival business after the expiration of his employment. However, that employee may not engage in disloyal acts in anticipation of his future competition, such as using confidential information acquired during the course of his employment or soliciting customers and other employees prior to the end of his employment. Insurance Field Services, Inc. v. White & White Inspection & Audit Service, Inc., 384 So.2d 303 (Fla. 5th DCA 1980). An employee does not have to be managerial in order to have this duty.

Thus, the trial court erred in ruling in favor of the appellees on the basis that no managerial duties were involved. Even so, the final judgment was partially correct for other reasons. As stated above, the planning of a competing business is not ipso facto a breach of an employee’s duty of loyalty. Insurance Field Services, Inc. Nor is notification to customers through advertisement. Aetna Building Maintenance Co., Inc. v. West, 39 Cal.2d 198, 246 P.2d 11 (1952). Additionally, an employee may take with him a customer list that he himself has developed. United Aircraft Corp. v. Boreen, 284 F.Supp. 428 (E.D. Pa. 1968), affirmed, 413 F.2d 694 (3d Cir.1969). Accordingly, the trial court properly ruled in favor of the appellees on these issues in Counts I and III. This leaves those counts with the unresolved issue of whether there was solicitation of customers and other employees (the other beauticians) by the beautician appellees while they were still employed by the Bahama Beauty Hut.

With regard to Count II, proof of Howard Adams’ and Walter Wiseman’s acts was limited to showing that they participated in forming the rival business. There was no proof that the husbands assisted in illegally soliciting customers or employees. Therefore, the entry of judgment in their favor was proper. Further, a civil conspiracy is not actionable by itself. Unlike a criminal conspiracy where the gist of the action is the conspiracy, in an action for civil conspiracy the gist of the action is recovery of damages. If an act cannot be the subject of a civil action for damages when done by one person, then it cannot be actionable when done by many acting in concert. Las Luminarias of the New Mexico Council of the Blind v. Isengard, 92 N.M. 297, 587 P.2d 444 (1978); McGlasson v. Barger, 163 Colo. 438, 431 P.2d 778 (1967); Martens v. Reilly, 109 Wis. 464, 84 N.W. 840 (1901); Wellington v. Small, 3 Cush. (Mass.) 145, 50 Am.Dec. 719 (1849). Thus, the allegations against Frieda Adams and Patricia Wiseman contained in Count II were duplicitous of Counts I and III. Where a complaint claims damages in two counts based on the same facts, only one cause of action is alleged despite the fact that the second count charges a civil conspiracy to commit the tortious acts, and only one recovery is permissible. 16 Am.Jur.2d Conspiracy § 65 (1964). Therefore, entry of judgment in favor of the beautician appellees on Count II was proper.

In consideration of the above principles, we reverse that portion of the final judgment dealing with whether Frieda Adams and Patricia Wiseman solicited customers and employees while still employed by the Bahama Beauty Hut and remand this case for a new trial on liability and damages on that issue.

REVERSED in part; REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.

      . Las Luminarias of the New Mexico Council of the Blind v. Isengard, 92 N.M. 297, 587 P.2d 444 (1978); Maryland Metals, Inc. v. Metzner, 282 Md. 31, 382 A.2d 564 (1978); A.B.C. Trans-National Transport, Inc. v. Aeronautics Forwarders, Inc., 62 Ill.App.3d 671, 20 Ill.Dec. 160, 379 N.E.2d 1228 (1978); Catalog Service of Westchester, Inc. v. Wise, 63 App.Div. 895, 405 N.Y.S.2d 723 (1978); Lowndes Products, Inc. v. Brower, 259 S.C. 322, 191 S.E.2d 761 (1972); Sanitary Farm Dairies Inc. v. Wolf, 261 Minn. 166, 112 N.W.2d 42 (1961); United Board & Carton Corp. v. Britting, 63 N.J. Super. 517, 164 A.2d 824 (1959); Restatement (Second) of Agency § 393 Comment (e) (1958).


author: COWART, Judge. SHARP, Judge,

text:
    Floyd Michael KILBREATH, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 80-1037.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    Rehearing Denied Aug. 4, 1981.

      William H. Roundtree, Cocoa, for appellant.
    Thomas G. Kane of Driscoll, Langston, Layton & Kane, Orlando, for appellee.
   COWART, Judge.

When an insurance policy requires arbitration of claims and another provision specifies that no action shall lie against the company unless there has been full compliance with all terms of the policy, arbitration or its waiver or denial by the company is a condition precedent to an action on the policy. See Hall v. Nationwide Mutual Insurance Co., 189 So.2d 224 (Fla. 4th DCA 1966); Mike Bradford & Co., Inc. v. Gulf States Steel Co., Inc., 184 So.2d 911 (Fla.3d DCA 1966). A statute of limitations on a contract action does not begin to run until an action can be brought on the contract, Briggs v. Fitzpatrick, 79 So.2d 848 (Fla.1955), and no action can be brought on a contract until all conditions precedent to recovery on the contract have occurred. Gilbert v. American Casualty Co. of Reading, Pennsylvania, 219 So.2d 84 (Fla.3d DCA), cert. denied, 225 So.2d 920 (Fla.1969). Therefore, the statute of limitations on a contract action does not begin to run until all conditions precedent to recovery under the contract have occurred. See Employers’ Fire Insurance Co. v. Continental Insurance Co., 326 So.2d 177 (Fla.1976). Consequently, since an action on an insurance policy is a contract action, the statute of limitations on an action on the policy does not begin to run until arbitration has occurred or has been waived or denied by the insurance company.

The order dismissing the complaint as barred by the statute of limitations, as computed from the accident rather than from the denial of arbitration, is

REVERSED and the cause is remanded for further proceedings.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I disagree with the majority that the cause of action on this insurance contract does not accrue until after arbitration is had, or after the insurer refuses to arbitrate. This situation is distinguishable from a “no action” provision in an insurance contract and from a cause of action based on a derivative claim. In an action against an insurance company for “underin-sured” or “uninsured” motorist coverage the right of action stems from the plaintiff’s right of action against the tortfeasor and the statute of limitations should begin to run on the date of the accident. See Bocek v. Inter Ins. Exchange of Chicago Motor Club, 369 N.E.2d 1093 (Ind.App. 1977). The majority opinion permits the five year statute of limitations provision to be extended to a maximum of ten years at the will of the party against whom it is supposed to be running — an incongruous result.

Further, I cannot read Mendlein v. U. S. Fidelity & Guaranty Co., 277 So.2d 538 (Fla.3d DCA 1973) as permitting the filing of this action — almost eight years after the accident occurred. The Mendlein court ruled:

We hold the same Rule [§ 95.11(3) — 5 year statute of limitations] applicable not only to a parties’ right to sue, but a parties’ right to arbitration pursuant to an insurance contract as in the instant case. (Emphasis supplied)

277 So.2d at 539.

Consistent with Mendlein I would affirm the lower court’s dismissal of this case because it is barred by the statute of limitations.

      . We read Mendlein v. U. S. Fidelity and Guaranty Co., 277 So.2d 538 (Fla.3d DCA 1973), to hold only that where arbitration is required it must be demanded within a reasonable time, a time fixed by analogy to the statute of limitation, and that where Mrs. Mendlein had not demanded arbitration within the five year period of limitations applicable to a cause of action on the policy, she had not acted within a reasonable time.

      . Gilbert v. American Casualty Co. of Reading, Pa., 219 So.2d 84 (Fla.3d DCA), cert. denied, 225 So.2d 920 (Fla.1969).

      . Clemons v. Flagler Hospital, Inc., 385 So.2d 1134 (Fla. 5th DCA 1980).

      . § 95.11(3), Fla.Stat. (1979).


author: PER CURIAM. SHARP, Judge,

text:
    Carlos G. LLANOS, Appellant, v. STATE of Florida, Appellee.
    No. 79-998/T4-534.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    Rehearing Denied July 29, 1981.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Llanos was convicted by a jury of two counts of aggravated battery and was sentenced to five years — two to be served in prison and three on probation. He argues that the trial court erred in limiting his attempt to impeach a state’s witness with a prior inconsistent statement, in imposing a sentence of two concurrent terms for one offense, and in imposing as a condition of probation that the appellant consent to search by any law enforcement officer at any time.

With regard to Llanos’ first issue, even if the prior statement was otherwise properly admissible, it was not properly proffered and, therefore, it has not been preserved for appellate review. Ritter’s Hotel v. Sidebothom, 142 Fla. 171, 194 So. 322 (1940); Atlantic Coast Line R.R. Co. v. Shouse, 83 Fla. 156, 91 So. 90 (1922); Atlantic Distributors, Inc. v. Alson Mfg. Co., 141 So.2d 305 (Fla. 3d DCA 1962); 3 Fla.Jur.2d Appellate Review § 93 (1978).

As for Llanos’ second issue, we agree that Llanos committed only one offense and he should have been convicted of only one charge. The jury found him guilty of two counts of aggravated battery — sections 784.045(l)(a) and (b). The court should have adjudicated and sentenced Llanos for only one count. Cf. Thomas v. State, 380 So.2d 1299 (Fla. 4th DCA), pet. for review denied, 389 So.2d 1116 (Fla.1980); Phillips v. State, 289 So.2d 769 (Fla. 2d DCA 1974).

Turning to Llanos’ third issue, our Florida Supreme Court has established that a condition of probation that requires a probationer to submit to a search at any time by any law enforcement officer or to any physical and chemical examinations at the request of a law enforcement officer is an invalid condition. Grubbs v. State, 373 So.2d 905 (Fla.1979); Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980), pet. for review denied, 392 So.2d 1375 (Fla.1980); Smith v. State, 383 So.2d 991 (Fla. 5th DCA 1980); Wood v. State, 378 So.2d 110 (Fla. 5th DCA 1980).

The trial court is directed to vacate the double judgments and sentences of aggravated battery and enter one judgment and one sentence for that crime. The trial court is further directed to delete from the new sentence any condition of probation in conflict with Grubbs.

REVERSED in part and REMANDED with directions.

COBB and COWART, JJ., concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent in this case and would reverse and remand it for a new trial because I think a sufficient proffer of the impeaching statement was made and it was material.

Defense counsel sought to impeach a state witness by proof of a prior inconsistent statement. The statement was on a tape he was prepared to play in court. The court ruled the tape should be played. A side bar conference was then held and the State Attorney said:

Your honor, I believe the point Mr. Carpenter [the public defender] seeks to impeach this witness by is whether or not she said or indicated at a prior time that Mr. Romano told her to leave the area when he saw his friends coming at him, in light of the current testimony that he did not tell her to leave. Is that correct?

Defense counsel responded that was the substance of the statement. The state attorney then objected to its admission because it did not impeach the witness on a “material” part of her testimony. The trial court denied its admission on that ground.

The purpose of requiring a proffer is two-fold. The substance of the statement should be presented to the trial judge so that he can properly rule on its admissibility, and the substance of the statement should be in the record so the appellate court can effectively review the trial court’s ruling. Phillips v. State, 351 So.2d 738 (Fla. 3d DCA 1977), cert. denied, 361 So.2d 834 (Fla.1978); Piccirrillo v. State, 329 So.2d 46 (Fla. 1st DCA 1976). Here the attorneys together agreed what the substance of the impeaching statement was, the purpose of its being offered was clear, and the trial judge was sufficiently apprised of its content so that he was able to rule on the merits of its admissibility.

Because I believe the correctness of the trial judge’s ruling was presented for our review, I would hold that its ruling excluding the impeachment was harmful error because the statement directly contradicted the witness’ testimony on the key question of which party (the defendant or Romano) was the aggressor in the barroom fight.

I concur otherwise with the balance of the majority opinion.

      . The dissent herein by Judge Sharp indicates that the state and defense counsel had agreed upon “the substance of the impeaching statement” and, therefore, proffer was unnecessary. In the instant case, however, it is crucial to admissibility of the proposed impeachment to know whether the purported directive by Re-mano to the witness (Linda) to leave the bar came before or after Romano had been overtly threatened in the bar by the defendant’s companion. Unless it was prior to the threat, then the proposed impeachment was immaterial, as the trial court ruled. We cannot know this without the proffer, which was not precluded by the trial court. Nor was this point agreed to between the state and defense counsel.

      . Apparently because of budget problems it was the local practice for the public defender not to have depositions transcribed, and the courts allowed the playing of tapes in such criminal trials.

      . Coco v. State, 62 So.2d 892 (Fla. 1953); Coxwell v. State, 361 So.2d 148 (Fla. 1978); Johnson v. State, 178 So.2d 724 (Fla. 2d DCA 1965); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).


author: PER CURIAM. MOORE, Judge,

text:
    Charles E. CURTIS, D. O., Appellant, v. Conrad W. SCHAEFER, Trustee d/b/a Century Plaza South, Appellee.
    No. 79-1818.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Paul M. Herman of Johnson, Ackerman & Bakst, P. A., West Palm Beach, for appellant.
    William P. Jacobson of Jacobson & Lurie, P. A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

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

MOORE, J., concurs specially with opinion.

MOORE, Judge,

concurring specially:

I concur in an affirmance of the judgment below. Although appellant concedes a finding of vicarious liability if he were not found to be an invitee, he nevertheless contends that the evidence is clear that he is an invitee. I find substantial competent evidence to support the trial court’s findings as to liability and damages.


text:
    Susan KIRKPATRICK, Appellant, v. John ZITZ and Transamerica Insurance Company, Appellees.
    No. PP-120.
    District Court of Appeal of Florida, First District.
    July 7, 1981.
    Rehearing Denied Aug. 17, 1981.

      David R. Lewis of Lewis, Paul Isaac & Castillo, Jacksonville, for appellant.
    Bruce S. Bullock, Claude K. Slater and Richard L. Randle, of Slater & Randle, Jacksonville, for appellees.
   PER CURIAM.

Kirkpatrick appeals the trial court’s order dismissing the second count of her third amended complaint with prejudice. We reverse and remand.

On July 2, 1979, Kirkpatrick filed a third amended complaint seeking damages for a skunk bite she received while in a pet store owned by John Zitz. The second count of the complaint alleged a cause of action against Zitz’s insurer, Transamerica, for the intentional infliction of emotional distress. Kirkpatrick asserted Zitz sold the skunk after it bit her and that the skunk was lost prior to the incubation period necessary to see whether the skunk had rabies. Trans-america then allegedly intentionally exposed Kirkpatrick to death by directing Zitz to keep this information from her. Kirkpatrick asserted she suffered severe emotional distress when she learned the information was intentionally withheld and that there was a possibility she had been exposed to a fatal disease. Transamerica moved for and the trial court granted a dismissal.

This cause presents the question of whether the facts alleged an independent cause of action for intentional infliction of emotional distress. In Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979), this court concluded that there is no bar to such an action when the conduct is so outrageous and extreme that it goes beyond all bounds of decency. In that case, Ford Motor Credit was the causative force which set into play a communication which resulted in severe emotional distress. The court stated:

Whether or not Ford Motor Credit intended to inflict severe emotional distress is immaterial. Where the actor knows that such distress is certain, or substantially certain to result from his conduct, the rule applies. ... It also applies where he acts recklessly “in deliberate disregard of a high degree of probability that the emotional distress will follow.” (citations omitted).

Id. at 958, 959.

The complaint below alleges Transameri-ca directed Zitz not to tell Kirkpatrick of the skunk’s disappearance. This conduct, if true, is outrageous and extreme in that it intolerably evinces a disregard for human life and the high probability that severe emotional distress would follow. Lay v. Roux Laboratories, Inc., 379 So.2d 451 (Fla. 1st DCA 1980).

We have reviewed the record and have determined Kirkpatrick’s third amended complaint adequately states a cause of action against Transamerica. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

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