source: Caselaw Access Project

author: SHAW, Judge. ERVIN, Judge, PER CURIAM. SHAW, Judge,

license: Public Domain

text:
    POINCIANA VILLAGE CONSTRUCTION CORPORATION and Travelers Insurance Company, Appellants, v. Joseph GALLARANO, Appellee.
    No. AI-55.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.
    On Rehearing Oct. 19, 1982.

      J. Burke Culler, Jr. of Adams, Coogler, Watson & Merkel, West Palm Beach, for appellants.
    Krupnick & Campbell, P.A., Fort Lauder-dale, and Tyrie A. Boyer, of Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellee.
   SHAW, Judge.

This cause is before us on appeal from a workers’ compensation order in which the deputy found that the accident arose out of and in the course of employment and that the “going and coming rule” was inapplicable. We reverse.

Claimant/appellee, a superintendent with the appellant construction company, was authorized to use his personal automobile to pick up supplies and other materials needed on the job. No records were kept of whether or when the claimant picked up supplies, and use of the vehicle for such purpose was left to claimant’s discretion. For the use of his vehicle in this fashion, he was paid an extra $25.00 per week.

On November 20, 1979, claimant was involved in an automobile accident at approximately 6:45 A.M. while traveling from his home in Boca Raton to his work site in West Palm Beach. He testified that he customarily arranged his schedule so as to arrive on the job site at 7:30 A.M. and leave at 4:30 P.M. This testimony was unchallenged. Normally, injuries flowing from such an accident would fall squarely within the “going and coming rule” and would not be compensable. See Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979); George v. Woodville Lumber Co., 382 So.2d 802 (Fla. 1st DCA 1980); El Viejo Arco Iris, Inc. v. Luaces, 395 So.2d 225 (Fla. 1st DCA 1981). The deputy found that there was no way to tell from the evidence submitted whether or not the claimant actually was on his way to purchase supplies on the morning that the accident occurred. He nevertheless concluded that

[T]he agreement to pay the claimant $25.00 for his transportation expenses for picking up supplies is in essence a contract to pay the claimant’s transportation expenses to the extent of $25.00 per week during the time that the claimant trav-elled to and from work. For this reason, I find that the claimant’s accident does not fall within the “going and coming rule.” ...

It is therefore clear that the award is based upon the extra $25.00 per week that the claimant was paid for using his personal vehicle in the manner aforementioned. We fail to see this as an agreement by the employer to furnish transportation, a recognized exception to the “going and coming rule.” Swartzer v. Food Fair Stores, Inc., 175 So.2d 36 (Fla.1965). Such a finding stretches the evidence beyond its probative value and is contrary to the claimant’s own testimony that the employer did not pay him for driving his automobile to work. The deputy’s reliance upon employer-supplied transportation or an agreement by the employer to pay for the claimant’s transportation to work is unwarranted. No other theory having been advanced for excepting the claimant from the “going and coming rule,” the award of benefits was error and is accordingly reversed.

ROBERT P. SMITH, Jr., C.J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I would affirm because the question of a contract between claimant and employer for the employer to pay the claimant’s transportation expenses is one properly resolved by the deputy commissioner and supported by competent, substantial evidence.

In Swartzer v. Food Fair Stores, Inc., 175 So.2d 36, 37 (Fla.1965), the Supreme Court stated the rule for determining whether the facts of a case bring it within the going and coming rule or make it an exception thereto:

“Generally it appears that the employer’s liability in such cases depends upon whether or not there is a contract between employer and employee, express or implied, covering the matter of transportation to and from work.”
Once an obligation to furnish transportation is demonstrated, by whatever means satisfied, then “[t]he hazards of the highway [are] inherent” in the contract of employment and claims arising therefrom are compensable as arising out of and in the course of employment, (cites omitted.)

Claimant was paid $25 a week to use his automobile to make work-connected pickups ánd deliveries at his discretion during travel to and from work and during the workday. Performing this part of his job necessarily required travel time and travel expenses. Claimant had to use his personal vehicle because the employer provided neither a delivery person nor a company vehicle. In such a situation the following comments by Professor Larson are altogether pertinent:

§ 16.20 Payment for Time of Travel When the employee is paid an identifiable amount as compensation for time spent in a going or coming trip, the trip is within the course of employment. This is a clear application of the underlying principle that a journey is compensable if the making of that journey is part of the service for which the employee is compensated.
* # * * # *
§ 16.30 Payment for Expense of Travel This factor, which is often lumped together with payment for time of travel, is not quite the same.
* * * * * *
[I]n the majority of cases involving a deliberate and substantial payment for the expense of travel ..., the journey is held to be in the course of employment. ... [T]hat employment should be deemed to include travel when the travel itself is a substantial part of the service performed.

1 Larson, The Law of Workmen’s Compensation, 4-153, 4-158 (1978).

There is another applicable rule of law cited in Larson which provides an independent basis for affirmance:

§ 17.50 Employee Required to Furnish Own Conveyance
If the employee as part of his job is required to bring with him his own car ... for use during his working day, the trip to and from work is by that fact alone embraced within the course of employment. ... [T]he obligations of the job reach out beyond the premises, make the vehicle a mandatory part of the employment environment and compel the employee to submit to the hazards associated with private motor travel, which otherwise he would have the option of avoiding. But in addition there is ... the factor of making the journey part of the job, since it is a service to the employer to convey to the premises a major piece of equipment devoted to the employer’s purposes .... [I]t is immaterial whether the employee is compensated for the time or expenses of the journey since work-connection is independently established by the fact of conveying the vehicle to the operating premises.

Id. at 4-207.

ON MOTION FOR REHEARING

PER CURIAM.

Upon reconsideration of the briefs and record, we find there was substantial competent evidence of an understanding and expectation shared by claimant and his employer that claimant would drive his personal automobile from home to the worksite and would use that automobile in the employer’s interest with some regularity, picking up materials and equipment before, during and after work hours for use in construction at the worksite. For that use of claimant’s automobile the employer paid claimant $25 per week toward automobile expenses.

The distance claimant regularly travelled to and from work appears to have been not more than 20 miles each way, not an unusually long trip, so the automobile allowance cannot confidently be regarded, absent a clearer agreement by the parties, as given to induce claimant into the employment despite the burden and expense of commuting. Cf. A. Larson, 1 Law of Workmen’s Compensation, § 16.30 at Ar-112 (1978) (emphasizing the “sheer size of the journey” in cases where travel expenses are deemed to bring coming and going, nothing else considered, within the risks of employment). And it perhaps stretches things to say that claimant “as part of his job [was] required to bring with him his own car ... for use during the working day.... ” 1 A. Larson supra, § 17.50 at 4-207 (using such other imperatives as “mandatory” and “compel”).

But debating whether $25 per week was the essential inducement for claimant’s bringing his automobile, or whether claimant was “required” as a condition of employment to put his automobile to his employer’s service, obscures how elements from both formulas join in the present facts to make a case quite as strong as if it satisfied either formula alone. Underlying both tests is a policy that the employer should bear the economic risks of an activity, here an employee regularly using his automobile in his employer’s service, which was convenient if not necessary to the employer’s business and which the employer thought was convenient enough to pay significantly for. Cf. Blount v. State Road Department, 87 So.2d 507 (Fla.1956).

The deputy’s order is weighted also by the employer’s failure to adduce significant evidence rebutting the showing made by claimant. No employer records of off-site purchases by claimant were available, and no supplier testified about the frequency and hours of claimant’s off-site purchases. It might have been provable, we would suppose, if business errands were so infrequently a part of claimant’s coming and going as to be insignificant to that travel. Proving the frequency of claimant’s purchases while coming or going might also have shown, circumstantially, that this particular trip, of which the injured claimant indisputably has no memory, was or was not freighted with a business purpose.

The question therefore calls for someone’s careful judgment on the significance of facts proved and unproved in a close case. Understanding the matter in that way, we must defer to the deputy’s ultimate finding of compensability. Minds of different experiences, such as those of three judges randomly assigned from a multi-judge appellate court, may reasonably find different shades of significance in elements of the same factual pattern. That three judges here have unsuccessfully combed the record for decisive evidence, and are inclined to call the case this way or that within an exceedingly narrow range of reasonable possibilities, suggests that the deputy’s similar finding — he being the trier of facts and the judge of their significance both first and foremost — likewise falls within that range of reasonable analysis. We accordingly resist the temptation to retry the case on appeal.

The motion for rehearing is GRANTED and the deputy’s order is AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and ERVIN, J., concur.

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

I would deny the motion for rehearing for the reasons set forth in this Court’s original opinion.


author: SHIVERS, Judge. SHIVERS, Judge.

text:
    Francis JAMES, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. AJ-10.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1982.
    Rehearing Denied Jan. 7, 1983.
    Francis James, pro se.
    Jim Smith, Atty. Gen., and Shirley A. Walker, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Appellant appeals the denial of his grievance appeal by the Department of Corrections.

On June 4, 1979, appellant was convicted of the crime of kidnapping with a firearm and sentenced pursuant to the mandatory gun law as set forth in section 775.087, Fla.Stat. (1979). At that time, the mandatory gun law provided that any person convicted under the statute shall serve a mandatory minimum term of imprisonment of three calendar years and that such person shall not be “eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence.” Section 775.087(2)(b), Fla.Stat. (1979). Prior to 1976, when the mandatory gun law was amended into its present form, the statute merely provided for a minimum sentence of three years of imprisonment and did not include a prohibition against the earning of any gain-time. In 1976, when the statutory gain-time provisions of sections 944.27 and 944.29 were added to the mandatory gun law, work gain-time, which was separately covered under section 944.271, Fla.Stat., was not included as part of the amendment to the mandatory gun law. Thereafter, in 1978, the Legislature repealed sections 944.-27 and 944.29 and simultaneously enacted a new gain-time statute but did not amend the mandatory gun law to reflect the repeal of the former gain-time statutes and the enactment of the new gain-time statute set forth in section 944.275. The mandatory gun law continued to read that any person convicted under section 775.087 shall not be “eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence.” Section 775.-087(2)(b), Fla.Stat. (1979). Appellant filed a grievance appeal with the Department of Corrections (DOC) alleging that section 775.087 did not render him ineligible to earn work gain-time prior to the completion of the mandatory minimum three year sentence. The DOC denied appellant’s grievance appeal, and this appeal followed. We reverse.

Appellant contends that the Legislature’s failure to amend the mandatory gun law statute to reflect the enactment of the new gain-time statute effectively removed the statutory gain-time ban from the mandatory gun law. In the alternative, appellant argues that even if the statutory gain-time provisions of sections 944.27 and 944.29 continued in effect as part of the mandatory gun law statute after their repeal, those provisions cannot include work gain-time as set forth in section 944.275 because it was never enacted into the mandatory gun law. We agree with appellant’s second argument and find that there is no statutory or administrative authority for prohibiting a prisoner from earning work gain-time while serving a minimum mandatory sentence under the mandatory gun law.

As a matter of statutory construction, it is clear that work gain-time was never included within the statutory gain-time ban set forth in the mandatory gun law. Expressio unius est exdusio alterius is a general principle of statutory construction which states that the mention of one thing implies the exclusion of another. Thus, where a statute enumerates the things on which it is to operate, it is ordinarily construed as excluding from its operation all those not expressly mentioned. 30 Fla.Jur. s. 90. In this case, s. 775.087(2)(b), Fla.Stat. (1979), specifically provides that a defendant sentenced under the mandatory gun law shall not be eligible for “statutory gain-time under s.s. 944.27 or 944.29 prior to serving .... ” (emphasis added) the mandatory sentence. Work gain-time, which was formerly covered under section 944.271, Fla.Stat. (1976 Supp.) and which is presently covered under section 944.275, Fla.Stat. (1981), was never expressly included within the statutory gain-time ban set forth in the mandatory gun law. Construing the mandatory gun law in accordance with the above rule of statutory construction, we conclude that since the statute enumerates the specific statutory gain-time provisions which are to be included within the statute, and work gain-time is not specifically mentioned, work gain-time is specifically excluded from the statutory gain-time ban set forth in the mandatory gun law. On this basis, we find that the DOC is without statutory authority to prohibit prisoners from earning work gain-time while serving a mandatory minimum three year sentence under the mandatory gun law.

The order of the DOC is REVERSED.

SHAW and WIGGINTON, JJ., concur.

ON PETITION FOR REHEARING OR CLARIFICATION

SHIVERS, Judge.

By petition for rehearing and motion for clarification, the Department of Corrections (DOC) urges this court to recede from its earlier decision in this matter on the ground that we misapplied a general principle of statutory construction. In addition, the DOC seeks clarification on the question of whether an award of work gain-time can result in the release of a prisoner sentenced under the mandatory gun law prior to the completion of the minimum mandatory sentence of three calendar years.

In holding that the mandatory gun law did not include a prohibition against the earning of work gain-time prior to the completion of the minimum mandatory sentence, this court applied the general principle of statutory construction expressio uni-us est exclusio alterius to construe the mandatory gun law. We concluded that since the statute enumerates the specific statutory gain-time provisions which are included within the statute, and that since work gain-time is not specifically mentioned, work gain-time was specifically excluded from the statutory gain-time ban. In reaching that conclusion we noted that:

In 1976, when the statutory gain-time ban provisions of sections 944.27 and 944.-29 were added to the mandatory gun law, work gain-time, which was separately covered under section 944.271, Fla.Stat., was not included as part of the amendment to the mandatory gun law.

On petition for rehearing, the DOC points to the above quotation as the sole basis upon which it seeks rehearing in this matter. The DOC contends that in reaching our decision in this case, we failed to acknowledge that section 944.271, which created work gain-time, was not yet in existence when the statutory gain-time proscription was added to the mandatory gun law. Since the work gain-time statute was not in existence, the DOC contends that the principle of expressio unius est exclusio alterius should not have been used by this court to exclude work gain-time from the statutory gain-time proscription. We disagree.

We first note that both of the above legislative measures were passed in the same legislative session and that although the amendment to the mandatory gun law was passed by both Houses of the Legislature and signed by the Governor before the work gain-time statute was, the effective date of the work gain-time statute predated the effective date of the amendment to the mandatory gun law.

Nonetheless, regardless of whether the work gain-time statute was in existence when the statutory gain-time prohibition was added to the mandatory gun law, the general principle of expressio unius est ex-clusio alterius is still applicable. It is a well settled rule of statutory construction that the Legislature is presumed to know the existing law when it enacts a statute. See Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla.1964). In view of this rule, it is clear that if the work gain-time statute was in existence at the time the mandatory gun law was amended to include a prohibition against the earning of statutory gain-time, the Legislature should have expressly included work gain-time within the prohibition if they intended a prisoner sentenced under the statute to be prohibited from earning work gain-time while serving the mandatory portion of his sentence. On the other hand, if the work gain-time statute was not in existence at the time of the 1976 amendment to the mandatory gun law, the Legislature could have created an express exception in the work gain-time statute to prohibit an award of work gain-time to prisoners sentenced under the mandatory gun law. Having'failed to pursue either of these options, we believe that our application of the principle of expressio unius est exclusio al-terius is correct, and, for that reason, we do not recede from our decision in this case.

Addressing the question of whether our decision in this case would permit the accumulation of work gain-time to result in the release of a prisoner sentenced under the mandatory gun law prior to the completion of the minimum mandatory three year sentence, we believe that the resolution of that question is implicit in our holding in this case. In our decision, we held that section 775.087(2) does not prohibit prisoners from earning work gain-time while serving a mandatory minimum three year sentence under the mandatory gun law. The mandatory gun law provides that any person convicted under the statute “shall be sentenced to a minimum term of imprisonment of three calendar years” and that such a defendant shall not be “eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence.” Having already found that work gain-time is not included within the statutory gain-time prohibition set forth in the mandatory gun law, we find no language in the mandatory gun law which would prohibit the release of a defendant as a result of accumulated work gain-time prior to the completion of the minimum mandatory sentence of three calendar years. Section 775.-087(2)(b) does not necessarily prohibit the release of a prisoner sentenced under the statute prior to completion of the minimum mandatory sentence; instead, it merely requires that such a defendant be sentenced to a minimum term of imprisonment of three calendar years and prohibits his release by way of statutory gain-time under sections 944.27 or 944.29 prior to the completion of the minimum sentence. Nothing in the mandatory gun law prohibits a prisoner sentenced under that statute from being released prior to the completion of the mandatory minimum sentence as a result of the accumulation of work gain-time.

With the foregoing clarification, the petition for rehearing is denied.

SHAW and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    Pedro LEAL, Appellant, v. STATE of Florida, Appellee.
    No. 81-928.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1982.
    Rehearing Denied Jan. 11, 1983.
    Elvin L. Martinez, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Ann G. Pasehall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Leal appeals from his convictions for trafficking in methaqualone and conspiracy, arguing that the trial court erred in denying suppression of certain physical evidence.

We adopt the reasoning and holding from our opinion in the appeal of appellant’s codefendant, tried separately, Juan Acebo. Acebo v. State, 415 So.2d 909 (Fla. 2d DCA 1982). Holding there to be no error in the denial of suppression below, or otherwise, we affirm the convictions.

OTT, C.J., and HOBSON and RYDER, JJ., concur.


author: NESBITT, Judge.

text:
    Joey SARNO, Francisco Riverol, Russell Leicht, Al Palange, Jorge Santana, Evelio Santana, Murray Sarno, Ivan Bordas, Charles Canella, Carlos Del Rio, William Thomas Flingos, Joseph Meyers, Salvador Magluta, and Augusto G. Falcon, Jr., Appellants, v. The STATE of Florida, Appellee. The STATE of Florida, Appellant, v. William GILLEY, Appellee.
    Nos. 79-2125, 79-2126, 80-12, 80-122, 80-123, 80-136, 80-150, 80-151, 80-315, 80-349, 80-983, 80-984, 80-1007 and 80-229.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Jan. 18, 1983.

      Oteri & Weinberg and Martin Weinberg; Judith H. Mizner, Boston, Mass., Michael H. Blacker, Melvin S. Black, Robert L. Moore, Greene & Cooper and Sharon L. Wolfe, Miami, Varón & Stahl and H. Dohn Williams, Jr., Hollywood, Mary Louise Dennis, and Donald L. Ferguson, Miami, for appellants, for Case No. 79-2125, etc.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Joel D. Rosenblatt, and Anthony Mus-to, Asst. Attys. Gen., for appellee, for Case No. 79-2125, etc.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant, for Case No. 80-229.
    Bennett H. Brummer, Public Defender, and Robert R. Schrank, Asst. Public Defender, for appellee, for Case No. 80-229.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

I. The Sting

These consolidated appeals arose out of a law enforcement operation dubbed the “Sting,” apparently in reference to a motion picture of the same name. The tale of the investigation, commencing in the Florida Department of Alcoholic Beverages and Tobacco and culminating with more than a hundred arrests, most of them for various narcotics charges, could easily provide the substance for another Hollywood film.

In August of 1978, Sam Turko, a paid informant of the United States Drug Enforcement Agency, told federal officials that he could arrange a deal for the purchase of a truckload of illegal or untaxed cigarettes. The federal agents referred Turko to Agent Tim Douglas of the Florida Division of Alcoholic Beverages and Tobacco. After consulting with his superiors, Douglas reached an agreement with Turko whereby Turko would be paid $12,000 in exchange for supplying information and introducing state undercover agents into the cigarette negotiations. Turko was fitted with a body “bug” and his telephone conversations were taped, all with his consent.

Turko was able to set up meetings between state beverage agents and one Sam Goldfinger, a neighbor of Turko. Unbeknownst to anyone involved in the state investigation, Goldfinger was working as an undercover F.B.I. operative. In any event, one of the state agents, Tom Ilic, was able to infiltrate, through Goldfinger, to a Ron Braswell, the key to the cigarette deal. Ilic wore body “bugs” in all his meetings with Goldfinger and Braswell. Transcripts of tapes of these meetings formed the basis for the first court-ordered electronic surveillance in the investigation — the installation of a room “bug” in Braswell’s business office on September 2, 1978. By this time, the State Attorney’s Office was heavily involved in the operation and Ilic was sworn in as a special investigator for that office soon after the Braswell room “bug” was installed.

The investigation to this point was placed in serious jeopardy when, on September 6, 1978, Braswell discovered the transmitter and removed it from its hiding place in an air-conditioning vent. Almost immediately, Braswell was placed under arrest by several state agents, including Martin Dardis, Chief Investigator for the State Attorney’s Office. Dardis was able to persuade Braswell to cooperate with the state and Braswell assented to the re-installation of the office “bug.” In light of his involvement with narcotics dealers, Braswell’s discovery of the first office “bug,” instead of putting an end to a cigarette shakedown, eventually proved to be a significant stepping-stone to the breakup of a massive drug ring.

As part of his agreement with the state, Braswell consented to have his two office telephones wiretapped. Pursuant to these “taps,” Braswell’s telephone conversations were intercepted between September 13 and September 15, 1978. Based on Bras-well’s consent and information derived from the electronic surveillance, the state sought court authorization for the phone “taps” on September 18, 1978. A Dade circuit judge granted the state’s application the same day. Conversations overheard on these telephones formed the predicate for court-authorized wire interceptions of other telephones, as well as for extensions of the authorizing orders. Eventually, the state was able to establish a small network of monitored telephone lines. Each of the appellants was overheard on one or more of the telephone wiretaps.

In the meantime, the state was utilizing Braswell to make and arrange sales of marijuana, quaaludes, and cocaine with a constantly expanding group of narcotics dealers. In return for his services, Braswell was permitted to retain profits from at least some of the sales and to engage in the use of small quantities of cocaine. However, transactions taking place in Braswell’s office were observed by the police through the use of a hidden video camera, in addition to the oral and wire surveillance.

The “Sting” operation reached its peak when, at the suggestion of Braswell, the state set up a private airstrip guarded by state agents posing as “crooked cops,” in order to facilitate the importation of narcotics into this country and inspire confidence in Braswell among the drug smugglers. Federal authorities were present at the airport in a support capacity, having entered the “Sting” operation in late 1978 pursuant to an agreement between high-ranking state and United States Justice Department officials. But the federal government later withdrew from active participation in the “Sting.”

The “Sting” operation itself was terminated in May, 1979. Employing information gleaned from the electronic surveillance devices, the bogus airstrip deals, and Braswell’s personal knowledge, the state returned indictments and informations charging approximately 120 unsuspecting persons with various drug-related offenses.

A number of the “Sting” defendants filed motions to suppress the evidence against them. After a joint evidentiary hearing lasting more than seven court days, and after over eleven hours of legal argument of counsel, the trial court denied these motions. Several of the moving defendants entered pleas of nolo contendere, reserving their right to appeal the denial of their motions to suppress based on the state’s stipulations of dispositiveness. Most of the issues on appeal were presented by way of a master brief, while certain of the defendants preserved error in individual appeals. Additionally, the state appealed the dismissal of the case against one of the defendants.

II. The Fruit and the Bugs

Appellants’ first argument is based on the “fruit of the poisonous tree” doctrine as set forth in Wong San v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and its progeny. They claim, for various reasons, that the body “bugs” worn by Sam Turko and Agent Ilic constituted unlawful invasions of privacy and, therefore, the entire “Sting” investigation was tainted fruit of the poisonous tree. However, none of the appellants were overheard on the Turko and Ilic body “bugs,” nor was the employment of these devices directed at the appellants. Thus, none of them have standing to complain of the impropriety of these “bugs.” United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); State v. Hutchinson, 404 So.2d 361 (Fla. 2d DCA 1981); pet. for review denied, 412 So.2d 466 (Fla.1982); State v. Albano, 394 So.2d 1026 (Fla. 2d DCA 1981). Only Goldfinger or Braswell could object to these “bugs” and they have not done so. Since the appellants lack standing to challenge violations of Goldfinger’s or Braswell’s constitutional rights, they cannot complain that evidence seized as a product of these alleged violations is inadmissible as tainted fruit. State v. Ferguson, 411 So.2d 963 (Fla. 3d DCA 1982).

Next, appellants assert the impropriety of the September 2,1978 room “bug” authorization. The state concedes that several of the appellants have standing to challenge the room “bug” since they were overheard on this device. These appellants argue that the affiant supporting the application for the “bug” wilfully and intentionally omitted a key exculpatory statement from the transcript attached to the application. The appellants claim that this omission was material to-the probable cause issue and rendered the order invalid. United States v. Park, 531 F.2d 754 (5th Cir.1976); see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

The alleged material omission was a statement by Braswell in regard to a truckload of cigarettes that “[t]he load’s not hot.” Section 934.07, Florida Statutes (1977), enumerates the offenses which may justify the interception of oral or wire communications. As it pertains to this issue, Section 934.07 would authorize such interceptions only to obtain evidence concerning the theft of cigarettes or dealing in stolen cigarettes. Appellants argue that had Braswell’s statement that the cigarettes were not stolen been included in the transcript, there would have been no basis for a finding of probable cause. However, careful perusal of the transcript presented to the magistrate reveals that although the cigarettes may not have been “hot” during the time frame Braswell was referring to, the plan was to steal the cigarettes from the truck once it reached a designated location. With this record support, the trial court’s finding that the cigarette deal was to involve stolen cigarettes must be affirmed. State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979).

Additionally, both Ilic and Braswell testified that the deal was for stolen cigarettes and Ilic testified that he did not intentionally omit anything from the transcript presented to the magistrate. That the believability of these witnesses was an issue for the trial judge is a statement no longer requiring the multiple citation it is often accorded. The order approving the application for the September 2, 1978 room “bug” was properly entered.

III. The Ides and the Eighteenth of September

The discovery of the room “bug” led to Braswell being taken into custody on September 6, 1978. Braswell was held by the authorities for three hours, during which time they attempted to convince him to turn his back on his friends and cast his lot with the state. As a result of this meeting, Braswell informally agreed to the reinstal-lation of the room “bug,” but it wasn’t until September 8, 1978, that he returned to the state investigators and issued a sworn statement encompassing his agreement to cooperate fully in their investigation.

With Braswell’s consent, the state wiretapped his two office telephones. Some calls made on these telephones between September 13 and 15,1978 evidenced criminal activity on the part of several of the appellants.

It is contended that the authorities used coercion in order to persuade Bras-well to betray his associates and therefore that the consent for the telephone interceptions was not freely given. The trial court, with the benefit of Braswell’s own testimony, see State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980), found otherwise. Considering that Braswell had two days in which to decide whether to continue, limit, or terminate his relationship with the state before he consented to the telephone interceptions, we cannot say that the trial court’s determination was clearly erroneous. Gerrard v. State, 345 So.2d 849 (Fla. 3d DCA 1977). Since Braswell validly consented to the mid-September interceptions and was working in conjunction with law enforcement officers, evidence from telephone conversations to which he was a party is admissible even without a court order. § 934.03(2)(c), Fla.Stat. (1977); Miller v. State, 411 So.2d 944 (Fla. 4th DCA 1982); Chiarenza v. State, 406 So.2d 66 (Fla. 4th DCA 1981), pet. for review denied, 413 So.2d 875 (Fla.1982).

The appellants also assert that there was a lack of probable cause for the September 18,1978 court authorization of the Braswell office phone “taps.” The affidavit in support of probable cause basically recited that the conversations overheard on the room “bug” and the consent interceptions of September 13 through 15, as well as a debriefing session with Braswell himself, demonstrated that Braswell’s office and office telephones were being used to effectuate transactions in narcotics and stolen goods. Appellants’ attack upon this order centers around the unlawfulness of the room “bug,” the invalid consent to the mid-September interceptions, and the absence of sufficient facts and detail in the application.

The first two of these arguments have already been disposed of unfavorably to appellants. The third succumbs to a common-sense and realistic reading of the affidavit as a whole. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Zuppardi v. State, 367 So.2d 601 (Fla.1979); State v. Birs, 394 So.2d 1054 (Fla. 4th DCA 1981); Amerson v. State, 388 So.2d 1387 (Fla. 1st DCA 1980). The affidavit contained the affiant’s testimony that he personally monitored the room “bug” when it transmitted conversations concerning theft, dealing in stolen property, dealing in narcotics or other dangerous drugs, and conspiracies to commit these felonies; that such conversations were between Bras-well and unknown other persons; and that the office telephones were used during the course of these conversations. Taking into account the remainder of the affidavit, these allegations were sufficient to constitute probable cause.

IV. Piggybacking and Exhaustion

After the September 18, 1978 authorization, the state sought and received extensions of the Braswell “taps,” as well as court-authorizations for interceptions of other telephones. Nine separate locations including a total of thirteen different phone numbers were subject to interception at one time or another. Appellants suggest that the applications for these other authorizations, and extensions thereof, were merely “piggybacked” upon one another, were boilerplate in nature, and did not meet the standards set out in Section 934.09(1)(c), Florida Statutes (1977), concerning the exhaustion of normal investigative techniques.

These issues were dealt with by this court in Cuba v. State, 362 So.2d 29 (Fla. 3d DCA 1978), cert. denied, 378 So.2d 344, 378 So.2d 347 (Fla.1979). The Cuba case held that including in one affidavit information contained in a prior affidavit does not automatically invalidate an order based on the second affidavit. 362 So.2d at 32. Cuba set out a three-part test for determining the validity of successive orders. First, the facts of the original affidavit must be sufficient to establish the probable cause and necessity for a wiretap. Second, subsequent affidavits must not depend solely on the facts set out in prior ones. Third, succeeding affidavits must be based at least in part on facts and information derived by new and further investigation.

We have already determined that the September 18, 1978 affidavit was sufficient. Therefore, the first prong of the Cuba test is satisfied. Regarding the second and third prongs, each of the subsequent affidavits evidenced that the “Sting” investigation was ongoing and that the monitoring of the subject telephones consistently revealed new conversations involving new illegal transactions and new principals to these transactions. In this setting of an expanding investigation uncovering continually widening segments of a large illegal operation, the Cuba test for valid “piggybacking” was met.

The alleged lack of exhaustion of normal investigative techniques presents a different question. Section 934.09(1)(c), Florida Statutes (1977), requires inclusion in an application of “[a] full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” As was noted in Cuba, the purpose of this requirement is to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. See also United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). On the other hand, it is not necessary to show that all possible means of investigation have been attempted and exhausted before a wiretap order may issue. State v. Birs, supra; Hudson v. State, 368 So.2d 899 (Fla. 3d DCA), cert. denied, 378 So.2d 345 (Fla.1979); Cuba v. State, supra.

Each affidavit in the instant case contained a list of at least six allegedly non-feasible investigative techniques. Aside from certain specific references to unsuccessful physical surveillance conducted at the homes of some of the suspects, the gist of the exhaustion allegations was that the drug conspiracy was being carried out for the most part over the telephone; that as an informant, Braswell could not identify all of the conspirators; and that the wiretaps were the only way to monitor the transactions and to continue to uncover different and perhaps more powerful participants in the conspiracy. Although such assertions may not justify electronic surveillance in every narcotics case, the affidavits, when read in a practical and common-sense fashion, State v. Birs, supra, indicate the inefficacy of conventional investigative techniques. Consequently, the use of electronic surveillance was warranted. See United States v. Armocida, 515 F.2d 29, 38 (3d Cir.), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975); State v. Carney, 407 So.2d 340 (Fla. 4th DCA 1981).

Y. Due Process

The appellants also contend that the police behavior in the “Sting” operation was so outlandish as to require reversal under the supervisory powers of the court and the due process doctrine of fundamental fairness. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Insofar as it relates to police action directed against parties other than appellants themselves, this argument is precluded by a lack of standing. United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). As to the remainder of the police activities, we cannot say that they were so shocking as to invoke the extraordinary remedy the appellants seek. United States v. Gray, 626 F.2d 494 (5th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 616, 66 L.Ed.2d 500 (1980), 449 U.S. 1091, 101 S.Ct. 887, 66 L.Ed.2d 820 (1981); United States v. Thomas, 567 F.2d 638 (5th Cir.), cert. denied, 439 U.S. 822, 99 S.Ct. 90, 58 L.Ed.2d 114 (1978); United States v. Leja, 563 F.2d 244 (6th Cir.1977), cert. denied, 436 U.S. 948, 98 S.Ct. 2853, 56 L.Ed.2d 790, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978); United States v. Ratcliffe, 550 F.2d 431 (9th Cir.1977); United States v. Puma, 548 F.2d 508 (5th Cir.1977).

We have carefully considered the other points raised in the appellants’ master brief and find them to be without merit. One of the individual appeals and the state’s appeal require some discussion.

VI. The Sea Rock

Francisco Riverol appeals the denial of his sworn motion to dismiss a charge of conspiracy to sell, deliver, or possess cocaine. He claims that the only evidence against him was a taped telephone conversation in which he asked another conspirator to leave him a “sea rock,” and that this evidence was not sufficient to send the case to a jury. See United States v. Harbin, 601 F.2d 773, 784 (5th Cir.1979). The state’s traverse proffered that an Officer Raul Martinez would testify as an expert that in the context of his investigation of the entire matter, the subject conversation involved a cocaine conspiracy. Riverol contends that this traverse was improper because Martinez’ opinion would be inadmissible either as an opinion on the ultimate issue or as based on inadmissible evidence of prior criminal activity in violation of the so-called Williams rule. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

Concerning the first argument, although the Florida Evidence Code would clearly render ultimate fact opinion admissible, § 90.703, Fla.Stat. (1979), its effective date of July 1,1979 makes it inapplicable to the present case. § 90.103(2), Fla.Stat. (1979); In re Evidence Code, 376 So.2d 1161 (Fla.1979). Nonetheless, we need not resort to the Code since the Florida Supreme Court recognized the admissibility of such an opinion long before promulgation of the Code. North v. State, 65 So.2d 77 (Fla.1952), aff’d per curiam, 346 U.S. 932, 74 S.Ct. 376, 98 L.Ed. 423 (1954).

Regarding Riverol’s second argument, we fail to discern the eontended-for application of the Williams rule. The Williams rule was designed to prevent similar crimes evidence from reaching the trier of fact when such evidence tended to show only the defendant’s bad character or propensity to commit the charged crime. Here, the evidence Officer Martinez would have relied upon was admissible to explain the acts in question; to wit: the meaning of Riverol’s request that another conspirator leave him a “sea rock.” See Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Jacobson v. State, 375 So.2d 1133 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980); Horner v. State, 149 So.2d 863 (Fla. 3d DCA 1963), cert. denied, 162 So.2d 904 (Fla.1964). We note again in passing that were the Florida Evidence Code applicable to this case, Officer Martinez’ expert opinion would be admissible regardless of the admissibility of the facts underlying that opinion. § 90.704, Fla. Stat. (1979). The order denying Riverol’s sworn motion to dismiss is affirmed.

VII. The Dream

The state has appealed an order dismissing on double jeopardy grounds an information charging William Gilley with conspiracy to possess with intent to distribute a quantity of cannabis and/or methaqualone. The state had filed two separate informa-tions, each alleging that Gilley was to sell his airplane to a group assembled by Bras-well for the purpose of flying a load of marijuana and quaaludes from Colombia into this country. One information stated that the airplane was to leave for Colombia on February 10,1979, and listed six conspirators. At trial pursuant to this information, Gilley obtained a verdict of not guilty and a consequent judgment of acquittal. The other information stated that the airplane was to leave on February 12, 1979 and named five conspirators, only one of which was listed on the first charging document. Of course, Braswell would also have been added to both lists had he not attained his bargained-for status as an “un-in-formed-against” conspirator. The state claims that due to the different take-off dates and the substitution of some conspirators for others, there would be no double jeopardy violation in trying Gilley pursuant to the second information.

However, it appears from the record that the only reason the airplane did not leave on February 10 was because the pilot’s mother had dreamed that something terrible was going to happen to the airplane — a prophecy that dissuaded the pilot from undertaking the trip. It is obvious that despite the substitution of certain other defendants along with a different date, the conspiracy charge as it related to Gilley was the same in each information. At the first trial, there was no dispute as to whether Gilley agreed to sell his airplane to Bras-well through another conspirator. The ultimate fact to be decided by the jury was whether he did so knowing it was to be used for an illegal purpose. Having been acquitted on one information by general verdict, trying Gilley on the other information would raise a double jeopardy bar in the classic constitutional collateral estoppel sense. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The order dismissing the information is affirmed.

The judgments and sentences in the cases of all the appealing defendants are likewise affirmed.

Affirmed.

      . Appellants contend that the room “bug” did not function properly until after Braswell discovered it and consented to its reinstallation. The state claims that the “bug” was operating as early as September 5, 1978, a day before Braswell uncovered it. However, it appeárs from the record that only Braswell was overheard on the 5th. Therefore, we could approach resolving the admissibility of evidence seized via the room “bug” by examining Bras-well’s consent to its reinstallation. It must be assumed, though, that Braswell was not a party to all of the intercepted conversations during the long period of time that the “bug” was in operation. Braswell’s consent does not resolve the admissibility of the conversations to which he was not a party. § 934.03(2)(c), Fla.Stat. (1977). Accordingly, we proceed to a determination of the propriety of the September 2, 1978, court-authorization of the office “bug.”

      . The trial court suppressed the mid-September consent interceptions to which Braswell was not a party.

      . Appellants have not contended that any of the Braswell consent interceptions involved telephones located in their homes. Consequently, we need not discuss whether our supreme court’s decision in State v. Sarmiento, 397 So.2d 643 (Fla.1981), is applicable here. Nonetheless, we observe that the Fourth District Court of Appeal has determined that Sarmiento has no application to the situation where the consenting party to a telephone interception is located outside the defendant’s home and is acting pursuant to Section 934.03(2)(c). Miller v. State, 411 So.2d 944 (Fla. 4th DCA 1982).

      . The result in Cuba recently withstood federal habeas corpus attack by one of the Cuba defendants. Llamas-Almaguer v. Wainwright, 666 F.2d 191 (5th Cir.1982).


author: BERANEK, Judge. PARRISH, Commissioner,

text:
    Ruel A. GALBREATH, Appellant, v. The SCHOOL BOARD OF BROWARD COUNTY, Florida, the Broward County Classroom Teachers Association, Inc., and the Public Employees Relations Commission, Appellees.
    No. 81-1394.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Rehearing Denied Jan. 13, 1983.

      Harold D. Smith, Hollywood, for appellant.
    Gordon Dean Rogers of Muller, Mintz, Kornreich, Caldwell & Casey, P.A., Miami, for appellee, School Bd. of Broward County, Fla.
    Richard H. Frank, Mark F. Kelly and Francis M. Kinsey, Law Offices of Frank & Kelly, P.A., Tampa, for appellee, The Bro-ward County Classroom Teachers Ass’n, Inc.
    Phillip P. Quaschnick, Deputy Asst. Gen. Counsel, Tallahassee, for appellee, Public Employees Relations Com’n.
   BERANEK, Judge.

Appellant seeks reversal of summary dismissals of his unfair labor practice charges filed against The School Board of Broward County and the Broward County Classroom Teachers Association before the Public Employees Relations Commission. The Commission summarily dismissed appellant’s charges. We affirm.

Appellant is a public school teacher in the Broward County school system. He is not a member of the Broward County Classroom Teachers Association, which is an employee organization under Chapter 447, Florida Statutes. The Classroom Teachers Association and the School Board are parties to a collective bargaining agreement governing the teachers of Broward County. Appellant filed a grievance claiming that he had not been properly paid for certain overtime work. The Classroom Teachers Association refused to process appellant’s grievance through the arbitration step provided for in the collective bargaining agreement. The agreement gave the certified bargaining agent control over the final arbitration step in the three step grievance procedure. The Classroom Teachers Association found that appellant’s grievance lacked merit and refused to process it through the arbitration stage. The union did not base its refusal on appellant’s nonunion status. Appellant was thereby foreclosed from arbitration and filed an unfair labor practice charge with the Public Employees Relations Commission which summarily dismissed the charge. The present appeal results.

Although numerous issues are raised, we conclude that only one presents arguable merit. Appellant contends that he cannot be legally foreclosed from arbitration under Section 447.401, Florida Statutes (1979). This precise question was presented and decided adversely to appellant in Heath v. School Board of Orange County, 5 FPER 10074 (1979), and In Re Leon County School Board, 7 FPER 12286 (1981). The question, simply put, is whether a union may refuse to process nonunion public employees’ grievances through the arbitration stage of the statutorily required grievance procedures prescribed by Section 447.401, Florida Statutes (1979). In the case of In Re Leon County School Board, 7 FPER 12286 (1981), the Commission stated the question as follows:

Where the certified bargaining agent retains contractual control over the arbitral step of the grievance procedure and it declines to process a grievance to arbitration because it believes the grievance to be without merit, is the public employer still obligated to arbitrate the dispute if the grievant submits it to arbitration because the certified bargaining agent has declined to “represent” the grievant?

The Commission answered this question in the negative in an opinion which is produced verbatim herein. [See Appendix.]

Substantially the same question was discussed at length in the majority and dissenting opinions filed by the Commission in Heath v. School Board of Orange County, supra. The views expressed in the Heath majority opinion and in the later “Declaratory Statement” in the Leon County School Board case are hereby adopted by this Court in our present affirmance of the summary dismissal of appellant’s unfair labor practice charges.

Deeming the above stated question to be of great public importance, we answer it in the negative and certify same to the Supreme Court.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.

APPENDIX

Leon County School Board

Decision of PERC

In re Petition for Declaratory Statement of the School Board of Leon County.

Case No. DS-81-001, 81D-238

June 26, 1981

Before Powers, Chairman; Parrish and Brooks, Commissioners

DECLARATORY STATEMENT

POWERS, Chairman. On February 5, 1981, the School Board of Leon County filed a petition for declaratory statement pursuant to Section 447.207(7), Florida Statutes (1979), and Florida Administrative Code Rule 38D-22.02. Notice of the petition was published in the Florida Administrative Weekly on March 6, 1981, in compliance with Section 120.565, Florida Statutes (1979).

On March 26,1981, both the Leon County Classroom Teachers Association, FTP/NEA (LCTA or Association) and the Florida Education Association/United, AFT, AFL-CIO, (FEA) filed memoranda in support of their respective positions.

The School Board requests that the Commission answer the following questions:

Where the certified bargaining agent retains contractual control over the arbitral step of the grievance procedure and it declines to process a grievance to arbitration because it believes the grievance to be without merit, is the public employer still obligated to arbitrate the dispute if the grievant submits it to arbitration because the certified bargaining agent has declined to “represent” the grievant? Does the answer to the above question depend on whether or not the grievant is a member of the certified bargaining agent? If so, how?

According to the petition, the LCTA is the certified bargaining agent for a unit of instructional employees employed by the School Board of Leon County. The grievance procedures set forth in Article VI of the current collective bargaining agreement between the LCTA and the School Board allows all instructional employees to file a grievance at Step I, but reserves to the LCTA the exclusive authority to advance the grievance to Steps II, and III, the latter step being the arbitration provision.

On September 30, 1980, Freddie 0. Had-ley, an instructional employee within the certified bargaining unit who is not a member of the LCTA, individually filed a grievance against the School Board asserting that she did not receive a timely payment of her monthly salary as required by the terms of the collective bargaining agreement. After Hadley’s supervisor denied the grievance at Step I, the LCTA intervened at Step II of the grievance procedure and submitted her grievance to the Director of Employee Relations, the Superintendent’s designee. On November 18, 1980, the Director denied the grievance.

By letter dated December 2, 1980, the LCTA informed Hadley of its decision not to submit her grievance to arbitration. The letter advised the grievant, in pertinent part, that:

Based on advice from General Counsel, LCTA has decided not to process your geievance to arbitration. In both his opinion and mine, the contract has not been violated as set forth in your grievance.
Ms. Hadley, I feel that I must express one final thought in this letter. LCTA is taking exactly the same care with your grievance as we do with the grievances of our members, who pay their dues to provide for all teachers (emphasis in original).

On December 12, 1980, Hadley advised the School Board of her intent to individually submit the grievance to arbitration. The grievant thereafter filed a demand for arbitration with the American Arbitration Association.

Resolution of the questions presented requires an examination of the Commission’s decisions in Heath v. School Board of Orange County, 5 FPER ¶ 10074 (1979) and Leon County CTA v. Leon County School Board, 6 FPER ¶ 11001 (1979). In Heath, the Commission concluded that the Orange County School Board did not unlawfully refuse to process a grievance by failing to arbitrate a grievance brought by an individual employee where the collective bargaining agreement provided that grievances could be submitted to arbitration only by the certified bargaining agent. Similarly, in Leon County CTA, the Commission determined that the School Board violated Section 447.501(1)(a), (c) and (f), Florida Statutes (1979), by processing individual employee grievances to arbitration in derogation of the collective bargaining agreement which provided that only the LCTA could submit grievances to arbitration.

The underlying rationale in both cases turned upon the well-established principal of exclusive representation embodied in Section 447.307(3)(b), Florida Statutes (1979), which provides, in pertinent part, that the certified agent shall act as “the exclusive collective bargaining representative of all employees in the unit.” The principle of exclusivity, as the Commission recognized in Heath, is essential to the advancement of labor stability:

The designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment. It prevents inter-union rivalries from creating dissension within the work force and eliminating the advantages to the employee of collectivization. It also frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations.

5 FPER ¶ 10074 at 91, quoting from Abood v. Detroit Board of Education, 431, U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977).

The Commission also recognized in Heath that the determination of terms and conditions of employment does not end when the parties enter into a collective bargaining agreement. Rather, the interpretation of the agreement through the grievance arbitration procedure may also have a significant impact on the unit employees’ terms and conditions of employment. The principle of exclusivity applies not only to the negotiation of a collective bargaining agreement but also to the administration of the agreement through the grievance-arbitration procedure. 5 FPER ¶ 10074 at 91. Consequently, a certified bargaining agent may negotiate a provision whereby it retains ultimate control over the grievance-arbitration machinery. In reaching this policy determination in Heath we found the rationale enunciated by the United States Supreme Court in Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903, 917, 17 L.Ed.2d 842 (1969), particularly compelling:

In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved. And finally, the settlement process furthers the interest of the union as statutory agent and as coauthor of the bargaining agreement in representing the employees in the enforcement of that agreement.

A union’s right to exclusivity over the administration of a collective bargaining agreement includes not only the right to settle a grievance short of arbitration, but also the right to decline to process a grievance when it believes the grievance lacks merit. In either case, the union is deemed to have represented the grievant even though the grievance was not pursued to the final stage of the procedure, binding arbitration. Once the bargaining agent chooses to represent a grievant, regardless of the grievant’s union membership status, the manner with which it handles the grievance, including a decision not to process the grievance for lack of merit, is subject to the statutory duty of fair representation. See Heath v. School Board of Orange County, 5 FPER ¶ 10074 (1979); Gow v. AFSCME, Local 1316, 4 FPER ¶ 4168 (1978).

However, unlike other jurisdictions, Florida law permits a certified bargaining agent to refuse to represent a grievant who is not a member of the certified organization. Section 447.401, Florida Statutes (1979), provides, in pertinent part:

All public employees shall have the right to a fair and equitable grievance procedure, administered without regard to membership or nonmembership in any organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organization. (Emphasis added)

The Commission has concluded that this provision does not serve as a limitation upon the certified bargaining agent’s exclusive right of representation. Heath v. School Board of Orange County, 5 FPER ¶ 10074 at 92. Rather, the proviso simply affords the organization the right to determine whether it desires to exercise its right of exclusive representation on behalf of nonmembers.

When a certified bargaining agent declines to represent a grievant because he or she is not a member of the certified organization, the grievant is entitled to pursue the grievance to arbitration, and the public employer is under a concomitant obligation to process the grievance in accordance with the terms set forth in the agreement. See generally, Blanchett v. School Board of Leon County, 378 So.2d 68 (Fla. 1st DCA 1979); Manatee County Municipal Employees Local 1584 v. Manatee County School Board, 6 FPER ¶ 11188 (1980). Therefore, the grievant’s right to a fair and equitable grievance procedure mandated by Section 447.401 is protected by allowing the griev-ant to either represent himself or to seek outside representation, for the purpose of pursuing the grievance in accordance with the procedures set forth in the collective bargaining agreement.

FEA’s argument on this point is based upon an interpretation of Section 447.-301(4), Florida Statutes (1979), which we expressly rejected in Heath. Our rejection of the proposition that Section 447.301(4) guarantees an individual unfettered access to the arbitral process is supported by the substantial weight of authority in other jurisdictions interpreting statutory provisions which are identical in all material respects to Section 447.301(4) in both language and policy. Heath v. School Board of Orange County, 5 FPER ¶ 10074 at 91-93; Maggs v. PLRB, 11 PPER ¶ 11103 (Pa.Comm.Ct.1980). We therefore decline the FEA’s implicit invitation to recede from our previous interpretation of Section 447.301(4) because we find it patently illogical that the Legislature would have adopted practically verbatim the language of a long standing federal statute but have intended an interpretation which is exactly the opposite of the interpretation given the federal statute as long ago as 1944. As we have previously noted, the policy considerations which underlie the interpretation of the federal statute apply with equal force to the Florida public sector collective bargaining scheme.

It is inconsistent to require, on the one hand, an exclusive bargaining agent to fairly represent all bargaining unit employees in collective bargaining negotiations and administration of a collective bargaining agreement and, on the other hand, to allow individual employees to advance grievances which may assert an interpretation of that agreement contrary to that of the bargaining agent and possibly the employer. Under such a scheme, the bargaining agent’s status as exclusive representative in the determination of wages, hours and terms and conditions of employment is emasculated because the employer would be required to process through arbitration every individual grievance upon request, regardless of merit. Such individual grievance processing is in effect individual negotiations between the employer and the employee regarding the subject matter of the grievance. The Florida courts have long recognized the inherently destructive effect that individual negotiations between employer and employees have upon the right to collectively bargain. Pasco County School Board v. PERC, 353 So.2d 108, 4 FPER ¶ 4033 (Fla. 1st DCA 1977). Such individual negotiations are no less destructive simply because they occur during the grievance process rather than at the negotiating table.

There are also important practical reasons for limiting access to the arbitration machinery of contractual grievance procedures. Unlimited individual access would allow every employee, regardless of motive, to compel arbitration proceedings where the parties who negotiated the collective bargaining agreement deemed such proceedings unwarranted. The potential for harassment of the union and the employer, to the detriment of all concerned, from disgruntled individuals is very real. See e.g., Black-Clawson Co., Inc. v. International Association of Machinist, Lodge 355, 313 F.2d 179, 196 (5th Cir.1962). Furthermore, one need not be very experienced in labor relations to realize the attractiveness to a rival or a minority union of being able to compete with the incumbent union for by indirectly processing grievances, regardless of merit, through an individual member. See McGuire Public Employee Collective Bargaining In Florida—Past, Present and Future, Fla.State L.Rev. 26, 101-02 (1973).

Finally, the policy we have adopted protects the taxpayer from the compulsory but unnecessary expenditure of public funds, a policy consideration not present in the private sector. If individual employees may, at their whim, compel arbitration of all grievances regardless of merit and contrary to the desires of the employer and the bargaining agent, significant public funds will be spent on expensive arbitration proceedings which would otherwise not be expended. The parties to the collective bargaining agreement would therefore have less funds available for truely meritorious grievances and the employer might be compelled to settle non-meritorious grievances contrary to a reasonable interpretation of the collective bargaining agreement to avoid expense, thereby establishing an erroneous precedent applicable to subsequent grievances. The interference with the statutory goal of promoting harmonious and cooperative relationships between the government and its employees who have chosen to bargain collectively, which would occur if the FEA’s position were adopted, is accurately summarized by the following language from Vaca v. Sipes, 386 U.S. at 191-92, 87 S.Ct. at 917-18:

If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer’s confidence in the union’s authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievances would proceed to arbitration. This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully.

Contrary to FEA’s assertion, then, the Commission’s decision in Heath does not stand for the proposition that an individual has the unfettered right to advance a grievance through the contractual grievance procedure once the certified bargaining agent has exercised its exclusive right to discontinue processing the grievance based upon its good faith determination that the grievance lacks merit. As the above discussion demonstrates, such a conclusion is the antithesis of the concept of exclusively embraced by our decision in Heath. 5 FPER ¶ 10074 at 92. Accordingly, where the parties collective bargaining agreement reserves to the certified bargaining agent the exclusive right to submit grievances to arbitration, a public employer is not obligated to process an individual’s grievance to arbitration if the certified bargaining agent has declined to advance the grievance because of its belief that the grievance lacks merit. Indeed, if the public employer does process such a grievance to arbitration at the individual’s request it might well violate Section 447.501(1)(a), (c), Florida Statutes (1979). Such action could constitute circumvention of the bargaining agent and a unilateral alteration of the contractual grievance procedure. Leon County CTA v. Leon County School Board, 6 FPER ¶ 11001 at 4.

In this case the facts establish that the collective bargaining agreement grants all unit employees the opportunity to file grievances at Step I, but reserves to the LCTA the exclusive authority to advance these grievances to Step II through the final arbitrable step. The LCTA refused to process Hadley’s grievance to arbitration following its express determination that the grievance lacked merit. Under these circumstances, irrespective of Hadley’s membership or non-membership in the LCTA, the Association’s actions do not constitute a waiver of its right to exclusively determine those grievances appropriate for arbitration. Therefore, the School Board is not obligated to proceed to arbitration upon Hadley’s request.

It is so ordered.

PARRISH, Commissioner,

concurring specially.

In light of my lengthy dissent in Heath v. School Board of Orange County, 5 FPER ¶ 10074 (1979), I feel it only appropriate that I explain my concurrence in the instant case. Since the issuance of the Heath decision (which was not appealed), the Florida Legislature has met in regular session three times. During those three sessions there have been a number of amendments to various sections of Part II of Chapter 447 of the Florida Statutes, but there has been no effort at modification of the statutory provisions relied upon in the Heath case in either the majority opinion or the dissent. I think it is reasonable to presume that the Legislature is aware of the construction which has been placed on its enactments in the area of public sector collective bargaining by the agency charged with the administration of those enactments; especially where the issue is a significant one. Having engaged in that presumption, I think it is reasonable to construe the legislative silence on this issue during three consecutive sessions as a legislative ratification of the interpretation given to the applicable statutory provisions by the majority in the Heath case; or, at least, as a legislative acquiescence in the agency’s interpretation. Accordingly, although I continue to believe that the dissent in the Heath case was correct when written, I am now persuaded by three sessions of legislative silence that the majority view in the Heath case has proven to be a correct interpretation of the legislative will.

      . The School Board included in the petition a motion to stay the grievance/arbitration proceedings pending resolution of this matter, which was denied by the Commission. In re School Board of Leon County, 7 FPER ¶ 12119 (1980).

      . By its terms the agreement is in effect from August 21, 1979 through August 20, 1982.

      . See Turner v. Air Transport Dispatchers’ Ass’n., 468 F.2d 297, 300 (5th Cir.1972); St. Clair v. Local Union No. 515, 1 BT, 422 F.2d 128, 130 (6th Cir.1969); Maggs v. PLRB, 11 PPER ¶ 11103 (Pa.Comm.Ct.1980); Russell v. Patterson, 10 PERB ¶ 7511 (N.Y.App.Div.1976); Norton v. Transportation Authority, 90 LRRM 3054 (Mass.S.Ct.1975).

      . Hughes Tool Company, 56 NLRB 981, 14 LRRM 244 (1944) enforced 147 F.2d 69 (5th Cir.1945) construing Section 9(a) of the National Labor Relations Act.

      . For a discussion of the reasons that grievance processing in contract administration are considered as part of the collective bargaining process itself see Cox, Reflections Upon Labor Arbitration, 72 Har.L.Rev. 1482. As the United States Supreme Court stated in Conley v. Gibson, 355 U.S. 41, 45, 46, 78 S.Ct. 99, 101, 102, 2 L.Ed.2d 80 (1957);
      Collective bargaining is a continuing process. Among other things, it involves day-to-day adjustments in the contract and other work rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract.

      . Although I have found no case precisely on point, I believe there is abundant support for this proposition when cases such as State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So.2d 529 (Fla.1973), (“When the Legislature reenacts a statute it is presumed to know and adopt the construction placed thereon by the State tax administrators.”) are read together with cases such as Walker v. State, Dept. of Transportation, 366 So.2d 96 (Fla. 1st DCA 1979), and Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977) (Long-standing statutory interpretations made by officials charged with the administration of the statutes are given great weight by the courts.).


text:
    SUPREME SERVICE STATION CORP., C.G. Service Station, Inc., G.C. Service Station, Inc., M.G. Service Station, Inc., Camy Gomez and Maria Herrera, Appellants, v. TELECREDIT SERVICE CENTER, INC., a Florida corporation, Appellee.
    No. 82-1312.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    As Amended on Denial of Rehearing Jan. 18, 1983.
    Robbins & Reynolds, Coral Gables, for appellants.
    Lapidus & Stettin, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

A civil complaint which alleges that defendant corporation, through its officers, has defrauded plaintiff corporation and is about to remove its assets beyond the jurisdiction of the court does not warrant a temporary injunction. B.L.E. Realty Corporation v. Mary Williams Co., 101 Fla. 254, 134 So. 47 (1931). An action for damages does not become an equitable action simply by requesting an injunction. Ramsey v. Lovett, 89 So.2d 669 (Fla.1956). Irreparable harm for the purpose of an injunction is not established where the harm can be compensated for adequately by money damages. Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Goldberger v. Regency Highland Condominium Association, Inc., 383 So.2d 1173 (Fla. 4th DCA 1980); Oxford International Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54 (Fla. 3d DCA 1979); Liberty Equities Corp. v. Joe’s Creek Industrial Park, 214 So.2d 888 (Fla. 2d DCA 1968).

The orders granting a motion for preliminary injunction and granting motion amending preliminary injunction are both REVERSED.


author: GLICKSTEIN, Judge.

text:
    George William BROWN, Jr., Appellant, v. Mildred BROWN, Appellee.
    No. 82-771.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 1982.
    Rehearing Denied Jan. 26, 1983.
    Gene Reibman, Legal Aid Service of Bro-ward County, Inc.,- Fort Lauderdale, for appellant.
    Robert W. Crawford, Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

This is an appeal by the husband from a final judgment which awarded his interest in the marital home to the wife, who valued the unencumbered property between $40,-000-45,000. At issue is whether a legally compelling reason exists to interfere with the exercise of the trial court’s discretion.

In resolving such issue, one view is that the husband, 63, testified that he had not worked for about ten years because of a heart condition occasioned by a motor vehicle accident; that he was living down the street from the marital home in a woodworking shop; that he received only $347 per month in social security benefits; that he relies on a bicycle for transportation; and that his sole asset is a $2,000 savings account.

The other view is that the husband is the sole cause of the parties’ present economic misfortune. Both his wife, 59, and daughter testified as to his ability to work; that notwithstanding his protestations of heart problems, he had the strength to brutalize his wife, breaking her finger, beating her severely and threatening her with a gun and a board; that the wife supported the family for the last ten years of the thirty-three year marriage by caring for the elderly as a nurse’s aide; and that the wife had been employed regularly during the entire marriage.

Documentary stamps on the deed introduced into evidence, as well as testimony, establish $24,500 to have been the purchase price of the marital home in 1974. Accordingly, the net result of the final judgment was to award the inflationary increase of $15,000 to $20,000 in the home, together with the husband’s contribution towards its purchase, to the wife as alimony.

The trial court found the wife’s age, coupled with the lengthy marriage, established her need for alimony, and the husband’s interest in the home represented his ability to respond to that need. Based on this test, it therefore awarded the husband’s interest to her as lump sum alimony. While there may be reasons to interfere with this award, such reasons are not legally compelling for us to do so. Accordingly, we affirm.

ANSTEAD and BERANEK, JJ., concur.

      . The husband’s financial affidavit values the property at $45,000.

      . The parties’ 31-year-old son was actually in possession of the funds which apparently were being partially used to pay for the medical expenses incurred by the wife as a result of a beating by the husband. On cross-examination, the husband testified that he got along with his son. He also said that while he had not discussed living with his son on the west coast of Florida, they had discussed the husband’s getting a trailer in that area, although the dampness aggravated the husband’s arthritis.

        . See Williamson v. Williamson, 367 So.2d 1016 (Fla.1979).

      . The daughter testified that while the wife was hospitalized from the beating for which the husband was criminally prosecuted it was necessary to protect her from further harm at his hands.

      . The wife’s financial affidavit showed her monthly income of $800 and expenses of $686. The parties’ daughter assists in the payment of expenses.

      . There was testimonial conflict as to how much each of the parties and their daughter contributed to the acquisition of the home and the satisfaction of the mortgage. The 29-year-old daughter resided with the mother in the home and testified that she had quit-claimed her interest to her parents because of her father’s badgering.

      .Pursuant to Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the evidence must reflect justification, rather than need, to support an award of lump sum alimony.


text:
    CITY OF BROOKSVILLE, Florida, etc., Appellant, v. HERNANDO COUNTY, etc., et al., Appellees.
    No. 82-387.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 10, 1983.

      Daniel B. Merritt, Sr., of Merritt, High, Underwood & Eppley, P.A., Brooksville, for appellant.
    Frank McClung, Brooksville, for appel-lees.
   PER CURIAM.

This case involves a partial summary judgment finding that a statute of limitations was tolled by continuing settlement negotiations between the parties. Also presented is the question of whether the trial court can consider on motion for summary judgment testimony and documents entered as evidence in a prior trial in the cause.

Appellees Weekses, as lessors, leased property to appellant City of Brooksville, Florida, as lessee, for five years. In the written lease the lessee agreed “to quit and deliver up said premises in its entirety at the end of said term in a condition consistent with good and proper management and use of land as a sanitary land fill.”

In January, 1980, the lessors sued the lessee, alleging that at the expiration of the lease on December 19, 1972, the premises were delivered in a condition that breached the lessee’s agreement; that the lessee had repeatedly agreed to restore the leased land to its proper condition and had intermittently performed remedial work on the land from December, 1972, to and including December, 1979; and that these actions “caused Plaintiffs to believe the Defendant was in fact complying with the terms of the lease and inducing Plaintiffs to forego filing suit from December 19,1972, until January, 1980.” The lessee’s answer asserted the affirmative defense of the statute of limitations. The case went to trial and testimony was taken during the plaintiffs’ case, but before any evidence was presented by the defendant a mistrial was declared. Later, the trial court granted a partial summary judgment in favor of the lessors finding (1) that “plaintiffs’ defense of statute of limitations under Florida Statute 95.11 is tolled by the continuing negotiations regarding settlement between the parties” and (2) that the lessee was liable to the lessors based on “the testimony at the trial on December 9,1981, documents and correspondence admitted into evidence and the pleadings and depositions on file.”

While continuing negotiations regarding settlement do not “toll” the running of a statute of limitations, such negotiations, if infected with an element of deception, may create an estoppel. North v. Culmer, 193 So.2d 701 (Fla. 4th DCA 1967). This is true even subsequent to the 1975 enactment of subsection (2) of section 95.-051, which states that “no disability or other reason shall toll the running of any statute of limitations except those specified in this section....” See Salcedo v. Association Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979). The rationale underlying the invocation of such an estoppel was articulated by Justice Holmes in New York Central & Hudson River Railroad Co. v. Kinney, 260 U.S. 340, 43 S.Ct. 122, 67 L.Ed. 294 (1922):

When a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of the opinion that a liberal rule should be applied.

Brooksville’s answer raised the affirmative defense of the statute of limitations. Florida Rule of Civil Procedure 1.100(a) provides as follows:

If an answer ... contains an affirmative defense and the opposing party seeks to avoid it, he shall file a reply containing the avoidance.

Estoppel was not properly raised here. No reply was filed by the Weekses in this case. Since estoppel is an avoidance which was not pleaded by the Weekses, the issue of the city’s estoppel to assert the applicable statute of limitations was not an issue properly before the trial court based on the pleadings at that time.

On the second point, Florida Rule of Civil Procedure 1.510(c) provides:

Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least twenty days before the time fixed for the hearing. The adverse party may serve opposing affidavits prior to the day of hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

The partial summary judgment entered by the trial court clearly is not in conformity with this rule. The motion itself was based solely on unrecorded testimony and evidence received at the trial and failed to state “the substantial matters of law to be argued.”

If a former trial has been transcribed and the transcription is filed in the court case file or is attached to the motion for summary judgment, the transcript could be considered the functional equivalent of a deposition and could thus be considered. However, there is no record here showing that the trial proceedings referred to by the trial court as part of the basis for the partial summary judgment were transcribed. Appellee cites Hall v. Davis, 106 So.2d 599 (Fla. 1st DCA 1958), where both parties agreed for the court to consider on summary judgment evidence presented in an oral proceeding before the trial judge. In the instant case there is no showing that appellant agreed that the evidence presented at trial could be considered by the court in entering the partial summary judgment. Therefore, the trial court erred in considering matters outside the scope of Florida Rule of Civil Procedure 1.510(c) in entering the partial summary judgment.

The partial summary judgment is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

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

      . Section 95.11(2)(b), Florida Statutes (1979), provides that “a legal or equitable action on a contract, obligation, or liability founded on a instrument in writing” must be commenced within five years from the accrual of the cause of action.

      . The affirmative defense of the expiration of the statute of limitations is not waived, nor is a defendant estopped from asserting same, merely by an accused or his attorney not knowing that a claimant is anticipating suit nor by mere negotiations between the parties. An accused (potential defendant) is under no duty to remind a claimant that the statute of limitations is running. There may, of course, be situations in which such an accused may be held to have waived, or to be estopped from asserting, such defense: For instance, should it be made to appear that the claimant delayed commencement of suit as a result of representations by the defendant that the claim would be settled or that an agreed settlement would be paid on some reasonable future contingency, or by recognition of validity of the claim and a promise to pay it. Fraud, misrepresentations and actual waivers (express or implied) may also render inapplicable a statute of limitations.

        Fletcher v. Dozier, 314 So.2d 241, 242 (Fla. 1st DCA 1975).

      . The motion reads:
      COME NOW the Plaintiffs, WILLIAM HOWARD WEEKS and ICILDA M. WEEKS, his wife, by and through their undersigned attorney, and pursuant to Florida Rule of Civil Procedure, move that this Court enter a Partial Summary Judgment against the Defendant, CITY OF BROOKSVILLE, as to liability only and in support thereof states the following:
      1. The undisputed testimony of the former Mayor and City Commissioner Ed Ragan, City Engineer Gene Manuel, and all other witnesses, and the documents and correspondence which were admitted and received into evidence show that there is no genuine issue as to any material fact on the issue of liability alone of the Defendant, CITY OF BROOKSVILLE, in that the same evidence shows conclusively that the Defendant, CITY OF BROOKSVILLE, was in breach of the lease agreement executed in this cause in December, 1967, between the parties hereto.


author: BERANEK, Judge.

text:
    Robert V. CARIDA, Appellant, v. HOLY CROSS HOSPITAL, INC., a Florida corporation; Sister Mercy McGrady, Executive Director of Holy Cross Hospital, Inc.; Robert C. Bishop, M.D., Chief of Staff of Holy Cross Hospital, Inc.; Russell Brancato, M.D.; Zachariah P. Zachariah, M.D.; Mr. Jack Bondurant; Zachariah P. Zachariah, M.D., P.A., a Florida corporation, Appellees.
    No. 82-1084.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 26, 1983.

      David A. Hoines of David A. Hoines, P.A., Fort Lauderdale, for appellant.
    James D. Clark of Fitzgerald, Taylor, Skinner, Zwicky & Michalak, Fort Lauder-dale, for appellees.
   BERANEK, Judge.

Plaintiff/appellant seeks review of two non-final orders, one dismissing his complaint without prejudice for lack of personal jurisdiction over a defendant, and one vacating a clerk’s default as to the defendant. We reverse as to the first order but decline to consider the second order as it is a non-appealable, non-final order.

Plaintiff sued a number of defendants for defamation, tortious interference with business relationships, and civil conspiracy. The facts, as alleged in plaintiff’s complaint, are as follows. On April 1, 1975, plaintiff, a cardiologist, was appointed director of the coronary care unit at Holy Cross Hospital for a period of two years. One of the clauses in his written contract stated, “In the event that a cardiac and vascular angiographic laboratory is established at Holy Cross Hospital, the Director of the Coronary Care Unit will be given first consideration for the position as Director of the lab.” Subsequently, the Hospital decided to establish such a laboratory commonly known as a “cardiac cath lab.” Plaintiff received numerous assurances from Sister Mercy McGrady, Executive Director of the Hospital, that she intended to appoint plaintiff as Director of the lab. On January 1,1976, plaintiff was told by Sister McGrady to proceed with the organization and installation of the cardiac cath lab. Plaintiff did so. Furthermore, in order to regain his proficiency at performing cardiac catheterizations, plaintiff engaged in refresher training from April 20, 1976, through May 14, 1976, with Dr. Russell Brancato, a specialist in cardiology and cardiac catheterization at St. Joseph Hospital, in Patterson, New Jersey. While plaintiff was in New Jersey, Sister McGrady traveled to Cleveland, Ohio, to interview Dr. Zachariah P. Zachariah for the position of Director of the cardiac cath lab. Before he returned to Florida, plaintiff was informed by Sister McGrady that Dr. Zachariah was to be awarded the directorship of the new lab. The plaintiff told Sister McGrady and Dr. Bishop, Chief of the Medical Staff of Holy Cross Hospital, that during his refresher training with Dr. Brancato, he had participated in approximately 55 cases, 40 of which involved the manual manipulation of the catheter while inside the patient’s body.

It was not until September, 1976, that plaintiff first learned of the publication of false statements about his medical training and qualifications to conduct cardiac cathet-erization, as well as false statements and innuendo that plaintiff had misrepresented his participation and experience in the procedure of cardiac catheterization while training with Dr. Brancato. The complaint specifically alleged that Dr. Brancato falsely told Dr. Bishop and Dr. Zachariah that plaintiff had not touched a catheter while plaintiff was training with Dr. Brancato, and further that plaintiff was not qualified to perform cardiac catheterizations. These statements were republished by Dr. Bishop, Dr. Zachariah, and Sister McGrady, among others. Plaintiff asserts he was damaged in that he was made to appear unqualified and incompetent, as well as personally dishonest. Obviously we do not, at this point, pass upon the legal sufficiency of the cause of action or all of the alleged damages resulting therefrom. We are concerned only with jurisdiction.

All the defendants named in the action are residents of Florida, with the exception Dr. Brancato. Plaintiff served him with his amended complaint on January 26, 1982, in New Jersey. Dr. Brancato filed no response, and a default was entered on March 3, 1982. On March 24, 1982, Dr. Brancato filed his motion to dismiss the amended complaint and a motion to set aside the default. The trial court granted both motions and plaintiff appeals.

As previously stated, we consider only the trial court’s granting of the motion to dismiss which was based solely upon lack of personal jurisdiction. Appellant contends that Dr. Brancato is subject to the jurisdiction of the Florida courts through this State’s Long-Arm Statute, Section 48.-193(1)(b), Florida Statutes (1981) which reads in pertinent part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(b) Commits a tortious act within the State.

Plaintiff asserts that defendant Brancato committed a tortious act in Florida by virtue of his libelous telephone conversations. Defendant urges us to hold that even if a tort were committed in the State of Florida, the party over whom jurisdiction is asserted must have had sufficient minimum contact with Florida to satisfy any due process requirements. In the case of Godfrey v. Neumann, 373 So.2d 920 (Fla.1979), the Supreme Court held that the commission of a tort in Florida by a non-resident establishes sufficient minimum contacts with Florida to justify the acquisition of in personam jurisdiction over him. Although that case dealt with a tort which was committed when defendant was on vacation in Florida, the Court’s holding made no distinction between a physical tort and a tort committed by sending false statements into the State.

More recently, the Supreme Court has looked at minimum contacts under Section 48.193(1)(f)(2) dealing with products manufactured elsewhere but consumed within this State. In the case of Ford Motor Company v. Atwood Vacuum Machine Company, 392 So.2d 1305 (Fla.1981), plaintiffs brought a suit for damages against Ford Motor Company and a Florida Ford dealer for injuries allegedly caused by the faulty operation of a rear door hinge on a Ford station wagon. Ford filed a third party complaint against Atwood, an Illinois corporation, who manufactured the door hinge assemblies and supplied them to Ford. The complaint alleged that Atwood knew the door hinge assemblies were to be incorporated into automobiles manufactured by Ford and some of the automobiles would be shipped to Florida and sold. Atwood contested jurisdiction and was dismissed as a party. The Supreme Court reversed stating: “The fact that a non-resident manufactures a component part outside the State and takes no part in the sale, distribution, or marketing of the finished product in the State is no basis for a limitation of jurisdiction.” Shortly after the Ford decision, this Court issued an opinion in the case of Jacobson Manufacturing Company v. Cross Manufacturing Company, 396 So.2d 825 (Fla. 4th DCA 1981). In that case, Cross Manufacturing, a Kansas manufacturer of hydraulic component parts, sold T-swivels to Hydra Hose, Inc., a Kansas distributor. The T-swivels were sold in Kansas by Hydra Hose to Jacobson Manufacturing, who incorporated the T-swivels into lawn sweepers manufactured in Kansas. One of these lawn sweepers was brought into Florida, malfunctioned, and injured an employee of its purchaser, who then filed suit against Jacobson. Jacobson filed a third party complaint against Cross and Hydra Hose who both moved to dismiss for lack of jurisdiction under the Long Arm Statute. This court held that, based on Ford, the allegations were sufficient to invoke jurisdiction. Having found jurisdiction under the facts of Jacobson it would hardly be fair for us to hold that a person committing the alleged tort of defamation by virtue of phone calls into this State can escape the jurisdiction of our courts.

As to minimum contacts, we are not dealing here with one isolated conversation in a vacuum. Defendant spoke with Drs. Bishop, Zachariah, and Sones sometime after plaintiff completed his refresher training in New Jersey. This series of conversations obviously put defendant on notice that plaintiff’s abilities and his performance in the refresher training were of concern to an increasing number of medical personnel in the State of Florida. Defendant had to know that his allegedly false statements concerning plaintiff’s abilities and his total failure to adequately perform in his refresher training were adversely affecting plaintiff in his professional medical endeavors in Florida. We thus conclude that the requirement of minimum contact has been satisfied.

REVERSED.

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