text:
    FINGER LICKIN FOOD CORPORATION, a Florida Corporation, Appellant, v. William MacDonald CAMPBELL and Margaret P. Campbell, Appellees.
    No. 81-231.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Rehearing Denied Jan. 6, 1982.
    Rohan & Rohan and Laurence J. Rohan, Miami, for appellant.
    Robert W. Hervey, Coral Gables, for ap-pellees.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a final judgment entered in favor of the landlords in an action against the tenant to resolve a controversy concerning the terminology in a lease agreement.

The landlords, appellees, alleged in their complaint that there is a dispute with the tenant, appellant, over the amount of rent to be paid during the period of the option, i. e., January 8,1980 through January 7,1985. Appellees alleged that the lease language as contained in paragraph 25(b), to-wit: “An additional option for five years with the rent varying from the last period based on an increase or decrease in the cost of living index for the year 1975 [,]” should be interpreted to read “for the period January 1, 1975 through December 31,1979.” The trial judge found merit in the appellees’ contention and entered the following judgment:

“FINAL JUDGMENT FOR PLAINTIFFS

THIS CAUSE came before the Court for nonjury trial, and the Court having heard the testimony of the parties and argument of respective counsel, considered the evidence presented, and otherwise being fully advised in the premises, the Court finds as follows:
A. That the language contained in paragraphs 25(b) and (c) of the lease which is the subject matter of this action created a latent ambiguity requiring clarification by parol evidence as to the intention of the parties. That the intent of the parties was to apply the Consumer Price Index published by the Bureau of Labor Statistics, U. S. Department of Labor, for the previous full five (5) year period using January, 1975, as the base index (156.1) and December, 1979, the last month of the period, as the current index (229.9). This application results in an increase in rent from Four Hundred Fifty ($450.00) Dollars per month to Six Hundred Sixty-Two and 75/100 ($662.75) Dollars per month, plus applicable taxes assessed against such payment by the State of Florida, to be paid by Lessee/Defendant to Lessor/Plaintiff. The payments shall apply to paragraph 25(b) of the lease for the period commencing with the payment due January, 1980, and ending with the payment due December, 1984.
B. That paragraph 25(c) of subject lease shall be reformed to comply with the foregoing findings pertaining to the application of the Consumer Price Index to the extension period set forth in said paragraph.
It is thereupon ORDERED AND ADJUDGED as follows:
1. That the rent payable to [sic] Defendant/Lessee to Plaintiff/Lessor for the period from January, 1980, to and including December, 1984, shall be in the sum of Six Hundred Sixty-Two and 75/100 ($662.75) Dollars per month, plus applicable tax as assessed by the State of Florida pertaining to such payments.
2. That paragraph 25(c) of the lease shall be reformed to read as follows:
25(c) Lessee shall have an option to extend this lease for a period of five (5) years at an increase, if any, in the rental based upon the Consumer Price Index published by the Bureau of Labor Statistics, U. S. Department of Labor, to be computed by dividing the rent for the previous rental period by the index number for January, 1980, and then multiplying that amount by the index number for the month of December, 1984.
In the event the Bureau of Labor Statistics discontinues the Consumer Price Index, then any other index published by a comparable U. S. Agency as most nearly approximates such index shall be substituted as the index to be used.
3.That Plaintiffs are not entitled to attorney’s fees.
DONE AND ORDERED at Miami, Florida, this 6th day of January, 1981.”

We have carefully considered all of the points on appeal in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been demonstrated. Hunt v. First National Bank of Tampa, 381 So.2d 1194 (Fla. 2d DCA 1980); Royal American Realty, Inc. v. Bank of Palm Beach & Trust Co., 215 So.2d 336 (Fla. 4th DCA 1968); Coastal States Life Insurance Co. v. Raphael, 183 So.2d 274 (Fla. 3d DCA), cert. denied, 192 So.2d 494 (Fla.1966).

The judgment appealed is affirmed.

Affirmed.

      . The pertinent provision of the lease provides:
      “TWENTY-FIFTH: The Lessee shall have the following options:
      (a) An option for five additional years at $450.00 per month.
      (b) An additional option for five years with the rent varying from the last period based on an increase or decrease in the cost of living index for the year 1975.
      (c) An additional option for five years with the rent varying from the last period' based on an increase or decrease in the cost of living index for the year 1980.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. William ALLGOOD, Appellee.
    No. 81-68.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.

      Jerry Hill, Public Defender, Bartow, and Marcia L. Zimmerman, Asst. Public Defender, Tampa, for appellee.
   PER CURIAM.

Affirmed. See State v. Morse, 399 So.2d 470 (Fla. 2d DCA 1981).

HOBSON, A. C. J., and OTT and CAMPBELL, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    Sylvia Ladove BEECHAM, Appellant, v. Richard Oliver BEECHAM, Appellee.
    No. 81-576.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Rehearing Denied Jan. 6, 1982.
    Barry J. Clyman, Miami, for appellant.
    Harold A. Turtletaub, Miami, for appel-lee.
    Before BASKIN, DANIEL S. PEARSON, and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

We conclude that the appellant, left with the responsibility of earing for three minor children after the dissolution of an eighteen-year marriage, was “short changed” by the trial court. See Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981). Mrs. Beecham is a high school graduate, who was sporadically employed during the marriage, including a stint driving a school bus in exchange for her children’s nursery school tuition. At the time of dissolution, she was earning $680.00 per month net in an unskilled job, the permanency of which was questionable. There is no evidence that she has prospects of earning more than that amount. The husband earned a net salary of $16,000 a year after ordinary tax and social security deductions and his annual $2,000 contribution to a pension fund. The trial court awarded Mrs. Beecham $20.00 per week rehabilitative alimony for two years; $35.00 per week per child as child support; required her to pay one-half of $8,500 in joint debts of the parties; and allowed her exclusive use of the marital residence until the youngest child reached his majority, provided that she pay monthly mortgage payments of more than $500.00. Additionally, Mrs. Beecham was to receive her one-half interest in the marital residence to be sold after the youngest child reached his majority and a $1,075 interest in a $21,000 boat built by the husband with her help and with funds earned during the marriage. She was given no portion of her husband’s pension fund, valued at time of dissolution at $23,000.

Where we are convinced, as we are here, that there is a severe disparity in the effective incomes of the parties that warrants more alimony than awarded by the trial court, Lewis v. Lewis, 402 So.2d 1306 (Fla. 3d DCA 1981); Weider v. Weider, 402 So.2d 66 (Fla. 4th DCA 1981); Hamblen v. Hamblen, 380 So.2d 1074 (Fla. 2d DCA 1980), and that the alimony award should be permanent, Colucci v. Colucci, supra; Gerber v. Gerber, 392 So.2d 317 (Fla. 4th DCA 1980), we will not hesitate to declare that the trial court abused its discretion. We decide only that the wife needs considerably more to survive, and the husband is quite capable of providing more. The trial court may consider requiring the husband to pay some portion of the mortgage, insurance and taxes on the residence through some method devised by the court; relieving Mrs. Beecham from her obligation to share in the payment of the marital debts; and any other order which will provide her with a fairer share of the assets accumulated during the marriage.

Reversed and remanded for further proceedings consistent with this opinion.

      . An irony of this award to the wife is that one of the substantial joint debts of the parties was for the boat’s engine.

      . The husband, emphasizing that the wife is not in jeopardy, points out that the wife has been able to borrow some funds from her mother. Needless to say, that fact does nothing to enhance the husband’s position.


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

text:
    STATE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. FRAMAT REALTY, INC. and Arthur M. Elliott, Appellees.
    No. AB-496.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 18, 1981.

      Steven W. Huss, Tallahassee, for appellant.
    Michael Egan and Jane Heerema, of Roberts & Egan, Tallahassee, for appellees.
    Stephen W. Metz, Tallahassee, for Florida Home Builders Ass’n, amicus curiae.
   ROBERT P. SMITH, Jr., Chief Judge.

The Department of Health and Rehabilitative Services appeals an order by a hearing officer of the Division of Administrative Hearings declaring invalid the Depart ment’s 1979 rule governing septic tank use in residential subdivisions. Section 120.56, Fla.Stat. (1979). The hearing officer concluded that in promulgating the rule the Department both exceeded its statutory authority and failed to prepare an adequate statement of the economic impact of the rule. We hold the rule was valid as against appellees’ claim that it exceeds the scope of the substantive statute the rule elucidates; this interpretative rule is valid because it represents a permissible interpretation that has been validated by public rulemaking processes that are designed to test and refine the agency’s policy. However, we agree with the hearing officer’s finding that the rule is invalid because its economic impact statement is inadequate by Chapter 120 standards.

This dispute involves interpretation of one of several statutes regulating use of individual septic tanks in Florida, an area of public health specifically committed to the Department’s general supervision and control. Section 381.261, Fla.Stat. (1979). The statute in question, section 381.272(7), Fla.Stat. (1979), authorizes use of septic tanks as follows:

Notwithstanding any other provisions of this chapter, residential subdivisions with a public water system may utilize individual sewage disposal facilities, provided there are no more than four lots per acre and that all distance and setback, soil condition, water table elevation, and other related requirements which are generally applicable to the use of individual sewage disposal systems are met. (Emphasis added.)

Prior to 1979 amendment, the 1977 statute authorized septic tank use provided there were no more than “two lots per acre.”

To gather views on implementing the 1977 statute and to explore general changes in its septic tank regulations, the Department held a workshop in February 1979, receiving recommendations from the Florida Home Builders Association, the Florida Septic Tank Association and the Department of Environmental Regulation. Also under discussion, as a means of implementing the statute, was a “net acre” concept that in calculating “lots per acre” does not count acreage in roads, lakes and certain other areas within a given subdivision. In June 1979, the Department issued notice of a regular section 120.54(3) public hearing on two proposed rules limiting use of septic tanks under section 381.272(7) to subdivisions with two lots per “net usable acre,” excluding lands devoted to common uses and bodies of water. Again interested persons, this time including the Florida Association of Realtors, appeared at the hearing and pressed their views.

Eventually, with the benefit of this input, the Department adopted the rule under challenge, Rule 10D-6.23(3)(g), Florida Administrative Code. As a predicate, Rule 10D-6.23(3)(f) was written:

Notwithstanding any other provisions of this Chapter, residential subdivisions with a public water system may utilize individual sewage disposal facilities provided there are no more than four (4) lots per acre and acre [sic] and that all distance and setback, soil condition, water table elevation and other related requirements which are generally applicable to the use of individual sewage disposal systems are met.

And Rule 10D-6.23(3)(g) provides:

Whenever individual sewage disposal systems are used under the provisions of Section 10D-6.23(3)(f), an acre, as defined elsewhere in this Chapter [defined in Rule 10D-6.22(3) as 43,560 square feet of land], shall not include the following: paved areas, paved and unpaved rights of ways, paved roadways, consolidated buildings, foundation drainage, underground water drainage, streams, lakes, ditches, coastal, waters and marshes. Within any given acre where lots abut open lands, such as golf courses, parks and other open unused areas that are not subject to development, the requirements of Section 10D-6.23(3)(f) may be diminished by not more than ten (10) percent for those lots abutting the open lands, provided that said open lands are not developed, provided further that all distance and set back, soil condition, water table elevation and other related requirements of Chapter 10D-6 are met.

In practice, according to the Department’s environmental health administrator, the rule requires a developer to show, as a condition to installing septic tanks on a platted lot or lots, that the subject lot and any three contiguous lots, excluding the specified common areas platted by the developer, make up at least an acre. An individual lot owner seeking a septic tank permit without regard to the size of the lots around him must have a lot containing at least one-quarter acre. This “four per acre” test, in the words of this administrator, is designed to get “the sewage spread homogenously, if possible, throughout that subdivision.”

The Department urges that its use of a “net acre” concept in defining the statutory “four lots per acre” is in keeping with its statutory duty to protect the public health through safe disposal of sewage. This duty, the Department maintains, is reflected in language of section 381.272(7), conditioning septic tank use on satisfaction of “other related requirements which are generally applicable to the use of individual sewage disposal systems.” Appellees, on the other hand, contend the statute permits septic tanks on every lot of a subdivision if the total acreage in the development, divided by the number of lots, yields an average density of less than four lots per acre. Under this interpretation, every lot in appel-lees’ Monroe County subdivision would qualify for a septic tank, regardless of the size of any individual lot and regardless of the local concentration of numerous small lots, because the whole subdivision contains 50 lots on 12.8 acres, or a “gross” density of 3.93 lots per acre. The Department counters that this interpretation is absurd from a public health standpoint, because it would allow a developer to install large numbers of septic tanks densely in a very small section of his subdivision as long as acreage elsewhere in the subdivision, undeveloped or devoted to less intensive uses, reduces the overall average sufficiently.

We reverse the hearing officer’s order invalidating the rule as beyond the Department’s statutory authority. Whether the Department’s interpretation of section 381.272(7) is the only possible interpretation of the statute, or the most desirable one, we need not say. It is within the range of permissible interpretations of the statute, and that interpretation has acquired legitimacy through rulemaking processes in which those challenging the rule fully participated or had an opportunity to participate. We must remember here one prime goal of the 1974 Administrative Procedure Act: to encourage agencies of the executive branch to interpret statutes in their regulatory care deliberately, decisively, prospectively, and after consideration of comments from the general public and affected parties — that is, to interpret their statutes by rulemaking. We have repeatedly found that other APA processes press the executive inexorably toward rulemaking, although it is not required in all cases:

In McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), the Court surveyed the adjudication and judicial review procedures of Chapter 120 and characterized them as pressing agencies to progress in the development of known policies within statutory limits by “moving from vague standards to definite standards to broad principles to rules.” 346 So.2d 580, quoting K. Davis, Discretionary Justice 55 (1969).

In Hill v. School Board of Leon County, 351 So.2d 732, 733 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1215 (Fla.1978), the Court noted that the APA rulemaking requirements are to some extent “self-enforcing” because affected agencies otherwise must “explicate and defend policy repeatedly” in individual adjudicatory proceedings when agency action affects the substantial interests of parties.

In Albrecht v. Department of Environmental Regulation, 353 So.2d 883, 886-87 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1210 (Fla.1978), the Court pointed out that to the extent an agency “does not refine statutory standards through rulemaking it will be required to explain the policy behind each decision” made in individual cases.

In General Development Corp. v. Division of State Planning, Department of Administration, 353 So.2d 1199, 1209 (Fla. 1st DCA 1977), the Court again told agencies of their responsibility to limit their discretion through proceeding expeditiously to rule-making. When an agency permissibly develops policies through orders in individual cases, the Court instructed, the agency must “expose and elucidate” its rationale.

In Florida Cities Water Co. v. Florida Public Service Commission, 384 So.2d 1280, 1281 (Fla.1980), the Supreme Court, following McDonald, underscored the incentives for rulemaking by warning agencies that if they adopt policy in non-rule adjudicatory proceedings, the record of those proceedings must contain evidence to support their decisions.

In Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177, 1182 (Fla. 1st DCA 1981), this Court further explicated the costs to an agency which declines to proceed by rule and develops policy in adjudicatory proceedings: the agency must create a “record foundation” of evidence supporting the “accuracy of every factual premise and the rationality of every policy choice.” Id.

As these decisions consistently emphasize, the APA plainly regards rules as the valuable endpoint in the agency’s development of policy. Rules represent an agency’s considered decision on issues left to the agency’s decision by a substantive act of the legislature. If we are to regard seriously the incentives for rulemaking under the APA scheme, and if we are to credit the deliberative process that the legislature has prescribed for the development of agency policy, then surely an interpretative rule emerging from this process should be accorded a most weighty presumption of validity. Otherwise the elaborate statutory scheme, pressing for rulemaking and prescribing how it shall be accomplished with maximum public and private participation, has no productive purpose, and it has become only a snare for agency action, a device for the evasion, avoidance, or postponement of effective agency action in its authorized field of responsibility.

When as here an agency has responded to rulemaking incentives and has allowed affected parties to help shape the rules they know will regulate them in the future, the judiciary must not, and we shall not, overly restrict the range of an agency’s interpretative powers. Permissible interpretations of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to some views. If the rule binds too tightly to suit them, the appellee developers have their proper remedy in the representative and politically responsive branches, the legislative or executive, but not in the judiciary, nor in Section 120.56 rule challenge proceedings before a hearing officer.

We affirm the hearing officer’s order concluding that the Department’s economic impact statement is insufficient. The record clearly demonstrates that the economic impact statement lacks the detail and thoughtful preparation contemplated by section 120.54(2). We approve the hearing officer’s finding that

[T]he economic impact statement promulgated by Respondent in the rule-adoption process is erroneous in its conclusion that enactment of Chapter 10D-6, Florida Administrative Code, will result in a cost saving to developers of real estate. To the contrary, the record in this proceeding clearly establishes that the cost of developing a subdivision will increase as a result of the application of the challenged rule. The economic impact statement, because of its method of preparation, is not competent evidence of the facts recited therein, in that it was not prepared by a person or persons with demonstrated ability to make the determinations required by Section 120.54(2), Florida Statutes. In addition, neither of the methodology employed nor the data utilized by the agency in preparing the economic impact statement was sufficiently explicated so as to attach any credibility to the conclusions reached in the statement.

Cf. Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944 (Fla.1979).

Rule 10D-6.23(3)(g) represents an invalid exercise of delegated legislative power because the accompanying economic impact statement is inadequate. Without prejudice to the Department’s reconsideration of the rule in section 120.54 rulemaking proceedings, the hearing officer’s order is AFFIRMED in part and REVERSED in part.

JOANOS, J., concurs.

THOMPSON, J., concurs in part and dissents in part, with opinion.

THOMPSON, Judge,

concurring in part and dissenting in part.

I concur with the court’s affirmance of the hearing officer’s Order regarding the inadequacy of the economic impact statement. Otherwise, however, I must respectfully dissent.

The primary issue on appeal is simply whether the Department may validly redefine the ordinary word “acre.” In my opinion, this issue is controlled by State, Dept. of HRS v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980). In McTigue, this court addressed a situation where a statute used the ordinary word “physician,” and the Department, via a rule, added the requirement that the physician must be a Florida physician. This court held that:

[ajpplying the rule of statutory construction that words are to be given their plain and ordinary meaning, it is obvious that a “physician”, unless the wording of the statute or the context requires otherwise, could be a physician duly licensed under the laws of any state, not just Florida. By adding the requirement that the physician be a Florida physician the rule is an invalid exercise of delegated legislative authority because it modifies the statute by adding an additional criterion to be met by the applicant.

Id. at 456. See also Freedman v. State Bd. of Accountancy, 370 So.2d 1168, 1169 (Fla. 4th DCA 1979).

Under McTigue, the Department had no authority to redefine the word “acre.” This invalid redefinition cannot acquire legitimacy through the rulemaking process. An agency cannot use the rulemaking process to legitimate that which it had no authority to do in the first place.

As the majority points out, “[r]ules represent an agency’s considered decision on issues left to the agency’s decision by a substantive act of the legislature.” But in the present case, there is no legitimate issue as to what an “acre” means. Of course, there may be an issue as to what is meant by the statute’s use of the phrase “no more than four lots per acre.” However the Department did not attempt to interpret by rule this “four lots per acre” limitation. Instead, the Department invalidly redefined the word “acre,” which is not ordinarily subject to different interpretations.


text:
    CITY OF MIAMI, City of Miami Beach, Sol Green, etc., et al., Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida and Board of County Commissioners of Metropolitan Dade County, Florida, Appellees.
    Nos. 81-2152, 81-2153 and 81-2154.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 1981.
    Rehearing Denied Jan. 4, 1982.

      George F. Knox, City Atty., and Mikele S. Carter, Asst. City Atty., John Ritter, City Atty. and Thomas M. Pflaum, Asst. City Atty., Miami Beach, Richard N. Friedman, Miami, for appellants.
    Robert A. Ginsburg, Dade County Atty. and Robert A. Cuevas, Jr., Asst. County Atty., for appellees.
    Franklin D. Kreutzer, Miami, for amicus curiae.
    Before HUBBART, C. J., and DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

The City of Miami and the City of Miami Beach, along with Sol Green and others, owners of Certificates of Public Convenience and Necessity issued by these municipalities, sought to enjoin the enforcement of and have declared invalid Dade County Ordinance No. 81-85. The ordinance provides for county-wide regulation of taxicabs and supersedes and rescinds existing municipal taxicab regulations. The trial court declared the ordinance “valid and enforceable in all respects,” and stayed the enforcement of the ordinance to give the municipalities and individual plaintiffs an opportunity to appeal. We continued that stay in effect during the pendency of our review of the case. We affirm the judgment entered below.

I.

The appellants contend that Ordinance No. 81-85 is invalid because the Florida Supreme Court in Metropolitan Dade County v. City of Miami, 396 So.2d 144 (Fla.1981), held a prior and substantially identical county ordinance invalid. It is clear from the opinion in Metropolitan Dade County v. City of Miami, supra, that the court found the prior ordinance invalid because it conflicted with a state statute, Section 323.052, in existence when the ordinance was enacted.

The Legislature repealed Chapter 323, including Section 323.052, effective July 1, 1980. Chapter 76-168, § 3, Laws of Florida, as amended by Chapter 77-457, § 1, Laws of Florida. The ordinance currently under review, Ordinance No. 81-85, was enacted over one year later on July 21, 1981. Thus, at the time Ordinance No. 81-85 was enacted, there was no state law in existence which limited Dade County’s authority to regulate taxicabs within the municipalities. With the statute’s repeal, the sole legal impediment to Dade County’s authority to regulate taxicabs within municipal boundaries was removed. The decision in Metropolitan Dade County v. City of Miami, supra, does not affect the validity vel non of Ordinance No. 81-85.

H.

Ordinance No. 81-85 was enacted pursuant to the authority of Article 1.01(A)(3) of the Dade County Home Rule Charter, as amended by the voters in a county-wide election in March 1976. That amendment removed the Home Rule Charter’s limitation on Dade County’s authority to regulate taxicabs only in the unincorporated areas of the county and expanded such authority to include the entire county. The appellants contend that the Charter amendment, at the time of its enactment, conflicted with Section 323.052, making the amendment invalid at its inception. Again their reliance on Metropolitan Dade County v. City of Miami, supra, is misplaced. The case did not hold Section 1.01(A)(3) of the Charter to be in conflict with the statute.

In Jordan Chapel FreeWill Baptist Church v. Dade County, 334 So.2d 661 (Fla. 3d DCA 1976), we held:

“The sole test of conflict ... is the impossibility of co-existence of two laws. Courts are therefore concerned with whether compliance with a County ordinance requires a violation of a state statute or renders compliance with a state statute impossible.” 334 So.2d at 664 (emphasis in original).

See also State ex rel. Dade County v. Brautigam, 224 So.2d 688 (Fla.1969); City of Hialeah v. Martinez, 402 So.2d 602 (Fla. 3d DCA 1981); E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970). Applying that test to the Charter provision and Section 323.052, the two are not in conflict. The Charter amendment is a grant of power to the Board of County Commissioners to regulate taxicabs throughout the County. The method of exercising that power was governed by Section 323.052, for so long as such statute was in effect. Metropolitan Dade County v. City of Miami, supra. Section 1.01(A)(3) originally limited the County’s authority to regulate taxicabs to the unincorporated areas of Dade County only. Notwithstanding such limitation in the Charter, Section 323.052 granted Dade County the power to regulate some aspects of taxicab operations within the cities, e.g., the power to set uniform rates and charges “throughout said county, including the incorporated and unincorporated areas.” By removing the territorial restriction on the County’s authority areas, the 1976 amendment to Section 1.01(A)(3) allowed the County to avail itself, should it choose to do so, of the full powers then permitted by Section 323.052.

III.

Last, the appellants contend that neither the Dade County Home Rule Amendment to the Florida Constitution nor the Home Rule Charter expressly authorizes the County to supersede and rescind existing municipal taxicab regulations, and that in the absence of such express authorization, Ordinance No. 81-85 is invalid. A like contention was rejected in Miami Shores Village v. Cowart, 108 So.2d 468 (Fla.1958). There the Village challenged a county-wide traffic ordinance applicable in both the unincorporated and the incorporated areas of Dade County. By its terms, the county ordinance superseded and nullified all existing municipal traffic ordinances. The fact that neither the Dade County Home Rule Amendment nor the Home Rule Charter expressly authorized the County to preempt the field of traffic regulation, did not affect the validity of the ordinance there and does not affect the validity of Ordinance No. 81-85.

Affirmed.

      . Section 323.052 was enacted in 1974, Chapter 74-131, § 1, Laws of Florida, and remained in effect, unchanged, until July 1, 1980. The conflict arose from subsection (3), which provided:
      “(3) Any municipality regulating and licensing for-hire passenger motor vehicles on July 1, 1974, shall retain all its existing powers under this chapter ... unless such authority is transferred to the county by a majority vote of the governing body of the municipality.”
      Section 323.052 limited the method by which charter counties could regulate taxicabs within municipal boundaries.

      . We find further support for our holding in the Supreme Court’s disposition of a post-decision motion in Metropolitan Dade County v. City of Miami, supra. After Ordinance No. 81-85 was enacted, the City of Miami applied to the Supreme Court in Metropolitan Dade County v. City of Miami, supra, for “A Contempt Order to Enforce Compliance With This Court’s Mandate.” The City argued that nothing had transpired since the issuance of the court’s opinion which granted Dade County additional authority to supersede and nullify municipal taxicab regulation within the cities of Miami and Miami Beach and that therefore, by enacting Ordinance No. 81-85, Dade County was in willful contempt of the court’s mandate therein. The Supreme Court denied the City’s motion.

      . Indeed, the Supreme Court affirmed the trial court’s finding that the prior ordinance was “... properly enacted pursuant to section ll(l)(d) [The Home Rule Amendment to the Florida Constitution] and the county home rule charter.” 396 So.2d at 146.

      . In Miami Shores Village, the Supreme Court found ample authority for the enactment of the ordinance in Section ll(l)(b) of the Home Rule Amendment which authorized the Board of County Commissioners to “... do everything necessary to carry on a central metropolitan government in Dade County.” The court construed Section ll(l)(b) to mean that the County could:
      “... regulate on a county-wide basis according to a uniform plan those municipal services or functions that are susceptible to, and could be most effectively carried on under a regulatory plan applicable to the entire metropolitan area....” 108 So.2d at 471 (emphasis added).
      and declaring the ordinance valid, held traffic control to be a municipal function that could be most effectively carried on under a uniform plan of regulation applicable to the County as a whole. The appellants in the present case do not contend that the function of regulating taxicabs is not susceptible to and cannot be most effectively carried on under a uniform plan of regulation applicable to the County as a whole. Their only contention is that the County’s procedures were defective.


text:
    Patricia Ann SELZNICK, Appellant, v. Lewis Jeffrey SELZNICK, Appellee.
    No. 81-476.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Rehearing Denied Jan. 6, 1982.
    Michael Lechtman, North Miami Beach, for appellant.
    Marc A. Kuperman, Coral Gables, for ap-pellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

This is an appeal by the wife from that portion of a final judgment of dissolution of marriage that denied her claims for alimony and a special equity in the proceeds which she alleges the husband derived from Ann Selznick, Ltd., a business principally owned by the wife.

It is a well settled rule in alimony and property settlement cases that the trial judge is vested with much discretion in determining these issues. An appellate court should not disturb the trial court’s judgment in such matters, unless it has abused its discretion. Our Supreme Court has adopted the following standard for review of a judge’s discretionary power:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (citation omitted).

After carefully considering the briefs and record on appeal, we have determined that the trial court did not abuse its discretion and that no reversible error has been demonstrated. Therefore, the judgment appealed is affirmed.

Affirmed.


author: OTT, Judge.

text:
    Scott Dale WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 81-57.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.
    Rehearing Denied Dec. 22, 1981.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of burglary, robbery, and sexual battery. We find merit in his contention that the trial court committed reversible error in permitting the state to present evidence, over appellant’s objection, of another sexual assault.

It has long been the rule in this state that evidence of an independent crime is inadmissible if its only purpose is to blacken the character of the defendant or suggest his propensity for criminal conduct. Williams v. State, 110 So.2d 654 (Fla. 1959). Where, as here, the identity of the defendant is a material issue, evidence of a collateral crime to which the defendant can be positively connected is relevant, but it is not admissible unless there is more than a mere general similarity between the two crimes. Davis v. State, 376 So.2d 1198 (Fla.2d DCA 1979). Accordingly, we must compare the details of the two crimes in order to determine whether that rule was violated here.

The victim of the sexual assault with which appellant was charged in the instant case was a 76-year-old woman who was unable to identify her assailant. She resided alone in an apartment complex for the elderly and appellant was employed there as a maintenance man. The victim testified that her attacker awakened her by tapping her shoulder, and he told her not to make any noise or movements, that he had a gun and would shoot her. He told her he wanted her diamonds and her money. He immediately taped her eyes with Scotch or masking tape or other sticky material, tore up a sheet from the bed and wrapped it around her head. He tied her legs and coerced her into telling him where she kept her jewelry, diamonds, and money. After securing all her jewelry from her jewelry box, the money from her pocketbook and her wedding ring from her finger, he then proceeded to commit the sexual battery. She did not remember whether he said anything during the commission of the sexual battery. While tying her up and taking her jewelry and money, he talked and mumbled in a different voice from that employed in voicing a remorseful prayer after completion of the sexual battery. He told her he was in his 20s — “22, I think” — and had a wife and children. Another witness testified that the victim told him her assailant said he was 32 or 34 and had a wife and two children.

Medical experts established that there was no injury or marks of abuse on the victim other than from forcible sexual relations.

The victim of the other sexual battery was a 15-year-old female. Insofar as pertinent here, the testimony as to the collateral crime was as follows:

The victim testified she was out for a stroll on the beach about 9 p. m. A man casually approached her, suddenly grabbed her from behind, stuck a knife in her back, and told her that if she didn’t scream he wouldn’t hurt her. He led her up some steps, cautioned her not to look at him, put some tape like that used for bandages over her eyes, and told her he needed help. He then put her in a car and drove some distance to a vacant house, talked about needing to get away from the police and that he would leave her there — that he was using her as a hostage. He told her he was 42 years old and from Georgia.

When they reached the vacant house the abductor lit up a marijuana cigarette and gave it to the victim, which she shared with her abductor. He began to struggle with her and had to push the bandages back over her eyes a number of times. The bandages were a little sticky but would slip off her eyes. He told her he would leave her alone if she would turn over on her back. Then he cut a lamp cord with his knife and tied her arms up. He got a sheet or a curtain, ripped off a piece and wrapped it around her eyes, but did not tie it tight enough to keep it from sliding off her eyes. She saw him clearly several times and positively identified appellant as her assailant. She testified he hit and punched her several times and then raped her. After completion of the first sexual battery he took her outside into a field and told her that was where he had first intended taking her.

The victim stated she had on earrings and a necklace but her assailant made no effort to bother them. After the second assault (apparently in the field or woods outside), he began to insert his finger in her vagina which he stated was to clean her up — that he was 42 years old, had been through this before and knew what he was doing.

She said his voice was peculiar, changed a lot and sounded like that of a deranged person, spaced out on drugs or something. She thought the strange voice was intended to mislead her. Her assailant was not wearing a shirt.

The second victim’s testimony was followed by detailed testimony of the officer who investigated the collateral crime and arrested appellant therefor.

The state argues that there was more than “a mere general similarity” between the two crimes, as required by Duncan v. State, 291 So.2d 241 (Fla.2d DCA 1974). Those similarities are said to be (1) the assailant in both crimes admonished his victims not to scream or make any noise, (2) the eyes of both victims were taped and then wrapped with material torn from a sheet or a curtain, (3) both victims were tied up, (4) both victims were raped, (5) the assailant spoke in a strange voice to disguise his real voice, and (6) in each crime the assailant told each victim about himself — although his story varied on the two occasions. The state asserts that those similarities are so unique as to point to only one person — the appellant.

We think that the similarities between the two cases are those that are apt to appear in any rape case and that they fall far short of furnishing a basis for inference that appellant was the attacker.

Accordingly, we REVERSE the conviction of appellant and REMAND the case for a new trial on all counts.

SCHEB, C. J., and RYDER, J., concur.


text:
    Jose R. LOPEZ, Appellant, v. Amourie LLORENS and Carmen Llorens, Appellees.
    No. 80-2326.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.
    Rehearing Denied Jan. 6, 1982.
    A. John Goshgarian, Miami, for appellant.
    Gary B. Sack, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Allen v. Estate of Dutton, 394 So.2d 132 (Fla.5th DCA 1980); Moore Meats, Inc. v. Strawn, 313 So.2d 660 (Fla.1975); Rules 1.280(c)(2)and 1.330(a)(3), Fla. R.Civ.P.


author: BERANEK, Judge.

text:
    COSMO PERSONNEL AGENCY OF FORT LAUDERDALE, INC., Appellant, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, Appellee.
    No. 80-1019.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.

      R. E. Conner, Plantation, for appellant.
    Ollie L. Evans, Miami, for appellee.
   BERANEK, Judge.

Cosmo Personnel Agency appeals from an order entered by the Director of the Division of Employment Security finding that Cosmo’s employment counselors are employees under Chapter 443, Florida Statutes (1979), the Unemployment Compensation Act, and that Cosmo is liable under that Act. We reverse.

Cosmo is a licensed employment agency which was previously governed and regulated by Chapter 449, Florida Statutes (1979). Since January 1, 1974, Cosmo has contracted with persons licensed as employment clerks under Chapter 449, for their services as employment counselors. The contract requires two weeks’ training without pay. Following this, each counselor is assigned a geographical area of primary responsibility. Cosmo provides secretarial help, office space, and phone service; however, the counselors pay for this. The counselors may also hire and fire their own employees. They are paid a monthly stipend which represents the amount of their commissions less operating expenses and a percentage paid to the Cosmo agency. No taxes or other deductions are withheld.

The president of Cosmo provides supervisory assistance to the counselors upon request. Counselors set their own work hours and submit weekly reports to Cosmo. Cos-mo sets all rates according to state regulation and handles billing. Cosmo’s trade name is used in conducting business. A non-competitive agreement is signed by each counselor prohibiting similar employment within 50 miles for two years after termination. Either party may cancel the contract without cause.

The Special Deputy, in his findings of law, and the Director, in her order, relied primarily on Chapter 449 in determining that the counselors are employees. They concluded that because Section 449.01(9) defines such individuals as employees, they must also be employees for purposes of unemployment compensation under Chapter 443.

Use of the definition found in Chapter 449 to establish the individuals in question as employees under Chapter 443 was improper. Under the view adopted by the Director herein, Chapter 449 would automatically preclude every employment agency from contracting with an independent contractor, and we are convinced that Chapter 449 was not so intended. Thus, the Director’s finding that the employment counselors performing services for Cosmo are employees as a matter of law is erroneous. Moreover, the determination that the counselors are employees is not supported by the facts in the record. All the evidence at the hearing held before the Special Deputy demonstrated that Cosmo exerted no control over the details of the counselors’ work, but rather, was concerned only with the end result, i.e., profits earned. As such, the counselors are properly categorized as independent contractors rather than as employees. See Florida Gulf Coast Symphony, Inc. v. Department of Labor and Employment Security, 386 So.2d 259 (Fla.2d DCA 1980); Jean M. Light Interviewing Services, Inc. v. State, 254 So.2d 411 (Fla.3d DCA 1971).

Accordingly, the order appealed from is reversed.

REVERSED.

DOWNEY and MOORE, JJ., concur.

      . Chapter 449, governing employment agencies, was repealed in its entirety by Chapter 76-168, Laws of Florida, effective July 1, 1980.


author: DOWNEY, Judge.

text:
    Mose KING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-194.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.
    Larry S. Weaver of Brown & Weaver, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Mose King, Jr., appeals from a judgment of guilty of attempted burglary and from a sentence of five years.

King poses four points on appeal, none of which constitutes reversible error. We feel, however, that one of the four points deserves comment. Therein King contends the prosecutor violated his constitutional right to remain silent by certain questions propounded to King and by the prosecutor’s closing argument. We believe King is correct in that contention and would feel compelled to reverse for a new trial if the error had been properly preserved.

King, in an attempt at accounting for his fingerprints’ being found at the scene of the burglary, took the stand and related a story of having gone to the home of the burglary victim in response to the phone call of an unidentified third party ordering some landfill. King said he knocked on the jalousie door and got no answer, so he opened the door and knocked again on an interior door. When he received no answer he departed.

While King was on the witness stand, counsel and the judge held a sidebar conference, in which the prosecutor advised the court that he intended to ask King to whom he had told that story before testifying at trial. The trial judge advised counsel he would allow the inquiry. Accordingly, the prosecutor asked King:

“Q. Mr. King, you have taken the stand here today after hearing all of the witnesses testify and you told the jury your side of how your prints got inside this woman’s house; is that right?
A. Yes.
Q. Okay. Well, that five months period up until today, tell me, Mr. King, who did you tell that story to knowing that it could possibly absolve you from criminal charges? Who did you tell your story to, supposedly that you had been delivering dirt?
A. That’s the only thing I could come up with because this is what happened.
I’m telling you what happened in my behalf; how my fingerprints could have got there, not because I burglarized this woman’s house.”

At the time of his arrest King had been advised of his right to remain silent and he elected to do so. During trial he elected to take the stand and tell his story. The prosecutor’s efforts to belittle that story by asking if King had ever told anyone else the story during the five or six months prior to trial is an invasion of King’s constitutional right to remain silent. In his brief King candidly admits that no objection was made to this inquiry or to the prosecutor’s comments in the closing argument but argues that the prosecutor’s conduct was such a gross violation of his constitutional right to remain silent that it constituted fundamental error. We disagree that it was a fundamental error, relying on Clark v. State, 363 So.2d 331 (Fla.1978), and hold the error was not properly preserved for appellate review.

Accordingly, the judgment and sentence appealed from are affirmed.

GLICKSTEIN and BELL, JJ., concur.


author: ORFINGER, Judge. COWART, Judge,

text:
    Carlos Wayne HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1115.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, and Julianne Piggotte, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant challenges his conviction for burglary of a dwelling on the ground, among others, that the trial court erred in not granting his motion to dismiss the information based on the specific ground that it failed to allege that appellant’s entry into the dwelling was without the consent of the owner or occupier. On this point, the issue is whether a non-consensual entry is a necessary element of the crime of burglary which must be alleged and proved by the State, or whether consent is a matter of defense to be raised and proved by defendant. We hold that under the current burglary statute, non-consent to the entry is an essential element of the crime which must be alleged and proved by the State.

Section 810.02(1), Florida Statutes (1979), defines the crime of burglary as:

“Burglary” means entering or remaining in a structure or conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

In State v. Thompson, 390 So.2d 715 (Fla.1980), the Supreme Court confirmed the rule of construction asserted in Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), as follows:

In a statutory offense, it depends very much, though not exclusively, on the words of the statute, whether a particular matter is one of defense, or whether the negative of the matter enters into the definition of the crime. Therefore, as a general rule, we have what has already been laid down, namely, “if there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception: but, if there be an exception in a subsequent clause, or subsequent statute, that is a matter of defense, and is to be shown by the other party.”

Baeumel, 7 So. at 372.

In Baeumel, the statute in question required all dealers in “spirituous, vinous or malt liquors” to pay a fee and secure a license before engaging in such sales, and all persons who sold such beverages were deemed dealers within the meaning of the act. There then followed a proviso that druggists could use such liquors in the preparation of prescriptions without being required to have such license. A defendant charged with violating the statute argued unsuccessfully that in order.to charge him with a crime under the statute it was necessary for the State to allege and prove that he was not a druggist, but the trial court held and the supreme court agreed that

The enacting clause of the act ... under which plaintiff in error was convicted contains no exception or provision as to druggists, and therefore it was not necessary for the indictment to allege that the accused was not, at the time of the alleged sales, a druggist...

Id. at 373.

In Thompson, the court applied the same principle to section 790.221, Florida Statutes (1977), the statute proscribing possession of short barrelled rifles, short barrelled shotguns or machine guns, and held that the antique firearm exception in the statute was a matter of defense, rather than a necessary element of the crime to be alleged and proved by the State, because of the placement of the exception language in the statute.

Applying the simply stated but difficult to apply rule to the issue at hand, we discern that in the current statute, the legislature has made the element of non-consent a part of the “enacting clause.” Section 810.-02(1) states the legislative definition of burglary, and that definition includes the phrase “... unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” If we eliminate this language in identifying the crime, we use only part, but not all, of the statutory definition.

Prior to 1974, the burglary statute required a breaking and entering. Under that statute, the Supreme Court held that non-consent of the owner of the building was not an element of the crime, although it defined the element of “breaking” as the actual or constructive use of force in effectuating an unconsented to entry. State v. Jackson, 281 So.2d 353 (Fla.1973). Thus, even under that statute, non-consent to enter was inferentially alleged when the information charged a “breaking,” and had to be proved by either direct or circumstantial evidence.

When the legislature adopted the current statute, it eliminated “breaking” as an element, but it did not eliminate non-consent as a necessary ingredient of the crime. Under the old statute, the allegation in an information that a defendant did “break and enter” of necessity was an allegation that the entry was without consent. With the elimination of “breaking” as an element of the crime, the legislature placed the still present ingredient of non-consent into the statutory definition as an element of the crime. Whereas under the old statute non-consent was in effect alleged when a “breaking” was alleged, with “breaking” no longer required, it is necessary to directly allege the element of non-consent.

An information must allege each of the essential elements of a crime to be valid; no essential element should be left to inference. State v. Dye, 346 So.2d 538 (Fla.1977). Since the information omitted an essential element of the crime of burglary, which omission was specifically raised in the motion to dismiss, the court erred in not dismissing the information.

Since we hold that the motion to dismiss the information should have been granted, we need not discuss appellant’s remaining points on appeal. The judgment of conviction is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

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

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The crime of burglary is defined by section 810.02(1), Florida Statutes (1979):

“Burglary” means entering or remaining in a structure or conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

Sections 810.02(2) and (3) declare that this crime is punishable as a third degree felony or, if additional elements are alleged and proved, authorize more serious penalties to be imposed.

The majority holds that the State is required to allege and prove in its case in chief nonconsent to enter the premises. I would hold that consent is an affirmative defense, to be raised by the defendant.

Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), states the correct test:

[I]f there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; .but, if there be an exception in a subsequent clause, or subsequent statute, that is matter of defense, and is to be shown by the other party.
Id. at 372. [emphasis added].

The supreme court recently applied this test in State v. Thompson, 390 So.2d 715 (Fla. 1980), to determine whether, in the crime of possession of a short-barreled shotgun, the State was required to allege and prove that the shotgun was not antique. The statute, in pertinent part, provided:

It is unlawful for any person to own or have in his care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.
§ 790.221(1), Fla.Stat. (1977).

The court, relying on the above emphasized language in the Baeumel test, held that the antique firearm exception was contained in a clause separate from the enacting language, and thus established a defense, the burden of which was on the defendant to raise.

The burglary statute defines the crime as entering or remaining with the requisite intent, “unless ... the defendant is licensed or invited to enter or remain.” The issue of consent is treated in a separate clause from the enacting language of the statute and under the analysis of Baeumel, Thompson and other cases, should therefore be considered an affirmative defense and not a fact to be negated by the State in its pleading and proof.

While, as the majority observes in footnote 3, the word “unless” is a conjunction joining a subordinate adverbial clause to the rest of a sentence it is also one of a group of conjunctions, common in law, which qualifies the main sentence. Other such words are “as long as” (as used in language describing any contractual condition subsequent), “provided, however,” “but,” “except” and “subject to.” These terms are usually found where the main sentence broadly states or creates rights or duties in favor of one potential group of litigants (protagonists) which can be expected to be asserted against another group of litigants (antagonists), while the qualifying clause or phrase defines excluded or excepted matters which can be expected to be asserted by the antagonists as a limitation on the rights stated broadly in the main sentence in favor of their opponents.

Aside from pure statutory construction, the essential question involved in determining whether the State should be required in the first instance to allege and prove non-consent, or whether the question of consent should be left for the defendant to raise as an affirmative defense or matter in avoidance, is one of proper apportionment of the task of adducing evidence or allotting the burden of proof. Since the State must prove as part of its case in chief that the accused’s act of entering or remaining in the structure was wrongful in that it was “with the intent to commit an offense therein,” there is no constitutional problem involved concerning the prohibition of conduct essentially innocent or any encroachment upon the presumption of innocence initially in favor of an accused. Therefore, the burden of proof, or risk of non-persuasion, as to consent or nonconsent should be allocated according to the usual and logical rules of law. That burden is often said to be upon the party who has pleaded the fact alleged or the party to whose case the fact is essential. However, that usual inquiries beg the question in this case because that is the very matter in question. Besides, since this is a criminal case there is no affirmative pleading burden on the accused.

Another consideration often suggested is that the burden of proving a fact should be on the party who presumably has peculiar means of knowledge enabling him to prove its truth or falsity. This usually means the one who will benefit from the assertion and proof of an affirmative, positive, specific fact, as distinguished from the difficulty of proving a negative — a “nothing” — which is like swatting at unseen sand flies, an unseemly exercise in an orderly trial. This concept of putting the burden of proof on the one who should know of the positive fact that will benefit himself usually has the advantage of fairness and of eliminating the useless, time consuming and futile attempt to prove a negative assertion.

As a matter of policy, in fairness and in the light of experience in the abuse of practice in similar situations, the burden of asserting consent here should fall on the accused. First, the practical problem is that in nearly every burglary case it can be readily suggested by the defense that any one of many persons could give exonerating consent. In burglary of dwellings commonly the owner, the landlord, the tenant, their spouse, child or servant or any occupant will be suggested to be a person who might give consent. In burglary of business structures the owner, every officer or employee of a corporate owner or business tenant, any occupant and their every agent and others will be readily suggested by the defense as some of the persons that the State must bring to court in every burglary trial in order to prove “beyond a reasonable doubt” that the accused did not have consent from anyone who would have given consent. If it is held that the burden is initially on the State in its case to negative all arguable sources of consent, then, similar to the situation in circumstantial evidence cases, the trial court will be faced with endless and unanswerable motions for judgments of acquittal where the defense argues that the State’s proof is insufficient because, among other reasons, the State has not negatived a particular hypothetical source of consent and, thus, has not established a prima facie case. The same argument will be made to the jury as the basis for an reasonable doubt as to guilt. On this point the State will never be able to satisfy the imaginative defense counsel and the jury will be bewildered by the magnitude and ferocity of what should be a tame issue. On the other hand, in a case where the accused did honestly rely on a consent the defense can readily direct the inquiry to the source of the consent asserted and that issue can be efficiently considered on a motion under Florida Rule of Criminal Procedure 3.190(c)(4) or by the jury after trial of that issue in the defense’s case. It should also be remembered that the weight of the burden of proof of the accused is much less than that of the State because the State has to carry its burden of persuasion to the point of excluding every reasonable doubt from the mind of every member of the jury, but the accused’s “burden of proof” is actually never more than to merely present evidence sufficient to create or raise a reasonable doubt. The majority holding will set the State and the jury up to face the ingenious arguments of defense counsel suggesting an endless number of faceless phantoms, any of whom could have— “might have” — consented to the particular entry in question and none of whom the State has called for negative testimony.

If, as the majority states, nonconsent as a concept was inferentially included in a “breaking” as an element of the offense of burglary prior to 1974, then the legislature’s elimination of “breaking” as an element of burglary should be held to have also swept away the inference of nonconsent that the word “breaking” carried within it. There is no logic in holding that the legislature eliminated “breaking” as an element of burglary but that its shadow and spirit and purpose remains and must be met and fed in every case by the State. The better rule would appear to be, as it is in other affirmative defenses, that the defense must first come forward with evidence (not just suggestions and contentions) of consent sufficient to create a doubt and then the State would have the burden of coming forward with evidence sufficient to convince the jury beyond a reasonable doubt that there was no effectual consent from the source indicated by the evidence on which the defense relies.

The listing in the Florida Standard Jury Instructions in Criminal Cases of an instruction referring to the nonconsent of some one named person illustrates one of the undesirable consequences of misusing the court’s legitimate rulemaking power to stamp prior approval on the jury instruction embodying substantive law. The rejection by the majority in Cladd v. State, 398 So.2d 442 (Fla.1981) (cited in note 4 to majority opinion herein) of Cladd’s contention that because he was the husband of the possessor of the burglarized structure the State could never establish the wife’s nonconsent, while a backhanded reference to a burden of proof, was certainly not the point in that case. Cladd’s rejected contention actually was that, to enter into the presence of his own wife, a husband did not have to be invited or to obtain anyone’s consent, even that of the wife, even if she had confined herself in a dwelling of which, as to the rest of the world, she had, and was entitled to, exclusive possession. As indicated above, even if nonconsent in a burglary case is left as an affirmative defense, the State will still have the ultimate burden of convincing the jury beyond a reasonable doubt as to that affirmative defense when it is asserted.

The failure of an information to allege an essential element of a criminal offense does constitute fundamental error. Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981). Informations charging burglary in Florida have generally not alleged nonconsent and that fact coupled with the majority’s opinion opens the prison doors to most burglars convicted since 1974 in the whole state of Florida. This is hardly a result favoring the majority’s construction of this burglary statute when there is an alternative construction with so many advantages.

I would therefore hold that consent to entry or remaining is an affirmative defense to burglary, and is not a fact required to be negated by the State by allegations in an information and by negative proof as an element of the crime of burglary, and would affirm appellant’s conviction.

      . The information alleged that appellant:.
      Did unlawfully commit a burglary by entering or remaining in a structure, to-wit: Dwelling, the property of Leonard Terry, as owner or custodian, located in the vicinity of 1706 West 12th Street, Sanford, with the intent to commit theft therein, and during the commission of such burglary did arm himself with a dangerous weapon, to-wit: a shotgun or pistol as defined by section 790.001(6), Florida Statutes, in violation of sections 810.-02(1), 810.02(2)(b), 775.087(2), Florida Statutes.

      . For other cases applying this principle in different contexts, see: State v. Buchman, 361 So.2d 692 (Fla.1978), (sale of unregistered securities); State v. Kahler, 232 So.2d 166 (Fla.1970), (possession of certain unlabeled drugs as prima facie evidence that possession is unlawful); Benitez v. State, 172 So.2d 520 (Fla.2d DCA 1965) (possession of firearms by convicted felons).

      . Grammatically, the word “unless” is considered a subordinating conjunction, thus it precedes and connects a subordinate clause or a dependent clause, with the remainder. See Harbrace College Handbook p. 474 (7th Ed. 1972), p. 474.

      . Significantly, it is of interest to note that section 2.07 of the Florida Standard Jury Instructions in Criminal Cases, Second Ed. (1975) states that one of the essential elements of the crime of burglary which must be proved beyond a reasonable doubt is that:
      1. The defendant did enter (did remain in) a structure (conveyance) owned by or in the possession of (person alleged) without the knowledge or consent of (person alleged) at a time when such structure was not open to the public.
      Of interest also is the inference, at least, that non-consent is an essential element of burglary, found in the majority opinion in Cladd v. State, 398 So.2d 442, (Fla.1981) viz:
      We reject the defendant’s contention that the marriage relationship and the right of consortium deriving therefrom preclude the State from ever establishing the nonconsensual entry requisite to the crime of burglary .... (emphasis added). Id., at 444.

      . For other cases applying the Baeumel test, see State v. Buchman, 361 So.2d 692 (Fla.1978), and Benitez v. State, 172 So.2d 520 (Fla.2d DCA 1965).

      . “Clause,” for purposes of the Baeumel test, was defined by the Supreme Court as “a word group formed by subject and predicate elements but constituting a member of a complex or compound sentence instead of ranking as a completed sentence.” 390 So.2d at 716, n. 3.

      . Currently, of the four judicial circuits in the fifth appellate district, only one, the Ninth Judicial Circuit, customarily uses a standard burglary count that contains additional language to the effect that the premises were not open to the public and that the defendant was not licensed or invited to enter or remain.

      . See Dillon v. Chapman, 404 So.2d 354 (Fla. 5th DCA 1981) (on Motion for Stay).


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Joseph Francis KELLY, Appellee.
    No. 80-1302.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.
    As Modified Dec. 18, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Tom Grogan, Naples, for appellee.
   DANAHY, Judge.

This case presents the difficult question of what constitutes a “criminal episode” as that phrase is used in our speedy trial rule. The state appeals from an order of the trial court which granted the appellee’s motion for discharge for the state’s failure to bring him to trial within 180 days. We agree with the trial court and affirm the order.

During the execution of a search warrant at the residence of Robert Zhender, Detective Caperton discovered several rings and two pistols. One of the pistols was a .45 caliber model and the other was a .38 caliber weapon. Zhender explained that he had purchased the .45 caliber pistol and the .38 caliber pistol from the appellee for $90.00 and that the appellee had told him that the guns were stolen.

Detective Caperton arrested the appellee on June 15, 1979, for allegedly trafficking in jewelry and the .38 caliber pistol. Additionally, Caperton told appellee he was going to arrest him for trafficking in the .45 caliber pistol. At the hearing on the motion for discharge, the detective explained that the appellee was not arrested on June 15, 1979, for trafficking in the .45 caliber pistol because, while the owner of the gun had filed a uniform crime report notifying police of its theft one year earlier, he had never filed a sworn complaint which, under police procedure, was necessary prior to an arrest being made.

In February of 1980 a sworn complaint was finally filed by the owner of the .45 caliber pistol, and the appellee was arrested for trafficking in that item. Later the state entered a nolle prosequi to all of the charges pending against the appellee.

The state again charged the appellee with trafficking in the .45 caliber pistol on March 4, 1980. The appellee moved for discharge under the speedy trial rule. The trial judge granted the motion after he concluded that this charge arose out of the same criminal episode as the charge for which the appellee had been arrested on June 15, 1979.

Florida Rule of Criminal Procedure 3.191(a)(1) provides that a defendant must be brought to trial within 180 days of being taken into custody for a felony. As defined in subsection (a)(4) of the rule, a person is taken into custody at the time he or she is arrested for the conduct or criminal episode that gives rise to the crime charged.

In the case at bar, the state contends that the trafficking in the .45 caliber pistol did not arise out of the same conduct or criminal episode as the trafficking in the .38 caliber pistol. Therefore, the state maintains that the speedy trial time did not commence on the charge relating to the .45 caliber pistol until the appellee was arrested in February, 1980. The appellee argued, and the trial judge correctly ruled, that trafficking in the two pistols constituted one criminal episode and thus the 180-day period began on June 15, 1979.

The definition of a criminal episode for speedy trial purposes involves a broader concept than the determination of what constitutes the same offense for double jeopardy purposes. Bryant v. Blount, 261 So.2d 847 (Fla. 1st DCA 1972); State ex rel. Meyer v. Keough, 325 So.2d 75 (Fla. 2d DCA 1976). We have previously held that for speedy trial purposes, even though the same conduct gives rise to separate offenses, both must be tried within the speedy trial time. Crain v. State, 302 So.2d 433 (Fla. 2d DCA 1974). Recently, the third district held that a criminal episode requires more than a relationship between separate offenses; rather, as we had noted in Crain, the court explained that a criminal episode requires that the same conduct or episode give rise to different consequences. State v. Stanley, 399 So.2d 371 (Fla. 3d DCA 1981).

In the case at bar, the conduct which gave rise to the arrest for trafficking in the .38 caliber pistol and the charge for trafficking in the .45 caliber pistol were the same — the single sale of those two items to Zhender. Therefore, the 180-day time period commenced on June 15, 1979, when the appellee was arrested for trafficking in the .38 caliber pistol, and the time period expired before the appellee moved for discharge.

We note that the state also contends that the speedy trial time did not begin on June 15 because the standard procedure of the police department was not to file charges until a sworn complaint had been received. This contention misses the point. The Florida speedy trial rule requires that the state bring a defendant to trial within a specified period. Neither a police department nor the state attorney’s office may circumvent this requirement by means of its charging or prosecuting procedures.

Finally, we note that the trial judge apparently relied heavily on our prior decision in Keough. We agree that there is dicta in that case which supports the trial judge’s ruling. However, we take this opportunity to again reiterate that the holding in Keough was expressly limited to the particular facts in that case, and nothing we have said in the ease before us should be considered as extending Keough.

In summary, we hold that trafficking in the .38 caliber pistol and in the .45 caliber pistol constituted a single criminal episode and that the time for speedy trial commenced on the day the appellee was arrested for trafficking in the .38 caliber pistol. Accordingly, we affirm the trial judge’s order discharging the appellee.

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

      . Of course, the state may not circumvent the speedy trial rule by entering a nolle prosequi to a crime and filing a new charge based on the same conduct or criminal episode. Fla.R. Crim.P. 3.191(h)(2).


author: PER CURIAM. ANSTEAD, Judge,

text:
    James H. KNOWLES, Appellant, v. STATE of Florida, Appellee.
    No. 80-1614.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

HERSEY and DELL, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

Although I concur in the majority’s holding that the appellant’s multiple convictions and sentences for manslaughter should be affirmed, I write separately only to comment on one aspect of appellant’s claim that the trial court erred in determining that appellant’s statement to the police was given voluntarily. Since there was conflicting evidence presented on the issue and the trial court evaluated such evidence firsthand, I do not believe error has been demonstrated. However, it is undisputed, and, indeed, recorded on tape, that the police officer who secured appellant’s statement first informed appellant:

“. .. that this statement is taken primarily in order to refresh your memory at the time you may be called upon to testify, when this matter goes to Court.”

In my view this representation by the police officer was completely improper and only served to increase the burden of the state to prove that appellant’s statement was indeed given voluntarily. Here the state was able to meet that burden to the satisfaction of the trial court despite the interrogating officer’s obvious misrepresentation as to the primary purpose of interrogating the appellant. See, generally, Hawkins v. Wainwright, 399 So.2d 449 (Fla. 4th DCA 1981). However, in other instances such conduct on the part of the police may well be the factor that tips the scales against a finding of voluntariness.


text:
    Robert Brent EVANS and Industrial Fire and Casualty Insurance Company, Appellants, v. John KABBES, Appellee.
    No. 81-595.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 1981.
    John W. Campbell of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.

      Patrick H. Dekle and Hal P. Dekle, Tampa, for appellee.
   OTT, Judge.

In this personal injury action the trial court granted appellee’s motion in limine and ordered appellant not to present evidence, inquire of any witness or argue to the jury concerning any benefits appellee received from collateral sources as a result of his injuries. The basis of appellee’s motion and the court’s order was that sections 627.736(3) and 627.7372, Florida Statutes, are unconstitutional.

The Florida Supreme Court has now held those statutes constitutional. Purdy v. Gulf Breeze Enterprises, Inc., 403 So.2d 1325 (Fla.1981). The opinion in that case considers and rejects the various arguments and theories upon which appellee based his motion in the instant case.

The order of the trial court was therefore error, and normally that would necessitate a new trial. In this particular matter, however, we can discern no prejudice to appellant in ordering the judgment set aside and remanding the case to the court below with instructions to hold an evidentiary hearing to determine the amount of any collateral source benefits received by appellee and to then enter a judgment for the proper net amount, in accordance with the statutes.

It is so ordered.

SCHEB, C. J., and BOARDMAN, J., concur.


text:
    Alfonso GUERRERO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-453.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Bennett H. Brummer, Public Defender and Robert K. Burlington, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

On the authority of State v. Goodson, 403 So.2d 1337 (Fla.1981), the twenty-year sexual battery sentence imposed below is vacated and the cause remanded for resentencing on that count under the Youthful Offender Act, Section 958.011, et seq., Florida Statutes (Supp.1978).

Since there is no merit in any of the other points raised, the judgment and sentences under review are otherwise affirmed.

Affirmed in part, reversed in part.


text:
    William TILLMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1576.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Bennett H. Brummer, Public Defender and Elliott H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Appellant was charged by information with aggravated assault. A plea of no contest was entered. The trial court thereupon withheld adjudication and sentence, and placed the appellant on probation. He was later charged and found guilty of violating the terms and conditions of his probation and sentenced to a term of five years in the state penitentiary.

Appellant seeks reversal of the judgment and sentence on the ground that the trial court erred in finding him in violation of the terms and conditions of his probation because the evidence introduced at the violation hearing established that appellant had been legally insane at the time of the alleged violations and had therefore not willfully violated the terms and conditions of his probation.

The trial court found no merit in his defense. We think the trial court was clearly correct in rejecting appellant’s defense of insanity. Therefore, the judgment and sentence appealed should be affirmed. Bernhardt v. State, 288 So.2d 490 (Fla.1974); Cozart v. State, 399 So.2d 1097 (Fla. 1st DCA 1981); McClain v. State, 327 So.2d 106 (Fla. 1st DCA 1976).

Affirmed.


author: JORGENSON, Judge.

text:
    M. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2158.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Bennett H. Brummer, Public Defender and Jay M. Levy, Sp. Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   JORGENSON, Judge.

M. M. appeals his adjudication of delinquency and alleges, as grounds therefor, violation of his speedy trial rights under Fla.R.Juv.P. 8.180(c). We find merit in his contention and reverse.

On August 6, 1981, two days prior to the running of the 90-day speedy trial period, a continuance was granted until August 27, 1980. The trial court entered its order reflecting the continuance on August 18,1980 (eight days after the expiration of the 90-day speedy trial period). That order did not extend the speedy trial period pursuant to the same Fla.R.Juv.P. 8.180(e), but merely reflected the continuance.

There can be no extension of the speedy trial period without the entry of an order of extension. J. R. S. v. Hastings, 374 So.2d 559 (Fla. 4th DCA 1979). An oral continuance does not extend the speedy trial time absent a finding that the interests of justice will be served by such an extension. C. S. v. State, 390 So.2d 457 (Fla. 3d DCA 1980). The state’s reliance on State v. Kelley, 322 So.2d 581 (1st DCA 1975), is misplaced. In that case the defendant acquiesced in the continuance which was charged to both defendants. In the case sub judice, M. M. never acquiesced to an extension of his speedy trial rights. The court did not take the necessary action required by Fla.R.Juv.P. 8.180(c), specifically extending the speedy trial time, or make the necessary findings which are also required.

The state’s alternative argument, that the defect was cured by the entry of a written order eight days after the expiration of the speedy trial period, is equally without merit. In Muller v. State, 387 So.2d 1037 (Fla. 3d DCA 1980), this court held that:

In the absence of an order of extension entered by the trial court during the speedy trial period, we will not find that the time was extended, no matter how compelling or exceptional the circumstances may appear.

Since the first issue presented is disposi-tive, we do not reach the other issues contained in M. M.’s appeal.

Absent a showing that the appellant was in any way at fault in delaying the adjudicatory hearing, we reverse and remand with directions to the trial court to discharge the appellant.

Reversed and remanded with directions.

      . The written order, even if timely, makes no findings, nor does it extend speedy trial time.


author: NESBITT, Judge.

text:
    GULFSTREAM PARK RACING ASSOCIATION, INC., Appellant, v. DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, a State Agency, and Gary R. Rutledge, as Director of the Division of Pari-Mutuel Wagering, Appellee.
    No. 80-2223.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Landefeld & Romanik and David S. Ro-manik, Hollywood, Spector, Tunnicliff & McCord, Tallahassee, for appellant.
    William A. Hatch, Tallahassee, for appel-lee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

Gulfstream appeals a final order entered by the Division denying it a permit to engage in quarterhorse racing.

The issue is whether Gulfstream could be denied the permit on the basis that it would not be used within one year from the date of issuance.

Pursuant to Section 550.33, Florida Statutes (1979), one seeking authority to engage in quarterhorse racing must go through a two step process. First, the track must apply for a permit from the Division. § 550.33(1), supra. The application must set forth the information required by Section 550.02(4), Florida Statutes (1979). After the permit has been approved, the permit-tee track may obtain a license and allocation of racing dates on an annual basis. § 550.33(2)(a), supra.

On November 27, 1979, Gulfstream filed the first plenary application for a quarter-horse racing permit ever sought in the State of Florida. A hearing was conducted on the application on August 25, 1980. On September 17, 1980, a provisional order was entered denying the permit without prejudice provided Gulfstream supplement its application with the following information: (1) the desired period as to when racing was to begin; (2) a statement under oath from the applicant as to when racing would commence pursuant to the proposed permit; (3) a statement that the permit would be used during the initial year in which it was granted.

Gulfstream fully complied with the provisional order by filing a supplement to its application with the Division on September 24, 1980. It stated that: (1) the desired period of racing would be between July 1st and December 1st; (2) racing would commence on or after July 1, 1982; and (3) the permit was intended for use during the initial year in which dates are granted under such permit. Without further hearing, a final order was entered by the Division on October 24,1980 denying the application on the ground that Gulfstream had applied prematurely for the permit insofar as it was not intended for use within one year from the date of issuance.

Because Gulfstream complied with all the statutory criteria required by Sections 550.02 and 550.33, Florida Statutes (1979), it was entitled to the issuance of a permit. § 550.02(6), Fla.Stat. (1979); State ex rel. Palm Beach Jockey Club v. Florida State Racing Commission, 158 Fla. 335, 28 So.2d 330 (1946); State ex rel. Kinsella v. Florida State Racing Commission, 155 Fla. 387, 20 So.2d 258 (1945).

While the Division concedes that when all of the statutory criteria have been met, a permit must be granted, they contend that the failure to specifically indicate the “desired period” of racing, prevents compliance with the statutory requirements. Ultimately, they argue that the permit must be used within one year of issuance. We do not agree.

First, we find that Gulfstream clearly indicated the time period in which the proposed racing would occur. In the supplement to their application, Gulfstream stated that the desired period of racing was between July 1, and December 1, and that racing would commence on or after July 1, 1982. When considered in its entirety, these statements clearly indicated the desired period of racing.

Secondly, the cited statutes do not support the conclusion that the permit must be used within one year. The Division recites several policy reasons why a permit must be used within the specified time limitation. While administrative agencies are entitled to some leeway in formulating policy through agency orders, McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), the latitude allowable does not permit an agency to, in effect, adopt a rule without complying with the statutory requirement. In Department of Revenue v. U. S. Sugar Corporation, 388 So.2d 596 (Fla. 1st DCA 1980), the court stated:

The Department, ... has placed upon the statute an interpretation that is not readily apparent from a reading of the statute, but impacts upon the taxpayer with the consistent effect of law. We agree with the hearing officer’s conclusion that the statement is one of general applicability that implements, interprets or prescribes law, policy, procedure or practice requirements of the agency and falls squarely within the definition of a rule as defined by § 120.52(14), Florida Statutes (1977). [citations omitted]

388 So.2d at 598. Similarly, in the present case, the Division required a statement by Gulfstream that the permit would be used during the initial year in which it was granted, a requirement which was not readily apparent from the statute. Since the Division attempted to state a rule of general applicability without the statutory rule-making procedures, it shall not be given effect. General Development Corp. v. Division of State Planning, Department of Administration, 353 So.2d 1199 (Fla. 1st DCA 1978).

Following the denial of Gulfstream’s permit, the Division then promulgated Florida Administrative Code 7 E-5.121, which required a statement that the quarterhorse racing permit would be used within one year of issuance. The rule will not support the denial of Gulfstream’s application because administrative rules will not be applied retroactively. York v. State ex rel. Schwaid, 152 Fla. 285, 10 So.2d 813 (1943); Sexton Cove Estates, Inc. v. State Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976).

After the date of the final agency order denying Gulfstream’s application (October 24,1980), the 1981 Legislature amended Section 550.33(1), Florida Statutes (1980 Supp.), by Ch. 81-154 § 1, Laws of Florida, effective July 1, 1981, to read:

Subject to all the applicable provisions of this chapter, any person possessing the qualifications prescribed in this chapter may apply to the Division of Pari-mutuel Wagering for a permit to conduct quarter horse racing meetings and racing under this chapter. The applicant must demonstrate (a) that the location or locations where the permit will be used is available for such use; and (b) financial ability to satisfy the reasonably anticipated operational expenses of the first racing year following final issuance of the permit. If the racing facility is already built, the application must contain a statement, with reasonably supporting evidence, that the permit will be used for quarter horse racing within 1 year of the date on which it is granted; if not already built, the application must contain a statement, with reasonably supporting evidence, that substantial construction will be started within 1 year of the issuance of the permit .... [emphasis supplied]

Thus, Chapter 81-154 now supports Rule 7 E-5.121, supra. Nonetheless, we find, absent a clear legislative intent to the contrary, a law is presumed to operate prospectively. Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239, 241 (Fla.1977) and cases cited therein. We find nothing in Chapter 81-154 evincing a legislative intent to make it retroactive. Gulfstream filed its request for a permit and was denied long before the Legislature supplied the Division with the authority to require that a permit for quarterhorse racing be used within one year from the date of issuance. Consequently, Chapter 81-154 is not applicable to the present case. Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 700 (Fla.1978).

For the foregoing reasons, the order appealed from is reversed with directions for the Division of Pari-Mutuel Wagering to grant Gulfstream Racing Association, Inc.’s application for a quarterhorse racing permit without a requirement that it be used within one year from the date of its issuance.

Reversed and remanded with directions.

      . Quarterhorse racing has occurred on harness tracks which obtained alternative authority within their otherwise allotted time.

      . The rule relied upon by the Division, emanating from Davidson v. City of Coral Gables, 119 So.2d 704 (Fla. 3d DCA 1960), that a change in the statute after the institution of an action but before the entry of final decree is controlling, has no application to be present controversy.


author: BASKIN, Judge.

text:
    K. H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2467.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Bennett H. Brummer, Public Defender, and Kent Harrison Robbins, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Appellant K. H., a juvenile, was adjudged delinquent by the trial court. He challenges the denial of his motion to suppress statements he gave police following his warrantless arrest. He contends that because the arresting officer lacked probable cause to effectuate his arrest, the statements obtained from him at the police station were tainted by the unlawful arrest. We agree and reverse.

Appellant was arrested shortly after another individual, Joseph Alexander, was arrested for traffic violations. Officer Heath-erington questioned Alexander about a theft committed the previous day. Relying on Alexander’s statements, Officer Heath-erington arrested K. H. for grand larceny of a purse without attempting to secure a warrant. Officer Heatherington then took K. H. to the police station and questioned him, eliciting the statements appellant later sought to suppress.

During the hearing on the Motion to Suppress, Officer Heatherington testified that he went with Alexander to arrest K. H. He stated:

I went out there, to identify the individuals that were involved in criminal activity, to wit, felonies in the State of Florida. And, yes, sir, if we identified them, due to the fact of the repetitious nature of the crimes that this group was committing, I felt that it was necessary to pick these individuals up, as soon as possible, to prevent the further continuance of a felony action that was on a continual basis, for approximately three weeks, prior to this.

The officer did not repeat the statements made by Alexander which led him to his conclusion that appellant was implicated in the purse snatching upon which the grand larceny charge was predicated.

Absent proof that the officer had probable cause to believe that appellant had committed the offense with which he was charged, the arrest cannot be sustained under section 901.15, Florida Statutes (1979). The state was required to prove that information furnished by a reliable informant was sufficiently detailed and verified by the officer’s personal observations to create a reasonable inference of reliability. State v. Doherty, 240 So.2d 332 (Fla. 4th DCA 1970). The state failed to meet that burden; therefore, the warrantless arrest was unlawful.

Because appellant’s warrantless arrest constituted a violation of his Fourth Amendment rights, his statements made at the police station must be suppressed as the product of his unlawful arrest. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Appellant’s remaining points lack merit.

Reversed and remanded for a new trial.

      . Section 901.15(2), Florida Statutes (J 979):
      901.15(2) When arrest by officer without warrant is lawful. — A peace officer may arrest a person without a warrant when:

      (2) A felony has been committed and he reasonably believes that the person committed it.


text:
    Sigmund SCHY, Appellant, v. Martin Z. MARGULIES, Appellee.
    No. 80-2460.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Brown, Huysman, Matthews & Singer and Cindy S. Lederman, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Ellen C. Freidin, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The trial judge correctly concluded that an agreement to pay the appellant Schy a “finder’s fee” for locating realty to be purchased by the appellee was invalid and unenforceable because Schy was not a licensed real estate broker or salesman. Sections 475.41, 475.01(3), Florida Statutes (1979); First Equity Corp. of Florida v. Riverside Real Estate Investment Trust, 307 So.2d 866 (Fla. 3d DCA 1975), cert. denied, 316 So.2d 287 (Fla.1975).

Affirmed.


author: SCHWARTZ, Judge.

text:
    Murdock MACK, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2484.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 6, 1982.
    Bennett H. Brummer, Public Defender and Barry Jay Warsch, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   SCHWARTZ, Judge.

On the authority of Whitlock v. State, 404 So.2d 795 (Fla.3d DCA 1981) and Trent v. State, 403 So.2d 1131 (Fla.4th DCA 1981), that portion of the sentence entered below pursuant to the Youthful Offender Act, Secs. 958.04-.05 Fla.Stat. (1979) which imposes concurrent three-year minimum mandatory terms under Sec. 775.087(2), Fla. Stat. (1979) is stricken from the order under review, which is otherwise affirmed.

Affirmed in part, reversed in part.

      . We utterly reject the state’s imaginative contention that whenever, as here, a defendant is sentenced on a multiple-count information, he is ineligible as a matter of law for treatment as a youthful offender under Sec. 958.04(1) as to any succeeding counts since he has “previously been classified a youthful offender,” Sec. 958.-04(l)(c), under the first count. This argument, which would effectively deny youthful offender status in any multiple-count situation, is directly contrary to the statement in State v. Goodson, 403 So.2d 1337, 1340 (Fla.1981) that “. .. the existence of two or more contemporaneous felony convictions does not preclude a defendant from being classified as a youthful offender, it merely excludes him from mandatory classification as such. See § 958.04(3), Fla.Stat. (Supp.1978).”