author: BOYER, Acting Chief Judge.

text:
    Patrick B. KENNY, Appellant, v. STATE of Florida, Appellee.
    No. II-233.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1978.
    Rehearing Denied Jan. 23, 1979.
    William R. Slaughter, II, of Slaughter & Slaughter, Line Oak, for appellant.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appel-lee.
   BOYER, Acting Chief Judge.

Kenny, charged with possession of cannabis in excess of one hundred pounds contrary to Section 893.13(l)(a)2, Florida Statutes (1977), moved to dismiss the information pursuant to Fla.R.Crim.P. 3.190(c)(4) asserting that the undisputed material facts failed to establish a prima facie case. The state, in its traverse filed pursuant to Fla.R. Crim.P. 3.190(d), presented additional facts and denied that the undisputed material facts did not establish a prima facie case. Kenny contends the trial court erred in denying his motion to dismiss. We disagree and affirm the judgment of conviction which was entered following Kenny’s plea of nolo contendere to the charge.

The facts as established by the motion to dismiss and the state’s traverse revealed that twenty-four bags of a substance, weighing 1,589 pounds in the aggregate, were seized from Kenny. Representative samples from each bag were delivered by police officers to the state’s expert witness. The remaining portions of the substance were destroyed. Based upon his tests and analyses, the state’s expert witness concluded each of the twenty-four samples tested contained from 20 to 120 grams of cannabis.

Relying on Purifoy v. State, 359 So.2d 446 (Fla.1978), Kenny asserts a prima facie case was not established arguing the state could not prove that Kenny possessed in excess of one hundred pounds of cannabis as that term is defined by Section 893.02(2), Florida Statutes (1977). Purifoy, supra, held that in a case charging possession of more than five grams of cannabis, the state has the burden of proving that the substance possessed by the defendant exceeds the statutory threshold exclusive of mature stalks and stems, which by definition are not prohibited substances.

The facts herein were sufficient to present a prima facie case that Kenny possessed over one hundred pounds of cannabis. Each of the representative samples tested by the expert witness contained from 20 to 120 grams of cannabis. Based upon this fact, it could logically be concluded that Kenny possessed more than one hundred pounds of cannabis exclusive of mature stalks and stems since the amount of substance possessed by Kenny was so great.

Accordingly, Kenny’s conviction for possession of more than one hundred pounds of cannabis is affirmed.

MILLS and BOOTH, JJ., concur.

      . One hundred pounds is the equivalent of 45,-360 grams.

      . Analogous are Fotianos v. State, 329 So.2d 397 (Fla. 1st DCA 1976) and Wright v. State, 351 So.2d 1127 (Fla. 1st DCA 1977).


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    FLORIDA FARM BUREAU INSURANCE COMPANY, Appellant, v. AUSTIN CARPET SERVICE, INC. and Auto-Owners Insurance Company, Appellees.
    No. KK-352.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1979.
    Allen W. Lindsay of Beall, Lindsay & Lindsay, Milton, for appellant.
    J. LeDon Dewrell and William K. Jennings of Dewrell & Jennings, Fort Walton Beach, Paul R. Green, Milton, and W. Christopher Hart, Pensacola, for appellees.
   ON MOTION TO DISMISS

ERVIN, Judge.

The Martins move to dismiss an appeal taken by their homeowners insurer, Florida Farm Bureau, from an order denying the insurer’s request for distribution of proceeds to a settlement reached by the Martins and Austin Carpet Service to compensate the Martins for property damage which resulted from a fire in the Martins’ home caused by Austin. We conclude the order from which Florida Farm filed its appeal was final and that the appeal was proper.

The Martins’ home caught fire, while Austin was replacing carpet in their home, and it was totally destroyed along with its contents. Florida Farm paid $42,535.81 to the Martins as indemnity for their property loss, and after the Martins had filed suit against Austin and its insurer for both personal and property damages, Florida Farm filed a motion to intervene seeking subrogation to any proceeds recovered by the Martins from Austin on their property damage claim. The motion to intervene was granted. Later, in May, 1978, the Martins entered into a settlement agreement with the carpet company and its insurer on their property claim only. The settlement agreement, however, was not reduced to judgment until August 18, 1978, when a partial final judgment was entered which adopted the settlement stipulation. Farm Bureau filed a petition seeking a pro rata distribution of the settlement proceeds as a subro-gated party. By order dated May 25, 1978, and filed June 2, 1978, the request for distribution was denied on the ground that the Martins’ damages exceeded their total recovery from the defendants. Petition for rehearing was filed from the June 2 order and was denied by order dated June 12, 1978, and filed on June 16, 1978. On July 11,1978, a notice was filed from the June 2 order. Finally, on October 4, 1978, an amended notice of appeal was filed in this court from the partial final judgment entered August 18, 1978.

The primary question before us is whether the June 2 order is a final appeala-ble order or a non-final interlocutory order which is not subject to review.

The test for determining whether an order is subject to review is the finality of the order. Finality, in turn, depends upon whether judicial labor, required or permitted to be done by the trial court, has been performed, other than such proceedings and orders as may be necessary to enforce the judgment. Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175 (1943); Blount v. Hansen, 116 So.2d 250 (Fla. 2d DCA 1959); Brown v. Mitchell, 151 So.2d 305 (Fla. 1st DCA 1963).

While the cause remained to be tried as to personal injuries alleged to have been suffered by the Martins, the issue was nevertheless final as to Florida Farm Bureau on its claim for subrogation. Cf. Paradis v. Cicero, 167 So.2d 248 (Fla. 2d DCA 1964); Schneider v. Manheimer, 170 So.2d 75 (Fla. 3d DCA 1964); Conboy v. Naples, 226 So.2d 108 (Fla. 2d DCA 1969). True, the order entered on June 2, 1978 did not employ such arcane language stating that Florida Farm Bureau “go hence without day” or that it “take nothing herein”. Such language, while casting light upon a court’s intent as to finality, is not dispositive of the issue. The order denying the motion for distribution was final in form and content, and its finality was not diminished by its failure to employ language otherwise denoting finality.

We conclude the order of June 2 was final. No further judicial labor remained as to Florida Farm’s claim for subrogation. The final partial judgment later entered denying Florida Farm’s request “to participate in the distribution of the proceeds . was but a mere recitation of that which had previously been stated by the court’s denial of Florida Farm’s motion for distribution. The order had no effect other than to deny whatever right Florida Farm had through subrogation to its insured’s claim against Austin. While the settlement agreement had not been reduced to judgment at the time the June 2 order was entered, Florida Farm’s claim was not dependent upon that act, and the order became final upon the denial of its petition for distribution.

The motion to dismiss is DENIED.

McCORD, C. J., and SMITH, J., concur.

      . The order of denial states:
      This matter is before the Court on a petition to distribute sums paid by the Defendants. The Court finds that Florida Farm Bureau Insurance Company is not entitled to any distribution of the Plaintiffs’ recovery from the Defendants because the Plaintiffs’ damages exceeded their total recovery from the Defendants and Florida Farm Bureau Insurance Company. Therefore, it is
      ORDERED AND ADJUDGED that Florida Farm Bureau Insurance Company’s request for distribution of the proceeds is denied.

      . The order would not appear to be an appeala-ble interlocutory order permitted by Fla.R. App.P. 9.130. Even if it were so, the notice was not timely filed from the June 2 order, since it was filed more than 30 days after the order was rendered. A petition for rehearing tolls the time for filing appeal notices only as to final — not interlocutory — orders. Armstrong v. Pet Memorials, Inc., 301 So.2d 150 (Fla. 4th DCA 1974).


author: SMITH, Acting Chief Judge: MELVIN, Judge, PER CURIAM.

text:
    William J. FISH, Individually, and as a representative of a class consisting of condominium unit owners within the City of New Smyrna Beach, Florida, Appellant, v. CITY OF NEW SMYRNA BEACH, a Municipal Corporation, and Stephen L. Boyles, State Attorney, Appellees.
    No. II-200.
    District Court of Appeal of Florida, First District.
    April 19, 1979.
    Rehearing Denied May 31, 1979.

      John F. Bolt, New Smyrna Beach, for appellant.
    Charles A. Hall, New Smyrna Beach, for appellees.
    Sidney Nerzig, Fort Lauderdale, for ami-cus curiae.
   SMITH, Acting Chief Judge:

Appellant Fish, representing a class of condominium unit owners and residents of the City of New Smyrna Beach, appeals from a circuit court judgment sustaining the City’s ordinances fixing garbage and trash collection rates for residential and business users. The issue is whether the City’s classifications and charges discriminate unconstitutionally against condominium residents and in favor of business users and residents of single family dwellings.

We find that the substantial difference in charges to condominium residents and to businesses, for the same service, is without a rational basis and is therefore constitutionally deficient. Although there is some apparent whimsy in the City’s charges to condominium residents, as contrasted with the charges to single family dwelling residents, the service to those classes is different, and appellant failed to show that the greater charges they pay are not reasonably related to the different service they receive. We therefore affirm in part, reverse in part, and remand.

For about a year before December 1976, the City’s garbage and trash collection ordinances differentiatéd in both service and charges between kinds of residential units as well as between residential and business units. Single family dwellings and duplexes in conventional New Smyrna neighborhoods require collection services for both garbage cans and uncontained trash at curbside, whereas condominium and apartment residents do not accumulate “trash” as such but deposit all refuse in bulk containers or dumpsters which centrally serve up to about 60 condominium units in common. Recognizing differences in the need for separate “trash” collection as such, the code, before the December 1976 amendment, charged single family dwellings and duplexes $4.00 monthly for semiweekly garbage collection and separate weekly trash collection; charged condominium and apartment dwellers $2.50 monthly for semiweekly garbage collection only; and charged the management of condominiums and apartments for uncontained trash collection only as it was needed, which was rarely. The City’s total charges to condominiums for separate trash collection in 1976, based on cost, was $11.16.

In December 1976, to overcome a deficit in garbage and trash collection service, the City commission resolved that “all structures and units used for dwelling purposes should be served on an equal schedule and billed equally,” and adopted ordinance 40-76, which precipitated this litigation. That ordinance charges the residents of each condominium unit, apartment, single family dwelling, duplex, or mobile home $2.50 per month for semiweekly garbage collection and $1.50 per month for weekly collection of uncontained “trash.” The additional

$1.50 charge to condominium residents, for separate trash collection which they conceive they neither receive or require, exacerbated an existing disparity between rates charged condominium residents and rates charged businesses for garbage service. In 1975 “all business establishments” were classified separately from residences under ordinance 45-75, which imposed rates for refuse collection at businesses varying with the number and size of receptacles and the number of weekly pickups. Businesses use City-approved receptacles ranging in size from 30-gallon cans, for which the minimum monthly service charge is $2.00 for twice-weekly pickup, to eight cubic yard dumpsters, for which the monthly service charge is $60.00 for twice-weekly pickup.

There is a striking difference between the City’s charges under ordinance 45-75 for service to the dumpsters of businesses, and the City’s charges under ordinance 40-76 for the same service to similar dumpsters used by condominium residents. In February 1977 the 1,593 residential units in 24 New Smyrna condominium complexes collected their garbage and trash in 43 such bulk containers, typically of six cubic yards capacity, which typically were emptied twice weekly by the City. Whether at a condominium or business site, the dumpster is mechanically lifted and emptied into a City truck in the same way. But under ordinance 45-75 a business pays $45.00 per month for that service to one dumpster, while the 55 condominium residents in, say, Coronado Cove pay $220.00 for the same service to a single dumpster ($2.50 for garbage plus $1.50 for “trash” X 55). Thus in January 1977 condominium residents using 43 dumpters paid $6,372.00 for collection service, while the business users of 43 comparable containers paid $2,540.20 for the same service.

The City does not defend the disparity in charges on the basis of City costs in either collecting or disposing of refuse. The City has made no cost analysis on the subject, but the City’s financial director could suggest no difference between the City’s cost of service to business dumpsters and the City’s cost of service to condominium dumpsters.

The trial court’s judgment is without findings of fact which would assist us in reconciling the evidence and the judgment. See Surratt v. Fleming, 309 So.2d 614 (Fla. 1st DCA 1975). If possible we must interpolate the missing findings, to square the judgment with the evidence. Jacquin-Florida Distilling Co. v. Reynolds, Smith and Hills, etc., 319 So.2d 604 (Fla. 1st DCA 1975). That cannot be done in this case; there is no substantial evidence in the record suggesting that New Smyrna Beach rationally charges condominiums and businesses differently for the same service.

Ordinances 45-75 and 40-76 operate in an unlawful discriminatory fashion against condominiums in New Smyrna Beach. The established classifications and charges, though superficially plausible, are in fact not reasonably related to

. such factors as the cost of service, the purpose for which the service [is provided] . . ., the quantity or the amount [of service rendered], the different character of the service furnished; the time of its use or any other matter which presents a substantial difference as a ground of distinction.

12 MeQuillin, Municipal Corporations (3rd ed. 1970), section 35.37b, quoted with approval in Pinellas Apartment Association, Inc. v. City of St. Petersburg, 294 So.2d 676 (Fla. 2d DCA 1974). See also 567 Island Corp. v. North Bay Village, 236 So.2d 467, 468 (Fla. 3d DCA 1970), cert, den., 240 So.2d 637 (Fla.1970) (upholding garbage rate differentials justified by “the types of structures involved as located in the defendant city and the differences in the garbage service requirements as related thereto”): Clay Utility Co. v. City of Jacksonville, 227 So.2d 516, 518 (Fla. 1st DCA 1969) (holding it was not proved that the rate differential “cannot be justified on the basis of the cost of furnishing the commodity to the two different classifications of consumers”). Cf. Contractors & Builders Ass’n v. City of Dunedin, 329 So.2d 314 (Fla.1976).

The classification which burdens condominiums in this case is not similar to the classification upheld in State v. City of Miami Springs, 245 So.2d 80 (Fla.1971). There the Supreme Court found no lack of rationality in a sewer service classification that charged single family dwellings a flat $7.00 per month but charged all other users $2.00 per month for each 1,000 gallons of water used, and a minimum of $7.00. Such a classification properly assumes that most single family dwellings require sewer service in roughly the same degree, that measuring precise differences in usage would be more expensive than additional revenues would justify, and that larger users such as apartment houses can more equitably be charged on the basis of water actually used. Similar considerations underlie this Court’s decision in Stone v. Town of Mexico Beach, 348 So.2d 40 (Fla. 1st DCA 1977), cert, den., 355 So.2d 517 (Fla.1978), relying on the Miami Springs decision. The Mexico Beach ordinance charged garbage fees of $3.50 per month for residences regardless of the extent of their occupancy during the year. The fees we upheld were properly predicated on the town’s assumption that residences were intended to be and would be occupied, as indeed the plaintiff’s was for four months out of twelve, and that it was more reasonable to assess a modest flat fee on all residences than to undertake a continuing census of occupancies. New Smyrna Beach has undoubted power to allocate the basic costs of a garbage and trash collection and disposal system equally on all users; but the City has not done that, and there is no rational. justification for the charges imposed on condominium residents as compared to those imposed on businesses for the same service.

Appellant contends that condominium residents receive significantly less garbage and trash collection service than house residents and that the City unlawfully charges them the same fees. That position is not substantiated by this record. Admittedly, there is no separate collection of un-contained “trash” at condominiums, and each condominium residence pays $1.50 monthly for that service. It appears also that the time and labor required to empty a single six-yard container, serving 55 condominium families at Coronado Cove, is demonstrably less than the time and labor necessary to handle numerous garbage cans at the curbside of 55 single family residences in New Smyrna neighborhoods. Yet there are significant countervailing factors: individual homeowners must supply their own garbage cans, carry them to the curb and back, and wash, maintain, and replace their garbage cans; whereas the dumpsters used by condominiums and businesses are provided by the City, at a cost to the City of several hundred dollars each, and the City washes and disinfects the containers at each pickup. This record does not permit quantification of the similarities and differences in the cost of garbage collection from the dumpsters used by a given number of condominium units and the multiple cans used by an equivalent number of houses.

Whatever may be the City’s net cost similarity or differential between garbage collection from condominiums and garbage collection from houses, there is no uncertainty that ordinance 40-76 imposes on condominium residents garbage collection fees which are disproportionately higher than the fees charged for the same service, rendered at the same cost, to businesses. These ordinances are unconstitutional in their preferential treatment of businesses as contrasted with condominiums, but not otherwise. The trial court’s judgment is therefore AFFIRMED in part, REVERSED in part, and the cause is REMANDED for further proceedings.

ERVIN, J., concurs.

MELVIN, J., concurs in part and dissents in part.

MELVIN, Judge,

concurring in part and dissenting in part.

I respectfully note my dissent as to one segment of the opinion now adopted. The ordinance, in my opinion, does not discriminate against, or subject to uneven tax consideration, those within the same classification. The majority holds it to be constitutionally permissible for the City to levy the same garbage and trash collection rates on condominium units as are levied for similar service to units of house residents. With this I agree, because whether the service is rendered to 55 families under one roof (condominium) or to 55 families each under a separate roof, there is no discrimination as to rates applied when measured by the service rendered.

The ordinances equate in an evenhanded way to businesses, and that is a proper and distinct classification. In my view, logic does not permit equating the flat charge for garbage and trash service as to one place of business to that of collecting from one dumpster the garbage from 55 separate families living in one condominium.

The judgment here reviewed arrived at this forum clothed with the presumption of correctness. In my judgment, it is still graced with that garment.

ON MOTION FOR REHEARING

PER CURIAM.

Pursuant to Article V, § 3(b)(8), Florida Constitution, and Fla.R.App.P. 9.030(a)(2) (A)(ii), it is certified that the Court’s decision in this cause passes upon a question of great public interest. In all other respects, the motion for rehearing is DENIED.

SMITH, Acting C. J., and ERVIN and MELVIN, JJ., concur.

      . Code section 13-11(b) defines “trash” as “yard clippings, small tree limbs, palm fronds, and small discarded household items of such size as to be unsuitable for containerization.”

      . The key recital of ordinance 40-76 was
      [T]he City Commission has determined that all structures that are used for dwelling purposes should be under a single classification and that it should be just and equitable to equalize the rates among all units or structures that are in fact used for dwelling purposes and that it is likewise proper and equitable and just to provide equal services and pick-ups within the said classification . . .

      . Stone v. Town of Mexico Beach, 348 So.2d 40 (Fla. 1st DCA 1977).


author: SCHEB, Judge.

text:
    CITY OF BARTOW, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Teamsters Local No. 444, Respondents.
    No. 78-2296.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1979.

      Thomas M. Gonzalez and Lucius M. Dyal, Jr. of Shackleford, Farrior, Stallings & Evans, Tampa, for petitioner.
    William E. Powers, Jr., General Counsel, and C. Anthony Cleveland, Asst. Counsel, Tallahassee, for Public Employees Relations Commission.
   SCHEB, Judge.

The City of Bartow seeks review of a final order of the Public Employees Relations Commission (PERC) finding the City guilty of unfair labor practices. PERC ruled that the City violated Sections 447.-501(l)(a) and (b), Florida Statutes (1977), by terminating the employment of Marion O. Ott, a Fire Department employee. The City contends that a prior ruling of its Civil Service Board should have controlled PERC’s decision, and argues alternatively that there is not substantial competent evidence to support PERC’s order. W*e have jurisdiction. § 447.504, Fla.Stat. (1977). From our review we conclude that, while PERC did have jurisdiction, its implicit finding that a causal connection existed between Ott’s dismissal and his union activities is not supported by substantial competent evidence. Therefore, we reverse.

In 1977 Bartow’s fire department consisted of a fire chief, his assistant, sixteen fire drivers, and a mechanic. The drivers maintained the Department’s trucks, drove them to fires, and operated the pumps and other equipment while volunteers aided in fighting fires. Each of three shifts had a supervisor. Ott had been a fire driver for approximately two years in March 1977 when he and other employees became interested in unionizing the Department. As a result they asked their fellow employees to sign cards authorizing PERC to conduct an election to determine if a majority of the employees wished to be represented by the Teamsters Union. Feelings between those supporting the union and those opposing it ran high, and over the next few months the atmosphere in the Department became tense.

Ott’s shift supervisor testified that, on June 1, 1977, he ordered Ott to report to a training fire and Ott refused to go. As a result Fire Chief Tim V. Pitts suspended Ott. On June 4, after he received reports of two other instances in which Ott had antagonized his supervisor on June 1, Pitts fired Ott on the ground of insubordination.

Ott petitioned the City of Bartow Civil Service Board for administrative review of his discharge. The Board’ conducted a hearing at which Ott testified, and found that Ott’s termination was for good cause and upheld it. Ott did not seek judicial review of the Board’s action. Teamsters Local No. 444, however, subsequently filed an unfair labor charge against the City. After investigation, PERC filed a formal complaint charging that the City had improperly dismissed Ott in retaliation for his union activities. The City denied this charge and filed affirmative defenses that PERC was without jurisdiction and that the ruling of the Civil Service Board was res judicata. Following a hearing at which the principals testified, PERC’s hearing officer concluded that although Ott was insubordinate, his dismissal was also influenced by his union activity and the desire of the City to discourage unionization. The officer thus concluded that the City was guilty of an unfair labor practice. The Commission adopted the hearing officer’s recommended order as augmented by its own conclusions, and entered its final order requiring the City to reinstate Ott with backpay.

The City raises several points on appeal, but we need discuss only two. We first address its contention that PERC was without jurisdiction to make a determination in this cause because of the prior adjudication of the Bartow Civil Service Board. The City contends that the Board’s action barred the Commission from even considering whether Ott’s discharge resulted from an unfair labor practice on the ground that the Board’s adjudication was res judicata. We disagree. The issue before the Civil Service Board was whether Ott was insubordinate arid not whether the City was guilty of an unfair labor practice in terminating his employment. Therefore, while the principle of estoppel by judgment applied to the Board’s determination that Ott was insubordinate, it did not apply to PERC’s contention that the City had committed an unfair labor practice. Estoppel by judgment bars only those matters actually litigated and determined in an initial action. Gordon v. Gordon, 59 So.2d 40 (Fla. 1952); see also Jet Air Freight v. Jet Air Freight Delivery, Inc., 264 So.2d 35 (Fla. 3d DCA 1972); Board of County Commissioners v. Rockmatt Corp., 231 So.2d 41 (Fla. 3d DCA 1970). Accordingly, while the Commission was estopped from rehearing the issue of Ott’s insubordination, it had jurisdiction to determine whether the City had committed an unfair labor practice. See PERC v. Fraternal Order of Police, Local Lodge No. 38, 327 So.2d 43 (Fla. 2d DCA 1976).

We now turn to the more critical issue of whether there was substantial competent evidence to support PERC’s finding that the City was motivated by anti-union sentiment in firing Ott. To be sustained, the finding of PERC, like the findings of other administrative bodies, must be based on substantial competent evidence. § 120.-68(10), Fla.Stat. (1977); De Groot v. Sheffield, 95 So.2d 912 (Fla.1957); Austin v. Gordon, 333 So.2d 118 (Fla. 2d DCA 1976). In determining whether substantial competent evidence exists, we recognize that it is inappropriate for this court to resolve conflicts in the testimony adduced before the PERC hearing officer. Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962). We are also aware that proof of unfair labor practices frequently must rest upon circumstantial evidence and that we must examine the proceedings before PERC in the light most favorable to its findings. Pasco County School Board v. Florida PERC, 353 So.2d 108 (Fla. 1st DCA 1977).

The evidence revealed that Bartow’s fire department was one of modest size and operated informally from the standpoint of discipline and orders. Direct orders were seldom given. The testimony disclosed that on June 1,1977, Ott was assigned to a work shift under Supervisor Jerry Morgan. While on duty Morgan instructed the shift drivers to roll some fire hoses. Ott indicated that he would not do so. Soon thereafter, however, he joined the other drivers in completing the task. Later in the day Ott belligerently asked Morgan where he was taking the truck which had been assigned to Ott. Morgan replied that he had been instructed by Chief Pitts to take the truck to a training fire.

Morgan proceeded to the fire. When it was almost out, Chief Pitts sent him back to the station with directions to send two men to watch the smoldering remains. Ott and Bruce Monroe were the only fire drivers at the station. At the PERC hearing, Ott and Monroe testified that when Morgan arrived at the station, Monroe asked if he and Ott were to go to the fire. On the other hand, Morgan testified that he ordered Ott and Monroe to report to the fire. In either event, Ott replied “f_no, I’m not going,” and turned and walked away. The clear implication of Ott’s statement was that, even if Morgan ordered him to report to the fire, he would not obey the order. Morgan then told Ott to roll hoses while he and Monroe returned to the fire scene.

When Chief Pitts learned of Ott’s remarks to Morgan regarding the fire, he suspended Ott for three days. It was during this suspension that Pitts was informed by his assistant chief of Ott's recalcitrance with regard to rolling hoses and to Morgan’s use of “his” truck. At that point Chief Pitts fired Ott.

At the time of Ott’s dismissal Chief Pitts was fully aware of the union activities which had begun a few months before Ott’s dismissal. He had also let the fire drivers know that he did not think unionization was a good idea.

The hearing officer’s recommended order, adopted by PERC, included the following findings:

7. On June 1, 1977, Ott was ordered to report to a Training fire, and refused to go. Earlier on the same day Ott was slow in obeying an order to roll fire hose and had belligerently demanded to know why his supervisor was taking his assigned truck to the training fire.
8. The Fire Department suffered from a lack of discipline and command respect at the time of the incidents for which Ott was suspended and terminated.
9. Since Chief Pitts’ assumption of command of the Fire Department, no other employees of the Fire Department had been discharged for insubordination prior to Ott, even though such insubordination existed.
10. At the time of his discharge, the Chief was aware of Ott’s union sympathies and activities.
11. Very few direct orders were ever given in the Bartow Fire Department and the order to go to a'training fire which Ott was allegedly suspended and discharged for violating was not stated as a direct order. On the contrary, Ott’s supervisor offered him an alternative duty to carrying out the request to go to the fire.
12. Moreover, the testimony and demeanor of the witnesses indicate that the City was waiting for the first opportunity to create an example of the City’s response to collective bargaining, i. e., a change in disciplinary procedures, and that Ott was used as such an example.
13. Ott’s termination was not totally related to his insubordination, but it was also influenced by his union activity and by the desire of the City to discourage union activity. Ott’s support of the union and the union’s presence was a substantial or motivating factor [sic] in determining whether he should be discharged.

In its final order PERC augmented these findings with the following:

1. At the time of Ott’s termination there was an informal atmosphere in the fire department and employees would grumble and complain, even to the point of initially refusing to carry out a supervisor’s request. On such occasions the request was reiterated to the recalcitrant employee. Jerry Morgan, Ott’s shift supervisor, never issued Ott a direct order to go to the fire scene.
2. Tim V. Pitts, the Respondent’s fire chief, told at least one employee in connection with union activity, “Well, you’re really shitting in your nest this time,” and also told fire department employees on one occasion that they had better straighten up or be replaced by volunteers. Pitts told Ott at the time he was suspended that “just because you guys are going union doesn’t mean you don’t have to take orders.” At the time he initially suspended Ott, Pitts was “terribly upset,” because of the Petitioner’s organizational activity and was bothered by the situation.

We think that PERC’s findings can be fairly summarized as stating that Ott’s termination was based on his union activities. We fail, however, to find any nexus between Ott’s termination and his union activities. Moreover, the evidence does not disclose any improper motivation on the part of Chief Pitts for his suspension or subsequent termination of Ott. Whether the fire chief’s concern over unionization was a matter of any consideration in his actions is only speculative. The record clearly shows that Ott’s only activity as a union advocate was informally discussing the desirability of a union with other drivers. The primary organizers in the department, one of whom was subsequently promoted to shift supervisor, were two other drivers who solicited card authorizations from fellow employees.

We recognize that the record does reveal other problems in the Department as the hearing officer noted. These related to attitude problems and the Department’s failure to discipline drivers when they responded to orders in the same manner that Ott had. Understandably, the conflict over the issue of unionization exacerbated these problems. Even when unionization is at issue, however, an employee charged with vital public safety duties cannot refuse to carry out legitimate orders of his supervisor.

From the evidence cited in this opinion, one can readily understand Chief Pitts’ determination that Ott was insubordinate. We think the language in Florida Steel Corp. v. NLRB, 529 F.2d 1225 (5th Cir. 1976), is apropos. There the court said:

[The discharged employee] did not suffer discrimination because of any union activity. The mere fact that he had signed a union card afforded him no protection for his flagrant insubordination. Section 7 rights are a shield against employer retaliation, not a sword with which one may threaten or curse supervisors. Neither threats of violence nor insubordination constitute protected activities.

Id. at 1234 (citation omitted).

Finally, the Commission noted in its augmented findings that Chief Pitts had made several anti-union comments to the drivers. This does not support PERC’s conclusion, however, that Pitts dismissed Ott because of his union activities. The Chief retained the right to express an opinion on unionization. His exercise of that right did not constitute and was not evidence of an unfair labor practice as long as he made “no promise of benefits or threat of reprisal or force.” § 447.501(3), Fla.Stat. (1977). As we indicated above, we find the record devoid of any evidence of threats or coercion by the City or Pitts to deter Fire Department employees from unionizing. The fact that a primary organizer was subsequently promoted to shift supervisor belies the contention that the City was inalterably opposed to unionization. There was no testimony that Chief Pitts’ observations on unionization had been interpreted by anyone as a threat or coercive tactic. And while on one occasion Pitts told the fire drivers that they had better straighten up or they would be replaced by volunteers, there was no evidence that such admonition was related to union activity. “Where good cause for [a] discharge is shown, the mere fact that anti-union animus existed on the part of the employer does not, without more, make the discharge unlawful.” Syn-cro Corp. v. NLRB, 597 F.2d 922 n. 7 (5th Cir. 1979). This evidence does not support PERC’s finding of a causal connection between Ott’s union activities and his dismissal. Thus, PERC erred in ordering his reinstatement. Id.; see also NLRB v. Florida Steel Corp., 586 F.2d 436, 448 (5th Cir. 1978).

Accordingly, we vacate the order issued by the Public Employees Relations Commission on November 30, 1978.

GRIMES, C. J., and BOARDMAN, J., concur.

      . Unfair labor practices.
      (1) Public employers or their agents or representatives are prohibited from:
      (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.
      (b) Encouraging or discouraging membership in any employee organization by discrimination in regard to hiring, tenure, or other conditions of employment.


author: PER CURIAM.

text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant, v. GENERAL AMERICAN TRANSPORTATION CORPORATION, Appellee.
    No. NN-469.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1979.
    Jim Smith, Atty. Gen., William D. Townsend, Asst. Atty. Gen., for appellant.
    J. Elliott Messer and Robert S. Goldman of Thompson, Wadsworth, Messer & Rhodes, Tallahassee, for appellee.
   PER CURIAM.

From an examination of Section 193.-085(4)(b), Florida Statutes (1975), we conclude that the appellee as an owner of leased private cars is not liable for the taxes assessed by the appellant Department of Revenue in that the record is conclusive to the effect that appellee was not operating rolling stock in Florida for the tax year for which the assessment was made. General American Transportation Corporation v. Askew, 310 So.2d 46 (Fla. 1st DCA 1975), cert. denied 328 So.2d 840 (Fla.1975); City of Miami v. Schonfeld, 132 So.2d 767 (Fla.3d DCA 1961).

AFFIRMED.

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


author: RYDER, Judge.

text:
    Elizabeth SERRILL, Petitioner, v. L. R. HILDERBRAND, D. P. M., Respondent.
    No. 79-1489.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1979.

      Walter G. Campbell, Jr. of Krupnick & Campbell, P. A., Fort Lauderdale, for petitioner.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for respondent.
   RYDER, Judge.

Serrill seeks common law certiorari to review the order of a medical mediation panel finding respondent Hilderbrand not actionably negligent in his care and treatment of her. Petitioner contends that since a final hearing on the merits of her claim was not commenced within 180 days of filing, jurisdiction of the panel had terminated. We agree and grant the petition for certiorari.

Petitioner filed her claim against the respondent on October 13, 1978, pursuant to Section 768.44(l)(a), Fla.Stat. (1977). Thereafter, as permitted by Section 768.-44(3), the judicial referee extended the time for holding a hearing on the merits from 120 days to six months, i. e., until April 13, 1979. At a hearing on April 12, 1979, petitioner’s attorney objected to commencement of the proceedings because he had not received notice sufficiently in advance to arrange for his expert witness to be present. The judicial referee overruled this objection, explaining that the proceeding was being treated “as our little house cleaning meeting,” “almost in the nature of a pretrial.” No evidence was introduced and no opening statements were made. After clearing up such procedural questions as who the witnesses would be and whether petitioner should undergo a physical examination in the meantime, the hearing was continued until July 10, 1979.

The requirements of Chapter 768 must be strictly complied with, since the statute “is in derogation of the common law, and is an impediment to the constitutional guarantee of access to the courts.” Green v. Broward General Medical Center, 356 So.2d 877 (Fla.4th DCA 1978). Section 768.44(3) provides that, once a claim has been filed, a hearing:

. shall be held within 120 days of the date the claim was filed unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed. If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel . shall terminate, and the parties may proceed in accordance with law. (Emphasis added)

Although this provision does not clearly specify when a hearing must commence, both Fla.R.Med.P. 20.190(c) and the case law require a final hearing on the merits to commence, at the latest, six months from the date of the filing of the claim. See, e. g., Wright v. Ratnesar, 373 So.2d 431 (Fla.2d DCA 1979); Hewitt v. Caffee, 368 So.2d 1342 (Fla.3d DCA 1979); Stanton v. Community Hospital of South Broward, 359 So.2d 37 (Fla.4th DCA 1978). When a “start-up” hearing is held shortly before expiration of the six-month statutory period and only hospital records are presented in evidence, this is not the hearing envisioned by Sections 768.44(3) and (6). Hirsch v. Kleinman, 375 So.2d 362 (Fla.4th DCA 1979); Wright v. Ratnesar, supra. In the instant case, no evidence whatsoever was introduced.

Respondent appears to argue that Hewitt v. Caffee, supra, stands for the proposition that one party may not employ dilatory tactics to avoid the just, speedy and inexpensive determination of claims under Chapter 768. Respondent contends that the case is not on point because in Hewitt, the respondent hospital had sought to limit the hearing to only the introduction of medical records. No such limitations were requested by the respondent or imposed by the panel in the instant case.

We find this argument unpersuasive. Although the Hewitt court condemned the hospital’s dilatory tactics, the decision was grounded on the failure of the parties, for whatever reason, to present evidence, make opening statements, or do any of the other things provided for in Section 768.44(6). Accord, Shore v. Abbazia, 375 So.2d 354 (Fla.3d DCA 1979); Wright v. Ratnesar, supra.

The fact that the parties may have stipulated to a continuance beyond the six-month deadline does not compel a different result. Failure to commence a hearing within the six-month deadline is a jurisdictional defect which may not be cured by stipulation or by the failure of one of the parties to object. Shore v. Abbazia, supra; Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla.2d DCA 1978).

Certiorari is granted and the order of the medical mediation panel is quashed. The matter is remanded with direction for the clerk of the circuit court to issue a notice of termination of the proceedings effective July 31, 1979, pursuant to Fla.R.Med.P. 20.-190.

CERTIORARI GRANTED.

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

      . Fla.R.Med.P. 20.190 provides in pertinent part:
      The clerk shall send to all parties a notice of termination of the proceedings when any of the following events has occurred:
      ******
      (c) An extension order has been entered by the judicial referee but the hearing has not been commenced within six months from the date of the filing of the claim Termination for any of the foregoing reasons terminates the jurisdiction of the panel.


author: PEARSON, Judge.

text:
    MICHIGAN NATIONAL BANK OF DETROIT, Appellant, v. Henry MAIERHOFFER, International Flight Center and Henrietta Lehman, Appellees.
    No. 79-27.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1979.

      Bailey & Dawes and Guy B. Bailey, Miami, for appellant.
    Franklyn Levenson, Miami, Watkins, Hill & Marts, Tallahassee, Terrence T. Dariotis, Tallahassee, for appellees.
    Before PEARSON, HENDRY and SCHWARTZ, JJ.
   PEARSON, Judge.

Appellant Michigan National Bank was the plaintiff in an action for replevin and to foreclose a claimed security interest in an aircraft. After a non-jury trial, the court entered a final judgment which, among other things, found that the Bank had no right to possession of the aircraft, that Henry Maierhoffer, a defendant, had title to the aircraft, except for an outstanding mechanics lien, and that damages were to be awarded to Maierhoffer against the Bank and its surety. The aircraft had by agreement been sold by the Bank after delivery of possession of the aircraft to the Bank. This appeal is by the Bank. In the main, the Bank contends that the evidence before the trial court was insufficient as a matter of law to support either of the findings (1) that Maierhoffer had title to the aircraft free of the Bank’s claimed lien; or (2) that Maierhoffer was entitled to the damages awarded, i. e., $60,000.00, as the value of the aircraft at the time of the replevin.

Defendant Maierhoffer has cross-appealed an order of the trial court denying his motion for attorney’s fees.

The trial judge made extensive findings of fact in the judgment. The Bank attacks the legal sufficiency of these findings to support the judgment and the sufficiency of the evidence to support the findings. The findings are quoted in full.

“Findings of Fact
“1. That Nor-Roz, Inc. d/b/a Safari Aviation (‘Nor-Roz’), was in the business of buying and selling aircraft.
“2. That Nor-Roz were floor plan dealers of the Michigan National.
“3. That in 1975, Nor-Roz purchased a 1972 Queen Air N-814B for their inventory. On August 8, 1974, Nor-Roz and James N. Negron executed a promissory note in favor of Michigan National, in the principal sum of $78,697.80 secured by a chattle (sic) mortgage on the Queen Air N-814B. This chattle (sic) mortgage was filed with the Federal Aviation Administration (‘FAA’), on August 22, 1974, as Document No. N90760, recorded August 29, 1974.
“4. That on January 25,1975, Nor-Roz did; (sic) sell, grant, transfer, and deliver all rights, title and interests in Queen Air N-814B to H. Maierhoffer, c/o Cim Associates, Inc.
“5. That Maierhoffer took delivery of N-814B on January 25, 1975.
“6. That on February 2, 1975, Maier-hoffer purchased insurance on the aircraft naming Michigan National as loss payee and on the Breach of Warranty.
“7. That in February 1975, Maierhof-fer notified the bank of his purchase and sent copies of the purchase, and the insurance binder to Michigan National.
“8. That in April 1975, John Ward, vice president in charge of the aircraft division of Michigan National, came to Florida for the express purpose of checking the inventory of their floor plan dealer, Nor-Roz, and verified Maierhoffers’ possession of the Queen Air N-814B.-
“9. That Michigan National had complete knowledge of the sale to Maierhof-fer, and acquiesced in the sale to, and possession of Maierhoffer, and directly collected the last four payments of said sale pursuant to John Wards agreement with Maierhoffer.
“10. That Michigan National admits, and the court finds, the note and debt of Nor-Roz, August 8,1974, was paid in full.
“11. That the chattle (sic) mortgage securing that debt, Document No. N90760, was released by John Ward, vice president of Michigan National. The release was filed with the FAA as Document No. P14904.
“12. That the attempt of Nor-Roz, and Michigan National to sell the plane to American Aviation Corporation (‘American Aviation’), and to create a new security interest in Michigan National, on June 30, 1975, five months after the sale to Maierhoffer, is null and void.
“13. That the parties stipulated, and the court finds, that at the time of the replevin, Enrique Nouchet had a valid mechanics lien on the aircraft, and that Enrique Nouchet, shall receive $750.00, from Henry Maierhoffer.
“14. That the Michigan National took the plane from the possession of Enrique Nouchet.
“15. That at the time of the replevin, except for the lien of Enrique Nouchet, Henry Maierhoffer had the unencumbered right, title and interest, to the 1972 Queen Air N-814B.
“16. That Michigan National had no right to possession of N-814B, at the time of the replevin.
“17. That the Defendant, H. Lehman, is to be dismissed with prejudice.
“18. That the Defendant, International Flight Center, is to be dismissed with prejudice.
“19. A default has been entered against the Defendants, American Aviation, R. Negron, Jr., and Nor-Roz.
“20. That by agreement between Michigan National, and Maierhoffer, the Michigan Bank has sold the aircraft and hold the proceeds of the sale.
“21. Michigan National alleged, John Ward testified, and the court finds that the aircraft, including the log books, had a value of $60,000.00 at the time of the replevin.
“22. That the log books were in the plane when the Michigan National Bank of Detroit caused the plane to be taken from Enrique Nouchet.
“23. That the Fidelity and Deposit Company of Maryland, is surety for the Michigan National Bank of Detroit, under its replevin bond filed with court on August 26, 1976.”

The Bank’s first point claims that the Bank’s security interest in the aircraft was superior to Maierhoffer’s claimed ownership. The record shows that on May 17, 1974, Nor-Roz, Inc., an aircraft dealership, purchased the subject aircraft for its inventory, On August 8,1974, Nor-Roz obtained financing for the aircraft from the Bank by giving a promissory note of $78,697.80, payable in 20 installments. The note was secured by an aircraft chattel mortgage, which was recorded with the Federal Aviation Administration on August 29, 1974.

On January 25, 1975, Nor-Roz sold the aircraft to Maierhoffer for $58,000.00. The Bank argues that this sale should not be considered as one in the regular course of business because Maierhoffer knew of the Bank’s security interest, paid only a partial payment of the purchase price and agreed to installment payments of the balance, and was given a bill of sale which he agreed with Nor-Roz not to record until a year and a half later when the full purchase price had been paid. We mention this controversy because of the Bank’s emphasis on it, but we do not find that a holding that Maier-hoffer was a purchaser in due course is essential to the court’s judgment.

On February 12, 1975, Maierhoffer informed the Bank that he had purchased the aircraft and sent it a copy of the bill of sale. There is evidence that Maierhoffer also told the Bank of his $29,000.00 down payment and requested notification of any default by Nor-Roz upon its obligation to the Bank upon the aircraft.

Evidently Nor-Roz did not keep up with its obligations to the Bank because in April of 1975, a bank officer came to Florida to check on the Nor-Roz operation. The officer also contacted Maierhoffer and had several conversations with him. There is no doubt that the Bank knew where its floor-planned aircraft was and that Maierhoffer claimed title to the aircraft.

Later, at the request of the Bank, Maier-hoffer made his payments directly to the Bank. Maierhoffer’s testimony was that the bank officer who came to Florida promised him that if he sent the remaining four payments to the Bank, then the Bank would see that he got his title free and clear.

After Maierhoffer made his final payment, he attempted to record his bill of sale with the Federal Aviation Authority. The Authority informed him that title to the aircraft was in American Aviation Corporation. This corporation was a new entity under which the principals of Nor-Roz were doing business. Later, with the cooperation of the Bank, a bill of sale from American Aviation to Nor-Roz was recorded. Thereafter, Maierhoffer’s bill of sale was recorded. Shortly thereafter, the Bank executed a release of its chattel mortgage.

The Bank argues that the evidence shows that the release form which it filed with the Federal Aviation Authority in July of 1976 was inadvertently filed as a part of the Bank’s “restructuring” of its loan to Nor-Roz, then doing business as American Aviation. In substantiating its position, the Bank filed with the Federal Aviation Authority an affidavit revoking its release and seeking to reinstate the lien.

Based upon this record, the trial judge could have found for the Bank, but he did not. He found that the Bank had not dealt fairly with Maierhoffer, and that because of the promises and representations made to Maierhoffer, the Bank could not in equity and good conscience assume a new position by claiming the right of possession and re-plevying the aircraft. There is sufficient evidence in this record legally to support the trial court’s decision. See Rousselle v. B & H Construction Co., Inc., 358 So.2d 614 (Fla. 1st DCA 1978); and Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977).

The Bank’s reliance upon O’Neill v. Barnett Bank of Jacksonville, 360 So.2d 150 (Fla. 1st DCA 1978), is, we think, misplaced. The holding in that case must be confined to the factual situation presented there, where both the trial and appellate courts found that the purchaser was not proceeding in good faith. Here the trial court found that the Bank had misled the purchaser and that the Bank’s attempt to reestablish its security interest was fraudulent. Cf. Texas National Bank of Houston v. Aufderheide, 235 F.Supp. 599, 603 (E.D.Ark. 1964), and the general propositions cited therein from Corpus Juris Secundum and American Jurisprudence 2d.

We have examined the record concerning the propriety of the damages awarded and find no error. Accordingly, the judgment is affirmed upon the appeal of the Michigan National Bank of Detroit.

Maierhoffer, on his cross-appeal, urges that the trial court erred in denying him an attorneys fee based upon Section 78.20, Florida Statutes (1977). The trial judge denied an attorneys fee to the successful defendant without setting forth any reason for the denial. The statute provides:

“78.20 Judgment for defendant when goods retained by, or redelivered to, him. —When property has been retained by, or redelivered to, defendant on his forthcoming bond or upon the dissolution of a. prejudgment writ and defendant prevails, he shall have judgment against plaintiff for his damages for the taking, if any, of the property, attorney fees, and costs. The remedies provided in this section and s. 78.21 shall not preclude any other remedies available under the laws of this state.”

The question to be decided is whether, under the facts of this case, property was in effect redelivered to the defendant when it was sold by agreement. The award of attorneys fees is in derogation of the common law and acts for that purpose should be construed strictly. In Great American Indemnity Company v. Williams, 85 So.2d 619 (Fla.1956), the Florida Supreme Court stated:

“ * * * We are not unmindful of the rule that the award of attorneys fees is in derogation of common law and that acts for that purpose should be construed strictly."

The trial judge correctly determined that the statute did not cover the situation presented.

The cross-appellant’s alternate contention that he was entitled to an attorneys fee under Section 57.105, Florida Statutes (Supp.1978) is not tenable on this record. Accordingly, the judgment is affirmed upon the cross-appeal.

Affirmed.


author: BOARDMAN, Acting Chief Judge.

text:
    Ivory R. BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-347.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1979.

      Jack 0. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
   BOARDMAN, Acting Chief Judge.

Ivory Brinson appeals her conviction for robbery, contending that the trial court erred in not allowing her to introduce hearsay testimony under the declaration against interest exception to the hearsay rule. We agree and reverse.

On July 31,1978, at approximately 1:30 a. m., Ambrose Liming was sitting on a bench in a park in downtown St. Petersburg, when a white male and a black female sat down on either side of him. Suddenly Liming was struck on the back of the head. Liming, who was robbed while unconscious from the blow, was unable to identify who struck him because the blow came from behind. However, Robert Brown testified at trial that he was sitting on a nearby bench when the attack occurred and that the black “male” beside Liming had struck the actual blow. Brown also testified that the same black “male” had then searched through Liming’s pockets while Liming lay on the ground.

Appellant, a black female, and John Townsend, a white male, were arrested by a St. Petersburg police officer shortly after the attack on Liming, primarily upon the basis of Brown’s description of the culprits. Prior to appellant’s trial Townsend pled guilty. At trial, appellant sought to call Townsend as a defense witness, but Townsend pled the Fifth Amendment and refused to testify. The trial court correctly sustained Townsend’s objection to testifying because Townsend had not yet been sentenced and his testimony could have resulted in the imposition of a more severe sentence than would otherwise have been imposed. Appellant then attempted to have Officer Julien of the St. Petersburg Police Department testify that he had questioned Townsend shortly after the latter’s arrest, and that Townsend had informed Julien that he had struck Liming. The trial court, however, considered Julien’s testimony to be hearsay and refused to admit it. At the conclusion of the trial, appellant was convicted of robbery as charged.

The general rule against the admission of hearsay statements is that all out-of-court statements offered for the truth of the matter asserted are inadmissible. See Collins v. State, 65 So.2d 61 (Fla. 1953); 13 Fla.Jur. Evidence § 209 (1957). The- primary purpose of the exclusion of hearsay testimony is that the opposing party has no opportunity to cross-examine the out-of-court declarant, and is thereby deprived of the opportunity to expose deceit and errors in the statement. Habig v. Bas-tían, 117 Fla. 864, 158 So. 508 (1935); 5 J. Wigmore, Evidence § 1362 (Chadbourn rev. ed. 1974).

Even without the opportunity to cross-examine, however, some out-of-court statements are simply so inherently reliable that courts have created specific exceptions to the hearsay rule and admitted certain classes of out-of-court statements into evidence. Thus, the general rule of exclusion of hearsay has been undermined to a considerable extent by a substantial number of exceptions. See, e. g., Fed.R.Evid. 803, 804.

One of the exceptions to the hearsay rule is the declaration against interest. Baker v. State, 336 So.2d 364 (Fla.1976). It has long been established that an out-of-court declaration may be admitted into evidence, even for the truth of the matter asserted, if two requirements are met. First, the out-of-court declarant must be unavailable to testify. Second, the out-of-court declaration must be contrary to the “interests” of the declarant. We find the first requirement was met here because the trial court sustained Townsend’s assertion of a Fifth Amendment privilege, thus making Townsend “unavailable.” See People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16 (1970). Accordingly, the only question remaining is whether Townsend’s statement against his penal interest satisfies the second requirement.

Although the admission against interest exception was initially limited to statements contrary to the declarant’s pecuniary or proprietary interests, the Florida Supreme Court has expanded the exception to include statements against penal interest. Baker v. State, supra. We hold, therefore, that the out-of-court statement by Townsend is within the declaration against interest exception to the hearsay rule and Officer Julien should have been allowed to testify concerning it. Moreover, because this statement tends to cast doubt upon the eyewitness account given by Robert Brown, it cannot be said that the trial court’s ruling constitutes harmless error.

Accordingly, we REVERSE and REMAND with instructions to grant appellant a new trial.

RYDER and DANAHY, JJ., concur.

      . We are aware that Section 90.804(2)(c), Florida Statutes (1977), currently modifies the ruling in Baker v. State, 336 So.2d 364 (Fla. 1976) by requiring outside corroborating circumstances indicating the truthfulness of the statement. This statute was not in effect, however, until after the trial court’s ruling in this case. Accordingly, the statute is not applicable to the present appeal.


author: PER CURIAM. ROBERT SMITH, Jr., J.,

text:
    Raymond E. PARDEE, Appellant, v. STATE of Florida, Appellee.
    No. OO-363.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1979.
    Raymond E. Pardee, in pro per.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

Affirmed.

BOOTH and SHIVERS, JJ., concur.

ROBERT P. SMITH, Jr., J., dissents.

ROBERT SMITH, Jr., J.,

dissenting:

On this appeal from an order of the trial court denying Pardee’s Rule 3.850 motion, I think the record before the trial court and before this court does not conclusively show that Pardee is entitled to no relief. I do not consider it our function to pass on the credibility of Pardee’s improbable assertions. Therefore, in my opinion, an eviden-tiary hearing is required.


author: DANAHY, Judge. PER CURIAM.

text:
    Phillip Neal REINERSMAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-518.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1979.
    On Rehearing March 21, 1980.

      Jack O. Johnson, Public Defender, and John A. Naser, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The question presented by this appeal is whether an information charging unlawful possession of more than 100 pounds of cannabis constitutes a second degree felony under Section 893.13(l)(a)2 of our statutes or a third degree felony under Section 893.-13(l)(e).

Appellant was charged with unlawful possession of more than 100 pounds of cannabis, in violation of Section 893.13(2). He was subsequently convicted by a jury and sentenced to seven and one-half years probation. One year later, his probation was revoked and he was sentenced to fifteen years imprisonment on the possession charge. Appellant now contends that since the information failed to allege possession with intent to sell or deliver, it only charged simple possession under Section (l)(e), which is a third degree felony. The state, on the other hand, maintains that, under the exception contained in subsection (l)(a)2, mere possession of more than 100 pounds of cannabis is a second degree felony. We hold that when it omitted the element that his possession was with intent to sell or deliver, the information charged appellant with a third degree felony under subsection (l)(e). Because conviction of a third degree felony is punishable by a maximum sentence of five years, neither appellant’s original probationary term nor the sentence he appeals could lawfully exceed that period.

Simple possession of cannabis, regardless of the amount, is proscribed by Section 893.13(l)(e), Florida Statutes (Supp. 1976). If the legislature intended to make simple possession of more than 100 pounds a second degree felony, it would have so provided in subsection (l)(e). It has not done so. Rather, it has created an exception under subsection (l)(a)2, which we conclude manifests an intent to make only possession with intent to sell or deliver a second degree felony, and then only if more than 100 pounds is involved.

The same interpretation has been applied by the First District Court of Appeal. Ghewning v. State, 366 So.2d 144 (Fla. 1st DCA 1979); Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978):

It is apparent both from Section 893.-13(l)(a) and from the text of the session law . . . that the legislature deliberately subsumed the new 100-pound quantity element under the older prohibition of selling, manufacturing, delivering, or possessing with intent to sell, manufacture, or deliver.

362 So.2d at 436, 437.

Therefore, since appellant was charged with a third degree felony, the maximum sentence which could have been imposed, both originally and upon revocation of probation, was five years. His fifteen year sentence was, therefore, illegal. Because the order revoking probation was entered well within the five-year period we remand to the trial court with directions to resentence appellant and reduce his prison sentence to a maximum of five years. The order of revocation is otherwise affirmed.

GRIMES, C. J., and BOARDMAN, J., concur.

ON PETITION FOR REHEARING

PER CURIAM.

On rehearing appellee requests we certify to the Florida Supreme Court the question we posed at the outset of our opinion. That question was: “[Wjhether an information charging unlawful possession of more than 100 pounds of cannabis constitutes a second degree felony under Section 893.13(l)(a)2 of our statutes or a third degree felony under Section 893.13(l)(e).”

The same question, worded in a different manner by our brethren on another panel of this court in an altered decision and opinion rendered on rehearing in Beasley v. State, 382 So.2d 47 (Fla. 2d DCA 1980), was certified to our supreme court as one of great public interest.

Consistency within this court and harmony among the conflicting decisions of the district courts of appeal require that we join in the certification of this question to the Florida Supreme Court. We do so and grant the petition to the extent the question is hereby certified.

GRIMES, C. J., and BOARDMAN and DANAHY, JJ., concur.

      .Section 893.13(l)(a), Fla.Stat. (Supp.1976), provides in part:
      (l)(a) Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:
      2.A controlled substance named or described in s. 893.03(l)(c) ... is guilty of a felony of the third degree . . . ; except that the sale, delivery, or possession of in excess of 100 pounds of cannabis as controlled in s. 893.03(l)(c) shall constitute a felony of the second degree, .
      Section 893.13(l)(e) provides:
      (e) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision is guilty of a felony of the third degree, .

      . The citation to subsection (2) in the information was obviously a misnomer. The language of the information clearly charged appellant with possession, which is encompassed by subsection (1). The erroneous citation did not mislead appellant to his prejudice and provides no basis for reversal. Fla.R.Crim.P. 3.140(d)(1).

      . “Consistent with a policy of allowing unlawful length of criminal penalty to be raised at any time appellant may raise this issue after the period for a direct appeal has elapsed, by way of this appeal from the revocation of the probation.” Bouie v. State, 360 So.2d 1142 (Fla.2d DCA 1978), at 1144.

      . The exception was added by Ch. 76-200, Laws of Florida, effective October 1, 1976. The crime charged by the instant information occurred on October 2, 1976.


text:
    Joseph Bryan MAYO, Appellant, v. STATE of Florida, Appellee.
    No. OO-349.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1980.
    Rehearing Denied April 4, 1980.

      John C. Cooper, of Douglass, Davey & Cooper, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Mayo appeals his conviction of possession of more than five grams of marijuana entered after he pleaded nolo contendere reserving his right to appeal. He urges that the trial court erred in denying his motion to suppress, contending that the initial stop of his vehicle was illegal and the ensuing warrantless search invalid due to a lack of probable cause or exigent circumstances. We find no error and affirm.

On the evening in question, at approximately 10:30 P.M., Officers McDearmid and Hancock, in separate vehicles, were routinely patrolling Rhoden Cove, a public boat landing, because nearby residents had complained of rowdy parties being held there. The officers had been checking this area for several months and McDearmid was aware that the party goers frequently left the public area and went onto the adjoining private property. He knew there was an old fence along the property line which had been cut down and “posted” signs had been torn down by the young people who partied at the landing.

McDearmid notified Hancock that he intended to check the “back side” — a rut road which circled off the public road onto the private property. As McDearmid started onto the rut road, he saw Mayo’s vehicle exiting and when Mayo reached the county property, McDearmid stopped him. While waiting for Mayo to produce his identification, McDearmid saw a “smoking pipe that is customarily used for smoking marijuana.” With the aid of his flashlight, he then visually examined the remainder of the car. In the front seat area he saw a small baggie of material, which, based on his experience, appeared to be marijuana; in the back, he saw an open box containing a larger baggie of the same material. McDearmid arrested Mayo and his passenger, seized the marijuana and paraphernalia.

We first determine whether the initial stop was grounded on a founded or reasonable suspicion that Mayo had violated the law. Coladonato v. State, 348 So.2d 326 (Fla.1977); D. C. E. v. State, 381 So.2d 1097 (Fla. 1st DCA 1979). “A founded suspicion is a suspicion which has some factual foundation in the circumstances observed by the officer, when these circumstances are interpreted in the light of the officer’s knowledge.” State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978).

McDearmid knew the area Mayo was leaving was private property. He knew that residents had complained about rowdy parties at the landing, and he knew that the young people frequently trespassed onto the private property.

In assessing the reasonableness of the stop, it is necessary to balance the governmental interest involved against the privacy rights being invaded. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry court found the governmental interest in effective crime prevention and detection justifies a brief intrusion into privacy rights when the officer can “point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant that intrusion.” 392 U.S. at 21, 88 S.Ct. at 1880. McDearmid was investigating a possible trespass. This justified the minor intrusion of an investigative stop. See also Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Appellant argues that Delaware v. Prowse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), compels reversal. Not so. In Delaware v. Prowse, the court held only that motorists may not be stopped or detained without a reasonable or articulable suspicion that “either the vehicle or an occupant is otherwise subject to seizure for violation of law,” 99 S.Ct. at 1401; our holding today is in accord. The totality of the circumstances — the time of night, the location, the rut road onto private property, McDearmid’s knowledge that the land had been posted and his knowledge of prior trespassers created a reasonable or founded suspicion that Mayo was violating the law. State v. Stevens, supra; State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977).

The subsequent search of the vehicle and the seizure of the marijuana were also proper. McDearmid, being where he had a legal right to be, observed marijuana-smoking paraphernalia and baggies containing what appeared to be marijuana. McDear-mid had been a deputy sheriff for eighteen years and testified that he had observed drug paraphernalia many, many times. “Probable cause exists if a reasonable man, having the specialized training of a police officer, in reviewing the facts known to him, would consider that a felony is being or has been committed by the person arrested.” State v. Profera, 239 So.2d 867 (Fla. 4th DCA 1970); Adams v. State, 375 So.2d 638 (Fla. 1st DCA 1979).

It is well settled that probable cause alone justifies the search of an automobile on the highway. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Mahoney v. State, 300 So.2d 743 (Fla. 1st DCA 1974). Affirmed.

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

ROBERT P. SMITH, Jr., J., dissents.


text:
    Harvey Michael McELROY, Petitioner, v. FLORIDA PAROLE & PROBATION COMMISSION, Respondent.
    No. SS-235.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1980.
    Rehearing Denied April 16, 1980.
    Harvey Michael McElroy, petitioner, pro se.
    Michael H. Davidson, Gen. Counsel, Gainesville, for respondent.
   PER CURIAM.

The response to the order to show cause having been considered, the order is discharged and the petition for writ of mandamus or in the alternate petition for writ of habeas corpus, is denied.

MILLS, C. J., and SHAW and WENT-WORTH, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    W. A. ALFORD HARVESTING, INC. and Florida Farm Bureau Insurance Company, Appellants, v. Alfredo ROBLES, Appellee.
    No. QQ-116.
    District Court of Appeal of Florida, First District.
    Jan. 22, 1980.
    Arthur C. Fulmer, of Lane, Massey, Trohn, Clarke, Bertrand & Smith, P. A., Lakeland, for appellants.
    Clifton L. Howell, Jr., of Howell & Roth, P. A., Winter Haven, for appellee.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 1979, 378 So.2d 1265 (Fla. 1st DCA).

On the merits, I would concur in the majority’s opinion.


text:
    TRI-PLAZA CORPORATION and Don T. Davis, Appellants, v. N. R. FIELD and Biscayne River Gardens, Inc., a Florida Corporation, Appellees.
    No. 78-2327.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1980.
    Rehearing Denied April 22, 1980.

      James R. Rich, of Christiansen, Jacknin & Myers, Palm Beach, for appellants.
    William H. Pruitt of Pruitt & Gay, West Palm Beach, and John P. McNutt of A. N. Spence and John P. McNutt, Miami, for appellees.
   PER CURIAM.

This is an appeal from a non-final order granting a temporary injunction. The action arose out of a real estate transaction involving the purchase of a commercial building and its resale. Disposition of the proceeds of the sale, in the form of promissory notes, became a central issue in the litigation.

At the request of appellee and as a result of his counterclaim, the trial court issued a temporary mandatory injunction appointing a trustee to receive and then to deposit payments on two promissory notes, as the same from time to time were received. These promissory notes were payable to the plaintiffs counterdefendants.

We reverse the order granting temporary injunction for the following reasons:

1. No bond was required by the trial court nor was there any evidence that the counterclaimant was unable to give bond. It was impermissible to grant a temporary mandatory injunction without requiring bond in the absence of evidence showing financial inability to obtain bond. Leopold v. Richard Bertram & Co., 265 So.2d 710 (Fla.3rd DCA 1972), City National Bank of Miami v. Somerset Development Corp., 330 So.2d 501 (Fla.4th DCA 1976).

2. There was no showing that counterclaimant would suffer irreparable harm or that the remedy at law would be inadequate. Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975), or that money damages would not be a sufficient remedy. First National Bank in St. Petersburg v. Ferris, 156 So.2d 421, (Fla.2nd DCA 1963). The mere possibility of insolvency (and insolvency was not suggested in the record) is not a sufficient reason for the granting of injunctive relief. Godwin v. Phifer, 51 Fla.-441, 41 So. 597 (1906).

While it is true that the determination to grant or deny an application for temporary injunctive relief rests within the sound discretion of the trial court, exercise of that discretion is circumscribed by the foregoing well established principles. The issuance of a temporary injunction is an extraordinary and drastic remedy which should be granted sparingly and with caution, only after the moving party has proven sufficient facts entitling it to relief. Jennings v. Perrine Fish Market; Inc., 360 So.2d 434 (Fla.3rd DCA 1978).

REVERSED.

HERSEY and ANSTEAD, JJ., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.