author: PER CURIAM. HURLEY, Judge,

text:
    Philip H. JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 79-157.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Edward A. Garrison of Kohl, Springer, Springer & Garrison, Palm Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS and GLICKSTEIN, JJ., concur.

HURLEY, J., dissents.

HURLEY, Judge,

dissenting.

Today the majority upholds a warrantless vehicle search based upon hearsay information from a confidential informant who failed to divulge the source of his information. In my view the tip lacked substantial independent indicia of reliability and therefore I conclude the search of the vehicle fell below constitutionally mandated norms. I would reverse.

On December 20, 1977, at approximately 5:00 P. M., a confidential informant walked into the ■ Jupiter police station. He told Officer Woodard that the defendant, Jenkins, was driving a brown Oldsmobile and would be leaving town with some drugs in his car. The informant went on to say that the vehicle was being repaired at a Gulf service station. With this information the police launched their investigation. Officer Bachman described his initial activities: “ . . .1 checked with*the manager of that particular station in an attempt to find the vehicle or anyone who knew anything about it. This all proved negative as well as checking with the mechanic who worked for that station . .”

Approximately an hour later, the same confidential informant reentered the Jupiter police station and told Officer Woodard that Jenkins was leaving the parking lot of an apartment building located at the corner of First and Old Dixie Highway. He said that drugs were contained in a brown paper bag located on the front seat or front floorboard section of the vehicle. The police went to the designated location and saw Jenkins driving away. They followed and stopped him. They seized a brown paper bag from the right front floorboard section of the vehicle; it contained marijuana, a quantity of amphetamine pills, and a quantity of cocaine.

Jenkins moved to suppress the evidence. At the motion hearing, Officer Woodard testified that with the exception of what he had been told by Officer Bachman, he had no knowledge of the informant’s past reliability. As to the source of the informant’s present information, he responded as follows:

Q. In your conversation with the Cl at the station, did he indicate how he knew the information or how he had obtained the information he was relating to you?
A. No, he didn’t.
Q. You just accepted what he was saying as true?
A. Yes.
Q. He didn’t say he had personally seen the bag or anything like that?
A. No. He didn’t say he had personally seen the bag.

All of the testimony on the informant’s past reliability came from Officer Bachman. His testimony, vacillating and contradictory as it was, is accepted here in the light most favorable to sustain the trial court’s ruling. McNamara v. State, 357 So.2d 410 (Fla.1978). This is done despite the fact that the trial court expressly rejected Bach-man’s claim that the bag was open with its contents in plain view.

Section 933.19, Florida Statutes (1979), adopts the rule formulated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which permits a warrant-less search of a motor vehicle on the open highway where there is probable cause to believe that the vehicle contains contraband. Samuels v. State, 318 So.2d 190 (Fla.2d DCA 1975), cert, denied, 330 So.2d 21 (Fla.1976). The requisite element of probable cause may be satisfied by hearsay information. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). Indeed, hearsay may be supplied by a confidential informant whose identity need not. be disclosed. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Maier, 366 So.2d 501 (Fla.lst DCA 1979); State v. Katz, 295 So.2d 356 (Fla.4th DCA 1974).

When a confidential informant is utilized, however, the police must demonstrate (1) that the informant is credible, and (2) that his information is reliable. State v. Bond, 341 So.2d 218 (Fla.2nd DCA 1976), cert, denied 348 So.2d 953 (Fla.1977). This is commonly known as the “ ‘two-pronged’ Spinelli-Aguilar test”, described in Davis v. State, 346 So.2d 141, 142 (Fla.lst DCA 1977), cert, denied 353 So.2d 679 (Fla.1977):

In Aguilar v. Texas, . . ., and Spi-nelli v. United States, . ., the United States Supreme Court established a “two-pronged” test for sufficiency of affidavits for search warrants relying on information obtained from an informant. That test requires first that affiant state how the informer gained his information so that the magistrate can determine if the underlying circumstances justify a conclusion that probable cause for a search exists. Secondly, the magistrate must be provided with the reasons from which the affiant concludes the informant is reliable. (Citations omitted.)

In our case, one of the Spinelli-Aguilar tests is wholly unsatisfied. We have no idea how the informant obtained his information. It is not alleged that he personally observed the drugs in Jenkins’ possession nor that he viewed the contents of the bag. Where a tip does not contain a sufficient statement of the underlying circumstances from which the informant concluded that the defendant was violating the law, the court must resort to a secondary evaluative process which was outlined by Mr. Justice Harlan in Spinelli, supra:

In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.
The detail provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) provides a suitable benchmark. 393 U.S. at 416, 89 S.Ct. at 589.

Draper, it will be remembered is the case in which a police officer was told by an informant, known to the police officer to be reliable, that a man of a certain description would get off a certain train with a specified amount of heroin in his possession. The quantity of detail in the tip was overwhelming. So much so, that it was readily “ . . . apparent that the informant had not been fabricating his report out of whole cloth; since the report was of the sort which in common experience may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established.” Id. at 417-418, 89 S.Ct. at 590.

Draper, then, is a “benchmark” having constitutional significance and so it is worth recounting the amount and specificity of detail present in the Draper tip. The informant said,

“ . . . that Draper had gone to Chicago the day before [September 6] by train [and] that he was going to bring back three ounces of heroin [and] that he would return to Denver either on the morning of the 8th of September or the morning of the 9th of September also by train.” 358 U.S. at 309, 79 S.Ct. at 331.

Saying that Draper would be carrying “a tan zipper bag,” and that he habitually “walked real fast,” the informant gave the following physical description of Draper and of the clothes which he was wearing:

“ . . Draper was a Negro of light brown complexion, 27 years of age, 5 feet 8 inches tall, weighed about 160 pounds, and that he was wearing a light colored raincoat, brown slacks and black shoes.” 358 U.S. at 309 n.2, 79 S.Ct. at 331 n.2.

I do not suggest there has to be a “mathematical match-up” in order to satisfy Draper,. but there must be an equivalent degree of reliability. Draper, after all, is a substitute method of evaluation. It is less favored than the Spinelli-Aguilar approach for it forces us to garner indirectly what Spinneli-Aguilar provides outright — evidence of reliability. Therefore, Draper must be applied with a careful and exacting eye. In our own case, a simple back-to-back comparison illustrates the inadequacy of the Jenkins tip.

DRAPER_JENKINS
(1) Type of drug: Heroin. (1) According to the first officer who received the tip the type of drugs was unknown. According to the second officer (Bach-man) the type of drugs was “marijuana and some other drugs.”
(2) Amount of drugs: (2) 3 ounces. Amount - Unknown.
(3) Source of drugs: (3) Chicago. Unknown.
(4) Mode of transportation: (4) Train. Brown Oldsmobile.
(5) Location: (5) Train station. The first information about the Gulf station proved to be incorrect. The second information regarding the apartment house parking lot was correct.
(6) Name of defendant: Draper. (6) Informant named Jenkins.
(7) Physical description. (7) None.
(8) Clothing description. (8) None.
(9) Personal habits: Walked fast. (9) None.
(10) Special items: (10) Brown paper bag.
Tan zipper bag.

There is an understandable inclination to refrain from overly critical analysis in matters of this kind. Courts are, and ought to be, sensitive to the charge of “nit-picking”, of dissecting and second-guessing difficult on-the-spot decisions. Yet the search below was without a warrant which raises immediate concern. “ . . . [Sjearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514,19 L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980). We also proceed under the correlative principle that probable cause must be determined by a “neutral and detached magistrate,” and not by “the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Indeed, neither a magistrate nor an appellate court can “be said to have properly discharged [their] constitutional duty if [they] [rely] on an informer’s tip which — even when partially corroborated— is not as reliable as one which passes Aguilar’s requirement when standing alone.” Spinelli, supra, 393 U.S. at 415-416, 89 S.Ct. at 589.

Thus we find ourselves in an after-the-fact inquiry. At the outset we note that the informant’s first tip that “ . . the vehicle was being repaired at a Gulf service station during the day . . .,” was incorrect. The police went to the service station and talked with the manager and the mechanic. Neither was able to corroborate this information. So we begin with an informant who has not supplied useful information to the police officers in this case for a substantial period of time (one, two, or perhaps even three years), and whose initial information is wrong.

The second installment is equally unsatisfying — more for what it lacks than for the little it provides. True, the informant indicated (a) the name of the defendant, (b) the make and color of the car, (c) its location, and (d) where and in what the drugs were contained. But he failed to supply easily ascertainable detail which would have shown that his information was recent and reliable. For example, he did not relate any portion of Jenkins’ license tag number. Secondly, there is no testimony that the police knew Jenkins. Thus it would have been useful to have his physical description plus a description of the clothes which he was wearing. The latter would have verified that the informant had seen Jenkins on the day in question. Also, there was no information about the passenger in the vehicle — (a) that he was there, (b) his physical description or, (c) a description of his clothing.

The information about the type of drugs was either nonexistent or vague. Officer Woodard, who actually received the tip, testified that the informant said Jenkins had “ . . . some narcotics in a paper bag . It was Officer Bachman, the second-hand recipient of the tip, who testified that the informant said Jenkins “ . . had marijuana and some other narcotics, other drugs in the vehicle.” Compared with the specificity in Draper (three ounces of heroin), the information here is meager and imprecise. The record reveals that Jenkins possessed a quantity of marijuana, at least thirty-four red and black “capsule type” amphetamine pills and two “lids” of cocaine. Presumably, the informant would have known the type and approximate amount of drugs if he had first-hand or otherwise reliable knowledge. In retrospect, it is clear there was an abundance of corroborative detail which the informant could have, but failed to relate to the police.

The question, then, is posed, did the police observations sufficiently corroborate the tip so as to cure its deficiencies? In this respect, our case bears similarity to United States v. Larkin, 510 F.2d 13 (9th Cir. 1974). There the police received a radio dispatch that a 1972 black on blue GMC “blazer-type” vehicle, with an identified license plate number, would be proceeding from El Centro toward Los Angeles carrying heroin and marijuana. The tip came from an informant whose reliability was not proved and the dependability of whose information was not established. Nevertheless the government argued that the police corroboration supplemented and cured any deficiencies in the tip. The court rejected this argument, saying:

Nothing about the described features of the car or its direction points to anything suspicious, let alone criminal. That a vehicle matching the description was spotted, along a highway from El Centro in the general direction of Los Angeles corroborates nothing except, possibly, the ability of the informant accurately to relay what he has seen or what he has overheard. No hint is given thereby that the informant was truthful in reporting that the vehicle contained contraband. Nor does the observation supply any information about how the informant knew that contraband was being transported. The fact that these few innocuous details tallied with the officers’ observations cannot “be said to support both the inference that the informer was generally trustworthy and that he had made his charge against [Larkin] on the basis of information obtained in a reliable way. 510 F.2d at 15, quoting from Spineiii, supra at 417, 89 S.Ct. at 589.

So too in the case at bar. The Jupiter police were able to corroborate only “innocent-seeming conduct” which failed to cure the tip’s congenital deficiencies. In assessing the worth of police corroboration, each case must be judged on its own facts. See, e. g., Tucker v. State, 283 So.2d 128 (Fla.2d DCA 1973), cert, denied, 291 So.2d 11 (Fla. 1974). There is no consensus on what type of information is required to corroborate an informant’s tip and there are instances where an accumulation of innocent-seeming detail conforming to the original tip will have real corroborative value. See, e. g., St. John v. State, 356 So.2d 32 (Fla.lst DCA 1978) and United States v. Holliday, 474 F.2d 320 (10th Cir. 1973). Nevertheless, “ . . . it is generally agreed that the better practice is to obtain corroboration of incriminating details.” United States v. Brennan, 538 F.2d 711, 720 (5th Cir. 1976), cert, denied, 429 U.S. 1092, 97 S.Ct. 1104, 51 L.Ed.2d 538 (1977), reh. denied, 430 U.S. 960, 97 S.Ct. 1611, 51 L.Ed.2d 812 (1977).

Thus, as I see it, we are left with a tip which was deficient from the start and which does not support a finding of probable cause. The focus of this inquiry has centered on the facts leading to the search and has excluded any consideration of the defendant’s guilt. That is the absolute duty of this court. The rationale and ultimate value for such an approach was set forth by the late Mr. Justice Douglas in his dissenting opinion in Draper, supra.

Decisions under the Fourth Amendment, taken in the long view, have not given the protection ■ to the citizen which the letter and spirit of the Amendment would seem to require. One reason, I think, is that wherever a culprit is caught red-handed as in leading Fourth Amendment cases, it is difficult to adopt and enforce a rule that would turn him loose. A rule protective of law-abiding citizens is not apt to flourish where, its advocates are usually criminals. Yet the rule we fashion is for the innocent and guilty alike. If the word of the informer on which the present arrest was made is sufficient to make the arrest legal, his word would also protect the police who, acting on it, hauled the innocent citizen off to jail. 358 U.S. at 314-315, 79 S.Ct. at 333-334.

In summary, I suggest that the paucity of detail in the Jenkins tip renders it incapable of meeting the Draper “benchmark”. The information about alternate locations of the drugs within the vehicle hints at credibility, but I do not think we can say with any reasonable degree of probability that this information was reliable as opposed to being “ . . .an offhand remark heard at a neighborhood bar.” Spinelli, supra at 417, 89 S.Ct. at 589. Reliability remains the critical test. Had the police asked the elementary question, “How did you obtain your information?”, the deficiency, in all likelihood, would have been cured. This court, however, should not allow substandard police work to result in the dilution of an important Fourth Amendment safeguard. For these reasons I would reverse.

      . Officer Bachman testified in this fashion:
      Q. Had you had any prior dealings with this confidential informant in the past?
      A. Yes, ma’am.
      Q. Had any of his information proved to be reliable in the past?
      A. Yes.
      Q. Could you tell us—
      A. Let me go back on that. I worked with my partner, if I recall, on a case, I’m not sure how much longer it was, I don’t recall before this particular incident and it was known to me that he had been a good and reliable confidential informant on other past cases.
      Q. Had you used him before?
      A. I don’t think so. I don’t recall.
      Q. Did you recognize the name of the confidential informant that Sergeant Woodard told you?
      A. Oh, yes. Very well.
      Q. Had you ever personally had any dealings with him regarding any police cases?
      A. I believe so, but I don’t recall. It has been a few years since the cases that involved this individual that I worked took place. 1 don’t honestly recall. I think I did, but I’m not positive.
      Q. All right. Then given your indirect involvement with this confidential informant, how many cases have you used him or been involved with him before?
      A. If I recall correctly, it was probably two or three.
      Q. Here today, do you now recall whether or not you have ever spoken to that confidential informant prior to the date you stopped Mr. Jenkins in the car?
      A. I don’t recall.
      I believe you mentioned two or three cases that you had worked with this informant directly, is that correct? o'
      I know of two or three cases. I’m not sure if 1 worked on all three or both of them, but I know I have worked on at least one and possibly two. <
      Do you know when these cases were?
      They were at least two years ago, possibly three. I’m not quite certain.
      Q. During the year preceding this stop of the vehicle we are talking about, had you used the Cl or were you aware of anyone in your department using the Cl?
      A. Yes, sir.
      Q. Okay. Page 12 of that same deposition, quoting from line, starting at line 13, “Question: On what occasion and what type of information?” “Answer: It was a previous narcotics case. Question: How many times? Answer: I’m not sure if it was one or two. It has been quite some time. Question: How long ago or how long prior to December 20th? Answer: At least a year. Question: Are you saying it had been at least a year since you had any knowledge of the confidential informant’s activities with the police department or had been at least a year that the confidential informant had given any information to anyone whatsoever at the Jupiter Police Department?”
      At that time you believe, and I’m not quoting from the deposition, but at that time you indicated it had been at least a year, is that correct?
      A. Apparently, if that’s what you are reading.


source: Caselaw Access Project

author: DOWNEY, Chief Judge.

license: Public Domain

text:
    In the Interest of D. K. F., a child.
    No. 78-2200.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1980.
    Rehearing Denied April 30, 1980.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, and Lorrie Robinson, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

This case involves an appeal from a judgment finding appellant delinquent and placing him on probation. Appellant designates the judicial act to be reviewed as the court’s order of October 5, 1978, denying appellant’s motion to suppress contraband found on his person as a result of a warrantless search. Appellant pleaded nolo contendere, reserving the right to question the propriety of the October 5, 1978, order on appeal.

In brief, the evidence adduced at the suppression hearing was that Officer Lockmil-ler was called to the home of Mr. Wagner, who showed the officer what he suspected to be marijuana under his stepson’s bed. Wagner advised Lockmiller that his stepson, David Ware, had departed the house about an hour earlier on a red motorcycle in the company of appellant and that they were probably going to the area around the Pines Cinema.

After stopping appellant Lockmiller told Gourdeau he noticed a bulge in appellant’s midsection which could be a weapon. Gour-deau asked appellant, “What have you got there?” Appellant said, “Nothing.” At which point appellant turned sideways and reached toward the bulge area. Gourdeau then “grabbed for the same area” and pulled out a plastic bag of marijuana.

Lockmiller testified the police stopped appellant to inquire about the whereabouts of Ware. Gourdeau said they stopped appellant based upon the probable cause he had of a narcotics violation.

We have scoured this record and find no support for the stop involved here. The officers did not have probable cause to believe appellant had violated any law, nor did they have a reasonable, founded suspicion that appellant was involved in some criminal activity, past, present, or future. Therefore, the resulting search involved in the snatching of the contraband which created the bulge was also improper.

For the foregoing reasons we reverse the judgment appealed from and remand the cause with directions to discharge appellant.

REVERSED and REMANDED with directions.

BERANEK and GLICKSTEIN, JJ., concur.


author: PER CURIAM.

text:
    DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant, v. Donnell WHITFIELD, Appellee.
    No. TT-394.
    District Court of Appeal of Florida, First District.
    March 21, 1980.
    Louis F. Hubener, Tallahassee, for appellant.

      Bill A. Corbin, Blountstown, for appellee.
   PER CURIAM.

The Department appeals from a temporary restraining order entered by the circuit court in a statutory proceeding instituted by the Department to enforce its final administrative order directing defendant Whitfield to remedy asserted deficiencies in Whitfield’s water system, serving a number of Calhoun County residents. Section 403.-860(4), Florida Statutes (1979). On Whitfield's application the circuit court temporarily restrained the Department

from releasing public press releases that may relate to the water system owned by defendant or from distributing such information directly or indirectly to defendant’s customers until further Order of this Court, except that this shall not prevent Plaintiff from contacting Defendant’s customers for the proper preparation of this cause by Plaintiff:

Except for the conclusory statement that “irreparable harm would result” to Whitfield were his motion for temporary restraining order not granted, the order makes no finding of fact or conclusion of law suggesting the necessity or propriety of enjoining this public agency, having general supervisory responsibilities, from uttering information which Section 403.857, Florida Statutes (1979) requires be given to the consuming public concerning its water supply. Although defendant Whitfield asserts that his water system is exempt from Department supervision, that claim is not elaborated; nor does Whitfield suggest why the Department’s unappealed order to the contrary is subject to collateral attack in the circuit court. See Section 120.69(5), Florida Statutes (1979); State ex rel Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977). The temporary restraining order is

REVERSED. Although a petition for rehearing may be timely filed, this judgment shall have effect immediately. The Department’s motion for attorney’s fees is DENIED.

ROBERT P. SMITH, Jr., ERVIN and WENTWORTH, JJ., concur.


author: OTT, Judge.

text:
    HIGHLANDS COUNTY SCHOOL BOARD, Appellant, v. K. D. HEDIN CONSTRUCTION, INC., a Florida Corporation, Insurance Company of North America, a corporation, Eoghan N. Kelley, Continental Casualty Company, a Foreign Corporation, and the Celotex Corporation, a corporation, Cotton States Mutual Insurance Company, and E. C. Goldman, Inc., a Florida Corporation, Appellees.
    No. 79-1730.
    District Court of Appeal of Florida, Second District.
    March 21, 1980.
    Rehearing Denied April 10, 1980.

      J. Bert Grandoff, of Yado, Keel, Nelson, Grandoff, Casper, Bergmann & Newcomer, P. A., Tampa; and James F. McCollum, Sebring, for appellant.
    Donald J. Gifford and Peter J. Grilli of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee, Celotex Corp.
   OTT, Judge.

The Highlands County School Board appeals from an order dismissing its amended complaint with prejudice. We reverse.

The School Board filed a complaint against appellee and others. As to appellee, the School Board alleged separate counts based on negligence, strict liability and gross negligence. These claims arose out of allegedly defective conditions in the roof of the Lake Placid High School. The roof was constructed of products which had been manufactured by appellee and sold to a subcontractor who eventually installed them on the high school construction project.

The School Board filed an amended complaint, and appellee moved to dismiss for failure to state a cause of action. The trial court granted the motion and entered an order dismissing all counts with prejudice.

The School Board argues on appeal that its amended complaint should not have been dismissed with prejudice, but that it should have been allowed to replead. We agree.

The trial court properly dismissed the amended complaint for failure of the School Board to allege sufficient ultimate facts. However, dismissal with prejudice cannot be justified on this basis alone. Leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable. Osborne v. Delta Maintenance and Welding, Inc., 365 So.2d 425 (Fla.2d DCA 1978). Neither of those circumstances is present in this case. The School Board has previously amended its complaint only once. Further, although there was no privity of contract between the School Board and appellee, this court has recently held that absence of contractual privity is no bar to a tort claim, provided the plaintiff can establish the existence of a duty between the parties independent of the contract. Navajo Circle, Inc. v. Development Concepts, 373 So.2d 689 (Fla.2d DCA 1979).

The other points raised by the parties have been considered and found to be either without merit or rendered moot by this opinion.

REVERSED and REMANDED for further proceedings consistent with this opinion.

SCHEB, A. C. J., and CAMPBELL, J., concur.


text:
    Robert Thomas BASS, Appellant, v. Marilyn Hawk BASS, Appellee.
    Nos. 78-2263, 79-54 and 79-195.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.

      Horton, Perse & Ginsberg and Mallory H. Horton, Sinclair, Louis, Siegel & Heath, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Allen J. Smith, Miami Beach, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   On Rehearing

PER CURIAM.

This is a consolidated appeal from three post-decretal orders entered against the appellant-former husband. The orders, entered pursuant to the appellee’s 1977 petition for modification of the 1975 final judgment of dissolution of marriage, stated that: (1) the former wife was permitted to permanently move the parties’ three minor children from Dade County to Broward County; (2) she be awarded Thirteen Thousand Three Hundred Sixty Dollars ($13,-360.00) as damages for delays due to appellant’s having obtained continuances of trial; and (3) she be awarded attorneys’ fees of Fifteen Thousand Dollars ($15,000.00).

As to the areas of concern dealing with the removal of the children from Dade County to Broward County and the attorneys’ fees award, we affirm the trial court’s orders. However, we must agree with the appellant’s contention that the trial court erred in awarding the wife damages for the delays in beginning the trial in the matter. Not only is the accuracy of the monetary figures in sharp dispute between the parties and there is evidence that the husband is being penalized for certain delays which cannot be attributed to him, but at the time the court entered the order on damages the former husband had already filed his notice of appeal of two previous orders (one of which was the basis of the later order on damages). Thus, we have determined that the trial court was actually without jurisdiction to enter the order assessing said damages at the time it did. De La Portilla v. De La Portilla, 304 So.2d 116 (Fla.1974) and Veiner v. Veiner, 364 So.2d 834 (Fla. 3d DCA 1978). The December 28, 1978 order must therefore be reversed.

The orders of the court on the matters pertaining to the removal of the children to Broward County and the award of attorneys’ fees are supported by substantial, competent evidence, and we have no cause to disturb the judgments made by the trial court. Herzog v. Herzog, 346 So.2d 56. (Fla. 1977); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976); Veiner v. Veiner, supra; Keller v. Keller, 348 So.2d 654 (Fla. 3d DCA 1977).

Affirmed in part and reversed in part.

HENDRY, J., dissents.


text:
    Durand HOLLADAY and James R. Dezell, Appellants, v. CITY OF CORAL GABLES, a Municipal Corporation, and the City Commission of the City of Coral Gables, Appellees.
    No. 79-995.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.

      Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Edwin P. Krieger, Jr., Miami, for appellees.
    Before SCHWARTZ and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal was filed by the plaintiffs from a final summary judgment rendered in favor of the defendants, the City of Coral Gables, and the Coral Gables City Commission. We hold no reversible error has been shown, and affirm.

On November 7, 1977, the appellants Du-rand Holladay' and James R. Dezell filed a complaint against the City and the City Commission for declaratory judgment and supplemental injunctive relief. Thereby, they sought a determination that under the Zoning Code of the City of Coral Gables it would be permissible for the owners of a described parcel of land [then owned by Durand Holladay and his wife] consisting of two platted lots, each of which had a street frontage of 100 feet and upon which parcel there existed one single family residence, to demolish the existing residence and construct two residences on said parcel, one on each of said 100 foot lots. The parcel involved consists of Lots 28 and 29 of Block 90, of Coral Gables Country Club Section, Part 5, with a street address of 4615 San Amaro Drive. The rear of said parcel abuts a portion of a golf course owned and maintained by Rivera Country Club. The defendants timely filed answer.

Thereafter on November 13, 1978, with leave of court, the plaintiffs filed an amended complaint. The defendants filed answer thereto, which included a number of affirmative defenses. The pleadings disclose the following. Dezell is a builder, the president of a construction company. Hol-laday is a member of the Florida Bar.

Prior to the purchase of the property Dezell inquired of Mr. John P. Little, Jr., the Zoning Administrator of the City, as to whether it would be permissible to demolish the existing residence on said parcel and construct new residences on each of the two lots on said building site. Mr. Little replied by letter dated April 19, 1977, that under the Zoning Code it would be permissible to do so.

At that time, by virtue of Ordinance No. 2058 passed in 1973, the Zoning Code (Section 8.02) had provided that a building site consisting of two or more platted fifty-foot lots upon which a single family residence had been constructed should not be diminished, and if the existing residence was demolished or removed no permit should be issued for construction of more than one residence building on the building site. The wording of Ordinance No. 2058, in pertinent part, was as follows:

SECTION 8.02 BUILDING SITES — ‘R’, ‘D’ AND ‘A’ USES. GENERAL
(1) Except as may be provided hereinafter to the contrary, in connection with replats, subdivisions and specifically described lots or parcels of land, no building or structure designed for an ‘R’, ‘D’ or ‘A’ Use shall be constructed or erected upon a building site having a street frontage of less than 50 feet; nor shall more than one such building or structure be constructed or erected upon any one platted lot; provided, however, that wherever there may exist a single family residence building which was constructed on a building site containing two or more platted fifty (50) foot lots, said building site shall not henceforth be reduced or diminished in any manner and if said residence building is demolished or removed therefrom, no permit shall be issued for the construction of more than one residence building on the building site.

On April 20, 1977, Coral Ridge Construction Corporation, of which Dezell was president, entered into a contract for purchase of the property. Prior to closing the purchase, and prior to June 6,1977, Dezell was advised by Mr. Little that the Zoning Board was going to consider said matter at a meeting on that date. At such meeting, upon consideration thereof, the Zoning Board of the City of Coral Gables ruled contrary to the opinion which had been expressed by the Zoning Administrator with reference to the subject parcel, by its Resolution 1239-ZB entitled “A resolution by the Board granting the appeal and overruling the decision of the Zoning Administrator.” Thereafter, on June 27, 1977, the purchase was consummated and the parcel was conveyed by the then-owner to Durand Holladay and Blanche F. Holladay, his wife, to whom the purchase contract had been assigned by the Dezell corporation. Holla-day and Dezell had entered into an arrangement whereby Holladay would furnish the money necessary to acquire title to the property upon which Dezell would construct two new separate residences, and that profits derived on resale thereof would be divided equally between them.

A timely appeal of the Zoning Board’s ruling was taken to the City Commission by Holladay, Dezell and Little. On July 26, 1977, the Commission affirmed and upheld the Zoning Board’s decision by its resolution No. 21802 entitled “A resolution upholding a Zoning Board decision overruling approval of Zoning Administrator and denying request to divide property at 4615 San Amaro Drive into two separate building sites.”

Elsewhere in the City’s Zoning Code was ■ a provision that review of such a decision of the Commission was to be made by petition for certiorari to the Circuit Court. No such petition for certiorari was filed. The decision of the Commission became final and binding on the parties upon expiration of the thirty-day period for such review. See Carlson v. Town of West Miami, 118 So.2d 835 (Fla. 3d DCA 1960), and cases cited there.

Thereafter, on September 27, 1977, the City Commission adopted Ordinance No. 2262 [effective thirty days thereafter]. By that ordinance Section 8.02 of the Zoning Code was amended to provide that where a single family residence or duplex was located on a building site containing one or more platted lots [with no reference to the size or frontage footage of the individual lots] such a building site should not thereafter be reduced or diminished and that if such single family residence or duplex should be demolished or removed therefrom no permit could be issued for construction of more than one such building on such building site.

At the time this action was filed, on November 7, 1977, the Zoning Code of the City had been amended as above stated. At no time prior to the filing of the action had the plaintiffs made application for any permit for demolition of the existing residence on the premises or for any construction thereon.

The amended complaint did not contain any challenge of the applicability of Ordinance No. 2262 to the subject parcel. It made no reference to that ordinance. Therein the plaintiffs challenged the earlier fifty-foot lot Ordinance No. 2058 as having been inapplicable to the subject property which involves 100-foot lots, and sought an adjudication that said Ordinance No. 2058 was void as applied by the Commission to the subject property, and the plaintiffs sought relief by mandatory injunction to require the City to issue permits for demolition of the existence residence building on the parcel and to issue permits for erection of single family residences upon each of the two 100-foot lots of which the subject building site is comprised.

In answer thereto the City pleaded that the City Commission’s decision adverse to the plaintiffs in this connection, from which no review was sought by the plaintiffs by certiorari as provided for, was final and binding on the plaintiffs and that the amended complaint was without merit for that reason and also because under the Zoning Code as amended by Ordinance No. 2262, in effect when this action was filed, the use to which the plaintiffs desired to put the parcel is prohibited.

Both the plaintiffs and the defendants moved for summary judgment. In the summary judgment entered in favor of the defendants, the court held there was no showing of estoppel and that the Zoning Code as amended by Ordinance No. 2262, in effect when the action was filed, was controlling.

In so ruling the trial court was eminently correct. There was no valid claim of estoppel against the City. The opinion of the Zoning Administrator, which was obtained by the plaintiffs, was subject to appeal, and in fact was appealed to and reversed by the Zoning Board several weeks prior to the time the purchase of the property was consummated. No permits had been issued to the plaintiffs, nor were any ever applied for by them.

The Zoning Code as amended as it stood at the time of the filing of this action was controlling. City of Boynton Beach v. Carroll, 272 So.2d 171 (Fla. 4th DCA 1973); City of North Miami Beach v. Trebor Construction Corp., 296 So.2d 490 (Fla.1974).

Under the law at the time this action was filed, as evidenced by the Zoning Code as amended by said Ordinance No. 2262, what the plaintiffs sought to do with respect to this parcel was clearly and expressly prohibited. There was no contention in the amended complaint that Ordinance No. 2262 was enacted in bad faith, or vis-a-vis the claim of plaintiffs of a right to demolish the existing residence structure and build on each of the two lots of the site. A contention to that effect presented in the brief of the appellants is without merit. The ruling of the Commission that plaintiffs were not entitled to so proceed respecting the property had become final. No review had been sought thereof and no other action had been filed challenging that decision of the Commission prior to the enactment of Ordinance No. 2262. That ordinance was a proper exercise of police power as the earlier similar ordinance relating to fifty-foot lots was so regarded in King v. City of Coral Gables, 363 So.2d 389 at 392 (Fla. 3d DCA 1978), where the court said:

* * * * * *
We believe that a reasonable interpretation of Ordinance No. 2058 shows that it is inapplicable to the facts of the instant case. The obvious intent of the Ordinance was to prevent developers', etc., from coming into Coral Gables, tearing down existing residences on large lots, and then building more residences on smaller lots. A careful reading of the Ordinance, shows that the reduction, diminution, demolishment, and removal referred to therein pertains to a voluntary or intentional reduction, diminution, de-molishment or removal.

We must reject as unsound the argument of the appellants that the decision of the City Commission, holding that the Zoning Code as interpreted by the Commission prohibited the use to which the plaintiffs desired to put the subject property, amounted to legislation impairing the obligations of the contract plaintiffs had made that they would build houses on the separate lots. If two persons agree among themselves to perform some act that is prohibited by law, they may not validly contend that the law by which such act was prohibited is an impairment of their contract within the meaning and intent of the contract clause of the constitution. The constitutional inhibition of state legislative impairment of the obligations of contract does not extend to legislation that is a proper exercise of police powers. Shavers v. Duval County, 73 So.2d 684 (Fla.1954); Nationwide Mutual Fire Ins. Co. v. Bryar, 349 So.2d 1221 (Fla. 2d DCA 1977).

We hold to be without merit the appellants’ argument that Ordinance No. 2262, although in effect when their action was filed, should not be held to be controlling because it was not in effect prior to the decision made by the City Commission. See City of Boynton Beach v. Carroll, supra.

We hold to be unsound the appellants’ argument that Ordinance No. 2262 was passed by the City “to avoid this case being determined under Ordinance No. 2058.” When Ordinance No. 2262 was passed the matter in controversy had been decided and set at rest previously, by the July 1977 decision of the City Commission. The fact that in interpreting the earlier Ordinance No. 2058 as being applicable to this parcel the Commission may have been incorrect [a matter upon which we need express no opinion] is wholly immaterial in this subsequent action of the plaintiffs because the plaintiffs were bound by that decision of the Commission. Difference of opinion, which had occurred among officials of the City, as to whether the prohibition announced in Ordinance No. 2058 would apply to such a site having two 100 foot lots, was reasonable basis for the rewriting of that zoning provision, through enactment of Ordinance No. 2262, to remove the ambiguity and make clear that the zoning policy expressed in the earlier ordinance was applicable to such improved multilot parcels without regard to the amount of foot frontage of the lots involved.

Accordingly, the judgment is affirmed.

      . Ordinance No. 2262 provides the following: Section 8.02 BUILDING SITES — R D AND A USES.
      GENERAL
      (1) Except as may be provided hereinafter to the contrary, in connection with replats, subdivisions and specifically described lots or parcels of land, all buildings or structures designed for an “R,” “D” and “A” Use shall be constructed or erected upon a building site containing at least one (1) platted lot, and such building site shall have a street frontage of not less than fifty (50) feet.
      Only one (1) single family residence, duplex or apartment building shall be constructed or erected upon any one platted lot having not less than the minimum street frontage required by this code.
      Wherever there may exist a single family residence or duplex building which was heretofore constructed on a building site containing one or more platted lots or portion thereof, said building site shall not hereafter be reduced or diminished in any manner and if said single family residence or duplex building is demolished or removed therefrom, no permit shall be issued for the construction of more than one such building on said building site.

      . Those decisions and the similar decision of the trial court in this case are in conformity with the recognized rule that the law as it stands at the time of decision is controlling, as that rule was applied in Davidson v. City of Coral Gables, 119 So.2d 704 (Fla. 3d DCA 1960), and Ingerson v. State Farm Mutual Automobile Ins. Co., 272 So.2d 862 (Fla. 3d DCA 1973), based on change in the law by act of the Legislature while the actions were pending; and in Florida East Coast Railway Co. v. Rouse, 194 So.2d 260 (Fla. 1967), based on a change of the law by judicial decision rendered after judgment and during the pendency of appeal.

      . In the King case, where a single family residence located on a building site comprised of three 50-foot lots had been completely ' destroyed by fire, which the court referred to as "an involuntary and unintentional destruction of a residence by a casualty,” it was held that the owner could build on the separate lots.


author: SCHWARTZ, Judge.

text:
    Maybell HOLLEY, as Personal Representative of the Estate of Shirley Bryant, Deceased, etc., Appellant, v. MT. ZION TERRACE APARTMENTS, INC., A Non-Profit Florida Corporation, Appellee.
    Nos. 79-1082, 79-1436.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    Rehearing Denied April 22, 1980.

      Greene & Cooper and Joan M. Bolotin, Stanley M. Rosenblatt, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson, and Gill S. Ullman, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

On May 31, 1976, the plaintiff-appellant’s decedent, Shirley Bryant, was raped and murdered while a tenant in the defendant-appellee’s apartment complex. The crime was committed by an intruder, thought to have been a co-tenant, who apparently gained access into Ms. Bryant’s second story apartment through a window which fronted onto a common outside walkway. The basis of the plaintiff’s wrongful death action against the landlord was its allegedly negligent failure to provide reasonable security measures in the building’s common areas. The trial judge entered summary judgment for the defendant and the plaintiff has taken this appeal. We reverse.

The Mt. Zion Terrace Apartments consists of twelve separate two-story buildings with over 130 apartments in all. It is located in the heavily populated Opa-Locka-Car-ol City area of Dade County. For a long period prior to the tragedy involved in this case, the complex had been plagued by the high incidence of serious crime which is unfortunately all too characteristic of our urban society. In the calendar year immediately before the murder, it had been the scene of no less than twenty “class one” crimes, those involving violence, which were reported to the police. Of these, there were six cases of violent assaults and seven in which apartments in the project were burglarized. The record shows that the landlord had itself recognized the dangerous nature of its premises in at least two ways. First, it would accept no cash at its office in the complex and took only checks or money orders in rental payments. Second, and far more importantly, Mt. Zion had in the past taken significant steps, which had been abandoned by the time that Ms. Bryant was killed, to safeguard the security of its apartments. Between 1972 and 1974 (Ms. Bryant moved in during 1973), it hired uniformed armed guards to patrol and protect the complex. During these years, the landlord had charged each tenant an additional five dollars a month for this service. Although the Federal Housing Administration put a stop to the practice, there is an unresolved indication in the record that the charge was thereafter added to and included in the rent. Notwithstanding the guard service was terminated. In 1974, Mt. Zion spent $4,924 for security; in 1975, $1,113; in 1976, the year of the murder, nothing.

On these facts, we hold that the defendant failed to carry its required burden to demonstrate conclusively that it was not liable for Ms. Bryant’s death. See Holl v. Taleott, 191 So.2d 40 (Fla.1966). Particularly in view of the evidence concerning the past record, and therefore the future foreseeability of violent crime at its premises, a jury could properly find that a discharge of the landlord’s duty to keep the common areas reasonably safe required that a guard or other security measures be pro-

vided at the complex, in order to prevent just such a tragic incident as the one involved in this case. Without repeating the extensive legal analyses they contain, we approve and follow those cases in other jurisdictions which have recognized such potential liability in similar circumstances. E. g., Kline v. 1500 Massachusetts Avenue Apartment Corp., 141 U.S.App.D.C. 370, 439 F.2d 477 (D.C.Cir.1970); O’Hara v. Western Seven Trees Corp. Intercoast, 75 Cal.App.3d 798, 142 Cal.Rptr. 487 (1977); Ramsay v. Morrissette, 252 A.2d 509 (D.C.1969); Smith v. General Apartment Co., 133 Ga.App. 927, 213 S.E.2d 74 (1975); Stribling v. Chicago Housing Authority, 34 Ill.App.3d 551, 340 N.E.2d 47 (1975); Johnston v. Harris, 387 Mich. 569, 198 N.W.2d 409 (1972); Braitman v. Overlook Terrace Corp., 132 N.J.Super. 51, 332 A.2d 212 (1974), aff’d, 68 N.J. 368, 346 A.2d 76 (1975); Sherman v. Concourse Realty Corp., 47 A.D.2d 134, 365 N.Y.S.2d 239 (1975); see also, Annot., 43 A.L.R.3d 331 (1972). This holding is in accordance with our recent decision in Sachs v. Midway Development Corp., 373 So.2d 953 (Fla.3d DCA 1979). It is supported also by several Florida decisions which, in analogous factual and legal settings, likewise hold that one may be liable for failing to protect another from the results of reasonably foreseeable criminal conduct. Werndli v. Greyhound Corp., 365 So.2d 177 (Fla.2d DCA 1978); Rosier v. Gainesville Inns Associates, 347 So.2d 1100 (Fla.lst DCA 1977); Rotbart v. Jordan Marsh Co., 305 So.2d 255 (Fla.3d DCA 1974); Cooper v. IBI Security Service of Florida, Inc., 281 So.2d 524 (Fla.3d DCA 1973), cert. denied, 287 So.2d 95 (Fla.1973); Homan v. Dade County, 248 So.2d 235 (Fla.3d DCA 1971); Florida East Coast R. Co. v. Booth, 148 So.2d 536 (Fla.3d DCA 1963), cert. denied, 155 So.2d 551 (Fla.1963); see also Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla.3d DCA 1979); Angell v. F. Avanzini Lumber Co., 363 So.2d 571 (Fla.2d DCA 1978); Sparks v. Ober, 192 So.2d 81 (Fla.3d DCA 1966); compare Drake v. Sun Bank & Trust Co. of St. Petersburg, 377 So.2d 1013 (Fla.2d DCA 1979), in which the court based its holding of non-liability solely upon the absence of allegations that the criminal attack was reasonably foreseeable. Furthermore, two particular features of this case make the plaintiff’s position even more convincing than in most, if not all, of the prior precedents:

(a) Mt. Zion’s prior practice of providing armed guards constitutes an admissible indication of the defendant’s own “knowledge of the risk and the precautions necessary to meet it.” W. Prosser, Law of Torts, § 33 at 168 (4th ed. 1971); and
(b) The showing that part of Ms. Bryant’s rent may have been expressly for security creates a genuine issue concerning the landlord’s contractual responsibility to provide that protection. See Cooper v. IBI Security Service of Florida, Inc., supra.

Apart from its contention that, as a matter of law, it had no duty to provide protection against criminal conduct, see note 4, supra, the landlord makes several other arguments in support of the summary judgment below. We find none of them persuasive. Mt. Zion suggests, for example, that it would be economically unfeasible ánd practicably impossible to provide effective security for each tenant in its sprawling, low-income project. We believe, however, that this contention, which essentially concerns the balancing of the risks involved against the expenses required to obviate them, may appropriately be made only to the trier of fact. Under our system, it is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of due care. E. g., Russell v. Jacksonville Gas Corp., 117 So.2d 29 (Fla.1st DCA 1960), and cases cited. That rule is plainly applicable to this situation.

Mt. Zion has also advanced three separate but conceptually interrelated arguments which are all based on the claim that any arguable breach of duty on its part was not a “proximate” cause of Ms. Bryant’s death.

(1) We first reject, as entirely fallacious, the defendant’s claim that the brutal and deliberate act of the rapist-murderer constituted an “independent intervening cause” which served to insulate it from liability. It is well-established that if the reasonable possibility of the intervention, criminal or otherwise, of a third party is the avoidable risk of harm which itself causes one to be deemed negligent, the occurrence of that very conduct cannot be a superseding cause of a subsequent misadventure. As is said in Restatement (Second) of Torts § 449 (1965):

If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tor-tious, or criminal does not prevent the actor from being liable for harm caused thereby, [e. s.]

Comment b to this section states:

The happening of the very event the likelihood of which makes the actor’s conduct negligent and so subjects the actor to liability cannot relieve him from liability. The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger. To deny recovery because the other’s exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity.

See also W. Prosser, Torts, supra, § 44, at 275, nn. 20-21. The application of this principle to the case at bar is obvious. Since Mt. Zion is liable, if at all, only for failing to protect its tenant from a criminal attack, it cannot escape responsibility because the attack has actually taken place. See also Schwartz v. American Home Assurance Co., 360 So.2d 383 (Fla.1978); Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla. 1977); Cooper v. IBI Security Systems, Inc., supra.

(2) Moreover, contrary to its contention, Mt. Zion’s potential liability is not foreclosed by the fact that the assault and murder did not take place in a common area it had the duty to maintain, but rather inside Ms. Bryant’s apartment. The basis of the plaintiff’s case is the almost undisputed fact that the intruder could have entered the apartment only through the common walkway adjacent to the decedent’s window. Since this is true, it was for the jury to determine whether the defendant’s alleged breach of duty as to the areas outside the apartment was a legal cause of what happened inside. Many of the cases specifically so hold. Thus, in O’Hara v. Western Seven Trees Corp. Intercoast Management, supra, it is said at 142 Cal.Rptr. at 490:

Respondents contend that the fact the assault took place inside appellant’s apartment should absolve them, since she, not they, had control over that area. This fact is not determinative. Failure to take reasonable precautions to safeguard the common areas under respondents’ control could have contributed substantially, as alleged, to appellant’s injuries. (See Kline v. 1500 Massachusetts Avenue Apartment Corp., supra, 141 U.S.App. D.C. 370, 373, 439 F.2d 477, 480.)

Accord, Ramsay v. Morrissette, supra; Smith v. General Apartment Co., supra; Warner v. Arnold, 133 Ga.App. 174, 210 S.E.2d 350 (1974); see also Rosier v. Gainesville Inns Associates, supra.

(3) It is lastly argued that, because the assailant was probably a co-tenant of the complex, nothing Mt. Zion could reasonably have done would have prevented this tragedy. We find, to the contrary, that the defendant did not affirmatively show either that the murderer would not have been seen and stopped from entering the apartment if reasonable security had been present; or that the crime would not even have been attempted in the face of the deterrent effect of such protection. The summary judgment may not therefore be upheld on this ground. See Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla.3d DCA 1974).

For these reasons, the judgment under review is reversed and the cause remanded for further consistent proceedings.

Reversed and remanded.

VANN, HAROLD R. (Ret.), Associate Judge, dissents.

      . These figures of course do not include unreported crimes or those which occurred only in the neighborhood of the complex.

      . Butler v. Maney, 146 Fla. 33, 200 So. 226 (1941); Hester v. Guarino, 251 So.2d 563 (Fla.3d DCA 1971), cert. denied, 259 So.2d 715 (Fla. 1972).

      .The plaintiffs appellate presentation includes extensive references to the defendant’s alleged failure properly to light the area in question. We have not considered this ground of asserted liability, however, because there is no mention of this issue either in the complaint or in any part of the record below. We do not pass upon the propriety of any amendment to the pleadings, to reflect this claim, which may be proposed after remand.

      . We find the contrary decisions relied upon by the landlord, see, e. g., Martin v. Usher, 55 Ill.App.3d 409, 13 Ill.Dec. 374, 371 N.E.2d 69 (1977); Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291 (1962); Gulf Reston, Inc. v. Rogers, 215 Va. 155, 207 S.E.2d 841 (1974) to be factually inapposite, legally unpersuasive, or both.

      . We emphasize that the extent of our holding is that summary judgment was inappropriately entered. We intimate no view as to the proper ultimate outcome of the case, or even upon the plaintiffs ability to withstand a motion for directed verdict at the trial.


text:
    CITY OF OPA-LOCKA, a political subdivision of the State of Florida, Appellant, v. Raymond L. OWENS, Appellee.
    No. 79-1182.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    Rehearing Denied April 18, 1980.
    Weintraub, Weintraub, Seiden, Dudley & Press and Jan K. Seiden, Miami, for appellant.
    Dean & Graves and Denis Dean, Sr., Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

The City of Opa-Locka contends that the circuit court’s appellate division erroneously reversed the City’s termination of Owens as a police sergeant on the basis that he was denied due process in that there was insufficient written notice to Owens setting forth “such facts in detail as shall enable the said employee to explain the situation in his own defense” pursuant to the directive contained in the City’s Personnel Rule XIX.

A brief history of the action begins with appellee’s suspension with pay, pending the outcome of an investigation of him and others by the Dade County Grand Jury in April and May of 1977. In June 1977 appel-lee was indicted by the grand jury, and his suspension was converted to one without pay. In April of 1978 the City received notification from appellee’s attorney that he had been cleared of all criminal charges and that he desired to be reinstated. During April and May of 1978 the City held the matter in abeyance, but in June notified the appellee by letter that he was terminated from his position. Appellee filed an appeal and an administrative hearing was held in September of 1978, after which a decision was rendered upholding the City’s termination of appellee; Owens then filed his notice of appeal in the appellate division of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. In April 1979 the order of reversal was entered by the appellate division. The said order reads in pertinent part:

“In addition to the instant provision of the Personnel Rules providing for ‘facts in detail’ the courts of Florida have recognized in administrative proceedings that due process requires specific accusation so that the employee may properly prepare himself to answer the charges and otherwise not be caught by surprise. State v. McCall [158 Fla. 655], 29 So.2d 793 [739] (Fla.1947); Hickey v. Wells, 91 So.2d 206 (Fla.1957). A defect in the particulars of notice may be cured by the record demonstrating a ‘procedure for disclosure.’ Hickey v. Wells, supra.” “After full review of this record, the court finds no ‘procedure for disclosure’ and is not persuaded by the City’s argument that despite the lack of written notice as to time, place and detail, Owens ‘had full knowledge of all charges, facts, circumstances, testimony and exhibits that were to be used by the City well in advance of the personnel hearing and in sufficient time to prepare his explanation or defense to them.’ ”
"For these reasons, Owens was denied due process of law as required by the Florida and Federal Constitutions.” Accordingly, the order appealed is REVERSED and the City of Opa-Locka is ORDERED to reinstate RAYMOND L. OWENS to the position of Police Sergeant with full back pay pending further proceeding by the City not inconsistent herewith.”

The City of Opa-Locka Personnel Rule XIX relating to dismissals, suspensions, demotions and resignations defines the type of notice required:

“SECTION 1. NOTICE: The removal, suspension or reduction in pay or class of a permanent employee who has completed his working test or probationary period shall not become effective until the department director shall have first served the said employee with a written notice thereof, together with such facts in detail as shall enable the said employee to explain the situation in his own defense

Appellee maintained below that the notice of dismissal was completely lacking in detail or specified facts to put him on sufficient notice as to the charges against him and the rules he violated — and consequently he was not given a fair opportunity to prepare his defense. We cannot agree with such assertions.

A review of the entire record shows that the position taken by the appellant-City throughout the proceedings is the more enlightened view of the facts and their legal effect; the City contends that even if the June 5, 1978 termination letter was, in and of itself, insufficient to meet notice/due process standards, the special factual situation and occurrences involved in the entire case demonstrate that sufficient notice of the charges was afforded Owens to enable him to prepare his defense. In support of this position we specifically take note of the following uncontroverted facts: (1) the June 6, 1977 letter notifying Owens of the conversion of his suspension with pay to that of suspension without pay cites the exact statutory violations upon which the Grand Jury had indicted him; (2) the appel-lee was represented by the same attorney throughout the criminal and administrative proceedings, and said attorney had knowledge and access to all exhibits and testimony; (3) the City had made available to appellee’s counsel copies of any materials from the City’s file (which was, in fact, the compilation of materials from the criminal case file); (4) counsel for the respective parties attended a pre-trial conference with the hearing examiner before the administrative hearing, and at that time copies of all testimony through deposition, exhibits, and other pertinent matters were discussed and reviewed; (5) there were no requests for a bill of particulars, an explanation or clarification of charges made by appellee until the start of the personnel appeal hearing in September of 1978; (6) the exhibits and transcripts of depositions which support the charges against appellee were introduced without objection and upon a prior stipulation between the parties at the hearing before the hearing examiner. In light of the enumerated facts above, it is clear that Owens had full knowledge of all charges, facts, testimony and exhibits well in advance of the personnel hearing and there was manifestly adequate time to prepare his explanation or defense.

Unlike the circumstances of the cases cited by the lower court in its order, this individual was not denied due process because he clearly had full disclosure and knowledge of all charges upon which his dismissal was founded. In State v. McCall, 158 Fla. 655, 29 So.2d 739 (1947), the administrative agency denied the police officer’s request for a bill of particulars and did not provide him with the jurisdictional facts or jurisdictional grounds before the hearing. In the case before us, however, Owens was in possession of all file materials including the charges, facts, testimony and exhibits long before the hearing date. Furthermore, in McCall there was no evidence at all in the record to support any of the alleged grounds for removal. In Hickey v. Wells, 91 So.2d 206 (Fla.1957), the court held that where proceedings against the dentist for permitting the illegal practice of dentistry were instituted before the Board of Dental Examiners, and there were no rules or statutory provisions for requesting a bill .of particulars, then specific accusations had to be revealed to the appellant in order to insure due process; the court went on to state that “due process”, while requiring a procedure for disclosure, does not require both a “procedure for disclosure” and a means of “specific accusation.” In the instant case, Owens was more than sufficiently on notice of the grounds for his dismissal prior to his hearing.

Appellant’s claim of error by the lower tribunal is further supported by the holding in Ervin v. State, 320 So.2d 2 (Fla. 2d DCA 1975), where the court affirmed the Board of Dentistry’s order — despite the petitioner’s claims of due process violations — because the petitioner had received a copy of the Board’s investigation file and later received various witnesses’ statements, complaint letters, and answers to interrogatories. The court in referring to the Hickey, supra, decision states that “[d]ue process of law in an administrative proceeding is a flexible concept . . . that concept was fairly adapted to these proceedings” and the required demonstration of sufficient notice by “specific accusations” or “procedure for disclosure” had been met. See also Ahern v. Florida Real Estate Commission, 149 Fla. 706, 6 So.2d 857 (1942) and State ex rel. Williams v. Whitman, 116 Fla. 196, 156 So. 705 (1934), and their progeny [the rights of the accused to be informed with reasonable certainty of the nature and cause of the accusations against him and to be afforded a reasonable opportunity to defend against such charges — but there need not be the technical niceties or formal ex-actnesses as required of pleadings in the courts].

Accordingly, we reverse and remand with directions to vacate the order of reversal and to proceed in the matter consistent with the views herein expressed.

Reversed and remanded.

      . The letter of termination from the City Manager dated June 5, 1978, upon which the lower court based its decision, states:
      “This is to advise that you are hereby terminated from the City of Opa-Locka Police Department, pursuant to Rule XIX of the City of Opa-Locka Personnel Rules, for the following breaches of duty and grounds for removal, to wit:
      “1. Improper possession and handling of contraband drugs and other items seized pursuant to arrest in violation of City Police policy and directives.
      “2. Improper paying and handling of informants by giving them illicit drugs for information instead of using the department’s informants fund in violation of City Police policy and directives.
      “3. Improperly and illegally being involved in the selling and illicit drugs in violation of City Police policy and directives of State Law.”
      “The aforesaid charges constitute violations of Personnel Rule XIX, Section 2, subparagraphs (B), (E) and (G), a copy of which is attached hereto, and by this reference made a part hereof.
      “In accordance with the Collective Bargaining Agreement between the City of Opa-Locka and the Dade County Police Benevolent Association, you are entitled to appeal your dismissal pursuant to the procedures outlined in the said Agreement.
      “PLEASE GOVERN YOURSELF ACCORDINGLY.”


text:
    Francis BRACKETT et ux., Appellants, v. Jerome USDAN, Appellee.
    No. 79-1335.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    Rehearing Denied April 28, 1980.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Ratiner & Glinn, Miami, for appellants.
    Koeppel, Stark & Newmark and Robert Gellman, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The order under review dismissing the plaintiffs’ complaint on res judicata grounds is reversed and the cause remanded to the trial court for further proceedings upon a holding that: (a) the subject complaint fails to allege sufficient facts to establish the defense of res judicata as a bar to this action, and (b) the subject complaint otherwise states a valid cause of action sounding in negligence. This result is compelled by Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977), which, in our view, accurately states the controlling law. This reversal, however, shall be without prejudice to the defendant to raise the affirmative defense of res judicata in his answer upon remand in this cause. Fla.R.Civ.P. 1.110(d).


text:
    George ZAUTNER, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 79-1501.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    Arthur Lee Willner, Miami, for appellant.
    Lane, Mitchell & Harris and Byron B. Mathews, Jr., Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Liberty Mutual issued Zautner a Personal Articles Floater Policy insuring his outboard motor and 22-foot outboard boat, which were within an insured “Class of Property” designated in the policy as “outboard boats and motors.” The policy also contained a “newly acquired” clause which stated:

NEWLY ACQUIRED OUTBOARD MOTORS OR BOATS

The insured agrees to notify the company of any outboard motor or boat, ownership of which is acquired by the insured during the policy period, within thirty days following such acquisition date. The limits of liability of such newly acquired outboard motors or boats shall be the actual cash value subject to the deductible amount, if any, shown in this form for similar insured property. The insured shall pay any additional premium required because of the application of insurance to such newly acquired outboard motors or boats, [e.s.]

As the parties stipulated below, on May 5, 1978 — within the policy term — Zautner acquired a 25-foot inboard boat powered by two inboard engines. On the next day, May 6, 1978, the inboard boat sustained extensive property damage when its steering failed while it was under way.

Zautner sued Liberty Mutual for the loss under the “newly acquired” provision. The trial judge denied the plaintiff’s, but granted the defendant’s motion for summary judgment on the ground that the clause extended only to newly acquired outboard boats. Zautner appeals and we reverse.

Perhaps the most familiar and widely-applied principle in the interpretation of insurance policies is that any reasonable doubt or real ambiguity must be resolved against the company. E. g., Hartnett v. Southern Ins. Co., 181 So.2d 524 (Fla.1965); Inter-Ocean Casualty Co. v. Hunt, 138 Fla. 167, 189 So. 240 (1939); Drisdom v. Guarantee Trust Life Ins. Co., 371 So.2d 690 (Fla. 3d DCA 1979). This rule plainly applies to this case. Simply stated, it is at least uncertain as to whether the word “outboard,” as used in the term “outboard motors or boats,” modifies only the word “motors” to which it is juxtaposed, or modifies the word “boats” as well. If the company desired to insure only newly acquired “outboard boats,” it could and should have made that clear by using the term “outboard motors or outboard boats,” or indeed, the very expression, “outboard boats and motors” actually contained in another part of the same policy. The use of a different term is itself some indication of a more expansive “newly acquired” insuring agreement. Cf. James v. Gulf Life Ins. Co., 66 So.2d 62 (Fla.1953). In any event, it is surely not an unreasonable construction of the provision in question that it insures all newly acquired boats or newly acquired “outboard motors.” See also Stuyvesant Ins. Co. v. Butler, 314 So.2d 567 (Fla.1975), and cases cited; Eagle Star Ins. Co. of London, England v. Ross, 247 So.2d 514 (Fla. 3d DCA 1971). The trial court was therefore required, as a matter of law, so to interpret the policy. See Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392 (Fla. 1st DCA 1979), and cases cited. Since there is no dispute that the plaintiff suffered an otherwise-covered loss to his newly acquired “boat,” we reverse the judgment under review and remand for the entry of summary judgment as to coverage in favor of the plaintiff.

Reversed and remanded.


author: DAUKSCH, Chief Judge.

text:
    Losko BELL, Appellant, v. STATE of Florida, Appellee.
    No. 78-1066/T4-113.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.
    Rehearing Denied April 16, 1980.

      Richard L. Jorandby, Public Defender, and Sara Bresky, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a conviction and sentence in a grand theft case. Appellant alleges two errors, the first of which is the court’s failure to instruct the jury as to the alleged lesser included offense of attempted grand theft. The crime charged is “[a] person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or use, the property of another . . Fla.Stat. 812.014(1) (1979). This statute is different from the previous grand larceny statute in that no distinction is made between the theft and the “endeav- or.” We agree “endeavor” means “attempt” and the law now makes no distinction between the actual stealing and the attempt to steal and punishes both the same. State v. Tomas, 370 So.2d 1142, 1143 (Fla.1979); State v. Allen, 362 So.2d 10, 12 (Fla.1978). Therefore, we affirm the conviction.

The second attack on appeal concerns the trial court’s failure to follow the statutory guidelines in passing an enhanced penalty sentence upon the appellant. Fla. Stat. 775.084 (1979). We agree. The trial court failed to specifically find the enhanced penalty was necessary for the protection of the public. Just because the appellant was previously convicted of a felony within five years of the commission of the crime in this case does not mean he automatically is subject to a greater term of years in prison. It must be pleaded, proved and found that the extended term in prison is necessary for the protection of the public. Grey v. State, 362 So.2d 425 (Fla. 4th DCA 1978).

The findings of fact to support the enhanced penalty need not be in writing but must be on the record in order to afford review. King v. State, 369 So.2d 1031 (Fla. 4th DCA 1979). Upon resentencing, the trial judge cannot sentence appellant to an indeterminate sentence, as he did before, because the legislature has disallowed such a sentence in the punishment of habitual criminals. Fla.Stat. 921.18 (1979).

Judgment affirmed, sentence reversed and remanded for resentencing.

ORFINGER and COBB, JJ., concur.


text:
    Edward E. HAVILL, as Property Appraiser of Lake County, et al., Appellant, v. W. M. GURLEY, d/b/a Williams Distributing Co., Appellee.
    No. 79-362/T2-15.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.

      Gaylord A. Wood, Jr., Fort Lauderdale, for appellant.
    P. B. Howell, Jr., of Howell & Taylor, P. A., Leesburg, for appellee.
   PER CURIAM.

The Lake County Property Appraiser appeals from a final judgment in favor of the plaintiff taxpayer who brought an action to contest the assessment for ad valorem tangible personal property and inventory taxes for the years 1977 and 1978.

The plaintiff/appellee, W. M. Gurley d/b/a Williams Distributing Co., hereinafter referred to as “taxpayer”, is a wholesaler of petroleum product with his primary place of business in Memphis, Tennessee. He maintains a warehouse and office in Lake County, Florida. The taxpayer conceded that he has during the subject years maintained a limited standing inventory which acquired a tax situs in Lake County. This action concerns merchandise shipped from Memphis to the Lake County warehouse which was not returned for taxation by the taxpayer. The merchandise consists of containerized petroleum products, and related additives, packaged in cardboard containers. The taxpayer’s salesmen take orders in Florida. The orders are telephoned to the Memphis office. When sufficient orders have been received to fill a tractor-trailer rig, the merchandise is shipped on pallets in taxpayer’s trucks to the Lake County facility. Then the merchandise is unloaded and stacked in the warehouse complex until separated for delivery by smaller trucks to the customers who placed the orders. Remittance by the purchaser is made through a Lake County bank to the Memphis office.

The taxpayer’s personal property tax returns for the years 1977 and 1978 excluded that portion of the inventory which the taxpayer claims was “in transit” and protected by the Commerce Clause. The return was prepared by counting the merchandise on the premises, pricing it at wholesale cost and then deducting the retail price of the orders taken but not yet filled. The property appraiser attempted to obtain back-up information from the taxpayer concerning the valuation of the inventory, but the back-up information was not made available. As a result, the tangible personal property and inventory returns of other wholesale petroleum products distributors were obtained. The returned value of inventory of one of those businesses was then computed on a square-foot basis, and that dollars-per-square-foot factor was applied to the taxpayer’s warehouse storage capacity.

The Lake County Board of Tax Adjustment approved the property appraiser’s assessment. Undaunted, the taxpayer went to court. The taxpayer refused to make available to the property appraiser upon earlier request, or later in court, his income statement, balance sheet or Schedule “C” of his federal income tax return. Both 1977 and 1978 returns were based on a single day’s count, rather than on the average value of the inventory during the year as required by Section 192.032(3), Florida Statutes (1977).

The trial court held that the interstate commerce character of the merchandise in transit was interrupted only at the staging area for the purposes of separating the goods and placing them in smaller vehicles for transport to the ultimate purchasers, which did not deprive the goods of the protection of the Commerce Clause. Therefore, the goods did not become standing inventory subject to ad valorem taxation in Lake County, Florida. The trial court reasoned that it did not seem equitable for the determination of whether the merchandise acquired a tax situs in Lake County, Florida, to depend upon the mere physical placing of a sticker or label designating the customer on packages or containers prior to shipment from Tennessee. The court held that the property appraiser’s estimate was invalid, null and void, and further held that the values of the taxpayer’s average inventory held for sale in Lake County were the values given by the taxpayer in his 1977 and 1978 returns.

We disagree. The merchandise was no longer in transit and became inventory subject to taxation once the merchandise reached the taxpayer’s warehouse and was held there for an indeterminate length of time to be broken down and then distributed to customers. See State of Minnesota v. Blasius, 290 U.S. 1, 54 S.Ct. 34, 78 L.Ed. 131 (1933); Bacon v. Illinois, 227 U.S. 504, 33 S.Ct. 299, 57 L.Ed. 615 (1912); Brown v. Houston, 114 U.S. 622,5 S.Ct. 1091, 29 L.Ed. 257 (1884); Mikos v. Ringling Bros. Barnum & Bailey Combined Shows, Inc., 368 So.2d 884 (Fla. 2d DCA 1979); Arthur Walter Seed Co. v. McClure, 236 Ind. 666, 141 N.E.2d 847 (1957). In addition, even if the merchandise may be considered to be in transit, the application of Florida’s ad valo-rem property tax in the case at bar does not violate the Commerce Clause, since the inventory in the warehouse has a sufficient nexus with the state to justify a tax, the tax is fairly related to benefits provided by the state to the taxpayer, the tax does not discriminate against interstate commerce, and the tax is fairly apportioned to local activities. See, Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977); see also, Green v. Western Union Telegraph Co., 123 So.2d 712, 715 (Fla.1960); Armstrong v. City of Tampa, 118 So.2d 195 (Fla.1960); State v. Maxwell Motor Sales Corp., 142 Minn. 226, 171 N.W. 566 (1919); see generally, Clark, A State’s Tax Jurisdiction As Limited By The United States Constitution, 13 U.F.L.Rev. 401, 420 (1960); 71 Am.Jur.2d, State and Local Taxation, § 247. Therefore, the reduction of the inventory estimate to account for merchandise in transit was erroneous.

The trial court also held that the property appraiser’s valuation of the taxpayer’s inventory was arbitrary and unreasonable. The county tax appraiser derived his values for the taxpayer’s 1977 and 1978 inventory by multiplying the square-footage in the taxpayer’s warehouse (18,800) by $33.50. The $33.50 was based on the square footage of the warehouse of another wholesaler, Roquemore Oil Co., in Orlando, Florida, divided by the value of its average monthly inventory for 1977 (11,000 square feet; $368,683.00). The trial court found this method of valuation unreasonable and arbitrary for two reasons. First, the taxpayer’s business operation was different from Roquemore’s. He handles many more oil product lines than Roquemore; Roque-more handles some expensive assessories not handled by the taxpayer; and the cost to the taxpayer of the products sold is less because of his multi-state operations and methods of purchasing. In addition, Roque-more’s inventory, value included underground storage tanks of bulk oil which the taxpayer did not have. Second, the tax assessor failed to consider that the taxpayer’s warehouse was (by his own observation) approximately 60% full; whereas Roque-more’s 11,000 square foot warehouse was operating in 1977 at almost 100% of its capacity. The record sustains the trial court’s findings concerning the unreasonableness of the tax assessor’s valuation in this case; and we have no basis to overturn that finding. Ray v. Dock and Marine Construction, Inc., 183 So.2d 237 (Fla. 3d DCA 1966); Frell v. Frell, 154 So.2d 706 (Fla. 3d DCA 1963).

Even if the taxpayer fails to file a tangible personal property tax return, the tax assessor cannot levy an arbitrary tax.

To deny an owner who has failed to file his required tax return the right of having the validity of an assessment judicially or administratively reviewed is to deprive such owner of his property without due process of law and to expose him to the imposition of arbitrary penalties beyond those provided.

C. D. Utility Corporation v. Maxwell, 189 So.2d 643 at 647 (Fla. 4th DCA 1966).

The taxpayer in this case did not provide the tax assessor with cost values for his inventory for 1977 or 1978, and he was evasive and less than candid with the trial court. He stated he had no such figures for 1977; but he testified from his knowledge and opinion, the inventory was worth $223,-900 in 1978. The record disclosed other wholesale oil distributors whose inventories priced out at below $33.50 per square foot. Perhaps their businesses were more comparable. Gross sales might also be another method of arriving at fair values. This approach was also not considered or used.

The taxpayer and the trial court both apparently relied on the theory that the bulk of the taxpayer’s inventory was not taxable because it was in “Interstate Commerce”. Although this court does not agree with that theory, the taxpayer’s reliance should not be too strongly faulted because it was induced by a letter written June 22, 1977 to the taxpayer by Larry DeFrances, Ad Valorem Tax Counsel of the Department of Revenue, State of Florida:

On the other hand, if the shipments of oil brought by Williams Co. into Florida are earmarked solely to fill orders already placed by specific customers, this oil would not be inventory for tax purposes, even though it is brought to a staging point and stored until delivery is convenient. However, I am of the opinion that if any order were filled from the supply of oil earmarked for another customer and awaiting delivery, this transaction could be construed as evidence that the entire supply of oil constituted a standing inventory, which would be taxable. The distinction is that where the oil is already in Florida when the order is placed, filling the order from this stock amounts to delivery of inventory. The problem is of course,' a factual one, and one which must be resolved by adequate proof of the method of operation the company uses.

Mr. DeFrances said the critical question was whether the goods were in Florida when the orders to buy were placed, or whether they were shipped in, in response to orders. Since the latter was the taxpayer’s method of doing business, he relied on the non-taxability of the bulk of his inventory.

Because of the basic misconception by the trial court that the bulk of the taxpayer’s inventory was not taxable, it made no determination concerning the fair value of the inventory for tax purposes. Accordingly this matter is remanded to the trial court to determine the proper tax assessment value. Simpson v. Merrill, 234 So.2d 350 (Fla.1970). Because of the lapse of time since the trial of this matter, the trial court shall be permitted to reopen this case, take new testimony, or revisit prior testimony, by reviewing the prior record or hearing testimony, as it may deem appropriate. Palm Corporation v. Homer, 261 So.2d 822 (Fla.1972). On remand, the taxpayer is on notice to produce income and cost data for his inventory or suffer the consequences of having it valued on a comparative or other method.

REVERSED and REMANDED.

ORFINGER, COBB and SHARP, JJ., concur.

      . Article I, Section 8, Clause 3, United States Constitution.

      . The property appraiser’s estimates were:
      1977 $629,990.00
      1978 “in excess of $700,000”
      The taxpayer’s returns for standing inventory were based on the following figures:
      1977 $150,572.00 Total inventory
      -114,620.00 “in transit" inventory
      $ 36,952.00 Inventory Returned (25% of this amount was taxable at the applicable Lake County millage rate in 1977, see § 193.511, Fla.Stat. (1975).
      1978 $223,905.61 Total inventory
      -135,791,94 “in transit” inventory
      $ 88,103.67 Inventory returned (10.% of this amount was taxable at the applicable county millage rate in 1978, see § 193.511, Fla.Stat. (1977).

      . See also the following analogous state tax cases, where the state’s power to tax as against the charge that the tax was burdening interstate commerce was upheld; Lewis K. Liggett Co. v. Lee, 288 U.S. 517, 53 S.Ct. 481, 77 L.Ed. 929 (1933) (privilege tax); Sonneborn Bros. v. Keeling, 262 U.S. 506, 43 S.Ct. 643, 647, 67 L.Ed. 1095 (1922) (occupation tax). General Oil Co. v. Crain, 209 U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754 (1907) (inspection fee); See also, the following analogous cases dealing with Article I, Section 10, Clause 2, United States Constitution, the Import-Export clause, which support the conclusion that the merchandise here has come to rest, and is no longer in transit for purposes of Commerce Clause protection: Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S.Ct. 535, 46 L.Ed.2d 495 (1976); Fred McGil-vray, Inc. v. Askew, 340 So.2d 475 (Fla. 1976); Overstreet v. Sea Containers, Inc., 348 So.2d 628 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1219 (Fla. 1978).

      . Although not necessary to decide this issue, we express serious doubt concerning the taxpayer’s method of calculating the interstate commerce exclusion by pricing total inventory at cost (apples) less “in transit” inventory price at retail to customer (oranges). See Hillsborough County v. Knight & Wall Co., 153 Fla. 346, 14 So.2d 703 (1943); Aeronautical Comm. Equip., Inc. v. Metropolitan Dade County, 219 So.2d 101 (Fla. 3d DCA 1969), cert. denied, 225 So.2d 911 (Fla.1969).


text:
    Debra WEBB, Appellant, v. STATE of Florida, Appellee.
    No. 79-1847.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.
    Rehearing Denied April 30, 1980.
    Alan H. Schreiber, Public Defender, Michael J. Paris and Channing E. Brackey, Asst. Public Defenders, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marc E. Kirk, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed upon the authority of Aron v. Huttoe, 265 So.2d 699 (Fla.1972).

DOWNEY, C. J., and LETTS and HERSEY, JJ., concur.


text:
    Larry FULLER, Appellant, v. Helene ALBERTS, formerly known as Helene Blumenthal, Pacific Environmental Properties, Inc., a California Corporation and Tradewinds Associates Ltd., d/b/a Pinellas Cascade Mobile Home Park, a California limited partnership, Appellees.
    No. 79-1071.
    District Court of Appeal of Florida, Second District.
    March 26, 1980.

      Neil R. Covert of Gormin, Geoghegan, Easley & Gránese, Clearwater, for appellant.
    Jere’ M. Fishback of Jenkins, Fischer & Brook, St. Petersburg, for appellee Helene Alberts.
   OTT, Judge.

Appellee (Helene Alberts) had a standing request from appellant to furnish him particulars as to Florida mobile home parks which were available for purchase. Pursuant to this request, appellee informed appellant of a certain mobile home park in Pinel-las Park that was for sale and put appellant in touch with the owner of the park. Subsequently the corporation with which appellant was associated purchased the park. Three days before the transaction was closed, appellant wrote apftellee a letter in which he agreed to pay her $10,000 “for services rendered in connection with feasibility studies in the State of Florida.”

Appellee filed suit alleging in her amended complaint that the letter was a bona fide promissory note for the “finder’s fee” due her. Appellant moved to dismiss the amended complaint, asserting that appellee had failed to allege that she was a licensed broker or salesman, though her actions as described therein came within the purview of Chapter 475, Florida Statutes, the Florida Real Estate License Law. The motion was denied and, following a nonjury trial, final judgment was entered for appellee.

Appellee testified that the service for which she sought compensation was a “feasibility study, which is actually putting them [appellant] in touch with the owner of the park.” She testified that she was a registered real estate salesman, employed with or under a duly licensed Miami broker, and that she was employed by the broker at the time the sale of the subject mobile home park was consummated. Appellee’s services — regardless of how characterized— were clearly that of a real estate salesman or broker under Section 475.01(2), Florida Statutes (1977). That section provides in pertinent part:

Every person who shall, in this state, for another, and for a compensation or valuable consideration directly or indirectly paid or promised . . direct or assist in the procuring of prospects . which does, or is calculated to, result in a sale . . . shall be deemed and held to be a ‘real estate broker’ or a ‘real estate salesman’ .

Since appellee operated as a real estate salesman in the subject transaction, we hold that suit in her own name to collect the “finder’s fee” is prohibited by Section 475.-42(l)(d), Florida Statutes (Supp.1978), which provides:

No salesman shall collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of the employer, . and no real estate salesman, whether the holder of a valid current registration certificate or not, shall commence or maintain any action for a commission or compensation, in connection with a real estate brokerage transaction, against any person except a person registered as his employer at the time the cause of action is alleged to have arisen.

Accordingly, we set aside the final judgment entered below and remand with directions that appellee’s amended complaint be dismissed.

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


text:
    Jose GALAN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2197.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.

      Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. See Bernhardt v. State, 288 So.2d 490 (Fla.1974); Flynn v. State, 351 So.2d 377 (Fla. 4th DCA 1977); Richert v. State, 338 So.2d 40 (Fla. 4th DCA 1976); White v. State, 301 So.2d 464 (Fla. 1st DCA 1974); Matire v. State, 232 So.2d 209 (Fla. 4th DCA 1970).


text:
    Gwenn GAMSE, Appellant, v. Richard TOUBY as Guardian of the property of Winnie C. Weinstein, Appellee.
    No. 79-1236.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Orloff, Lowenbach, Stifelman & Siegel and Marian B. Copeland, Newark, N. J., for appellant.
    Pallot, Stern & Pollack and Kenneth E. Cohen, Miami, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Gwenn Gamse, daughter of Winnie Wein-stein, incompetent, appeals an order awarding the guardian of Mrs. Weinstein $6,500 in fees and the attorneys for the guardian $12,500 plus costs.

Winnie Weinstein was adjudicated incompetent and Richard Touby was appointed guardian of her property. Subsequently Touby filed a petition for instructions seeking to institute legal proceedings to determine the validity of certain trust accounts established in various financial institutions by Mrs. Weinstein and the amount of an alleged loan to her daughter Gwenn Gamse. Having obtained court authorization, Touby filed declaratory judgment actions against Gamse and others. A final judgment was entered upholding the validity of the trust accounts and finding that Gamse was not indebted to her mother. Thereafter, Touby petitioned the court for $8,700 for services rendered as guardian. His attorneys also filed a petition seeking $12,551.25 plus costs for their services on behalf of Touby as guardian. A hearing was held and the trial court awarded Touby $6,500 and his attorneys $12,500 plus costs. Gwenn Gamse appeals the awards and argues that the amount of the fees are unreasonable and excessive. We cannot agree.

The amount of guardian and/or attorneys’ fees to be awarded (as compensation for services rendered) is in the discretion of the trial judge and his determination will not be disturbed unless there is a lack of competent substantial evidence to support the award. See Lucom v. Atlantic National Bank of West Palm Beach, 97 So.2d 478 (Fla.1957); Rivers v. Phillips, 367 So.2d 251 (Fla. 3d DCA 1979).

The record in the instant case is replete with evidence supporting the awards to Touby, the guardian and his attorneys. Gamse having failed to present any expert testimony as to what reasonable fees would be, we find no abuse of discretion.

Affirmed.

      . Placed in trust for her children and/or grandchildren.

      . Pursuant to Section 744.108, Florida Statutes (1977).


text:
    Lois Helen Mondres SEFF, Appellant, v. Seymour SEFF, Appellee.
    No. 79-1296.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Matt Weinstein, South Miami, for appellant.
    Richard L. Kopel, Hollywood, for appel-lee.
    Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the petitioner below from a judgment of dissolution of marriage. The appellant contends the court erred in denying her claims of special equity in the husband’s interest in their jointly-owned residence property and in a business owned by the husband, and that the alimony awarded to her was insufficient.

On consideration thereof in the light of the record, briefs and arguments, we hold no reversible error has been shown. The holding of the trial court that the wife is not entitled to such special equities was supported by competent evidence. The award of permanent alimony made to the wife was not shown to have represented an abuse of the sound judicial discretion of the court for determining the amount of alimony to be allowed.

Affirmed.


text:
    Marino DE LOTTO, Appellant, v. Jack MOORE and William Lehman Buick, Inc., a Florida Corporation, Appellees.
    No. 79-1360.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Resnick & Rosenthal and Jeffrey H. Ro-senthal, Miami, for appellant.
    Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and Joseph I. Davis, Jr., Miami, for appellees.
    Before BARKDULL and HUBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Allied Van Lines, Inc. v. Bratton, 351 So.2d 344, 347-348 (Fla.1977); Beagle v. Bagwell, 169 So.2d 43, 45 (Fla. 1st DCA 1964).