author: HENDRY, Judge. PER CURIAM.

text:
    The STATE of Florida, Appellant, v. Peter Harry NADEAU, Appellee.
    No. 79-2364.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    On Rehearing Dec. 15, 1980.
    Rehearing Denied Jan. 16, 1981.

      Janet Reno, State’s Atty. and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Spain & O’Donnell, John H. Lipinski, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   HENDRY, Judge.

The state appeals from an order suppressing evidence of narcotics trafficking obtained in preflight screening procedures at Miami International Airport.

The facts are there: Appellee Nadeau approached the inspection point at the Eastern concourse carrying two pieces of luggage, and submitted them for X-ray inspection; the X-ray weapons search was inconclusive, reflecting only that one bag’s contents were bulky and opaque; the X-ray operator informed Nadeau that she (the operator) would have to manually inspect the bag’s contents; Nadeau refused consent to do so, and offered instead to check the bag rather than carry it on board; the operator informed Nadeau that she was required by federal regulations to open the bag; over his objection, and after his removal from the inspection line by a police officer summoned to the scene by the operator, the bag was opened, and cocaine was discovered. We affirm.

Initially, we confront a necessary question not previously addressed in courts of this state, see Leavitt v. State, 369 So.2d 993 (Fla. 1st DCA), cert. denied 374 So.2d 101 (Fla.1979); Eisenman v. State, 320 So.2d 34 (Fla. 4th DCA 1975), cert. denied 336 So.2d 104 (Fla.1976), or in the United States Supreme Court: Is the preflight search process itself constitutionally permissible?

Courts considering the question have uniformly found preflight screening systems constitutional on one or more of four grounds: analogous to border search, Terry stop, consent, and administrative search. We consider each.

I. Border Search Analogy

In United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973), the Fifth Circuit held that, by virtue of the great need for pref-light search (analogous to the need for customs- and immigration-related border searches), and the limitedness of the intrusion, all those boarding a plane could, as in the border search instance, be constitutionally searched upon mere or unsupported suspicion. We need say no more than, without discussion of the validity vel non of border searches upon mere suspicion, that we emphatically reject importation of that standard into the context of domestic pref-light search; we find it totally inappropriate to require a choice between riding on a commercial airline and standing on a constitutional right. See Shapiro v. Thompson, 394 U.S. 618, 629-30, 89 S.Ct. 1322, 22 L.Ed.2d 600, 612-13 (1969). As the Skip-with opinion itself correctly points out, if necessity were the only criterion by which to assess the constitutional propriety of a search, house-to-house dragnet searches of high-crime neighborhoods would not be impermissible. While the Skipwith court seeks to foreclose such a result by reference to the degree of intrusiveness inherent in the search, we are not prepared to justify a search based on anything less than an artic-ulable suspicion, without reference to its intrusiveness.

II. Terry Stop

As a result of the foregoing statement, we consider the impact of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), upon preflight screening procedures.

The leading case justifying preflight search on Terry grounds is United States v. Lopez, 328 F.Supp. 1977 (E.D.N.Y. 1971). There, Judge Weinstein decided for the court that a frisk by a U.S. Marshal, yielding not the expected weapon, but rather heroin, was constitutionally appropriate, because an articulable suspicion of criminal activity was validly raised in the officer’s mind: The suspects fit the anti-hijack profile, they had misidentified themselves, and the magnetometer had registered a metallic object larger than a twenty-five caliber pistol on each of their persons.

Assuming the validity of the Terry approach on Lopez’ facts, contra, People v. Hyde, 12 Cal.3d 158, 524 P.2d 830, 115 Cal. Rptr. 358 (Cal.1974), it seems clear nonetheless that Terry cannot provide support for the preflight procedure considered sub judi-ce. The Lopez court considered a selective system whereby those triggering the magnetometer and fitting the skyjacker profile were asked for identification by airline personnel; only those unable or unwilling to provide satisfactory identification were confronted by a U.S. Marshal; if the requisite identification was still not supplied, and the “selectee” denied the presence of metal on his person or in his carry-on luggage, and if thereafter the magnetometer indicated the presence of such metal (of greater magnetic deflective power than a twenty-five caliber pistol), the “selectee” was requested to submit to a pat-down search. Thus, only those initially meeting the profile requirements were subject to eventual designation as “se-lectees.” Since the 1973 amendment of the preflight search procedure, however, all passengers pass through magnetometers and submit to inspection of carry-on baggage, either by X-ray or physical search, without a particularized focus upon them by means of a profile or through inspection of identification. Indeed, Nadeau was detained, and his baggage was manually searched, on the basis of X-ray detection of unidentifiable shapes in his baggage-and on no other grounds. In short, there was no articulable suspicion that a crime was afoot, or that Nadeau possessed a weapon. See United States v. Davis, 482 F.2d 893 (9th Cir. 1973).

III. Consent

The right to travel is constitutional in scope, Shapiro v. Thompson, supra, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, as is the right to be free from unreasonable searches and seizures. Since one may not board a commercial flight without submitting to a search which is per se unreasonable (assuming no other constitutional justification rather than consent), he is forced to forego one constitutional right in order to enjoy another. It may be argued that travel by air is a privilege, and not a right; nevertheless, governmental conditioning of a privilege upon relinquishment of a constitutional right is itself unconstitutional. Frost v. Railroad Commission, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101 (1926). Moreover, we note that a valid consent requires a clear and convincing showing of its being voluntarily made, Bailey v. State, 319 So.2d 22 (Fla.1975), and that voluntariness consists in more than acquiescence to a claim of lawful authority. Jordan v. State, 384 So.2d 277 (Fla. 4th DCA 1980); Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978); Mobley v. State, 335 So.2d 880 (Fla. 4th DCA 1976), cert. denied 341 So.2d 1085 (Fla. 1977). We cannot find consent in this setting, on these facts. Accord, United States v. Albarado, 492 F.2d 799 (2d Cir. 1974); United States v. Knoll, 481 F.2d 884 (8th Cir. 1973); United States v. Meulener, 351 F.Supp. 1284 (C.D.Cal.1972); United States v. Lopez, supra, 328 F.Supp. 1077; People v. Hyde, supra, 524 P.2d 830.

IV. Administrative Search

As pointed out in United States v. Davis, supra, 482 F.2d 893, 908, searches may be justified on the basis of furtherance of a valid administrative purpose, rather than as a search for evidence of crime. In this case, the administrative purpose lies in deterring skyjackers, and the concomitant smuggling aboard of weapons.

One important caveat should be stressed, however. To meet the test of reasonableness, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it. It follows that airport screening searches are valid only if they recognize the right of a person to avoid search by electing not to board the aircraft.

United States v. Davis, supra, 482 F.2d at 910.

It is here that the state’s ease fails. The initial search of his person and luggage may be justified only on the basis of an administrative search rationale, which is itself constitutionally bottomed on absence of unnecessary intrusion, in light of the administrative purpose (which is, as we have noted, avoidance of skyjacking incidents, rather than the obtaining of contraband or other evidence of criminal activity). The subsequent physical search of the bag was not justified by the administrative purpose: The bag could have been checked, and thus rendered inaccessible to Nadeau, without the need for a search. Or, had he so requested, Nadeau could properly, within the purpose of the procedure, have been allowed to leave the boarding area with his bag.

In so ruling, we are not unaware of decisions contra in United States v. DeAngelo, 584 F.2d 46 (4th Cir. 1978), cert. denied 440 U.S. 935, 99 S.Ct. 1278, 59 L.Ed.2d 493 (1979); United States v. Skipwith, supra, 482 F.2d at 1281 (Aldrich, J., dissenting, adopted by panel decision):

I do not accept defendant’s contention that, once he had reached the point of embarkation where inquiry and possible search procedures were openly in operation, he could choose to withdraw if he found the inquiry addressed to him not to his liking. United States v. Meulener, C.D.Cal., 1972, 351 F.Supp. 1284. The reasoning in Meulener, that if he then changed his mind, and elected to leave, “he would pose no danger to the passengers and crew on the aircraft,” 351 F.Supp. at 1289, greatly damages the prophylactic purpose of the search procedure. Such an option would constitute a one-way street for the benefit of a party planning airplane mischief, since there is no guarantee that if he were allowed to leave he might not return and be more successful. Of greater importance, the very fact that a safe exit is available if apprehension is threatened, would, by diminishing the risk, encourage attempts. Established search procedures are perhaps more valuable by what they discourage than by what they discover. I see no constitutional requirement, where a defendant knew by objective signs that he was incurring the possibility of a search, that he should thereafter be allowed to play heads-I-win, tails-you-lose.

That analysis was more persuasive when Skipwith was written; then, the more selective screening procedures were in use. The less intrusive pre-1973 process was far less certain to cull all potential skyjackers from the passenger list of each flight than is the present random-pervasive system:

It is difficult to see how the need to prevent weapons and explosives from being carried aboard the plane could justify the search of a person who had elected not to board. Perhaps it could be argued that a compelled search might lead to the apprehension of a potential hijacker, eliminating or at least reducing the chance that he would try again. Compared to the degree of additional intrusiveness that compulsory searches involve, however, this possibility seems so slight as to be inconsequential. The risk of successful hijacking is not enhanced by allowing a potential passenger to avoid a search on a particular occasion by electing not to fly. Airport screening searches, as carried out in this case and as currently employed nationwide, are not selective. A prospective passenger who elects not to fly on an earlier flight is, like all other passengers, certain to be subjected to a search before he can board a later flight.
It is significant that the regulations establishing the airport search program do not authorize or require compelled searches.
Since a compelled search of persons who elect not to board would not contribute to barring weapons and explosives from the plane, it could serve only the purpose of apprehending violators of either the criminal prohibition against attempting to board an aircraft while carrying a concealed weapon ... or some other criminal statute. Such searches would be criminal investigations subject to the warrant and probable cause requirements of the Fourth Amendment.
In sum, airport screening searches of the persons and immediate possessions of potential passengers for weapons and explosives are reasonable under the Fourth Amendment provided each prospective boarder retains the right to leave rather than submit to the search.

United States v. Davis, supra, 482 F.2d at 911-12. (citation, footnotes omitted).

We find this reasoning compelling, and we adopt it. Thus, unless the manual search of Nadeau’s luggage was made with at least a founded suspicion of criminal activity and the presence of weapons, United States v. Dalpine, 494 F.2d 374 (6th Cir. 1974), it was invalid. Further, we find that the presence of unidentified bulky objects in his luggage, without more, could not justify a Terry stop. The officials might have properly refused to allow the bag to accompany Nadeau on board, but they were not entitled to open it over his objection.

We therefore affirm the suppression order of the trial court.

Affirmed.

ON PETITION FOR REHEARING GRANTED

PER CURIAM.

A rehearing having been granted in this cause and the issues having been considered in the light of our Supreme Court’s subsequent decision in Shapiro v. State, 390 So.2d 344 (Fla.1980) the opinion of this court, State v. Nadeau, 395 So.2d 182 (Fla. 3rd DCA 1980) holding contra to that of our Supreme Court, is hereby withdrawn.

We now hold on the authority of Shapiro that the trial court erred in suppressing the evidence obtained by search and seizure; therefore the order under review is reversed.

Reversed.

      . Assuming arguendo that the unidentifiability of the object in his baggage created an articula-ble suspicion, it was itself the product of a search: The search by X-ray, to meet the Terry requirement, must have been undertaken with the requisite founded suspicion, which it obviously was not. We stress that the unidentifia-bility of the object was assumed to raise a founded suspicion only for the purpose of analysis.
      We note that the Lopez court apparently felt that meeting the profile requirements was itself a sufficient indicium of criminal activity and the presence of a weapon to raise the requisite articulable suspicion thereof; passage through the magnetometer-the required first step-seems itself to be a search, presumably requiring such preexisting suspicion. The court may have alluded to the question, when it commented, 328 F.Supp. at 1100:
      We do not now decide whether, in the absence of some prior indication of danger, the government may validly require any citizen to pass through an electronic device which probes beneath his clothing and effects to reveal what he carries with him.
      If Lopez indeed stands for the proposition that meeting the skyjacker profile requirements satisfies the Terry requirement of founded suspicion, we are forced to reject it, by our rejection of the same contention in the context of the drug-currier profile in Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1980).


source: Caselaw Access Project

license: Public Domain

text:
    GAF CORPORATION, a Delaware Corporation, Appellant, v. W. R. GRACE & CO., a Connecticut Corporation, Appellee.
    No. WW-291.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.

      Cathi O’Halloran and Davisson F. Dunlap, Jr., of Pennington, Wilkinson, Gary & Dunlap, Tallahassee, for appellant.
    Michael C. Murphy, Lake City, Herbert R. Kanning, Jacksonville, Robert Dyer, Orlando, Howard C. Coker, Jacksonville, Martin S. Page, Lake City, and Jacqueline R. Griffin of Wells, Gattis & Hallowes, Orlando, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

Sua sponte, we dismiss this appeal because the order for which review is sought is not a final order or an appealable interlocutory order.

GAF Corporation appeals from an order dismissing, with prejudice, Counts I through V of its third-party complaint against W. R. Grace & Co. The gravamen of these counts is that GAF is entitled to indemnity from Grace for any judgment that may be rendered against GAF and for the School Board of Columbia County, the original plaintiff. The subject order also dismisses, without prejudice, GAF’s claim for subrogation against Grace set (forth in Count VI of the third-party complaint. The factual circumstances underlying Counts I through V and Count VI are the same.

Piecemeal appeals are not permitted where the claims are interrelated and involve the same transaction and the same parties in the suit. S. L. T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). The only exception to this rule is found where the count or counts dismissed constitute a separate and distinct cause of action which is not interdependent with the other pleaded claims. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974). Although Counts I through V are based on a different legal theory (indemnification) than is the count which remains (subrogation), they are based on the same factual background. Accordingly, under these circumstances, the subject order is not a final order and is not appealable. See Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 465 (1976).

Appeal DISMISSED without prejudice to an appeal following final judgment.

ROBERT P. SMITH, Jr., and THOMPSON, JJ., concur.


author: PER CURIAM.

text:
    Danny Marvin HASSIG, Petitioner, v. William G. SMITH, Sheriff, Respondent.
    No. ZZ-202.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.
    H. Guy Green, Marionna, for petitioner.
    No appearance for respondent.
   PER CURIAM.

This cause comes before us as a Petition for Writ of Habeas Corpus. Petitioner is presently confined in jail for 180 days for contempt of court, subject to release upon payment of child support owed his former wife.

The former wife had sought enforcement of support payments for her four children as dictated by the Final Judgment of Dissolution issued by the Calhoun County Circuit Court of Florida June 7, 1976. Petitioner refused payment, claiming he was relieved of certain monies owed pursuant to a modification of the divorce decree entered by the Domestic Relations Court of Dallas County, Texas, subsequent to his former wife’s attempted enforcement of the decree in Texas, his current domicile, under the Provisions of the Uniform Reciprocal Enforcement of Support Act, Chapter 88, Florida Statutes (1979).

We find the Florida trial court was correct in determining its divorce decree entered June 7, 1976, had not been validly modified by the order of the Texas Court. Section 88.281, Florida Statutes (1979); Hamilton v. Hamilton, 476 S.W.2d 197 (Ky. App.1972). Compare Section 21.43, Texas Statutes (1979). Accordingly, the Petition is DENIED.

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


author: ORFINGER, Judge. SHARP, Judge,

text:
    Diana Christine DYKES, Appellant, v. Roger Francis DYKES, Jr., Appellee.
    No. 79-2.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.
    Rehearing Denied March 16, 1981.

      Francis B. Burch, J. Edward Davis and J. Calvin Jenkins, Jr., of Weinberg & Green, Baltimore, Md., and Kenneth A. Studstill, Titusville, for appellant.
    Kenneth W. McIntosh of Stenstrom, Davis, McIntosh & Julian, and Marcia K. Lip-pincott, Sanford, for appellee.
   ORFINGER, Judge.

Appellant questions a final judgment in a dissolution proceeding awarding custody of the young child of the marriage to the father. We affirm.

Appellant raises three points on appeal: (1) did the trial court abuse its discretion in awarding custody to the father instead of to the mother, (2) did the court have jurisdiction to make a custody award under the Uniform Child Custody Jurisdiction Act, and (3) was there such judicial impropriety and undue influence as to prevent the trial court from rendering an independent and unbiased decision?

Disposing of the jurisdictional question first, the record clearly reveals jurisdiction in the Florida courts. The child was born in Florida on November 18, 1974, and had lived with his parents in Florida for more than a year until December 15, 1975. The next six months were spent in Maryland (appellant’s home) while the father was preparing to enter Pennsylvania State University; they then lived in Pennsylvania for about one and one-half years while the appellee was enrolled in the University as a full time out-of-state student. The paternal grandparents lived in Florida, while the maternal grandparents lived in Maryland. When the marriage broke up, the father returned to Florida with the child. In awarding temporary custody to the father, the trial court found that Florida was the child’s home state and that it was in the child’s best interest that Florida assume jurisdiction.

Appellant insisted that Maryland was the child’s home state, and after the Florida proceedings had commenced and she had not prevailed in the temporary custody hearing, she filed a dissolution proceeding in Maryland, requesting custody of the child. The Maryland court declined to exercise jurisdiction and deferred to Florida. There is substantial evidence justifying the trial court’s conclusion that Florida had jurisdiction.

The child of the parties was three years old when the dissolution proceedings were filed. Appellant contends that she is a fit anid proper person to have custody of her child and that under the “tender years” doctrine she should have been given preference in the custody award. She therefore asserts that the trial court abused its discretion in awarding custody to the father.

Although section 61.13(2)(b), Florida Statutes, requires that the father of the child shall be given equal consideration as the mother in awarding custody, it appears to be the law of this state that other essential factors being equal, the mother of an infant of tender years should receive prime consideration for custody. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). In his extensive findings of fact the trial court recognized this principle, but found that the essential factors were not equal and that the “evidence militates strongly in favor of the father.”

The entire voluminous record in this case has been reviewed, and if we were the triers of fact we might very well have reached an opposite result on the custody issue. Nevertheless, this does not give us the unbridled power to reverse the trial judge.

[T]his court cannot, in any type of case, overturn the decision of a Chancellor made in the exercise of his judicial discretion in the absence of a clear showing of an abuse thereof; and, in a child custody case, the opportunity of the Chancellor to observe the demeanor and personalities of the parties and their witnesses and to feel forces, powers and influences that cannot be discerned by merely reading the record, assumes a new importance because of the many intangibles that must be evaluated in deciding the delicate question of child custody. Grant v. Corbitt, 95 So.2d 25, at 28.

Dinkel, 322 So.2d at 24.

Since there is competent, substantial evidence to support the findings of the trial judge, we cannot say that the trial judge abused his discretion in finding that the award of custody to the father rather than to the mother was in the best interest of the child. Maran v. Maran, 384 So.2d 950 (Fla. 4th DCA 1980); Marshall v. Marshall, 375 So.2d 1082 (Fla. 1st DCA 1979).

In an amended motion for rehearing or new trial after the final judgment, appellant contended that because appellee’s father was a circuit judge in the circuit where the action was heard, and because of his alleged “intervention” in the proceedings, the appellee was not afforded justice and the ultimate custody determination was “fore-ordained”. The fact that appellee’s father was a judge in the same circuit was known to all parties and the trial judge before, during and after the trial of this cause. No change of venue was ever requested. At no time did appellant ever ask the trial judge to recuse himself or even suggest that the trial judge might be embarrassed or otherwise inhibited in his rulings.

The trial judge openly discussed the matter with the parties and their attorneys and at the beginning of the trial offered to recuse himself if either party felt that because appellee’s father was a local judge a fair trial would not be had. No one took him up on that offer. There are no allegations of impropriety directed at appellee’s father—only innuendos, insinuations and conclusions. Moreover, and most important in our decision, is the complete absence of any allegation or intimation that there was any attempt to influence the trial judge or that the trial judge was in fact influenced by any consideration outside of the record.

The judgment appealed from is affirmed.

AFFIRMED.

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

SHARP, J., concurring in part and dissenting in part with opinion.

SHARP, Judge,

concurring in part and dissenting in part.

I concur with the majority on the third issue, I agree with the result only on the second issue because of the unique circumstances in this case, and I disagree on the first issue.

Contrary to the statement in the majority opinion, Florida was not the “home” state of the child at the time the custody proceeding commenced and it should have declined jurisdiction initially. The parties and the child left Florida in 1976 and resided in Maryland for 6 months. Then they lived in Pennsylvania for a year and a half. The father was a student at the University and the mother worked part-time and took care of the child. Pennsylvania or possibly Maryland was the child’s “home” state under the Act. Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980); Detko/Roberts v. Stikelether, 370 So.2d 383 (Fla. 4th DCA 1979).

The father returned to Florida for a “visit” with his parents and he took the child with him for that purpose. The mother came to Florida in late November for two months, tried unsuccessfully to reconcile with the father, and unable to do so, she then returned to Maryland with the child. On November 21, 1977, without the mother’s knowledge, the father appeared before the juvenile court in Brevard County, and obtained an ex parte judgment declaring that his own child was “dependent” and granting him custody.

Within a few days of each other the mother and father filed suits for dissolu-tions and sought custody of the child, she in Maryland and he in Florida. The Florida court forwarded to Maryland a “Request for Assistance” asking that court to order the return of the child to Florida for determination of the custody issue, citing as authority the highly irregular “dependency order” of the juvenile court. The Maryland court gave the Brevard dependency decree the “same effect” as a custody order of a Maryland court, and based on that order alone, it declined to accept jurisdiction, and ordered the mother to return the child to the father in Florida.

The child and mother returned to Florida and the father was given temporary custody of the child. The mother filed an answer in the Florida proceeding and a counter-suit for dissolution in which she also sought custody of the child. Since Maryland, a possible “home” state, had declined to take jurisdiction, the Florida court then had discretion to proceed under section 61.-1308(l)(d)l of the Act, and subject matter jurisdiction attached.

I disagree with the majority on the first issue because I think this case is in conflict with Anderson v. Anderson, 309 So.2d 1 (Fla.1975) and Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). At the time of this proceeding, the child was three years old, and prior to the separation of the parties, the mother had assumed the primary role in his care. She was not shown to be an improper or uncaring parent in any way.

The trial court stated that it was aware of the “tender years” doctrine, but in this case it found the scales balanced heavily in favor of the father. Normally the trial court’s conclusions in custody matters should not be disturbed. In Re Gregory, 313 So.2d 735 (Fla.1975); Johnson v. Johnson, 293 So.2d 770 (Fla. 1st DCA 1974). However the factors used by this trial court to weight the scales in the father’s favor are in my opinion insufficient.

Early in the proceedings the trial court said the mother had been the more stable parent. But at the final hearing the judge chastised her because she indicated she wanted to return to her home in Maryland, work part-time while living with her parents, and work towards her college degree. The court said the mother’s goal demonstrated “a lack of purpose” in her life. But this is precisely the manner and life style the father had be. n living during the time he had temporary custody of the child; and .he stated a similar plan for his future.

The trial court stated it was reluctant to see Florida lose jurisdiction over the child as it would if the child were returned to Maryland. Surely the day has come when Florida courts recognize that sister states also have effective legal systems and the departure of a child from our borders does not expose him to automatic danger.

The trial court also weighed and considered the relative merits of the paternal and maternal grandparents, and determined the paternal grandparents were superior. Both father and mother are young people who have not completed their educations, and they will require some help from their own parents. I question whether weighing the grandparents is ever a proper basis upon which to make a custody award, but even if it is, the record completely fails to show that the mother’s family is any less able, stable or willing to provide this backup support than the father’s.

Finally, the trial court noted the “improvement” the child had made since he was placed in the father’s temporary custody in Florida. The custody litigation in Florida consumed more than a year’s time. The child needed a “stable” environment, and he had been upset by the marital discord and being snatched back and forth between parents. However, the growth and progress of a child between the ages of three and four is normally rapid and dramatic. The parent who has temporary custody should not be credited automatically with this natural progress when it is not clear similar progress would not be made with the other parent, particularly where the temporary custody was obtained under such questionable circumstances.

The record in this case does not balance heavily in favor of either parent; and since the “tender years” doctrine is apparently still the law in Florida, the mother should have been given permanent custody of this child. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

      . Section 61.1302, et seq., Florida Statutes (Supp.1978).

      . § 61.1306(5), Fla.Stat. (1979).

      . § 61.1308(l)(a), Fla.Stat. (1979).

      . The circuit court reheard the issue of temporary custody on February 13, 1980, when both parties were before the court. The court again granted temporary custody to the father.

      .In point of fact it gave the Brevard decree far more effect than a Florida court would have, since it was clearly improper on its face.

      . Cf. Robinson v. Robinson, 333 So.2d 526 (Fla. 2d DCA 1976) (grandparents living nearby not controlling).

      . During the custody hearing, the judge stated several.times that the mother and father were equally fit persons to have custody. See Record pp. 843, 853.


author: WENTWORTH, Judge.

text:
    Dr. Morry S. FOX, Appellant, v. STATE of Florida, BOARD OF OSTEOPATHIC MEDICAL EXAMINERS, Appellee.
    No. SS-136.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Rehearing Denied April 2, 1981.

      Stephen Marc Slepin, of Slepin & Slepin, Tallahassee, and Harold B. Haimowitz, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Joseph Lawrence, Asst. Atty. Gen., and Ronald C. LaFace, Tallahassee, for appellee.
   WENTWORTH, Judge.

Appellant Fox challenges an order of the appellee Board dated August 31, 1979, and amended on October 15, 1979, denying a petition for declaratory statement because:

1. ... The issues concerned in the Petition are now before the Division of Administrative Hearings pursuant to Section 120.57, Florida Statutes, involving the Board and Petitioner. Furthermore, those same issues are presently pending before the First District Court of Appeal, again involving the Board and the Petitioner. The Board cannot interfere with the jurisdiction of those judiciary bodies in the exercise of their duly constituted jurisdiction.
2. The matters presented in Petitioner’s Petition for Declaratory Statement will be reviewed by the Board at the time that a Recommended Order is received from the Division of Administrative Hearings pursuant to Chapter 120, Florida Statutes.

Other deficiencies in procedure and substance were also cited. Not noted in the order, but reflected by the record, is the filing of injunctive proceedings in the circuit court on September 5, 1979, on the same subject matter.

Since all questions posed in the petition for declaratory statement related to matters connected with the pending § 120.57 proceeding, the Board argues mootness as a result of a Department of Administrative Hearings order of September 19, 1979, dismissing those proceedings. Fox contends even the demise of those proceedings left a live controversy because the subject matter of his petition for declaratory statement “could not properly be resolved at a full fledged § 120.57 hearing by the Division of Administrative Hearings inasmuch as it was the power or jurisdiction of DOAH itself which was at issue in terms of ‘default’ of Dr. Fox [by the Board] into the DOAH.” That power and jurisdiction, however, was expressly treated in the DOAH orders in the § 120.57 proceeding, from which no appeal was taken (logically, since jurisdiction was ultimately exercised in Fox’s favor). In any event, we conclude the reasoning of the court in Couch v. State Department of Health & Rehabilitative Services, 377 So.2d 32 (Fla. 1st DCA 1979), is dispositive on the point that declaratory statement proceedings, by analogy to Chapter 86, Florida Statutes, are not properly filed on issues simultaneously litigated in judicial or other administrative proceedings of the character here involved.

The order is accordingly affirmed.

JOANOS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: LILES, WOODIE A., Associate Judge (Retired). JOANOS, Judge,

text:
    Richard Duane MONDY, Appellant, v. Carol A. MONDY, Appellee.
    No. TT-29.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.
    Rehearing Denied March 31, 1981.

      Elliott Zisser of Zisser, Robison & Spohrer, P. A., Jacksonville, for appellant.
    John R. Forbes of Forbes & Meide, Jacksonville, for appellee.
   LILES, WOODIE A., Associate Judge (Retired).

The Father appeals from a trial court order awarding the Mother temporary custody of the minor children. We affirm.

The Mondys were married and resided in the State of Alabama. Two minor children were born as a result of marriage, ages three and one-half and five. While the family lived in Alabama, the Father took the children without the consent of the Mother and went west, evidently shopping for a state with short residency requirements. He finally landed in Bonneville County, Idaho, where the residency requirement is six weeks. The Mother went to Jacksonville, Florida, where her father and relatives reside. Eleven months after Father departed Alabama and six weeks after settling in Idaho, he filed suit for dissolution of marriage and requested that the Idaho court award him custody of the children. The Mother was properly served, and she proceeded to Idaho and contested custody. A few days prior to the entry of the Idaho court’s decree awarding temporary custody to the Father, she absconded with the children and came back to Jacksonville.

On August 16, 1979, after learning that the children were in Jacksonville, Florida, the Father filed a petition for writ of habe-as corpus in the Duval County Circuit Court. A writ was issued the same day.

Eight days later, the Mother petitioned for dissolution of the marriage and an injunction to enjoin the Duval County Sheriff’s Department from taking the children pursuant to the writ of habeas corpus. The trial court enjoined enforcement of the writ and awarded the Mother temporary custody of the children until the court could make inquiry into the situation and determine the appropriate forum for the action. On August 28, 1979, the Father filed a motion seeking recognition of his Idaho decree awarding custody of the children to him. The Mother then filed another petition requesting the establishment of the Idaho decree as the Florida decree and seeking to modify it to award her custody and child support. On September 10, 1979, the trial court granted the Mother’s petition to establish the Idaho decree as the Florida decree and ordered the clerk to request that all documents in the Idaho court’s file and all other pertinent data be forwarded to the Duval County Circuit Court. He ordered a home study from the Florida Department of Health & Rehabilitative Services and its sister agency in Idaho, granted temporary custody to the Mother, and enjoined both parties from removing the children from Duval County. The Father later filed a motion to vacate and set aside this order and a motion to dismiss the Mother’s second petition on grounds of lack of subject-matter jurisdiction under the Uniform Child Custody Jurisdiction Act.

By order dated November 16, 1979, the trial court denied both of the Father’s motions. This appeal followed.

The Father has argued very forcefully that the Uniform Child Custody Jurisdiction Act (Section 61.1302 et seq., Florida Statutes) is controlling and deprives the Florida court of jurisdiction over this cause. However, neither party comes before this Court with clean hands, and somewhere someone has to make an attempt to stop the child-napping and determine what is in the best interests of the children.

Section 61.1308(l)(b), Florida Statutes, provides that a court of this state has jurisdiction to make a child custody determination if it is in the best interest of the child that the court assume jurisdiction because: (1) the child and his parents, or the child and at least one contestant, have a significant connection with this state; and (2) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships. The statutory provision “does not require that the child’s only ‘significant connection’ be with the State of Florida in order for jurisdiction of the Florida court to attach. It only requires that the child have a ‘significant connection’ with this state.” Hofer v. Agner, 373 So.2d 48, 51 (Fla. 1st DCA 1979). In the instant case, the trial court made the following uncontested finding:

The wife immediately removed herself and the minor children to Jacksonville, Florida, where the family had previously lived and where her father resides and where she owns real property and where the children have friends and spent part of their earlier lives and immediately petitioned this court for a dissolution of marriage.

A similar finding was held to establish an appropriate jurisdictional nexus in Hofer, and in that case there were even more compelling reasons for regarding the other state as the appropriate forum for litigating the issue of child custody. We also note the trial court’s finding that:

It appears now that the children are in a safe and healthy environment, living in a modest home in Jacksonville, Florida, in a neighborhood that the children are familiar with and are enrolled in appropriate schools and are attending church and other desirable functions on a regular basis.

It thus appears that there is, or soon will be, substantial evidence concerning the children’s present and future care, protection, training, and personal relationships in Jacksonville. Accordingly, we think there is a sufficient predicate for the trial court’s assumption of jurisdiction under Section 61.-1308(l)(b)(l) and (2), Florida Statutes.

Section 61.1308(l)(c)(2), Florida Statutes, also provides that a Florida court may exercise jurisdiction when a child is physically present in this state and it is necessary in an emergency to protect the child because he or she has been subjected to or threatened with mistreatment or abuse or otherwise neglected. In this case, the Mother has alleged that the “children had been abused and they had regressed in their speech patterns and were in an extreme state of emotional distress.” Regardless of the truth of this particular allegation, the trial court may, at least temporarily, assume jurisdiction to insure that the children are not threatened with mistreatment, abuse, or neglect. See also Jackson v. Jackson, 390 So.2d 787 (Fla. 1st DCA 1980); Trujillo v. Trujillo, 378 So.2d 812 (Fla. 3rd DCA 1980). Further, the trial court has taken the appropriate steps to investigate the allegations of the Mother concerning the abuse of the children and their welfare in general by ordering HRS and its Idaho counterpart to conduct home studies. A reversal at this time would only short circuit this process.

Appellant urges that a reversal is mandated by Section 61.1318(2), Florida Statutes:

Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. [Emphasis supplied]

We think that the introductory phrase provides the trial court with a certain discretionary leeway. By ordering HRS and its Idaho counterpart to conduct home studies, the Florida trial court has appropriately initiated a determination of where the children’s best interest lie. It should not be forgotten that the primary purpose of the statute is to promote the welfare of the children. Since the trial court is more intimately acquainted with the situation, we defer to its judgment and will not disturb its ruling.

Accordingly, the judgment is

AFFIRMED.

WENTWORTH, J., concurs.

JOANOS, J., dissents with written opinion.

JOANOS, Judge,

dissenting.

I disagree with the majority’s opinion.

While I agree with the majority that neither party has clean hands, the Florida Court should defer to the Idaho Court which first properly assumed jurisdiction under the Uniform Child Custody Act.

The Act requires that our courts recognize and defer to the jurisdiction of a sister state which has properly assumed jurisdiction under laws in accordance with the provisions of the Uniform Act. See: Florida Statutes §§ 61.1304, 61.1314,61.1328. Idaho has adopted the Uniform Act. Idaho Code, Section 5-1001, et seq. In accepting jurisdiction, the Idaho judge followed the provisions of the Act. At the time that he accepted jurisdiction, no other state provided a superior forum under the Act. The Mother had moved from Alabama, the state in which the parties lived together when the Father left with the children. The Idaho Court’s jurisdiction over the matter is superior to the Florida Court. Further, there is nothing in this record to suggest that the Idaho Court was attempting to do anything but act in accordance with the best interests of the children.


text:
    Phillip JAMES, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. ZZ-169.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.
    Rehearing Denied March 18, 1981.
    Phillip James in pro. per.
    No appearance for respondent.
   PER CURIAM.

An inmate of the Florida prison system seeks to have this Court order the Florida Parole and Probation Commission to perform its statutory duty and set his presumptive parole release date. Petitioner asserts and the record indicates that the establishment of such a date has been twice “set off indefinitely” due to the alleged lack of a presentence investigation report.

We recently declared, in no uncertain terms, that the absence of such a report provides no grounds for the Commission’s blatant failure to follow clear statutory requirements. Battis et al. v. Florida Parole and Probation Commission, 386 So.2d 295 (Fla. 1st DCA 1980). In Battis, we noted the frequency with which inmates necessarily sought the aid of this court to order the Commission to act according to the dictates of Chapter 947, Florida Statutes. Yet, despite our clear mandate in Battis, it is apparent that the Commission continues to ignore the requirements of Chapter 947. On nearly a daily basis, inmates still seek this Court’s aid to “police” the Commission. We reluctantly find ourselves undertaking this unpleasant task. The Commission’s action by failing to establish presumptive parole release dates subsequent to Battis, is evidenced by the recent string of petitions filed in this Court requesting us to order that such a date be set pursuant to the Statutes, Thompson v. Florida Parole and Probation Commission, Case No. ZZ-308 (Order entered January 28, 1981) (Fla. 1st DCA); McKinney v. Florida Parole and Probation Commission, Case No. ZZ-387 (Order entered January 28, 1981) (Fla. 1st DCA); Flythe v. Florida Parole and Probation Commission, Case No. ZZ-245 (Order entered January 13, 1981); Jackson v. Florida Parole and Probation Commission, Case No. ZZ-100 (Order entered January 13, 1981) (Fla. 1st DCA); Lasure v. Florida Parole and Probation Commission, Case No. ZZ-61 (Order entered January 13, 1981) (Fla. 1st DCA); Black v. Florida Parole and Probation Commission, Case No. YY-378 (Order entered December 21, 1980) (Fla. 1st DCA); Hahn v. Florida Parole and Probation Commission, Case No. XX-499 (Order entered October 21, 1980) (Fla. 1st DCA); Emory v. Florida Parole and Probation Commission, Case No. YY-120 (Order entered October 29, 1980) (Fla. 1st DCA); Anderson v. Florida Parole and Probation Commission, Case No. YY-207 (Order entered November 13, 1980) (Fla. 1st DCA); Conage v. Florida Parole and Probation Commission, Case No. YY-253 (Order entered November 18, 1980) (Fla. 1st DCA); Jeffrey v. Florida Parole and Probation Commission, Case No. YY-385 (Order entered December 10, 1980) (Fla. 1st DCA); Tripp v. Florida Parole and Probation Commission, Case No. YY-472 (Order entered December 10, 1980) (Fla. 1st DCA); and necessitates the reiteration of our holding in Battis in somewhat stronger terms.

Chapter 947, Florida Statutes (1980), requires the Commission to establish a presumptive parole release date within a certain period of time for each entitled inmate. The chapter contemplates an objective system, Section 947.02, Fla.Stat. (1980); the Commission may exercise its discretion only in limited circumstances with adequate explanation. Sections 947.165, 947.172, Fla. Stat. (1980); Baker v. Florida Parole and Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980).

While the rules and policy developed by the Commission apparently attempt to afford it the broad discretion it possessed prior to the enactment of the Objective Parole Guidelines Act of 1978, self-imposed informal requirements cannot negate clear statutory dictates. Just as the Commission may not choose an arbitrary term an inmate must serve, then justify it by applying various “aggravations”, so too is the Commission prohibited from avoiding its duty altogether by refusing to establish a presumptive parole release date based on the lack of a particular report. Neither Chapter 947 nor the Commission’s own rules specifically require a particular report be considered as a prerequisite for establishing a release date. In fact, reports such as post sentence investigation reports written years after their subject offenses were committed may fail to satisfy the requirements of competence and persuasiveness necessary to allow their consideration when applying aggravating or mitigating factors.

We write the instant opinion to place the Commission on notice of our intended future action in cases of this nature. Forty-five days after the date this opinion is filed, should the Court receive inmate petitions with worksheets showing the Commission refused to establish a presumptive parole release date for an impermissible reason, and no date has yet been set for petitioner, absent exceptional circumstances we will remand the case to the Commission with directions to establish a date based upon the salient factor score and aggravating or mitigating factors as listed on the original Commission worksheet. When no scoring has occurred in the salient factor score, the inmate must be assigned a salient factor score of zero. Battis et al. v. Florida Parole and Probation Commission, supra. Similarly, aggravations may not be applied later than 45 days from the date of an inmate’s initial interview “except for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview”. Section 947.16(4), Fla. Stat. (1979). While the Legislature intended that presumptive parole release dates be established for many of these inmates more than one year ago, Section 947.172(4), Fla. Stat. (1979), we will refrain from taking action concerning inmate’s petitioning for aid and for establishment of such dates for 45 days to allow the Commission time within which to update its records and establish dates where needed, following which time we will require the Commission to act in accordance with the dictates outlined above in setting a date for an inmate whose consideration had been previously “set off indefinitely”.

The instant petition for writ of mandamus is granted. The Commission is directed to establish a binding presumptive parole release date for petitioner James within 15 days.

SHIVERS, SHAW and THOMPSON, JJ., concur.

      . The danger of relying on a report written long after an inmate confinement to determine his presumptive parole release date is readily apparent. Section 945.10(2), Fla.Stat. (1980), precludes an inmate from reviewing the contents of the report should it be contained in the files of the Department of Corrections. Hernandez v. Wainwright, 371 So.2d 596 (Fla. 1st DCA 1980). Thus, the contents of the report is immune from challenge. No neutral panel reviews its competence or its persuasiveness. To allow the unsubstantiated hearsay generally contained in such reports to be the sole basis for the Commission’s presumably objective decisions concerning an inmate’s presumptive parole release date, despite recognition that no factors contained therein are subject to challenge, particularly by the inmate, would inevitably raise due process considerations. However, this issue is not now squarely before the court and thus need not be resolved in the instant case.


text:
    Aidee LOPEZ, Appellant, v. DeMARIA PORCHE-AUDI, etc. et al., Appellees.
    Nos. 80-639, 80-1729.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Rehearing Denied March 30, 1981.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellant.
    Lee, Schulte, Murphy & Coe and Jack Coe, Jupiter, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

The trial judge directed a verdict for DeMaria, the owner of a vehicle, relying on this court’s opinion in Bickley v. Castillo, 346 So.2d 625 (Fla.3d DCA 1977), approved, Castillo v. Bickley, 363 So.2d 792 (Fla.1978). We reverse.

Under the facts of this case, the vehicle in question was entrusted to a serviceman, not only to deliver it to the repairman’s facility but with the understanding that the repairman could take it home for the night and drive it to his place of business the next day. The accident in question occurred on the way between the repairman’s home and his place of work. Generally, the owner of a motor vehicle is vicariously liable for entrusting same to another for his personal use. Southern Cotton Oil Company v. Anderson, 80 Fla. 441, 86 So. 629 (1920); Greene v. Miller, 102 Fla. 767, 136 So. 532 (1931); Jordan v. Kelson, 299 So.2d 109 (Fla. 4th DCA 1974). The limited exception carved out by this court from this general rule in Bickley v. Castillo, supra, as approved by the Supreme Court of Florida in its opinion in Castillo v. Bickley, supra, does not extend to excluding an owner from liability when he permits his automobile to be used for a personal use incident to having it repaired. We also do not find that the mere fact that the automobile was being transported, in part, for the convenience of the owner is sufficient to take the owner out of the general responsibility for the entrustment of a dangerous instrumentality-

Therefore, the final judgment based on the directed verdict be and the same is hereby reversed and remanded to the trial court for further proceedings.

Reversed and remanded with directions.


author: BASKIN, Judge.

text:
    Barbara MARCH, Appellant, v. Robert MARCH, Appellee.
    No. 80-1084.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Rehearing Denied March 27, 1981.
    Resnick, Rosenthal & Weiss and Jeffrey H. Rosenthal, David E. Newman, Miami, for appellant.
    Robert Y. Shea, Coral Gables, for appel-lee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

We reverse the order entered after final judgment awarding the wife attorneys’ fees totaling $1,250. The uncontra-dicted testimony of expert witnesses recommended a reasonable fee of either $8,625 or $7,900 for approximately 115 hours work performed by the wife’s attorneys in connection with the dissolution of her marriage to appellee. The award of $1,250 constitutes an abuse of discretion. The court commented that the attorneys performed ably on behalf of their client and no other expert testimony was presented to assist the court in determining the correct amount. In Marchion Terrazzo, Inc. v. Altman, 372 So.2d 512 (Fla. 3d DCA 1979), this court stated:

Although we are usually not inclined to tread upon the trial court’s discretion in matters involving attorney’s fees, nevertheless, we must do so where we find a clear abuse evidenced in the record before us, see Bryan and Sons Corp. v. Klefstat [sic], 265 So.2d 382, 385 (Fla. 4th DCA 1972), and this principle applies not only where the fee is found to be excessive, but also where it is found to be inadequate. See, e. g., Flagala Corporation v. Hamm, 302 So.2d 195 (Fla. 1st DCA 1974), and Canal Authority v. Ocala Manufacturing Ice and Packing Company, 253 So.2d 495 (Fla. 1st DCA 1971).
It is clear in this case that the fee allowed is not in keeping with time expended and with the novelty and importance of the legal work involved. In addition, the proofs submitted do not support the amount awarded.

372 So.2d at 514. That principle applies in this case. The wife is entitled to funds enabling her to obtain competent counsel. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

We affirm the remainder of the order pertaining to costs and witness fees.

Affirmed in part, reversed in part, and remanded for reconsideration of the testimony previously presented and for the award of reasonable attorney fees to the wife.


author: LETTS, Chief Judge.

text:
    STATE of Florida, Appellant, v. Curtis ALFORD, Appellee.
    No. 80-756.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.
    Rehearing Denied April 1, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   LETTS, Chief Judge.

This is an appeal by the State from an order granting a motion to dismiss an information charging the defendant with possession of in excess of twenty grams of cannabis, on the grounds that the undisputed material issues of fact failed to establish a prima facie case. We reverse.

The motion to dismiss set forth that as two officers approached a group of between eight to twelve people including the defendant, the group dispersed and the officers “located a bag which contained twenty-two smaller manila envelopes within it.” They confiscated the bag and contents. Thereafter the motion to dismiss continued by alleging that upon analysis the defendant’s fingerprints were found only on one of the twenty-two manila envelopes, which envelope contained less than twenty grams of cannabis. The defense then concluded the motion by alleging that the defendant said “it wasn’t his stuff, he just bagged.” From all of the foregoing the defense took the position that the undisputed material issues of fact did not establish a prima facie case of possession of in excess of twenty grams of cannabis in violation of Section 893.-13(l)(e), Florida Statutes (1979).

This motion was traversed by the State which traverse importantly alleged that it was the defendant himself who dropped the bag rather than a question of the bag merely being “located.” This fact in and of itself appears sufficient to thwart a motion to dismiss but there are other reasons.

Because this appeal comes from a pretrial dismissal pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) and not from a jury verdict, the question before this court is whether the State’s traverse was sufficient to place a material issue of fact into dispute or to demonstrate that the uncontroverted facts do establish a prima facie case of guilt. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977); State v. Savarino, 381 So.2d 734 (Fla.2d DCA 1980). Under this rationale, it must be determined in the case now before us whether the facts established a prima facie case of constructive possession, to wit, that the defendant knew of the presence of over twenty grams of a controlled substance and had the ability to maintain control over it. In Cummings v. State, 378 So.2d 879 (Fla. 1st DCA 1979), the court maintained that whether or not a defendant has such knowledge of the presence of a controlled substance and the ability to control it must be inferred from the facts.

The cannabis was found in appellant’s car driven by appellant’s brother. There were four people in the car at the time appellant’s car was stopped: appellant, his brother, and two others. All of the occupants except appellant denied knowledge of the marijuana. Appellant made no comment. Appellant contends the facts fail to establish a prima facie case of constructive possession, to-wit, that appellant knew of the presence of a controlled substance and had the ability to maintain control over it. Appellants contend the facts establish joint possession of the trunk and not exclusive possession. Whether or not appellant had such knowledge must be inferred from the facts. Knowledge is an ultimate fact question not subject to a motion to dismiss under Section 3.190(c), Florida Rules of Criminal Procedure. See Spataro v. State, 179 So.2d 873 (Fla.2d DCA 1975). It would have been for the jury to determine the credibility of the other occupants as to their denials.

In other words, knowledge is an ultimate fact question not subject to a motion to dismiss under Rule 3.190(c)(4).

Finally, we agree with the State that the motion to dismiss on its own face was insufficient to merit dismissal. In the State’s own words with which we agree:

The motion itself states that Defendant’s fingerprint was found on one manila envelope taken from a bag containing twenty-one other manila envelopes. The single envelope upon which his fingerprint had been found contained less than twenty grams of marijuana. However, the fact that his fingerprint was found on one of the envelopes could be probative evidence to indicate that he possessed the other envelopes as well, especially since they were found in one single bag. Thus, the fact that less than twenty grams of marijuana was found in the one small envelope does not dispose of the issue of whether Defendant possessed marijuana in excess of twenty grams. Further, his statement to [the Detective] quoted in the motion alleges that it wasn’t “his stuff,” but that he just bagged it. That exculpatory statement raises a credibility question which should have been left for a jury to decide. The statement itself implicitly admits that Defendant had contact with more than just the one manila envelope, and his denial that it was “his stuff” raises a question of credibility.

In sum we believe the motion to dismiss should not have been granted.

REVERSED AND REMANDED.

BERANEK and HERSEY, JJ., concur.


author: SMITH, Judge.

text:
    FLORIDA ERECTION SERVICES, INC. and Risk Management Services Inc., Appellants, v. Raymer McDONALD, Appellee.
    No. VV-150.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    Rehearing Denied April 4, 1981.

      Robert D. McAliley, of Brennan, McAli-ley, Hayskar, McAliley & Deckert, W. Palm Beach, for appellants.
    Richard A. Sicking and Gerald A. Rosen-thal, of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro, Miami, for appellee.
   SMITH, Judge.

The carrier appeals a workers’ compensation award imposing penalties for late payment of wage loss benefits, and assessing attorney’s fees against the carrier based upon a finding of “bad faith” in the handling of the claim. The attorney’s fees question and certain aspects of the penalty ruling present issues of first impression before this court, and require consideration of the drastic 1979 amendments to the Workers’ Compensation Law.

The claimant was injured in a compensa-ble accident on September 20, 1979. The carrier paid temporary total disability benefits through December 5, 1979, on which date according to the report of the claimant’s treating physician he reached maximum medical improvement, with permanent impairment. The carrier properly forwarded to the claimant the notice required by Section 440.185(10), Florida Statutes (1979) (and the appropriate rule) of his possible entitlement to wage loss benefits, along with instructions for claiming such benefits.

The claimant submitted his request for wage loss benefits for the period December 5, 1979 to January 5, 1980. The carrier received the wage loss request on January 7,1980, but its claims supervisor determined that the portion required to be completed by the employer showing wages paid was incomplete, and, in addition the claimant sent only the carrier’s copy of the four-part form supplied to him by the carrier. A formal claim submitted by claimant’s attorney was received by the carrier on January 14, 1980. Without any further investigation (so far as the records shows) of the claimant’s entitlement to wage loss benefits, the carrier rejected the claim, but instead of notifying the claimant immediately, it waited fourteen days from the date of receipt of the wage loss request before mailing a letter to the claimant explaining that the employer’s portion should be completed, and that he should submit the remaining three parts of the claim form.

The claimant thereafter responded through his attorney, who filed an amended form in which was included “-00-” in the appropriate blank indicating no wages received during the wage loss period. Additional demands were made by the carrier for submission of the entire four-part form. Further correspondence ensued between the claimant’s attorney and the carrier, each accusing the other of attempted circumvention of the new Workers’ Compensation Law. Wage loss requests were also filed for the months of January and February. The January request was approved on March 7, 1980, and the February request was approved March 10, 1980.

A hearing was held pursuant to the requirements of Section 440.34(2)(b) for the sole purpose of determining liability for interest, penalties and attorney’s fees. At the hearing before the deputy commissioner on March 10, 1980, the carrier also accepted and commenced payment of the claimant’s wage loss benefits for the period December 5, 1979 to January 5, 1980. The claimant, meanwhile, suffered a total lack of wages or wage loss benefits during the period from December 5,1979 until March 7, 1980, the date on which the wage loss payments commenced. The deputy commissioner ordered payment of interest and a ten percent penalty for late payment, and awarded attorney’s fees to claimant’s attorney upon a finding of bad faith delay in payment of benefits.

We will first consider the assessment of a ten percent penalty. Section 440.20(7), Florida Statutes (1979), in pertinent part similar to former Section 440.20(5), Florida Statutes (1978), provides in part:

(7) If any installment of compensation for ... disability, permanent impairment, or wage loss payable without an award is not paid within fourteen days after it becomes due ... there shall be added to such unpaid installment a punitive penalty of an amount equal to ten percent ... unless notice [controverting claim] is filed .. .'or unless such nonpayment results from conditions over which the employer or carrier had no control.

Section 440.20(6) sets out the procedure to be followed if the carrier “controverts the right to compensation.” Subsection (6) requires, among other things, that the notice set forth “the grounds upon which the right to compensation is controverted together with “a written explanation setting forth in detail the reason or reasons why the claim has been controverted.

On appeal, the carrier argues that it should be relieved of the penalty under the above statute because it filed a notice to controvert within twenty-one days, as required by Section 440.20(6). The deputy commissioner’s order refutes this contention, and our review satisfies us that his ruling was correct. True, a notice to controvert was filed within twenty-one days of the carrier’s receipt of the claimant’s request for wage loss benefits. But the carrier’s notice to controvert contains no mention of wage loss benefits. The notice contains a statement admitting payment of temporary total benefits from the date of accident to the date of maximum medical improvement, and contains a statement that the carrier controverts “any other benefits.” Under the heading “Reason for Controverting,” appearing on the notice form, as to “any other benefits,” the notice states: “Not specific as required by W/C Rule 38F-3.10.” The cited rule, Rule 38F-3.10, Florida Administrative Code, deals with claims generally, which are made using LES Form BCL-16. The rule specifically provides that wage loss claims shall be filed on LES Form BCL-13(b). The procedure for filing of wage loss claims, using Form BCL-13(b), is covered in Rule 3.18, Florida Administrative Code.

The notice to controvert, as to wage loss benefits, was insufficient under the statute. Even assuming that the wording “any other benefits” is broad enough to include the wage loss claim, it cannot be so construed in view of the specific reference to the rule governing claims generally, rather than Rule 3.18, the specific rule governing wage loss claims. More importantly, the notice did not comply with the requirements of subsection (6) in that it failed to specifically state “the grounds upon which the right to compensation is controverted,” and the notice contained no “written explanation setting forth in detail the reason or reasons why the claim has been controverted.” We note also from the record the carrier’s concession “there was no Notice to Controvert filed over wageloss benefits,” made through its attorney at the hearing before the deputy commissioner. The carrier’s position on this appeal is thus contrary to the position taken below on this point. In our view the deputy commissioner correctly ruled that the notice to controvert did not comply with the statute, payment was not made within fourteen days, and the punitive penalty for late payment was properly assessed.

We next consider the assessment of attorney’s fees under the “bad faith” provision. Section 440.34(2), Florida Statutes (1979), provides that a claimant shall be responsible for the payment of his own attorney’s fees, except under limited circumstances set forth in subparagraph (a) of subsection (2), and except as provided in subparagraph (b), as follows:

(b) In cases where the deputy commissioner issues an order finding that a carrier has acted in bad faith with regard to handling an injured worker’s claim and the injured worker has suffered economic loss. For the purposes of this paragraph, “bad faith” means conduct by the carrier in the handling of a claim which amounts to fraud, malice, oppression or willful, wanton or reckless disregard of the rights of the claimant. Any determination of bad faith shall be made by the deputy commissioner through a separate fact-finding proceeding; ...

The carrier argues that the “bad faith” definition contained in Section 440.34(2)(b) tracks the longstanding case law dealing with punitive damages. See Winn and Lovett Grocery Company v. Archer, 126 Fla. 308, 171 So. 214 (1936), and General Finance Corp. of Jacksonville, Inc. v. Sexton, 155 So.2d 159 (Fla. 1st DCA 1963). It follows, according to the carrier, that acts amounting to bad faith under the statute must be of sufficient gravity to justify an award of punitive damages in a tort action, in accordance with the rule stated in General Finance Corp. of Jacksonville, Inc. v. Sexton, supra, at 162, as follows:

The general rule is that exemplary or punitive damages are given solely as punishment where torts are committed with fraud, actual malice, deliberate violence, or oppression or with such gross negligence as to indicate a wanton disregard of the rights of others. Punitive damages are damages in excess of compensation and are authorized to be inflicted when the wrong done partakes of a criminal character, though not punishable as such, or consists of aggravated misconduct or a lawless act resulting in injury to the plaintiff.

The carrier maintains that it cannot reasonably be inferred from the evidence of its actions that it was guilty of the type of malice, intent, or reckless disregard of the rights of the claimant that would support a recovery of punitive damages. By insisting that the claimant comply with the directions on the wage loss request form, the carrier states that it has done nothing except to act upon its belief as to the requirements of the new Workers’ Compensation Law. The carrier relies upon language in General Finance Corp. of Jacksonville, Inc. v. Sexton, supra, in which the court noted a defense to a punitive damage claim, under certain circumstances, where the act was “committed by mistake in a bona fide assertion of a supposed right .... ”

The carrier further asserts that since a statutory award of attorney’s fees is in derogation of the common law, the statute awarding attorney’s fees for bad faith must be strictly construed, citing Hartford Accident and Indemnity Company v. Smith, 366 So.2d 456 (Fla. 4th DCA 1978); Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977); Allstate Mortgage Company v. Strasser, 277 So.2d 843 (Fla. 3rd DCA 1973), aff'd 286 So.2d 201 (Fla. 1975).

Finally, the carrier maintains that the elimination of Section 440.34(1), Florida Statutes (1978), providing for assessment of attorney’s fees against the employer or carrier “if the claimant proves to the judge that the employer or carrier handled his claim in a negligent, arbitrary, or capricious manner,” gives further indication that the 1979 amendment requires a showing of conduct warranting recovery of punitive damages.

Appellee urges that to invoke the statute it is not necessary to show conduct on the part of the carrier that would be sufficient for recovery of punitive damages in tort actions, or in actions based upon a contractual relationship in which one of the parties has committed wrongs amounting to a separate tort. Appellee argues for the application of a so-called “insurance standard” which he defines as “such a lesser degree of bad faith amounting to a disregard of the insured’s rights without reasonable excuse.”

Our study thus far has not provided us with a readily applicable “insurance standard.” However, we agree with appel-lee that the punitive damage standard urged by appellant is not applicable, for the simple reason that the award of attorney’s fees incurred by the claimant does not partake of a necessary element of punitive damages — that is, reimbursement for his attorney’s fees does not provide remuneration to the claimant over and above the amount necessary to compensate for his loss. Punitive damages are damages that “go beyond the actual damages suffered in the case .... ” Richards Company v. Harrison, 262 So.2d 258 (Fla. 1st DCA 1972).

We have not overlooked the provisions of Section 440.34(2)(c), arguably punitive in nature, which prohibit the carrier from directly or indirectly recouping any such attorney’s fees assessed against it in the rate base, premium, or any rate filing. We also would concede that the assessment of attorney’s fees under these circumstances might tend to have a deterrent effect, but this does not require such an assessment to be regarded as “punitive damages.” See Butchikas v. Travelers Indemnity Company, 343 So.2d 816 (Fla.1977), in which the court held that an insured is “made whole” by an award of attorney’s fees (plus compensatory damages) in bad faith actions against his insurer where the conduct of the insurer is not so egregious as to justify an award of punitive damages. Similarly, we conclude that a workers’ compensation claimant is merely “made whole” by the award of attorney’s fees, even though such an award may also furnish a “stimulus” to the insurer, as in Butchikas, supra. We observe that it has long been the law that the penalty provisions (10% and 20%) are insufficient to compensate a workers’ compensation claimant for delay in receiving his benefits if he must make arrangements for and pay his own attorney’s fees incurred in collecting benefits due him. City of Miami v. Schiffman, 144 So.2d 799 (Fla.1962). The award of attorney’s fees under the bad faith provision of the new act does no more than reimburse the claimant for expenses incurred in the assertion of his right to benefits.

We reject the notion that the operation of the statutory “bad faith” provision is limited to instances of “active concealment, misrepresentation, or continued course of dishonest dealing” as suggested by appellee. This was the test for recovery of punitive damages by an insured against his insurer in excess liability cases approved in Campbell v. Government Employees Ins. Co., 306 So.2d 525 (Fla.1974). Compare Butchikas v. Travelers Indemnity Company, supra. The Campbell standard would furnish one basis for liability for attorney’s fees under this statute. However, it is not the only test. Active concealment, misrepresentation, or a course of dishonest dealing can be classified as falling into the tort categories of “fraud” or “deceit.” We find nothing in the Workers’ Compensation Law to suggest that a workers’ compensation carrier guilty of fraud or deceit might not also be subject to an award of punitive damages, as well as attorney’s fees, although we are not called upon and do not decide that issue in this case. We do note, however, that the act itself has long contained a provision (Section 440.37(2)(e)) imposing liability for compensatory damages and attorney’s fees against any insurer or its agent who “intentionally injures ... any claimant with regard to any claim.” We agree with appellee’s assertion that if the new bad faith provision for attorney’s fees were intended to cover only intentional delay or denial of benefits injuring a claimant, the new provision would be somewhat superfluous.

In applying the bad faith statute it would be convenient to judge the conduct of the carrier by comparing that conduct with acts or omissions dealt with in the decisions on punitive damages, or “bad faith” generally on the part of insurers. In our opinion, however, such an application is neither required nor permitted. Although decisions dealing with punitive damages and bad faith on the part of an insurer in general might furnish some helpful guidelines for review of conduct under this statute, we nevertheless conclude that bad faith or punitive damage concepts governing liability in other relationships and under other circumstances cannot be transplanted muta-tis mutandis to worker’s compensation proceedings. “The law is not a mathematically exact science. A perfectly sound principle as applied to one set of facts might be entirely inappropriate when a factual variant is introduced.” Thornal, Justice, in Ward v. Baskin, 94 So.2d 859 (Fla.1957). Since the relationship of the parties — employer, employee, and carrier — is unique in workers’ compensation matters, being solely the creature of statute, we conclude that the bad faith language as used and defined in the statute must be given its own unique application. The language used must be construed according to its plain and ordinary meaning, consistent with the history and objectives of the workers’ compensation law, interpretations of worker’s compensation legislation in the past, the relationship between the affected parties, and the operation and function of the particular statutory provision read in the light of all other provisions of the law of which it forms a part.

Precedents which may now be considered as somewhat ancient tell us that workers’ compensation is a product of industrialism that proceeds on the theory that economic loss to the individual caused by injury in line of duty should be borne in part by the industry in which he is employed in order that his dependents may not want. To establish his rights to benefits the claimant is not bound by the rigid rules of proof and interpretation that govern in criminal and law cases. Duff Hotel Co. v. Ficara, 150 Fla. 442, 7 So.2d 790 (1942). The fundamental purpose of workers’ compensation is to relieve society of the burden of caring for an injured employee by placing the burden on the industry involved. Sullivan v. Mayo, 121 So.2d 424 (Fla.1960).

Although formerly the philosophy of workers’ compensation was that when the employer and the employee accepted the terms of the compensation act, their relationship became contractual, under later amendments to the workers’ compensation law of Florida the application of the act to employer and the employee alike became mandatory. See Sections 440.10, .38 and 43, Florida Statutes (1979); compare Howze v. Lykes Bros., Inc., 64 So.2d 277 (Fla.1953).

The purpose of workers’ compensation acts is to provide for employers a liability that is limited and determinative, and to employees a remedy that is both expeditious and independent of proof of fault. McLean v. Mundy, 81 So.2d 501 (Fla. 1955). Workers’ compensation acts constitute “social legislation, the design, intent, and purpose of which is to provide for injured workmen, and — if they should die from injuries received in their employment — for their dependents, in such a way that the burden may fall on the industry served, not on society.” 35 Fla.Jur., Workmen’s Compensation, § 4. The legislative intent was and is that the workers’ compensation law should be self-executing, and that benefits should be paid without the necessity of any legal or administrative proceedings. A. B. Taff & Sons v. Clark, 110 So.2d 428 (Fla. 1st DCA 1959).

The employee-claimant and the carrier do not occupy the position of insured and insurer (cf. Baxter v. Royal Indemnity Company, 285 So.2d 652 (Fla. 1st DCA 1973)). Although the position of the claimant is akin to that of the injured automobile accident plaintiff (cf. Shingleton v. Bussey, 223 So.2d 713 (Fla.1969)), in that the claimant is in a sense a “third party beneficiary” of the insurance coverage provided to the employer by the carrier, the obligations of the carrier to the claimant are not dependent upon the contract of insurance. They are mandated by the workers’ compensation act itself. The act itself makes it clear that the obligations and duties of the employer and carrier are regarded as inseparable to the extent necessary to carry out the purpose of the law. Section 440.41, Florida Statutes (1979). To paraphrase from the opinion of Mr. Justice Ervin in Shingleton v. Bussey, supra, the business of providing worker’s compensation insurance to employers “has connotations extending to the general public above and beyond the private interests of the two contracting parties.” (Id. at 716). To the extent, therefore, that any action or inaction on the part of the carrier tends to frustrate the purposes of the workers’ compensation law, the potential burden on the part of the public to “pick up the slack” is proportionately increased.

No discussion of workers’ compensation litigation would be complete without noting that the act is remedial legislation and intended to be liberally construed in such manner as to effectuate the purpose for which it was enacted, Gillespie v. Anderson, 123 So.2d 458 (Fla.1960); a workers’ compensation case is a peculiar class of legislation designed to accommodate the employer and the employee, to expedite claims, and should be so construed and executed, Lee v. Florida Pine & Cypress, 157 So.2d 513 (Fla.1963); and the philosophy of the act is that an employee shall receive the benefits to which he is entitled with reasonable promptness, consistent with the employer’s right to make a reasonable investigation regarding his liability, Thompson v. W. T. Edwards Tuberculosis Hospital, 164 So.2d 13 (Fla.1964).

Under the act, every claim of an injured worker is aided by the presumption “in the absence of substantial evidence to the contrary,” that the claim comes within the provisions of the law, and that sufficient notice of the claim has been given. Section 440.26, Florida Statutes (1979). And, contrary to the usual construction given to statutory provisions changing the common law, statutory provisions concerning attorney’s fees in workers’ compensation proceedings have received liberal construction. City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla.1962).

It is obvious that the 1979 amendments to the Workers’ Compensation Law made the most drastic changes to that law in its history. We think it is generally conceded that the intentions of the new act were to provide increased benefits to severely injured workers, but at the same time to achieve a reduction in insurance premiums paid by the employer. One of the principle ways in which the new act seeks to reduce costs is in the attempted elimination of potential areas of dispute and resulting litigation between the claimant and his employer, or the employer’s carrier.

The most significant of the 1979 changes is in the adoption of the “wage loss” concept for determining permanent partial disability as a substitute for the award of compensation, under the old law, on the basis of diminution of wage earning capacity or physical impairment. Consistent with the design and intention to reduce disputes and litigation the act also made significant changes in provisions relating to payment of attorney’s fees to claimant’s attorneys. Under the new act, the claimant pays his own attorney’s fees as a general rule. Provision is made, however, for payment of attorney’s fees by the carrier or employer in certain limited instances: when the claimant successfully asserts a claim for medical benefits only (Section 440.34(2)(a)), or when the claimant prevails on the issue of com-pensability after the same has been denied by the carrier or employer (Section 440.-34(2)(c)). The third circumstance under which attorney’s fees may be recovered is the “bad faith” provision of Section 440.-34(2)(b) involved in this case.

The old workers’ compensation law was designed so that a claimant ordinarily had no need to employ an attorney to process his claim.

... the act as a whole is so designed as to facilitate a claimant’s prosecuting his own claim without the necessity of any assistance from an attorney. (City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla.1962)).

The recent changes in the act make it clear to us that there is even less reason to view the initiation of a claim by the injured worker as a matter requiring the services of counsel. We note particularly that Section 440.185(4) imposes a duty upon the State Division of Workers’ Compensation, Department of Labor and Employment Security, to provide information to the claimant, in “clear and understandable language.” It further provides for review by the division of any notice or indication of injury. If it appears that the injury will result in permanent impairment, the Division shall contact the claimant, or members of his family, to assist the injured worker in securing any benefits to which he may be entitled. Section 440.19(1) requires the division to evaluate every claim for benefits filed under the law, to make a decision as to entitlement of benefits, and notify the parties. The decision of the division is not res judicata, but does become a part of the proceeding.

As a corollary to the expanded duties of the division, the 1979 amendments increased the burden upon the carrier to investigate and promptly resolve claims based upon their merit. Section 440.20(6) added the requirement that when a claim is controverted, the carrier must not only set forth the grounds upon which the right to compensation is controverted, it must also include a written explanation setting forth in detail the reason or reasons why the claim has been controverted. The penalty provisions of Section 440.20(7) have been modified so that penalties are now “punitive,” and under subsection (17) no penalty assessed against any carrier or self-insurer can be recouped in the rate base, premium, or rate filing.

The division has been given additional responsibility, under Section 440.20(16)(a) to examine “on an ongoing basis” claims files in its possession in order to identify “questionable claims handling techniques, questionable patterns of claims, or a pattern of repeated unreasonably controverted claims by employers, carriers or self-insurers.... ” Provision is further made for certification of its findings to the Department of Insurance. The division is also required under subsection (10)(b) in any case where the right to compensation is controverted, or where payments of compensation have been stopped or suspended, upon receipt of notice to that effect, to make investigations, have medical examination made, hold hearings, and take such further action “as it considers will properly protect the rights of all parties.”

The self-executing tenor of the new act is emphasized further by the reenactment of provisions effectively discouraging the claimant’s resort to legal assistance in the early stages of a worker’s compensation proceeding. Section 440.34 provides that no attorney’s fees may be paid for services rendered for a claimant in connection with any proceedings under the law unless approved as reasonable by the deputy commissioner, or the court having jurisdiction over such proceedings. Under subsection (4)(a), any attorney who receives any fees or other consideration or any gratuity on account of services rendered to an injured worker, unless such consideration or gratuity is approved by the deputy commissioner or the court, is guilty of a criminal act (misdemeanor of the second degree), punishable as provided by law.

It is our conclusion that the 1979 changes, partially reviewed here, give ample notice that the new Workers’ Compensation Law will not tolerate passive disapproval and rejection of claims on mere technical matters of form. The delay or denial of payment, without a showing of active effort and initiative on the part of the carrier to fairly and expeditiously determine its obligation to place needed benefits in the hands of the injured worker is totally inconsistent, in our view, with the notion that a claimant is entitled under this law to have his benefits paid without the necessity of first seeking the advice and services of an attorney for the simple purpose of making his claim of entitlement to benefits known to the carrier.

We note here that the carrier presented no evidence at the hearing in justification of its failure to process this routine request for wage loss benefits. The correspondence introduced into evidence discloses only that the benefits were denied because the claimant failed to send in all four copies of the four-part form, sending only the one designated as “carrier’s copy” to the carrier. It also appears that the portion of the form in which the employer would normally enter the amount of wages paid during the period was left blank. We are not impressed by the argument that the carrier was simply under a mistaken impression concerning the technical requirements of the act. The request for wage loss benefits here was adequate, under Section 440.20(4) to give “knowledge” of his claim, which is all that is required.

The division is authorized by Section 440.185(10) to provide by rule for reporting wage loss claims. Rule 3.18(2), Florida Administrative Code, designates only the official form number to be used in filing a wage loss claim. The rule contains no mention of copies. The rule contains no warning that failure to file any specific number of copies is fatal to the claim; and in our view any rule or statute so providing would be inconsistent with the self-executing concept that is the sine qua non of worker’s compensation legislation. Although the division has authority to “prescribe forms” for reporting wage loss requests, there is nothing sacrosanct about any particular form. See Ezell-Tillerton Inc. v. A.K.T., 234 So.2d 360 (Fla.1970), in which it was held that a notice to controvert in substantial compliance with the prescribed form was sufficient though not appearing on a form specified by the statute.

The rule (Rule 3.18, Florida Administrative Code) further provides: “The wages reported shall be attested to by the employer paying those wages.” The form contains space for the employer to report earnings during the period for which wage loss benefits are claimed, and both the rule and the form contemplate that the form should be submitted by the claimant to the employer to report wages paid to the employee during that period. However, we can readily understand how the claimant (or any claimant) could conclude that it was unnecessary to present the form to his employer, who paid no wages, since both the rule and the form provide for the employer to make a report only if he is one “paying those wages.”

We find it inconceivable that in the two-week period between the receipt of the request for wage loss benefits and the carrier’s first letter to the claimant this simple claim could not have been processed, with or without the further assistance of the claimant, and without taxing the manpower or facilities of the carrier, the employer, or the Division of Workers’ Compensation in Tallahassee. The further withholding of needed benefits for more than six additional weeks adds further justification, in our opinion, for a finding that the carrier’s conduct in the handling of this claim amounts to “oppression,” or “willful ... or reckless disregard of the rights of the claimant.” Section 440.34(2)(b).

Finally, we acknowledge that the statutory provision in question can be likened to punitive damages in that (as for an award of punitive damages) the ultimate decision for assessment of attorney’s fees rests with the finder of fact — in this case, the deputy commissioner. The deputy’s order reads in part as follows:

Having considered the arguments of both counsels [sic] as well as the documentary evidence, I find that the servicing agent acted in bad faith in the handling of the claim. There was no question that the claimant was due wage loss benefits. The carrier’s position was that the claimant’s attorney did not properly fill out the Request for Wage Loss Benefits form, nor did he comply with the instructions in mailing the forms to the carrier. Claimant’s attorney argued that the carrier should have paid wage loss benefits timely when the claimant first sent the original request for wage loss form in January of 1980 on benefits from December 5, 1979 to January 5, 1980. I find that the claimant’s one page request for wage loss form was correctly filled out and provided the carrier with sufficient information to pay wage loss benefits. The carrier’s request for the additional copies should have in no way affected its obligation to pay the wage loss benefits upon its initial receipt of the wage loss form. I agree with the claimant’s counsel’s position that the carrier acted in bad faith. I find that the carrier acted in an oppressive manner in holding up the wage loss benefits in what amounted to a separate dispute with the claimant’s attorney. I find that the carrier’s position resulted in an unfair burden upon the claimant who ultimately has the right to expect timely payments of benefits from the carrier.
It is, therefore, my finding that the carrier is guilty of bad faith handling of the above captioned case.

It is obvious to us that if the act is to be truly self-executing, and if it is to accomplish the purpose of providing greater and more equitable benefits to the severely injured worker, while at the same time reducing premium costs to the employer, a broad discretion must necessarily vest in the deputy commissioner to measure the actions of the carrier in the light of his judgment, experience and knowledge, and in accordance with the provisions of the statute. Unless we find a clear abuse of discretion, or departure from the law, the decisions of the deputy commissioners under this provision will be upheld.

For the foregoing reasons, the order appealed from is

AFFIRMED.

LILES, WOODIE A., Associate Judge (Ret.), and PEARSON, TILLMAN, Associate Judge (Ret.), concur.

      . See “The 1979 Florida Workers’ Compensation Reform: Back to Basics,” a scholarly review of the new act by Sadowski, Herzog, Butler and Gokel, Florida State University Law Review, Vol. 7, No. 4 (Fall 1979). Whether and to what extent the new act has or will accomplish its desired purposes, as convincingly explicated by the authors of this law review, are matters not before us for consideration.

      . Id., pp. 649-654.

      . This provision, appearing in the prior law as Section 440.34(5), Florida Statutes (Supp.1978) was not retained in Chapter 79-40, Laws of Florida (1979), but was subsequently reenacted in Chapter 79-312, Laws of Florida (1979).

      . See Alpert, Florida Workmen’s Compensation Law, Third Edition, 1980 Supplement, § 16-3.