author: DANIEL S. PEARSON, Judge.

text:
    CAPITAL BANK, Appellant, v. Lee SCHULER, Appellee.
    No. 81-92.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 6, 1982.

      Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Sue M. Cobb, Miami, for appellant.
    Dixon, Dixon, Hurst, Nicklaus & Webb and James A. Dixon, Jr., Miami, for appel-lee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Mrs. Schuler drew check no. 102, payable to one Charles Mouyos in the amount of $700, on her checking account at Capital Bank. Believing that this check was lost, Schuler cashed another check in the amount of $750 and gave Mouyos $700 in cash. Unbeknownst to Schuler, Mouyos had deposited the $700 check in his account at another bank. The check, having run its course through normal banking channels, arrived at Capital Bank at a time when Schuler had insufficient funds in her account to cover it. Accordingly, the check was stamped “insufficient funds” and returned to the Federal Reserve Bank of Miami, the last endorser.

Eleven days later, Schuler placed a stop-payment order on the $700 check she had issued to Mouyos. On the stop-payment form provided by Capital, Schuler specified the correct account number, check number, and payee. She placed a question mark in the space provided for the date of the check. She wrote — incorrectly and, as will be seen, significantly — that the amount of the check as to which she sought to stop payment was $750.

About ten days after Schuler wrote the stop-payment order, check no. 102 was presented to Capital Bank for payment and, there then being sufficient funds in Schu-ler’s account, paid by Capital. The next day, a Capital Bank clerk, while in the process of hand sorting checks for filing and return to the last endorser, noticed the stop-payment order for check no. 102 and, failing to notice that the check had been paid, stamped the check “Payment Stopped.” Schuler’s account was then erroneously credited $700 and the check forwarded to the Federal Reserve Bank. Months later, due to an unexplained delay in the system, the Federal Reserve Bank returned check no. 102 to Capital. Capital Bank, recognizing that it paid the check, debited Schuler’s account $700, reversing the erroneous credit. This debit created an overdraft in Schuler’s account of $379.68. Capital sued to collect this debt. Schuler counterclaimed for the wrongful payment of a check over a stop-payment order, abuse of process, and gross negligence in breach of contract. The jury rejected the bank’s claim and awarded Schuler damages of $15,320.32. Capital appeals from the judgment entered thereon.

The Bank contends that it was entitled to a directed verdict on its claim and Schuler’s counterclaim. It says that, as a matter of law, it could rightfully make payment despite the stop-payment order since the order failed to describe the check with certainty as required by Section 674.403(1), Florida Statutes (1977), and was, therefore, neither valid nor binding. Because we conclude that the Bank is correct in this contention and neither waived the protection afforded it by the statute nor was estopped by its conduct from relying on the statute, we do not reach the Bank’s other grounds for reversal which go to the extent and nature of damages awarded Schuler.

I.

Section 4-403 of the Uniform Commercial Code (1978) provides:

“A customer may by order to his bank stop payment of any item payable for his account but the order must be received at such time and in such manner as to afford the bank a reasonable opportunity to act on it prior to any action by the bank with respect to the item .... ”

The code provision, unlike Section 674.-403(1), Florida Statutes (1977), does not separately address how the check is to be described, that question being subsumed in the broader phrase that the stop-payment order must be made “in such manner as to afford the bank a reasonable opportunity to act on it.” A 1965 report of the Uniform Commercial Code Committee, Report On Variations To Code In Adopting States, Report # 2 of the Permanent Editorial Board for the U.C.C. (West 1965), indicates that the Code’s framers intended to place no greater burden on the depositor in describing the check than that which is found in the Code. In its report the Committee examined modifications to the Code made in California (requiring, as Florida, that the check be described with “certainty”) and the District of Columbia (requiring that the check be “specifically described”) and rejected each version as going beyond the “fixed policy” represented by the Code provision. It is apparent, then, that the policy of the Code is not that the check be specifically described or described with certainty, but only that the description be such as to afford the bank “a reasonable opportunity to act on it.” In this respect, the Code effected no significant change in the existing common law respecting stop-payment orders, under which the duty of the customer was to describe the item with “reasonable accuracy.” See, e.g., Hawkland, Stop Payment Orders Under the Uniform Commercial Code, 3 U.C.C.L.J. 103 (1970). Thus it is that in states which have adopted the Code as written, common law cases construing “reasonable accuracy” may be looked to to determine whether under the Code provision the check was described “in such manner as to afford the bank a reasonable opportunity to act on it.” See Sherrill v. Frank Morris Pontiac-Buick-GMC, Inc., 366 So.2d 251 (Ala.1978).

But, as we have said, Florida has not adopted the Code provision as written. Instead, our legislature saw fit to require that the stop-payment order shall not be effective and may be disregarded unless it “describes with certainty the item on which payment is to be stopped.” Fundamental rules of statutory construction require that where a statute materially changes the language of the uniform act upon which it is patterned, we must presume that the legislature intended the change to have meaning. Wheaton v. State, 420 So.2d 604 (Fla. 3d DCA 1982) (Case No. 81-1907, opinion filed July 27, 1982); see Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977).

Certainty is defined as freedom from any doubt; a sure thing, belief in which is based on thorough examination of all evidence. American Heritage Dictionary of the English Language 220 (1979). Thus, the requirement of “certainty” found in Section 674.403(1) does not permit us to say “close enough” and judicially make “certainty” the equivalent of “reasonable accuracy” or judicially muddle the clear and unequivocal meaning of the word by adding the antecedent “reasonable.” We must instead conclude that our legislature in enacting Section 674.403(1) intended to place a greater burden on the depositor in describing the check in a stop-payment order than that which existed at common law and that which exists in the Uniform Commercial Code. We must further conclude that the instant stop-payment order being in error as to the amount of the check failed to describe it with certainty and was neither effective nor binding. Cf. Rimberg v. Union Trust Co. of the District of Columbia, 12 U.C.C. R.S. 527 (D.C.Sup.Ct.1973) ($250 check described as $235 on stop-payment order was not specifically described as required by D.C. statute).

In arriving at these conclusions, we do not overlook the fact that Section 674.403(1) contains.the Code language that the order must be served upon and received by the bank “in such manner as to afford the bank a reasonable opportunity to act on it.” By including both this language and the antecedent certainty requirement, the Florida Legislature has, in our view, determined that a bank cannot be deemed to have a reasonable opportunity to act on a stop-payment order unless the item is described with certainty. If the description of the item is uncertain, the opportunity afforded the bank to act is not reasonable.

But even if, arguendo, we were to read the “reasonable opportunity” clause of the statute as qualifying the “certainty” requirement, rather than the converse, we would still be compelled to conclude that under the circumstances of the present case the bank was not afforded a reasonable opportunity to act on the stop-payment order.

The undisputed evidence in the present case reveals that the computerized systems used by Florida banks require that the first bank to get a check write the amount of the item in magnetic ink. All banks thereafter, including the payor bank, use the amount of the check as the key feature of identification. When a customer stops payment, the computer is given the description of the check in terms of the amount. If the customer is mistaken as to the amount, the computer will not be able to effectuate the stop order. This process is designed to provide the most efficient service to the greatest number of customers at the least cost.

Thus, whether or not an uncertain description of the date, check number or name of payee would nonetheless afford the bank a reasonable opportunity to act on the order, it is undisputed that the amount of the check is critical, and an error in this regard will mean that the bank has no reasonable opportunity to act on the order.

“[T]he kind of information that is needed by the bank often will depend on its size, its technology, and the like and that therefore the resolution of specific fact situations under one set of circumstances may not be valid for another.” Hawkland, supra, at 117.

Where, then, the bank has adopted a procedure for flagging checks pursuant to stop orders, the reasonableness of which is not challenged, that procedure is a factor, if not the controlling factor, in determining whether the bank was afforded a reasonable opportunity to act.

“To a certain extent, the validity of stop orders should depend on the procedures that the drawer uses to identify stopped checks and on the reasonableness of such procedures. An incorrect check number is no cause for complaint by a bank that examines checks solely by the name of the payee, but it would be to a bank that hunts for stopped checks principally by reference to check numbers.” J. White & R. Summers, Uniform Commercial Code § 17-5, at 680 (2d ed. 1980).

If the amount of the check triggers the computer in flagging the check as having a stop-payment order outstanding, then whatever else may be uncertain, the amount must not be.

“[I]f the stop is entered into a computer the ‘manner’ in which the depositor gives it [the stop order] must be precise. Thus, one would assume the depositor has to give at least the correct dollar amount, and perhaps also the correct check number, for the computer to do its thing.” Quinn’s Uniform Commercial Code Commentary and Digest, 1982 Cum.Supp. # 1, S4-61 (1982).
“Where .a customer has written many checks in the same amount the computer will retrieve all of these items if one is stopped, but at that point hand sorting is possible. If, on the other hand, the customer is mistaken as to the amount, this kind of hand sorting is not possible, and there is every reason to believe that his countermand is ineffective.” Hawkland, supra, at 118.

II.

Our holding that Schuler’s stop-payment order was, as a matter of law, ineffective does not end our inquiry. Schuler asserts that the bank was estopped to claim this ineffectiveness as a defense to her damage counterclaim. Since the statute requiring certainty of description is intended for the benefit of the bank, clearly the bank may be estopped to claim the statute’s benefit.

Estoppel is applicable where by word, act, or conduct one person causes another to believe in a certain state of things and thereby induces the other person to act to his detriment. See State ex rel. Watson v. Gray, 48 So.2d 84 (Fla.1950); Richards v. Dodge, 150 So.2d 477 (Fla. 2d DCA 1963). The doctrine is applied with great caution, Mathews v. Kingsley, 100 So.2d 445 (Fla. 2d DCA 1958), and if the conduct is ambiguous and thus susceptible of two constructions, one of which is inconsistent with the right asserted by the party sought to be estopped, there is no estoppel, Enstrom v. Dunning, 136 Fla. 253, 186 So. 806 (1939). As this court has stated, estop-pel is applied “only where to refuse its application would be virtually to sanction fraud.” McAllister Enterprises, Inc. v. McAllister Hotel, Inc., 219 So.2d 114 (Fla. 3d DCA 1969). Unless the party seeking to assert the estoppel is misled, see Hamilton v. Corcoran, 177 So.2d 64 (Fla. 2d DCA 1965), estoppel will not lie.

The only act of the Bank which arguably could have misled Schuler into believing that the amount stated in the stop-payment order did not have to be correct was the bank’s acceptance of the order with a question mark in the blank provided for the date of the check. Were it the bank’s position that lack of certainty as to the date of the check rendered the stop order ineffective, an argument that Schuler was misled by the bank’s acceptance of the order into believing that the date of the check was inconsequential to the bank would be compelling. See, e.g., Rimberg v. Union Trust Co. of the District of Columbia, supra (where depositor informed bank teller that she was uncertain whether the amount of the check was $235 or $250 and teller told her to complete the stop order without informing depositor of the importance of the amount or suggesting that she prepare stop orders for each amount, court held that depositor was actively led to believe that stop order was effective regardless of the correctness of amount, and bank had waived statute’s requirement that check be specifically described). But the argument that the bank’s acceptance of the order misled Schuler into believing that the amount of the check was inconsequential requires that we attribute to the Bank’s action the singular meaning that no information on the stop order was important to it. The Bank’s action, however, was certainly equally susceptible of the meaning that only the date of the check was inconsequential to it. Since there is nothing in the Bank’s acceptance of the order or any other conduct which unquestionably and unambiguously points to the former meaning, the estoppel argument must fail. Enstrom v. Dunning, supra. See Jarrard v. Associates Discount Corp., 99 So.2d 272 (Fla.1957) (facts necessary to constitute an estoppel cannot be taken by argument or inference, nor supplied by intendment).

Accordingly, the judgment entered in favor of Schuler on her counterclaim is reversed with directions to enter judgment in favor of Capital Bank on both its claim and counterclaim.

Reversed with directions.

      . The Bank is not accused of negligence resulting from the obviously futile act of its clerk stamping “Payment Stopped” on a check that has been paid and thereafter sending the check to the Federal Reserve Bank.

      . The original complaint contained a count for malicious prosecution which the trial court dismissed as premature. See Neil v. South Florida Auto Painters, 397 So.2d 1160 (Fla. 3d DCA 1981); Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980).

      . Section 674.403(1), Florida Statutes (1977), governing stop-payment orders, reads:
      “(1) A customer, or any customer if there is more than one, or any person authorized to sign checks or make withdrawals on or from an account, may stop payment of any item payable, for or drawn against such customer’s or customers’ account but the same shall not be effective and the bank may disregard the same unless the order is in writing, is signed by such customer or authorized person, describes with certainty the item on which payment is to be stopped, and is served upon and received by an officer of the bank at the bankinghouse during regular banking hours and in such time and in such manner as to afford the bank a reasonable opportunity to act on it prior to the happening of any of the events described in § 674.-303, and in any event no bank shall be responsible or liable for failure to comply with any such order on the day the same is served upon or received by such bank unless such omission or failure to comply with the same on the day received resulted from the willful and intentional disregard of such order.” (emphasis supplied).

      . Forty-four states and the Virgin Islands have adopted Section 4-403 U.C.C. (1978) as written. In addition to Florida, four states (Arizona, California, Nevada and Texas) require that the check be described with “certainty.” See, respectively, Ariz.Rev.Stat.Ann. § 44-2629 (1967); Cal.Com.Code § 4403 (West 1964); Nev.Rev.Stat. § 104.4403 (1979); Tex.Bus. & Com.Code Ann. § 4-403 (Vernon 1968). Utah and the District of Columbia require that the. check be “specifically” described. Utah Code Ann. § 70A — 4-403 (1980); D.C.Code Ann. § 28:4 — 403 (Supp.VII 1980).

      . “Certain is often preceded by more or most or terms such as fairly and reasonably, even though by definition certain is seemingly absolute in most of its senses.” American Heritage Dictionary 220 (1979). The rejection of the “certainty” requirement found in the like California statute, see Report On Variations To Code In Adopting States, supra, demonstrates the substantial nature of our legislative change.

      . This is not to suggest that Schuler’s stop-payment order necessarily satisfied the less stringent “reasonable accuracy” test, or provided the bank with a “reasonable opportunity” to act on it. Compare Elsie Rodriguez Fashions, Inc. v. Chase Manhattan Bank, 23 U.C.C.Rep. 133 (N.Y.Sup.1978) (ten-cent difference between amount on stop-payment order and amount on check reasonably accurate); Thomas v. Marine Midland Tinkers National Bank, 86 Misc.2d 284, 381 N.Y.S.2d 797 (N.Y.Civ.Ct.1976) (single digit mistake in check number afforded bank reasonable opportunity to act); Kentucky-Farmers Bank v. Staton, 314 Ky. 313, 235 S.W.2d 767 (1951) (correct date, number, and name of payee, but wrong amount, reasonably accurate); Shude v. American State Bank, 263 Mich. 519, 248 N.W. 886 (1933) (incorrect date insignificant where bank erroneously placed hold on wrong account); Levine v. Bank of United States, 132 Misc. 130, 229 N.Y.S. 108 (N.Y.Mun.Ct.1928) (payee described as “Harold Orkand” reasonably accurate description of check payable to “H. Orkand”) with Sherill v. Frank Morris Pontiac-Buick-GMC, Inc., supra (misstatement of date and first name of payee and omission of check number not reasonably accurate, although amount of check correct); John H. Mahon Co. v. Huntington National Bank, 62 Ohio App. 261, 23 N.E.2d 638 (1939) (jury finding that erroneous check number not reasonably accurate upheld); A. Sidney Davison Coal Co. v. National Park Bank, 201 A.D. 309, 194 N.Y.S. 220 (1922) ($15,000 as amount of draft on stop-payment order not reasonably accurate to describe $17,000 check); Mitchell v. Security Bank, 85 Misc. 360, 147 N.Y.S. 470 (Sup.Ct., App.Term 1914) (wrong date, payee, and amount, but proper check number, not reasonably accurate); Western Union Telegraph Co. v. Louissell, 11 Ala.App. 563, 66 So. 839 (1914), cert. denied, 191 Ala. 665, 67 So. 1019 (1915) (stop payment describing payee as “James F. Manison” not reasonably accurate description of draft payable to “James J. Manson”).

      . Indeed, the evidence reveals that had Schuler given the Bank any inkling that she was unsure of the amount, she would have been advised to close her account, since the stop order would not have worked.


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Jeffrey B. BREST, a/k/a Roger G. Allen, a/k/a Jay Bonner, Appellee.
    No. 81-1085.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 6, 1982.

      Jim Smith, Atty. Gen., and Theda R. James and Scott Silver, Asst. Attys. Gen., for appellant.
    Gelber, Glass & Canal, P.A., and Stephen A. Glass, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and WILLIAM C. OWEN, Jr. (Ret.) Associate Judge.
   SCHWARTZ, Judge.

After evidentiary hearing, the trial court granted the appellee’s Fla.R.Crim.P. 3.850 motion to vacate the convictions and sentences which followed his guilty and nolo pleas, on the stated ground that Brest was “totally confused and afraid” when he entered the pleas over a year earlier before another judge. The state appeals.

We conclude that the lower court’s findings, which were in turn based entirely upon the defendant’s own conclusory and subjective statements that he was upset, confused and frightened at the hearing, were legally insufficient to justify the ultimate determination that the pleas were not knowingly and understandingly entered and were thus fatally involuntary — in the face of the unequivocal demonstration in the plea colloquy to the contrary. We consider that Judge Weinfeld’s perceptive remarks in Fluitt v. Superintendent, Green Haven Correctional Facility, 480 F.Supp. 81 (S.D.N.Y.1979) are clearly applicable here:

“[Distress” without more, does not entitle one to a hearing. If that were the rule every defendant’s application to withdraw a plea of guilty would automatically have to be granted. “Distress” and “nervousness” are the characteristics of most persons facing immediate trial under a criminal prosecution. To accept such a normal emotional reaction as a ground to vitiate a plea entered only after extensive questioning of a defendant to assure its constitutional validity, would make a shambles of the guilty plea procedure. Indeed, the Supreme Court has observed that “a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.” • [footnotes omitted].

480 F.Supp. at 86. As this court held in the controlling case of State v. Pinto, 273 So.2d 408 (Fla. 3d DCA 1973), cert. dismissed, 283 So.2d 367 (Fla.1973),

[a] defendant often pleads guilty after consultation and advice from his attorney. Such a decision is a tactical one and may not be whimsically revoked at a later time. Belsky v. State, Fla.App.1970, 231 So.2d 256; Simpson v. State, Fla.App. 1964, 164 So.2d 224. Where, as here, the guilty plea was entered upon advice of counsel and where the record shows a full examination by the court and the defendant’s concurrence in the plea, the record clearly refutes the defendant’s later assertion that the plea was not voluntary.

273 So.2d at 411. See White v. State, 244 So.2d 499 (Fla. 1st DCA 1970); O’Quinn v. State, 364 So.2d 775 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979). See generally Williams v. State, 316 So.2d 267 (Fla.1975).

For these reasons, the order below is reversed with directions to reinstate the defendant’s convictions and sentences.

Reversed.

      . The sole ground asserted in the motion itself, which was specifically rejected below, was the alleged ineffectiveness of the defendant’s appointed counsel. Our disposition of the case makes it unnecessary to consider the effect of the fact that the order under review was entered upon a claim, that of involuntariness, which was never advanced by the defendant himself. But cf. Douglas v. State, 326 So.2d 33 (Fla. 1st DCA 1976).

      . At the end of the 3.850 hearing, the court said:
      THE COURT: There is no point in making any argument.
      This is based upon my being convinced by the defendant’s testimony and the plea colloquy that the defendant was totally confused and afraid at the time he entered this plea, therefore, the plea was not freely and voluntarily made; so that’s the basis for this ruling. The motion is granted.

      . After the prosecutor, defense counsel, and the sentencing judge agreed in open court to the terms of the plea negotiations — which included abandoning several felony charges against the defendant — the court meticulously conducted the following colloquy:
      THE COURT: Jeffry Brest also known as Roger Allen and also known as Jay Vonner. What is happening with that?
      MR. BURFORD: There have been plea negotiations.
      MR. ROBBINS: There has been a plea negotiation with the State, based on the State’s agreement to limit the charge on the Jay Von-ner case to one charge of aggravated assault. They will abandon the other charge. And to drop the case—
      MR. BURFORD: No. No.
      MR. ROBBINS: The one with the ticket, the credit card.
      MR. BURFORD: Credit card? I didn’t agree to that.
      THE COURT: What are you doing?
      MR. BURFORD: Pleading in.
      MR. ROBBINS: Wait a second, Judge. I am sorry. I misunderstood and I told the Defendant that isn’t so.
      THE COURT: Tell him different in a hurry. Let’s do it right now.
      He knows what his druthers are.
      MR. ROBBINS: Judge, I told my client already that they were dropping—
      THE COURT: But they say they aren’t now. Now, see what he wants to do. It’s his life, quite literally, from looking at the number of these charges.
      MR. BURFORD: Pleading to a PSI and a cap, Judge. I don’t see where it makes much differ-
      ^MR. ROBBINS: All right, Judge.
      All right, then he will agree to take the charges. Then, it would be the charge for—
      THE COURT: Why don’t we take it one case at a time so I can get a coherent calendar here.
      Case number 78-13217 under the name of Jeffry Brest. What is the charge to which he is pleading?
      MR. BURFORD: Two counts, I believe, Your Honor.
      THE COURT: There are only two counts. He is pleading to both counts?

        MR. ROBBINS: Yes.
      THE COURT: 78-11940, under the name of Roger Allen. I don’t even know what he is charged with.
      MR. BURFORD: Leaving the scene of an accident with injury.
      MR. ROBBINS: That’s no contest.
      MR. BURFORD: I have no objection to pleading no contest.
      There is civil litigation.
      THE COURT: All right.
      There is one count in that Information.
      MR. ROBBINS: One count.
      THE COURT: And in Jay Vonner, case number 78-15962, what’s he pleading to?
      MR. ROBBINS: To the aggravated assault.
      THE COURT: Count II, aggravated assault.
      And you are abandoning the others?
      MR. ROBBINS: Yes.
      MR. BURFORD: That’s correct.
      MR. ROBBINS: The agreement is a five year cap with PSI.
      THE COURT: All right.
      Swear him.
      THE CLERK: Raise your right hand, please.
      [Thereupon, the Defendant was sworn.] ■
      THE COURT: Which is the right name?
      THE DEFENDANT: Jeffry Brest.
      THE COURT: Mr. Brest, do you understand you are under oath?
      THE DEFENDANT: Yes, ma’am.
      THE COURT: Do you understand what is happening here in Court today?
      THE DEFENDANT: Yes, ma’am.
      THE COURT: Do you have any physical or mental defects that would prevent you from understanding what is happening here in Court today?

      THE DEFENDANT: No, ma’am.

      THE COURT: Are you entering your plea— as to two cases, guilty, and as to one, nolo contendere, freely and voluntarily and because you desire to do so and for no other reason?

      THE DEFENDANT: Yes, Your Honor.

      THE COURT: Anyone threaten you or force you to get you to enter those pleas?
      THE DEFENDANT: No, Your Honor.
      THE COURT: You understand that a plea of nolo contendere is tantamount to that of a guilty plea? In other words, I will be finding you guilty on your nolo contendere plea; I will not be finding you not guilty. Do you understand that?
      THE DEFENDANT: Yes, Your Honor.
      THE COURT: Do you understand, sir, and has it been explained to you by your counsel, as has been explained here in open Court, that he, on your behalf, together with representatives of the law enforcement agencies, have entered into negotiations with regard to your case and have recommended to the Court that the Court obtain a Presentence Investigation and base its sentencing of you upon that Pre-sentence Investigation, together with an analysis of the cases, but that in no event would you be sentenced to more than five years in the State Prison. Do you understand that?
      THE DEFENDANT: Yes, Your Honor.
      THE COURT: So it is clear to you, sir, that you could be going to prison for five years?
      THE DEFENDANT: Yes.
      THE COURT: You understand that?
      THE DEFENDANT: [Defendant nods head.]
      THE COURT: Do you understand, sir, that by pleading guilty and by pleading nolo conten-dere, you are waiving your right to trial; your privilege against self-incrimination; your right to confront those who have accused you of a crime; and your right to an appeal?
      THE DEFENDANT: Yes.
      THE COURT: Are you satisfied with the services of your attorney and have you had plenty of time to talk to him?
      THE DEFENDANT: Yes, Your Honor.
      THE COURT: Counsel, satisfied he understands the nature of the charge and the consequences of the plea?
      MR. ROBBINS: Yes, ma’am.

      THE COURT: Waiving proffer; stipulating the Information states a prima facie case?
      MR. ROBBINS: Yes, ma’am.
      THE COURT: Give me a proffer on the one that’s noloing.
      MR. BURFORD: That’s the name of Roger Allen, case number 78-11940.
      THE COURT: 11940.
      MR. BURFORD: Specifically, Your Honor, on August 5th, 1978, the Defendant was driving a vehicle; struck another vehicle, actually a Moped, driven by Mr. Orville Marcum. The Defendant exited his vehicle; saw the victim laying on the street; got back into his vehicle and left the scene.
      THE COURT: Mr. Brest, are you specifically admitting on the 9th of August, 1978, forging a credit card receipt, forging the name of Joan Cronin, contrary to the Florida law, and uttering that same credit card receipt to Chevron on that same date, contrary to the Florida law?
      THE DEFENDANT: Sure.
      THE COURT: And are you specifically admitting on October 16, 1978, committing an aggravated assault upon Caren Muller Riverio [phonetic], contrary to the Florida law?
      THE DEFENDANT: Yes, Your Honor.
      THE COURT: Okay.
      In accordance with the negotiations; ask for a Presentence Investigation; entering the finding of guilt at this time as to all three cases; set sentencing, for April the 6th, 9:00 o’clock in the morning, [emphasis supplied]

      . See and compare United States v. Roberts, 570 F.2d 999, 1008-09 (D.C.Cir.1977), and cases cited at nn. 35-36.

      . The only evidence upon which the appellee now relies occurred upon his cross-examination, see n. 1, supra, by the state attorney:
      Q. And were you taking Dilantin at the time you entered the guilty plea in Court?
      A. I was.
      * * * * * *
      Q. There was nothing about taking the drug, nothing about the fact that you were taking that drug that rendered you incapable of understanding what was going on; is that correct? You have to answer out loud.
      A. That’s correct. In fact, Dilantin, itself, did not affect my understanding of what was going on.

      [Defense Attorney]
      Q. Is it true that part of your treatment for your neurological problem included taking phenobarbital?
      A. I believe they were giving me phenobarbital and Dilantin.

      [Prosecutor]
      Q. Did it affect your understanding of what was going on?
      A. The whole idea—
      Q. You didn’t know what was going on, right?
      A. Not really.
      * * * * * *
      [Prosecutor]
      Q. You recall the Court asking you if you understood what was happening in Court here today and your answer was, yes, that you did understand what was going on that day?
      A. I understood what was going on when I left the jury room after Mr. Robbins had assured me what my actual plea would be. I was in a total state of confusion when I was in front of the judge, because after I pled, Mr. Robbins told me that the State had accepted and Mr. Burford stated, I believe it was, ‘Wait a minute. We have 24-hour credit card.’ I was in a state of confusion.
      * * * * * *
      Q. At the time you entered the plea, isn’t it true you clearly understood exactly what you were pleading guilty to. In fact that you were pleading guilty to aggravated assault and all of the cases involving the burglary with the assault and batteries on police officers, those cases; didn’t you understand that?
      A. I understood I was pleading guilty to aggravated assault.
      Q. All the rest of the charges were being dropped?
      A. That’s what Mr. Robbins told me.
      Q. You understood that, right?
      A. Yes, that’s what he told me.
      Q. Did anybody force you to enter this plea?
      A. Force me?
      Q. Yes.
      A. No.
      Q. So, you did it voluntarily, correct?
      A. I pled guilty to aggravated assault, and that’s all I assumed at that time Mr. Robbins advised me I was pleading guilty to.
      Q. You pled into it because you wanted to plea into it and the State was dropping all the charges?
      A. I pled guilty on that day, because I totally was frightened of Judge Morphonios, period. And that’s why I pled guilty, to anything.
      Q. You understand at the time you pled guilty that you could be sentenced up to five years in State prison?
      A. Mr. Robbins, I would do thirty years, so I was frightened of Judge Morphonios and that’s why I pled guilty.
      Q. Do you recall this, the Court telling you or asking you if you understood what your counsel had been explaining—
      . A. I think that’s standard procedure. I’m sure if that is in the transcript, I said it.
      Q. When you were entering your plea, you completely understood?
      A. He advised me of the plea with a 5-year cap, that Judge Durant was in the hospital, and that if he returned, he would sentence me; and I would not get the five years or anything.
      Q. So basically, you were afraid in front of Judge Gable, and you wanted to enter a plea of guilty as opposed to what you might have done had you been in front of Judge Durant?
      A. No. I entered a plea of guilty, because I was totally frightened. My intention was to go in front of any judge to trial.
      Mr. Robbins assured me I should not plea guilty, that we were taking everything to trial; but when I got in front of Judge Mor-phonios, he told me there was a different ball game, that I should plead guilty. I was totally confused.
      Q. Totally confused, and you were satisfied with the way things were going?
      A. No.
      Q. You were dissatisfied with the way-things were going in the courtroom?
      A. I think when I was in the courtroom, I don’t think I was in the proper state of mind to be satisfied or dissatisfied. It didn’t hit me until two days later, what I had done.
      Q. At the time you entered the plea, you were satisfied with what was happening?
      A. At the time I entered the plea, I was incapable of any logical decisions.

        Q. Why was that?
      A. Because I was totally confused, totally afraid and I believe I was suffering from a diminished state of mental capacity, too.

      . See n. 3, supra.


text:
    ROYAL NETHERLANDS REALTY, INC., a Florida corporation, and Hopkins-Easton & Associates, Inc., Appellants, v. John B. ROSS and Otto H. Oppenheimer, jointly and severally, and Milton C. Harry, Appellees.
    No. 81-1528.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 6, 1982.

      Manners, Amoon, Whatley & Tucker and James W. Whatley, Miami, for appellants.
    Holland & Knight and Daniel A. Amat and Rachel Simonhoff, Floyd, Pearson, Stewart, Richman, Greer & Weil and Robert C. Biegen, Lamchick, Glucksman & Johnston and Steven G. Glucksman, Miami, for appellees.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

The appellants are real estate brokers who were the plaintiffs below in an action to recover a commission from the appellees Ross and Oppenheimer. On cross-motions for summary judgment, the trial court entered judgment for the defendants. Since we conclude, directly to the contrary, that the plaintiffs were shown to have earned their commission as a matter of law, we reverse the judgment under review and order that one be entered in the brokers’ favor instead.

As inferentially conceded by the fact that both sides sought summary relief below, the operative facts are entirely undisputed. Ross and Oppenheimer each held a one-third interest — -Milton C. Harry owned the other third — in an office building on Douglas Road in Miami. On September 19,1979, they signed a 100-day exclusive listing agreement with the appellants “to find a purchaser for said property on the following price and terms or at any other price and terms acceptable to [Ross and Oppenheimer]” in return for a commission of six per cent of the sale price. Harry did not join in the execution of this contract. However, as the brokers were at all times aware, a Ross-Oppenheimer-Harry joint venture agreement contained a specific provision that, in the event of a disagreement between them as to whether to accept an offer to purchase the property, the one who did not wish to sell was required to purchase the interests of those who did on essentially the same terms.

On November 5,1979, the appellants complied with their end of the bargain contained in the listing agreement. On that date, Diplast, S.A., a Panamanian corporation which was produced by the brokers, and Ross and Oppenheimer, all executed a detailed purchase and sale agreement for the parcel in question. The contract specifically recognized the option provisions of the joint venture by providing that Diplast could cancel the agreement and recover its $35,000 deposit if it could not secure 100% of the realty because of Harry’s refusal to agree. In accordance both with this provision and the joint venture agreement itself, therefore, Oppenheimer and Ross called upon Harry to elect, as he was obliged to do, whether he would join in the sale to Diplast or purchase their interests himself. Almost simultaneously, the brokers informed the appellees that if the latter occurred, their brokerage commission would be limited to six per cent of two-thirds of the sale price, which represented the interest of Oppenheimer and Ross. On November 30, 1979, Harry informed his co-venturers that he opted to buy their shares rather than sell to Diplast, which consequently withdrew from the agreement. Because of a continuing dispute over the terms of the option, however, Harry’s purchase of Ross and Oppenheimer’s two-thirds of the property was never consummated. Apparently for this reason, they refused to pay the appellants’ brokerage commission, and this action resulted.

As has been indicated, we conclude that the appellants are entitled to the $35,400 brokerage fee for which they sued simply because there is no doubt that they fulfilled their contractual obligation to “find a purchaser,” Diplast (or, as is developed below, Harry), which was ready, willing and able to buy the property on terms which were acceptable to, and indeed accepted by Oppenheimer and Ross. Knowles v. Henderson, 156 Fla. 31, 22 So.2d 384 (1945); Hart v. Pierce, 98 Fla. 1087, 125 So. 243 (1929).

It is equally clear that the sellers’ contentions in opposition to this determination are without merit. First, since the parties specifically did not require that the commission would be earned only if a sale took place, it does not matter that Ross and Oppenheimer’s interests were not in fact transferred either to Diplast or Harry. Walker v. Chancey, 96 Fla. 82, 117 So. 705 (1928); Knowles v. Henderson, supra; Schumacher v. Wellman, 415 So.2d 120 (Fla. 4th DCA 1982); 7 Fla.Jur.2d Brokers §§ 86-87, 90 (1978).

Second, it is similarly inconsequential that Ross and Oppenheimer owned only two-thirds of the land the appellants were purportedly hired to sell. It is true that the general rule, as established in Keyes Co. v. Moscarella, 223 So.2d 83 (Fla.3d DCA 1969),

that a person giving an exclusive listing agreement to a broker is bound even though the property is not owned by him at the time of the exclusive listing agreement [is] * * * subject to an exception where the broker had knowledge of his employer’s inability to deliver good title because of a refusal of the co-owner to join in the employment.

Bryan v. Justice, 247 So.2d 340, 341 (Fla.3d DCA 1971); Chastain v. Carroll, 307 So.2d 491 (Fla.2d DCA 1975); see also, Hensley Ins. Co. v. Echols, 159 Fla. 324, 31 So.2d 625 (1947). Although the brokers were clearly aware of Harry’s outstanding interest, we nevertheless think that this “exception” may not be applied to the unique facts of this case. In pases like Bryan and Echols, the broker either had no reason to believe that the other co-owners would join in the conveyance or affirmatively knew to the contrary; thus, there was, at the least, no assurance that his employer’s interests would actually be purchased. In the instant situation, however, because of the option provision of the appellees’ joint venture arrangement, the plaintiffs’ successful efforts in finding a purchaser meant, if the contract were followed, that Ross and Oppenheimer’s two-thirds of the realty would necessarily be subject to sale on satisfactory terms — either to the buyer, if Harry agreed, or to Harry himself, if, as in the event, he did not. Thus, the brokers’ employment to find a purchaser for the entire parcel was essentially to find one — either that third party or Harry — for Ross and Oppenheimer’s shares. Under this analysis of the transaction, the owners in fact owned all the property, their two-thirds, which was really the subject of the listing agreement. In actuality, therefore, neither the general rule to which we have referred, nor, all the more obviously, its exception, is implicated in the legal situation before us. It follows that there is no ground for denying the brokers the fee which Oppenheimer and Ross agreed to pay and which the plaintiffs — by producing Diplast and thus, alternatively and simultaneously, Harry — clearly earned.

For these reasons, we reverse the judgment under review with directions to enter judgment for the appellants against Oppenheimer and Ross for the $35,400 commission, interest, costs, and, as provided by the purchase and sale agreement, attorney’s fees for services rendered in the trial court.

Reversed and remanded with directions.

      . Language that the brokers’ contractual undertaking was simply “to find a purchaser” is repeated no less than four times in the agreement, including the provision that the commission was to be paid “[f]or finding a purchaser for the above property.”

      . These terms included a gross sale price of $900,000.

      . In its entirety, the clause in question provides:
      5. SALE OF PROPERTY: In the event a third party shall make a bona fide offer to purchase the property from the Joint Ventur-ers, the participant who shall receive said offer shall promptly give notice of such offer to the other participants in the Joint Venture. A bona fide offer shall be an offer in writing, accompanied by a deposit check in an amount of not less than five per cent (5%) of the purchase price, which check shall be payable to either the Joint Venturers or the trust account of a licensed real estate broker or attorney, specifying the terms of the purchase, and duly executed in the manner required by law. In the event there shall be a difference of opinion among the participants of the Joint Venture as to whether or not the offer should be accepted, then those participants who do not desire to accept the offer shall be required to purchase the interest of those participants who do desire to accept the offer at the same price contained in the offer (reduced to the prorata share of the participants 'whose interests are being purchased), which price shall be paid, at the option of the purchasing participants, either upon the terms contained in the offer, or twenty-five percent (25%) of the portion of the purchase price equal to the cash over the seller’s pro rata share of mortgages and debts of the Joint Venture, with the balance of the cash portion of the purchase price payable in four (4) equal semi-annual installments, with interest on the unpaid balance thereof at eight percent (8%) per annum, commencing six (6) months from the date of purchase. If more than one of the Joint Venturers shall participate in the purchase, they shall each purchase the interest of the selling Joint Ven-turer on a prorata basis, unless they shall agree otherwise. The balance of the purchase price is to be secured by a mortgage.

      . While the total sales price was for $885,000, rather than the $900,000 in the listing, see n. 2, supra, the reduction was of no significance since the lower price was “acceptable” to Oppenheimer and Ross. See text, supra, at n. 1.

      . It is undisputed both that the Diplast contract was a “bona fide offer” within the meaning of the joint venture provision, see n. 3, supra, and that Diplast itself was a ready, willing and able purchaser under the familiar standard of brokerage law.

      . This controversy is the subject of separate litigation between the joint venturers, the outcome of which proceeding in our view is totally irrelevant to the instant case.

      . This amount is six per cent of two-thirds of the $885,000 purchase price for the entire parcel.

      . The appellees’ heavy reliance on Miller, Cowherd & Kerver, Inc. v. De Montejo, 406 So.2d 1196 (Fla. 4th DCA 1981) is clearly misplaced. That case holds only that the requirement of a commission agreement that a “sale” of the property take place was not satisfied by the owner’s entering into a joint venture agreement for its development. De Montejo has no pertinence to the present issues.

      . The effect of this decision is to reinstate, for further proceedings in the trial court, a third-party action brought by Oppenheimer and Ross against Harry for indemnity of any amounts they may be required to pay the brokers. (This accounts for the presence of Harry as a named appellee.) We express no view as to the merits of this claim.

      . “In the event it shall be necessary for the broker or brokers to enforce collection of the payment of the real estate brokerage fee, the seller shall be obligated to pay reasonable attorney’s fees and court costs to the broker or brokers.”

      . We have awarded an appellate fee of $3,000.


author: HENDRY, Judge. BARKDULL, Judge,

text:
    SCHOOL BOARD OF DADE COUNTY, Florida, Appellant, v. DADE TEACHERS ASSOCIATION, FTP-NEA, and Public Employees Relations Commission, Appellees. UNITED TEACHERS OF DADE, LOCAL 1974, AFT, Appellant, v. DADE TEACHERS ASSOCIATION, FTP-NEA, and Public Employees Relations Commission, Appellees.
    Nos. 81-2233, 81-2323.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Nov. 22, 1982.

      Haygood & Williams and Gerald A. Williams, West Palm Beach, for appellant School Bd.
    du Fresne and du Fresne and Elizabeth J. du Fresne, Miami, for appellant United Teachers of Dade.
    Frank & Kelly and Mark F. Kelly, Tampa, for appellee Dade Teachers Assn.
    Edward S. Stafman, Jerry W. Cheatham, Tallahassee, for appellee Public Employees Relations Comn.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   HENDRY, Judge.

Appellants, the Dade County School Board (“School Board”) and the United Teachers of Dade (“UTD”), jointly challenge an administrative decision of the Florida Public Employees Relations Commission (“PERC”) finding that they committed unfair labor practices against appel-lee Dade Teachers Association (“DTA”), UTD’s rival union.

This dispute dates back to August, 1980. UTD was the certified bargaining agent for Dade County Teachers and had an agreement with the School Board which purported to grant it the “exclusive” right to solicit and organize teachers. When off-duty teachers supporting DTA began soliciting memberships for the union in school parking lots and by posting literature on school bulletin boards, UTD representatives, with the School Board’s support, removed the DTA literature and the School Board, at the insistence of UTD, prohibited the DTA-affiliated teachers from soliciting other teachers in parking lots other than at their assigned schools. A School Board memorandum, circulated to all school principals, stated in pertinent part:

Bulletin Boards
Pursuant to Article XXVIII, Section 5 of the DCPS/UTD contract, at least one (1) bulletin board shall be reserved at an exclusive place in the employee’s lounge for the exclusive use of UTD for purposes of posting material dealing with union business. Also, the union (UTD) shall be allowed to post special union bulletins in the same location as is posted the employee sign-in sheet.
If there currently exists a separate, all-purpose bulletin board at a given work location on which individual employees post notices, this practice may continue. (However, minority/rival union materials may not be posted, pursuant to the exclusivity rights granted to UTD).
Solicitation
Pursuant to State Statutes and DCPS/UTD contract provisions, both the exclusive bargaining agent and individual employees have the right to solicit union membership. (Such solicitation is only permitted during duty-free time.)
UTD building stewards shall be allowed to conduct union business at duty-free times when not directly instructing students (pursuant to Article XXVIII, Section 3 of the DCPS/UTD contract). Minority/rival union representatives are not permitted to solicit membership at DCPS work locations.
Access
The exclusive bargaining agent (but not a minority/rival union) shall be afforded access to DCPS work sites and grounds, including work location parking lots. Individual employees are afforded access to their own work sites and grounds (including parking lots), but not to other DCPS work sites unless they are at those sites on official DCPS business.

DTA filed unfair labor practice charges against the School Board and UTD under section 447.501(l)(a) and (2)(a), Florida Statutes (1979). The charges were consolidated and, following an evidentiary hearing, the PERC hearing officer issued a recommended order finding that (1) the School Board was justified in prohibiting teachers from soliciting at parking lots of other schools (on the theory they were “nonem-ployees” of such schools); and, (2) removal of DTA materials from all-purpose school bulletin boards was an unfair labor practice in violation of section 447.501(2)(a).

PERC’s final order adopted the hearing officer’s findings of fact, but determined that unfair labor practices had occurred with respect to both the bulletin board policy and the “other-school” parking lot policy. The question raised by this appeal is whether the two School Board rules are unfair labor practices within the definition of section 447.501(l)(a) and (2)(a). For the reasons set forth below, we find that both charges are well founded and affirm PERC’s order.

The legislative statement of policy with respect to the Florida Public Employees Labor Relations Act provides that PERC was created to assist in resolving public labor disputes. § 447.201, Fla.Stat. (1979). PERC has developed special expertise in dealing with labor problems and is uniquely qualified to interpret and apply the policies enunciated in Chapter 447, entitling its decisions to considerable deference by this court. City of Clearwater v. Lewis, 404 So.2d 1156 (Fla. 2d DCA 1981); Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977).

The unfair labor practice charges against the School Board and UTD in this case stem from section 447.501(l)(a) and (2)(a), which prohibits both public employers and employee organizations (unions), or their agents or representatives, from “[interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.” In construing these provisions, we are permitted to consider Federal labor law cases interpreting similar provisions of the National Labor Relations Act, 29 U.S.C. § 151 et seq., which PERC has frequently relied upon in establishing guidelines concerning solicitation and access disputes. City of Clearwater v. Lewis, supra; Okaloosa-Walton Junior College v. PERC, 372 So.2d 1378 (Fla. 1st DCA 1979), cert. denied, 383 So.2d 1200 (Fla.1980); Pasco County School Board v. PERC, supra. Guaranteed the right to self-organize and bargain collectively by section 447.301 of the Act, public employees must also, of necessity, have the right to effectively communicate with one another regarding self-organization at the job site. Okaloosa-Walton Junior College v. PERC, supra. Relying on private sector precedent, PERC has therefore adopted policies which provide that blanket no-access rules and rules which discriminate against one union in favor of another are presumptively invalid. See, e.g., Beth Israel Hospital v. NLRB, 437 U.S. 483, 492, 98 S.Ct. 2463, 2469, 57 L.Ed.2d 370, 380 (1978); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945).

In Okaloosa-Walton Junior College v. PERC, supra, the court construed PEL-RA in light of applicable private sector precedent and held that, absent extraordinary circumstances, a public employer may not restrict the rights of employees to discuss organizational interests at the work site during the employees’ nonwork time, nor restrict distribution of literature during nonwork time except where the actual work of public employees is performed. Id. at 1381. Here, the School Board’s policy precluding, at all times and in all areas, employees (other than UTD agents) from one job site entering another job site for purposes of soliciting other employees for membership in an employee organization, is presumptively invalid. The burden thus was shifted to the School Board to demonstrate that the restrictions imposed on these legitimate employee organizational activities were justified. Where management attempts to restrict off-duty employee access to other employees for organizational purposes, these restrictions must be narrowly drawn to accomplish the employer’s purpose without unnecessarily impinging upon employee rights. See Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972); NLRB v. Babcock & Wilcox Co., supra; McDonnell Douglas Corp. v. NLRB, 472 F.2d 539 (8th Cir.1973).

The “extraordinary circumstance” advanced by the School Board as justification for its restrictive access policy is the bare allegation of increased criminal activity on school campuses from outsiders entering school property. The School Board contended its solicitation/distribution policies are justified by the need to regulate access by outsiders to school campuses for security purposes. While sympathetic to the School Board’s concerns for the safety of its students and teachers, we find that it has simply failed to show that a blanket no-access rule is the only means available, or even a reasonable means, of protecting this interest. No evidence was introduced to show that solicitation by employees from other campuses increased the schools’ security problems. Indeed, the rule on its face permits solicitation by representatives of the majority union, indicating that the policy is designed to protect UTD’s “exclusivity” rather than the safety of children, and is discriminatory in nature. (Although the School Board contends that security is hampered by unknown teachers at school parking lots, it does not suggest that UTD supporters are more easily recognizable than DTA advocates, thus undercutting “security interests” as a justification for the rule.) Additionally, while the school system has had increased crime problems in recent years, there is absolutely nothing in the record that ties these problems to school employees, much less teachers soliciting union membership, much less only teachers soliciting DTA union memberships. The presence of additional teachers in school parking lots after school hours would seem, if anything, to be a deterrent to crime. Even aside from the absence of any apparent connection between the rule and the “security goal,” less intrusive means of satisfying the School Board’s goals are plainly available, such as requiring all persons to check in with school officials prior to soliciting, or issuance of identification cards to teachers, thus allowing school officials to know who is on campus and why. The need for security does not itself justify the no-access rule if another rule which is less restrictive of employee rights would accomplish the same goal. See McDonnell Douglas Corp. v. NLRB, supra.

Similarly, appellants’ defense of the bulletin board restriction is also unpersuasive. Appellants contend, in essence, that allowing DTA’s supporters to use the employees’ general purpose bulletin board will endanger harmony and cause friction among employees. Aside from the irony of a union advancing such an argument, the argument clearly proves too much. For better or worse, the law — not to mention the First Amendment, see, e.g., Perry Local Educators’ Ass’n v. Hohlt, 652 F.2d 1286 (7th Cir.1981), appeal filed sub nom., Perry Education Ass’n v. Perry Local Educators’ Ass’n, 454 U.S. 1140, 102 S.Ct. 997, 71 L.Ed.2d 291 (1981) — allows public employees to communicate and solicit each other for collective bargaining purposes even though such conduct often leads to disharmony and friction. PERC found as a fact that “the problem arose not because of the materials or their content but because the UTD supporters, with the concurrence of the School Board, erroneously believed that the DTA supporters had no right to post the materials in question.” For a government entity to enforce such a restriction, while simultaneously allowing teachers to use the bulletin board for other communications, constitutes censorship in its most direct form. See generally Dade County Classroom Teachers Ass’n, Inc. v. Ryan, 225 So.2d 903 (Fla.1969).

Accordingly, we find PERC’s interpretation and application of the statute to the facts of this case to be well within its range of discretion, see Board of Regents v. PERC, 368 So.2d 641 (Fla. 1st DCA), cert. denied, 379 So.2d 202 (Fla.1979), and affirm the order in all respects.

Affirmed.

BARKDULL, Judge,

concurring in part, dissenting in part.

I agree with the majority as to the invalidity of the “bulletin board rule” but I would reverse as to the “parking lot rule” and hold it valid. Geiger v. DuVal County School Board, 357 So.2d 442 (Fla. 1st DCA 1978); National Labor Relations Board v. Babcock & Wilcox Company, 351 U.S. 105, 100 L.Ed. 975, 76 S.Ct. 679 (1956); Diamond Shamrock Co., v. National Labor Relations Board, 443 F.2d 52 (3rd Cir.1971); National Labor Relations Board v. Great Atlantic & Pacific Tea Company, 277 F.2d 759 (5th Cir.1960); National Labor Relations Board v. Rockwell Manufacturing Company, 271 F.2d 109 (3rd Cir.1959).

The hearing officer made the following findings of fact and recommendations thereto:

B. Solicitation
5. Beginning in August, 1980, teachers began traveling to schools other than their assigned school, either before or after the regular duty day, for the purpose of soliciting memberships for the DTA. These solicitations usually occurred in the school parking lot.
6. Representatives of the UTD brought this fact to the attention of the School Board’s administration.
7. On December 5, 1980, J.L. De-Church, Association Superintendent, Bureau of School Operations, and Thomas A. Cerra, Assistant Superintendent, Office of Legislative and Labor Relations, issued a memo, hereinafter referred to as the DeChureh memo, to all School Board principals entitled: “UNITED TEACHERS OF DADE (UTD), OTHER EMPLOYEE ORGANIZATIONS, EMPLOYEE AND EMPLOYER RIGHTS.” The memorandum focused on a number of issues such as U.S. mail, School Board mail service, work location mail boxes, bulletin boards, solicitation, access, and distribution of literature.
8. With regard to solicitation and access, the memo stated:
Solicitation
Pursuant to State Statutes and DCPS/UTD contract provisions, both the exclusive bargaining agent and individual employees have the right to solicit union membership. (Such solicitation is only permitted during duty-free time.)
UTD building stewards shall be allowed to conduct union business at duty-free times when not directly instructing students (pursuant to Article XXVIII, Section 3 of the DCPS/UTD contract). Minority/rival union representatives are not permitted to solicit membership at DCPS work locations.
Access
The exclusive bargaining agent (but not any minority/rival union) shall be afforded access to DCPS work sites and grounds, including work location parking lots. Individual employees are afforded access to their own work sites and grounds (including parking lots), but not to other DCPS work sites unless they are at those sites on official DCPS business.
9. At a December, 1980, membership meeting, Kino Barrowman, Executive Director of the DTA, informed those present of the DeChurch memo, and requested that all members comply with the memo. She also contacted various teachers and told them not to solicit at any schools other than their assigned school.
10. At no time before or after the issuance of the DeChurch memo has the School Board attempted to prohibit employees from soliciting memberships or distributing literature at their assigned schools during their duty-free time. The DTA has also continued soliciting memberships by utilizing the U.S. mail.
11. The DeChurch memo was issued in order to give guidance to administrators in the field concerning potential problems which may arise as a result of the growing rivalry between the UTD and the DTA. Specifically, the policy statement against solicitation at nonassigned work sites was included in the memo as a result of the School Board administration receiving reports that DTA members where (sic) engaging in solicitation at nonas-signed schools without first cheeking in with the school principal. Serra and De-Church felt that such a practice was in violation of the current collective bargaining agreement with the UTD, School Board Rule IB-1.061 and Section 228.091, Florida Statutes (1979), concerning trespass on school property.
12. Rule IB-1061, promulgated on December 11, 1974, provides in pertinent part:
Parents and other persons who wish to visit the public schools should be routed to the school office, be greeted by the principal and furnished guide service. All visitors are to be made to feel welcome.
There shall be no solicitation of teachers or students on personal matters on the school premises by a sales persons or agents.
13. The School Board has one of the highest crime rates of any school system in the country. Persons not employed by the School Board have committed criminal acts against teachers and students on various School Board campuses.
14. The School Board does not issue any official indentification to its employees.
:}: H« * * * *
A. Solicitation-Distribution
The central issue concerning the School Board’s policy against employees soliciting and distributing literature at nonas-signed work sites is whether the rules concerning employee solieitation/distribution apply or whether the rules concerning access to nonemployee organizers apply. This issue was considered by the Fifth Circuit Court of Appeals in NLRB v. Great Atlantic and Pacific Tea Company, 277 F.2d 759 (5th Cir.1960). There the employer contended that an employee who goes to one of the employer’s chain stores in which the employee does not work should be treated as a nonemployee organizer for the purposes of applying the rules on access and solicitation/distribution. The court agreed noting that each store had its own management who hired and fired employees and that store management personnel could not distinguish between employees from other stores and members of the public, thus increasing the possibility of theft. Also of importance was the fact that the union had an alternate method of access to employees by use of the U.S. mail. Therefore, under these circumstances management’s security and property interests outweigh the employees’ right to solicit at any work site of their choice.
A similar result was reached by a hearing officer for the New York Public Employees Relations Board in New York City Transit Authority, 3 PERB ¶4502, aff’d on other grounds, 3 PERB ¶3082 (1970). In applying NLRB v. A. & P. the Hearing Officer reasoned that employees who enter their own work site do so under the color of right because that is the location where they perform their job functions. Conversely, employees who go to nonassigned work sites to solicit do so for their own self-interest. Therefore, their right of access may be limited to their assigned work location.
In this case, the School Board’s policy against solicitation and distribution by employees at campuses where they are not assigned is a permissible restriction on employee organizational activity. Similar to the facts in NLRB v. A. & P. the school employs a large number of instructional employees at numerous job sites. No official identifications are issued to School Board employees. Thus, it is difficult if not impossible for the administration at a particular school to distinguish between employees from other schools and members of the general public. These facts when taken into consideration with the School Board’s high crime rate tip the balance in favor of the Board’s restriction against unbridled access to nonassigned campuses by employee organizers. Therefore, I recommend that the charge in Case No. CA-81-012 be dismissed.
‡ # # * ‡ ¡js
VII. RECOMMENDATION
I recommend that the Commission issue the following order:
A. Dismiss the charge filed by the DTA against the Dade County School Board in Case No. CA-81-012.

Therefore, I dissent from so much of the majority opinion that upheld the order of PERC as to the “parking lot rule” and would reverse with directions to PERC to enter the recommended order of the hearing officer sustaining the validity of this rule.

       In its brief, the DTA alleges that the School Board’s policy is discriminatorily aimed at the DTA because solicitation at nonassigned work site for union membership occurred in past years. Most of the testimony in this regard related to solicitations that occurred prior to the passage of Part II of Chapter 447. Further, no evidence was offered to show that management was aware of these activities.


text:
    OFS EQUITIES, INC., Appellant, v. Lou CONDE, Appellee.
    No. 81-2600.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 6, 1982.

      Fromberg, Fromberg, Roth, Gross, Cohen, Shore & Berke and Jeffrey Michael Cohen, Coral Gables, for appellant.
    Gus Efthimiou, Jr., Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The appellant, OFS Equities, Inc., sued to foreclose a mortgage on real property located in Dade County, Florida. Conde, asserting that the interest charged on the mortgage note exceeded twenty-five per cent, see § 687.071(7), Fla.Stat. (1979), interposed the affirmative defense that the note and mortgage were criminally usurious and therefore unenforceable under Florida law and counterclaimed for cancellation of the note and mortgage, damages in the amount of double the usurious interest paid to OFS, and attorneys’ fees and costs. After a non-jury trial, the trial court entered its judgment awarding Conde complete relief.

OFS’s main contention is that the trial court erred by applying Florida law to the mortgage transaction between the parties. It says that the law applicable to the instant transaction is Colorado law, which, according to the undisputed expert testimony below, allows for a forty-five per cent legal rate of interest on loans to individual borrowers, excludes from the calculation of interest any charge which is incapable of being mathematically computed at the time the loan is made, and provides not for the forfeiture of the right to enforce the principal debt, but rather for the far less onerous consequence of forfeiture of the excess interest charged or to be charged when a loan is deemed usurious. We agree that it was error to apply Florida law and reverse the judgment below.

In deciding what law is to be applied, the forum court applies its own choice of law rule respecting the validity and interpretation of the contract. Jemco, Inc. v. United Parcel Service, Inc., 400 So.2d 499 (Fla. 3d DCA 1981). The choice of law rule unique to usury cases is that foreign law will be applied “if the foreign jurisdiction has a normal relation to the transaction and would also favor the agreement.” Continental Mortgage Investors v. SailBoat Key, Inc., 395 So.2d 507 (Fla.1981). As we have said, the law of Colorado is indisputably more favorable to the instant note and mortgage. It is equally clear that the relation of Colorado to the transaction is normal. The note and mortgage were made in and delivered to OFS in Colorado; the mortgage note was payable there; the lender’s principal and only place of business was in Colorado; OFS’s president resided there; Colorado is the place where associates of Conde solicited the loan; and the loan funds were advanced from Colorado. Given these circumstances, had the parties hereto expressly designated that the loan would be controlled by the more favorable Colorado law, Florida courts would be required to honor that designation. Continental Mortgage Investors v. Sailboat Key, Inc., supra. And, as is now clear, even where this intent is not expressed by the parties, we will construe their intent to be that the transaction shall be governed by the law of that state with a normal and reasonable relation to the transaction which gives to the transaction the most validity. Morgan Walton Properties, Inc. v. International City Bank & Trust Co., 404 So.2d 1059 (Fla.1981).

Finally, as is plain from Morgan Walton Properties, Inc. v. International City Bank and Trust Co., supra, and its precursor, Continental Mortgage Investors v. Sailboat Key, Inc., supra, the mere fact that there exists in Florida a usury statute which prohibits a certain interest rate from being charged does not establish some public policy against either ordinary or criminal usury strong enough to override either the express or constructive intent of the parties that the law of a state which permits higher interest and penalizes usury violations less harshly shall apply. Thus, Conde’s reliance on cases bottomed on the now disapproved notion that the public policy of this state against usury authorizes a court of this state, as part of its power to do equity, to disregard the parties’ express or constructive choice to have rights under a mortgage note determined by the laws of another state, e.g., Indianapolis Morris Plan Corporation v. Portela, 364 So.2d 840 (Fla. 3d DCA 1978); Continental Mortgage Investors v. Sailboat Key, Inc., 354 So.2d 67 (Fla. 3d DCA 1977), reversed, 395 So.2d 507 (Fla.1981); Bella Isla Construction Corporation v. Trust Mortgage Corporation, 347 So.2d 649 (Fla. 3d DCA 1977), is obviously misplaced.

Accordingly, the judgment of the trial court is reversed and the case is remanded to the trial court for determination and application of Colorado law in such further proceedings as are necessary. The motion of OFS Equities, Inc. for an award of reasonable attorneys’ fees for the services of its attorneys on this appeal is remanded to the trial court for appropriate action at the conclusion of the further proceedings herein ordered.

Reversed and remanded.

      . We do not reach OFS’s additional contentions that the trial court incorrectly cumulated the penalties provided in Sections 687.04 and 687.-071(7), Florida Statutes (1979), see Rosenblum v. Hart, 95 So.2d 18 (Fla.1957); 32 Fla.Jur.2d Interest & Usury § 70, and incorrectly reserved jurisdiction to award attorneys’ fees.

      . It matters not that because Conde was a part-time resident of Florida and the note was secured by a mortgage on property owned by Conde in Dade County, Florida, it could also be said that the State of Florida had a normal relation to the transaction. Under the Continental Mortgage Investors analysis, a court does not count the number of contacts with each state, but merely determines if the state which would validate the transaction has a normal relation to it.

      . We mention at this point that the trial court was without benefit of the decision in Morgan Walton Properties, Inc. when it entered the judgment below. It did, however, have the benefit of Continental Mortgage Investors, which, although it involved an express agreement that the law of a particular state would govern, certainly foretold the decision in Morgan Walton Properties, Inc.


author: PER CURIAM.

text:
    Wayne SOINI, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-2065, 81-2088.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 1982.
    Rehearing Denied Dec. 8, 1982.
    Richard L. Jorandby, Public Defender and Allen J. Deweese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We vacate the sentence and remand with direction to sentence appellant as a youthful offender. See Brandle v. State, 406 So.2d 1221 (Fla. 4th DCA 1981).

GLICKSTEIN and HURLEY, JJ., and OWEN, WILLIAM C. Jr., (retired) Associate Judge, concur.


text:
    Paul BIALEK, John G. Lane Line, Inc., a Florida corporation and Protective Insurance Company, a foreign corporation, Appellants, v. Rumiya S. LENSEN, as Personal Representative of the Estate of George A. Lensen, deceased, Appellee.
    No. AI-297.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Rehearing Denied Nov. 24, 1982.

      Charles Cook Howell, III, Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellants.
    William H. Davis, Wadsworth & Davis, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Appellants seek reversal of a final judgment entered pursuant to a jury verdict which found Paul Bialek and John G. Lane Line, Inc. sixty percent negligent in the death of appellee’s husband, and which awarded damages in the sum of $240,000.00. We affirm.

Appellee’s wrongful death action charged that appellant-Paul Bialek, driver of a truck owned by appellant-John G. Lane Line, Inc., violated Sections 339.30, 316.1945, and 316.-301, Florida Statutes (1977), all of which require display of warning lights and devices when a vehicle is stopped or disabled along the roadside, and which prohibit parking along the roadside, with some exceptions not material here. It is undisputed that on the day of the accident Bialek parked his truck partly on the paved emergency parking lane and partly on the grassy portion of the shoulder of Interstate Highway 10, just west of Macclenny. The automobile driven by the plaintiff’s decedent, after passing another vehicle proceeding in a westerly direction, angled sharply to the right, crossing both westbound travel lanes and most of the emergency parking lane before it swerved back to the left, lined up directly behind the parked truck, then traveled for a distance of approximately 100 yards before colliding with the rear of the truck. The plaintiff’s decedent was killed instantly. There were some 30 feet of skid marks from the automobile prior to the point of impact.

An expert witness called by appellee gave testimony concerning the “forgiving roadside” design features of the interstate highway system which are aimed at providing an obstacle-free shoulder area so that vehicles accidentally or inadvertently straying from the travelled portion of the highway might be able to come to a safe stop or be redirected back onto the highway. Another expert witness for appellee testified concerning the “follow-the-leader” phenomenon under which a motorist, in the mistaken belief that he is following a moving vehicle, will plow directly into the rear of a non-moving vehicle parked alongside the roadway in the absence of flashers or other warning conditions to warn of its stationary and off-the-road position. Appellants, on the other hand, maintained that the accident was the proximate result of some sudden disabling medical condition, or suicide on the part of the plaintiff’s decedent.

We think the issue of proximate cause was one properly determinable by the jury, under appropriate instructions. The improper parking of the truck was the type of negligence which could foreseeably lead to a rear-end collision occurring under circumstances shown by the evidence in this case, and liability of the offending truck driver and its owner may be predicated upon violation of the statutes which were designed to prevent or minimize the likelihood of just such occurrences. A jury could find that the accident was both foreseeable and proximately caused or contributed to by the negligent parking of the truck, and the negligence of plaintiffs decedent was not an intervening cause absolving appellants from liability. See, Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980).

We find no abuse of discretion in the trial judge’s refusal to direct a verdict on the issue of contributory negligence (which this court has recognized is rarely appropriate in comparative negligence cases, Petroleum Carrier Corp. v. Gates, 330 So.2d 751 (Fla. 1st DCA 1976)), nor in his ruling concerning the qualifications of Dr. Brenner as an expert in the field of safety engineering and traffic accident reconstruction. Furthermore, we find no error in the trial court’s refusal of the requested instruction on unlawful speed, nor in the giving or refusal of other instructions.

The judgment appealed from is AFFIRMED.

SHAW and JOANOS, JJ., concur.

      . The accident occurred in broad daylight, on a clear day, on a straight and level road relatively free of traffic, and the parked truck was visible to approaching traffic for over one-half mile. There was no emergency or other justification for Bialek’s parking the truck; rather, the sole purpose was to enable him to visit with nearby relatives.

      . Appellants also argue that the action of the deceased was the sole cause of the accident; and that the parking of the truck, even if in violation of the statutes, was not an operating, efficient or proximate cause of the accident, citing Sims v. Apperson Chemicals, Inc., 185 So.2d 179 (Fla. 1st DCA 1966). While it is not entirely clear from the Sims opinion just what purpose was intended to be served by the no-parking ordinance dealt with in that case, we are confident that the statutes under consideration here, requiring warning signals and devices, and otherwise prohibiting parking, serve a different purpose and command a different result than the ordinance in the Sims case which prohibited parking “on any paved street for the night,” unless disabled.

      . We cannot accept appellants’ argument that the accident was a mere “possible result” of the improper parking of the truck affording no predicate for liability, and we find no support in Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA 1981), for such a conclusion. As for appellants’ contention that the same accident would have occurred if Bialek had just stopped his truck but had not had time to put on his flashing lights or warning devices, we observe that under those facts it is very likely that Bialek might be found not guilty of any negligence, assuming, of course, that his stopping the truck was not itself a violation of the statute.


text:
    J.E. JOYNER, INC., a Fla. corporation, Appellant, v. Bernard ETTLINGER and A.A. Rosier-Rooter, Inc., a Fla. corporation, Appellees.
    No. AI-391.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Rehearing Denied Nov. 22, 1982.
    Eugene Loftin, Jacksonville, for appellant.
    David R. Lewis, of Lewis, Paul, Isaac & Castillo, P.A., Jacksonville, for appellees.
   PER CURIAM.

These consolidated appeals are from a final judgment on intervention entered in a foreclosure action based on a security agreement and from a final judgment entered in a replevin action, after a nonjury trial. The prior opinion of this court in Joyner v. Ettlinger, 382 So.2d 27 (1st DCA 1980), remanded the cause for factual determinations and an award of damages consistent with the opinion. On remand, the trial court determined that it was not at liberty to disturb certain findings previously made, including the award of permanent possession of the tractors to appellees. After determining the amount of appellees’ lien, the value of the tractors at the time foreclosure was instituted, and their value on the date of final judgment on intervention, the court awarded to appellees both permanent possession of the two tractors and damages against appellant in the amount of appellees’ lien plus interest.

In its prior opinion, this court limited appellees’ recovery to either the value of both tractors as of the date of foreclosure or the amount of its lien, whichever is less, plus interest. Since the trial court specifically found that the value of the tractors on that date exceeded appellees’ lien, appellees’ recovery is strictly limited to $9,257.82, the sum of its lien plus interest, the amount determined in the trial court. Appellant is entitled to the remaining equity in the two tractors.

Accordingly, the cause is remanded to the trial court for judgments in compliance herewith.

McCORD, BOOTH and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. David K. WONG and the Career Service Commission of the State of Florida, Appellees.
    No. AK-327.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Enoch J. Whitney, Gen. Counsel, Michael J. Alderman, Asst. Gen. Counsel, Tallahassee, for appellant.
    Jerry G. Traynham, of Patterson & Traynham, Tallahassee, for appellees.
   WENTWORTH, Judge.

The Department appeals an award of attorney’s fees granted to appellee Wong pursuant to § 110.309(5). Although we affirm the award in its entirety, we find that one of the numerous points raised by appellant warrants discussion.

The case involves extensive litigation before the Career Service Commission and this court arising out of the Department’s wrongful discharge of Wong in 1977. Wong, being the ultimately successful litigant, sought and was awarded attorney’s fees pursuant to § 110.309, Florida Statutes. The Department challenges the amount of the award, the procedure by which it was granted, and the sufficiency of the order. While we find these points to be without merit, we briefly address the contention, stated by the Department as point one on appeal, that “the commission erred in awarding attorneys fee when the employee had neither incurred nor contracted to pay such fee.” The asserted argument in support of the foregoing contention is that Wong neither contracted for nor incurred a liability for attorney’s fees because his lawyers had agreed not to look to him for payment, but to look to the courts for compensation in the event that their representation was ultimately successful.

Appellant would have this court promulgate a rule which would require a wrongfully discharged employee to prove that he or she had entered into an attorney/client contract in which the client agreed unconditionally to pay the attorney. That such a rule would be in derogation of the spirit and intent of § 110.309 appears to us to be obvious. The purpose of providing for payment of wrongfully discharged employees’ attorneys’ fees is to insure that such employees, often with limited financial resources, are able to secure competent legal representation. To hold that an attorney who is willing to risk receiving no compensation at all may not, because of that willingness, receive an award under the statute would clearly not serve the legislative purpose.

AFFIRMED.

McCORD and BOOTH, JJ., concur.

      . We note in passing that evidence of an attorney/client contract for payment of fees is not a prerequisite to statutorily allowed fees. Davis v. Yell-For Pennell, 274 So.2d 267 (Fla. 3d DCA 1973).


author: WIGGINTON, Judge.

text:
    KENT INSURANCE COMPANY, a Florida corporation, Petitioner, v. Ray HOBBS, d/b/a Hillsborough Security Patrol, Respondent.
    No. AN-409.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Rehearing Denied Dec. 2, 1982.

      Robert F. McAuley, Tampa, for petitioner.
    No appearance for respondent.
   ON PETITION FOR WRIT OF CERTIORARI

WIGGINTON, Judge.

Kent Insurance Company has petitioned this Court for issuance of a writ of common law certiorari to review the non-final order of the deputy commissioner ruling: (1) that he had jurisdiction to determine an issue of insurance coverage; and (2) that there was coverage because no breach of the cooperation clause contained in the terms and conditions of the policy of insurance occurred on the part of the insured/employer. We have jurisdiction, United States Fidelity & Guaranty Co. v. Sloan, 410 So.2d 549, 550 n. 2 (Fla. 1st DCA 1982), but deny the petition.

The deputy commissioner has the power and authority “to hear and determine all questions” in respect to workers’ compensation claims. § 440.25(1), Fla.Stat.; Fireman’s Fund Insurance Company v. Rich, 220 So.2d 369, 371 (Fla.1969); International Piling, Inc. v. American National Fire Insurance Company, 345 So.2d 761 (Fla. 4th DCA 1977); Fidelity & Casualty Company of New York v. Scott, 390 So.2d 820 (Fla. 1st DCA 1980). That authority would include construction of contracts. Total Appliance Repairs v. Nelson, 382 So.2d 1333, 1334 (Fla. 1st DCA 1980).

This case is distinguishable from U.S. Home Corp. v. Parker, 404 So.2d 170 (Fla. 1st DCA 1981), and TRW, Inc. v. Betts, 407 So.2d 377 (Fla. 1st DCA 1981), cited by Kent. In Parker, the deputy adjudicated an independent indemnification controversy between the carrier and the employer. In Betts, the deputy resolved an issue involving interpretation of an insurance clause regarding nonwork-related injuries. In each case this Court held that the deputy was without jurisdiction as neither issue related to a Chapter 440 claim. In the instant case, however, the issue, whether there was a breach of the cooperation clause by the insured/employer, is relevant to the issue whether the Chapter 440 claim was covered by workers’ compensation insurance. Thus, the deputy having jurisdiction, the petition is denied insofar as it challenges his authority.

The remainder of the petition should also be denied as failing to demonstrate that Kent would not have an adequate remedy by appeal. Gadsden County Times, Inc. v. Horne, 382 So.2d 347 (Fla. 1st DCA 1980), petition for review denied, 389 So.2d 1109 (Fla.1980). Although Kent intimates that the deputy’s decision is not based on competent substantial evidence, it does not present any meaningful argument why it could not appeal the issue upon entry of a final order, other than the “irreparable harm” caused by Kent’s having to expend money and time to defend the insured. As a general rule, “the burden, vexation, or hazard of defending litigation does not furnish a basis for certiorari intervention.” Id.; see also Chalfonte Development Corp. v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979). Whether the deputy’s determination of coverage is based on competent substantial evidence is an issue to be properly raised on appeal.

Accordingly, the petition for common law certiorari is hereby DENIED.

MILLS and ERVIN, JJ., concur.


author: NESBITT, Judge. SCHWARTZ, Judge

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Hubert WORKMAN, as Personal Representative of the Estate of Naomi Lynn Workman, a deceased minor, Appellee.
    No. 81-1532.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Talburt, Kubicki & Bradley and Jon Der-revere, Miami, for appellant.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

Naomi Workman was killed while driving a car in which the owner, Kenneth Willis, was a passenger. The applicable liability limits under Willis’ automobile insurance policy with Allstate were less than the uninsured-underinsured motorist limits under the policy issued by State Farm Mutual Automobile Insurance Company (State Farm) to Hubert Workman, Naomi’s father. Claiming that Willis was negligent, Hubert sought underinsured motorist benefits from State Farm. When the company denied coverage, Hubert brought an action seeking a declaratory judgment that underinsured motorist benefits were available. Hubert’s motion for summary judgment was granted and State Farm appeals. We affirm.

State Farm’s denial of coverage was based on a policy provision which excluded underinsured coverage for a vehicle insured under the liability portion of the policy. It is otherwise agreed that decedent was afforded liability coverage for her liability while operating a nonowned vehicle. However, we agree with the rationale of Bowsher v. State Farm Fire and Casualty Company, 244 Or. 549, 419 P.2d 606 (1966), that the focus of our inquiry should be whether the injury for which a claim is made is covered by liability insurance, rather than a general inquiry into whether some kind of insurance covered, for some purposes, the automobile involved in the accident. It is undisputed that the tortfeasor, Kenneth Willis, was underinsured by $5,000. Accordingly, the uninsured-underinsured motorist benefits under State Farm’s policy must be available to Hubert Workman.

Affirmed.

SCHWARTZ, Judge

(specially concurring).

I concur in affirmance because the pertinent exclusion represents no more than an attempted restriction of UM coverage available to a class I insured which is invalidated by a long series of Florida decisions, which began with Mullis v. State Farm Mutual Automobile Ins. Co., 252 So.2d 229 (Fla.1971), interpreting Sec. 627.727(1), Fla.Stat. (1981) and its predecessors. As the court notes, the sole exception to this rule, which was involved in Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172 (Fla.1978), is inapplicable to the present situation.

      . Reid v. State Farm Fire and Casualty Company, 352 So.2d 1172 (Fla.1978) is distinguishable in that it involved a family-household exclusion, not applicable here.


text:
    Belarmino CORDERO-PENA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1728.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We affirm the appellant’s convictions. We vacate that portion of the sentence for first-degree murder wherein the trial court retained jurisdiction for one-third of the life sentence imposed to review any parole commission release order pertaining to the defendant. See § 947.16(3), Fla.Stat. (1981). We conclude that where a court imposes a life sentence, Section 947.16(3) is inoperable, since because a life span is immeasurable, see Alvarez v. State, 358 So.2d 10 (Fla. 1978), no calculation of the length of time jurisdiction is retained can be made. With the exception of the capital felony, all crimes set forth in Section 947.16(3) as to which a trial court may retain jurisdiction over the defendant, including life felonies, are punishable by imprisonment for a term of years, see § 775.082(3), Fla.Stat. (1981), against which term the time of retention can be measured. However, in the case of a capital felony, the imposition of a life sentence is mandatory, and the defendant’s entitlement to parole consideration is solely controlled by the separate statutory requirement that he be required to serve no less than twenty-five years before becoming eligible for parole. See § 775.082(1), Fla. Stat. (1981).

Affirmed in part; vacated in part.


text:
    Vincente Artero GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1832.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

We affirm the convictions for sexual battery and for aggravated battery but vacate the sentence for aggravated battery, upon a finding that the allegations and the proof pertaining to aggravated battery are included within the sexual battery with force charge. Brown v. State, 206 So.2d 377 (Fla.1968); see Falstreau v. State, 326 So.2d 194 (Fla. 4th DCA 1976).

Affirmed as modified.


text:
    MIAMI SHORES VILLAGE, INC., Appellant, v. Charles MALLICOTE, Appellee.
    No. 81-1976.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Rehearing Denied Dec. 3, 1982.

      William F. Fann, Jr., Miami Shores, for appellant.
    Joe N. Unger, Miami; Abel & Jacobson, Hallandale, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We conclude that the jury verdict against it is supported by competent evidence that the defendant municipality negligently supplied inadequate equipment for the plaintiff’s judo class and that the defective condition was a legal cause of his injuries. See Schmidt v. Bowl America Florida, Inc., 358 So.2d 1385 (Fla. 4th DCA 1978); Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980). Since neither the defendant’s attack on the instructions actually given, Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978); Variety Children’s Hospital, Inc. v. Perkins, 382 So.2d 331 (Fla. 3d DCA 1980), nor its claim that the issue of assumption of the risk should have been submitted to the jury, Tidwell v. Toca, 362 So.2d 85 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1375 (1979); Fla.R.Civ.P. 1.470(b), was properly preserved below, the judgment under review is

Affirmed.


author: HENDRY, Judge.

text:
    Ernest Benson WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2184.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Bennett H. Brummer, Public Defender, and Frederick E. Graves, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds and Steven Jacob, Asst. Attys. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   HENDRY, Judge.

The final judgment of conviction and sentence under review is reversed based upon improper joinder and denial of severance of these similar but separate criminal episodes and remanded with directions to separately retry the defendant for each of the six robberies. Fla.R.Crim.P. 3.151, 3.152; Paul v. State, 385 So.2d 1371 (Fla.1980); Rubin v. State, 407 So.2d 961 (Fla. 4th DCA 1981); McMullen v. State, 405 So.2d 479 (Fla.3d DCA 1981); Macklin v. State, 395 So.2d 1219 (Fla.3d DCA 1981).

We find no error, however, in the trial court’s denial of defendant’s motions for discharge under the speedy trial rule. The record clearly demonstrates that the defendant was not “continuously available for trial” as required by Florida Rule of Criminal Procedure 3.191 since at least three continuances prior to the initial trial were attributable to the defense, and the delay in retrying the defendant within ninety days following a mistrial was a direct result of defense counsel’s involvement in trying another case. State v. Belcher, 372 So.2d 546 (Fla.3d DCA 1979) and cases cited; Roberts v. State, 371 So.2d 538 (Fla.3d DCA 1979); State v. McCoy, 369 So.2d 1027 (Fla.3d DCA 1979).

Reversed and remanded for further proceedings not inconsistent with this opinion.

      . Commencement of the retrial was less than one month subsequent to the expiration of ninety days from the date the trial court declared a mistrial. Fla.R.Crim.P. 3.191(g).