author: SHIVERS, Judge.

text:
    James L. SCHREINER, Appellant, v. McKENZIE TANK LINES & RISK MANAGEMENT SERVICES, INC., Appellee.
    No. UU-58.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.

      R. Larry Morris, William D. Marsh and Robert A. Emmanuel of Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    William H. Clark, L. Kathleen Horton, Donald A. Roark, George J. Roark and G. James Roark, III, of Roark & Roark, Pensacola, for appellees.
   SHIVERS, Judge.

According to Article I, Section 2 of the Florida Constitution, “... No person shall be deprived of any right because of race, religion or physical handicap.” This appeal presents us with three issues all relating to this clause, including: (1) Is the provision self-executing? (2) Does this provision of the Florida Constitution require “state action” as envisioned under the Fourteenth Amendment to the U. S. Constitution? and (3) If so, has there been “state action” in the controversy at bar?

Appellant and plaintiff below, James I: Schreiner, worked for appellee McKenzie Tank Lines, Inc. Appellee Risk Management, Inc., is McKenzie’s insurer. In 1976, Schreiner was hired to perform repair work in McKenzie’s shop and on the road. His duties included the use and control of motor vehicles on the highway. On February 20, 1978, Schreiner suffered an epileptic seizure resulting in a head injury. His driver’s license was revoked by the State of Florida, and McKenzie ordered him to conduct work only in the shop.

Shortly thereafter, he suffered another seizure. His doctor informed him that he would not be able to perform any activities in which he would be off the surface of the ground. McKenzie reassigned the appellant to the tire room at which time he suffered a third seizure. McKenzie then dismissed the appellant from its employ on June 20, 1978. Schreiner filed suit based on a number of causes of action, including the constitutional issue, which is the only one which merits our attention. His complaint was dismissed by the trial court.

Schreiner contends he was unconstitutionally deprived of his employment due to a physical handicap. Section 23.167, Florida Statutes (1979), presently provides an enforcement mechanism for those individuals who feel they have been wrongly deprived of their employment related rights. However, neither § 23.161, et seq., nor the enforcement provisions of its predecessor, § 13-261, Florida Statutes (1977), were in effect at the time Schreiner was dismissed. Therefore, any relief that he seeks hinges directly on Article I, Section 2. To provide relief, this section would have to be self-executing.

The test to determine whether or not a constitutional provision is self-executing was clearly set out by our Supreme Court in Gray v. Bryant, 125 So.2d 846 (Fla.1960), and has been reaffirmed on numerous occasions. See, e.g., State ex rel Citizens Proposition for Tax Relief v. Firestone, 386 So.2d 561 (Fla.1980); Plante v. Smathers, 372 So.2d 933 (Fla.1979); Williams v. Smith, 360 So.2d 417 (Fla.1978). In essence, we are directed by Gray to determine whether or not the sentence, “No person shall be deprived of any right because of race, religion or physical handicap,” sufficiently delineates “a rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment.” Gray, supra, at 851. In our view, this provision of the constitution is quite direct and in need of no implementing legislation.

Our view that the constitutional provision is self-executing is reinforced by Plante, supra, at 936. “A constitutional provision is to be construed in such a manner as to make it meaningful. A construction that nullifies a specific clause will not be given unless absolutely required by the context.” Id. Since there were no statutory enforcement provisions in effect to provide relief between 1974, when Article I, Section 2 was amended to include the physically handicapped, and July 1, 1978, which was the effective date of the statutory protections, the only relief available would be based on the constitutional provision. A decision that the constitutional provision is not self-executing would in effect cause the provision to have been null during that period. This would negate the will of the people in approving this amendment to the constitution, and the will of the people is always the paramount consideration in determining the self-executing nature of a provision. Gray, supra, at 851.

We note in passing that the Florida Legislature has apparently adopted legislation aimed at implementing and expanding this constitutional provision in the form of §§ 23.161-23.167, Florida Statutes (Supp. 1980). This legislation is geared toward protection of individuals who have been discriminated against not only on the basis of race, religion or physical handicap but due to the additional categories of color, sex, national origin, age and marital status. See, § 23.161, Florida Statutes (1979). The existence of these implementing sections might arguably indicate that the constitutional section at bar is not self-executing. As Gray notes, such a view is fallacious. “The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing.” Gray, supra, at 851, citing People v. Carroll, 3 N.Y.2d 686, 148 N.E.2d 875, 171 N.Y.S.2d 812 (1958).

It is also true that the human rights provisions, §§ 23.161-23.167, Florida Statutes (Supp.1980), further provide for a mechanism not only to halt discrimination against the physically handicapped but for the imposition of relief in the form of back pay and recovery of reasonable attorney’s fees. See, § 23.167(13), Florida Statutes (1979). Apparently no case has ever found that violation of a constitutional provision permits monetary relief merely because it is self-executing. Figueroa v. State, 61 Haw. 369, 604 P.2d 1198, 1206 (1980). Although a statute might add to or prescribe a penalty for violation of a self-executing constitutional amendment, it does not follow that the provision is not self-executing. Haile v. Foote, 90 Idaho 261, 409 P.2d 409, 412 (1965), citing 1 Cooley on Constitutional Limitations at 170.

Comparison of Article I, Section 2 of the Florida Constitution, to the Equal Protection Clause in the Fourteenth Amendment to the U. S. Constitution indicates that the two are similar. Cf., Purvis v. State, 377 So.2d 674, 676 (Fla.1979). In fact, many states have equal protection provisions in their state constitutions, although it appears only one state, Pennsylvania, has specifically determined that its equal protection provision is self-executing. See, Harley v. Schuykill County, 476 F.Supp. 191, 195 (E.D.Pa.1979); Erdman v. Mitchell, 207 Pa. 79, 56 A. 327 (1903).

While Article I, Section 2 is self-executing, the appellant’s position would not be assisted if there is a state action requirement that he could not satisfy. The state action requirement has its roots in The Civil Bights Cases, 109 U.S. 3,3 S.Ct. 18, 27 L.Ed. 835 (1883). The U. S. Supreme Court has noted “that the action inhibited by the first section [Equal Protection Clause] of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful... . ” Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1947). “Individual invasion of individual rights is not the subject-matter of the amendment....” The Civil Rights Cases, supra, at 109 U.S. 11, 3 S.Ct. 21. See also, Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-722, 81 S.Ct. 856, 859-860, 6 L.Ed.2d 45 (1961). “State action is not invoked; it is restrained. So, as shield rather than sword, does the Amendment secure to the people ... equal protection of the laws.” King v. South Jersey National Bank, 66 N.J. 161, 330 A.2d 1, 8 (1974).

Whether there is a state action requirement under Article I, Section 2 of the 1968 Florida Constitution is a question that has not been directly confronted by any Florida court. Although the U. S. Supreme Court has determined that there is a state action requirement under the Fourteenth Amendment, this does not mean we are bound to accept that view as controlling in regard to a parallel provision of the Florida Constitution. “Yet such rulings have long been considered helpful and persuasive, and are obviously entitled to great weight.” Pomponio v. Claridge of Pompano Condominium, 378 So.2d 774, 779 (Fla.1979).

Our review of the reported decisions reveals that in each and every instance that the Florida Equal Protection Clause has been invoked, there has been at least some state action present. However, there is no case in Florida specifically stating that there is a state action requirement under Article I, Section 2. To determine whether the framers and adopters intended a state action requirement, the sentence barring deprivation of any right due to a physical handicap must be read in pari materia and harmonized with the rest of Article I, Section 2. Advisory Opinion to Governor Request of June 29, 1979, 374 So.2d 959, 964 (Fla.1979); Lewis v. Florida State Board of Health, 143 So.2d 867, 869 (Fla.lst DCA 1962). The first sentence specifically states that all persons “are equal before the law.” This clause indicates that this section deals with the relationship between the people and the state.

This view is bolstered by Junior Football Association of Orange v. Gaudet, 546 S.W.2d 70 (Tex.Civ.App.1976). In that case, Article I, Section 3a, of the Texas Constitution, which is the Texas Equal Protection Clause, was construed to require state action to be enforceable, because that section states that “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin... . ” [emphasis added]. See also, Lincoln v. Mid-Cities Pee Wee Football Association, 576 5.W.2d 922, 924-925 (Tex.Civ.App.1979); Zentgraf v. Texas A & M University, 492 F.Supp. 265, 272 (S.D.Tex.1980).

Other states have adopted a similar interpretation requiring state action. In Connecticut that state’s Supreme Court identified a state action requirement in the Connecticut Constitution in Lockwood v. Killian, 172 Conn. 496, 375 A.2d 998, 1001-1004 (1977); see also, Schroeder v. Dayton-Hudson Corp., 448 F.Supp. 910, 915 (E.D.Mich. 1978) (Mich.Const. art. I, § 2, equal protection clause has state action requirement) and Holy Spirit Association for Unification of World Christianity v. New York State Congress of Parents and Teachers, Inc., 95 Misc.2d 548, 408 N.Y.S.2d 261, 265 (Sup.Ct. Sp.Term, 1978) (first sentence of N.Y. Const., art. I, § 11, equal protection clause requires state action). These interpretations, combined with the persuasiveness of the federal view of a state action requirement under the parallel Fourteenth Amendment to the U. S. Constitution, suggest to us that Article I, Section 2 of the 1968 Florida Constitution has a state action requirement.

In construing a constitutional provision we are required to ascertain and give effect to the intent of the framers and adopters of the constitution. Bailey v. Ponce de Leon Port Authority, 398 So.2d 812, 814 (Fla.1981); 10 Fla.Jur.2d Constitutional Law § 22 (1979). The papers and minutes of the Constitutional Revision Commission (C.R.C.) that drafted the 1968 Florida Constitution are particularly relevant in ascertaining the intent of the framers. See Gallant v. Stephens, 358 So.2d 536, 539-540 (Fla.1978) (Fla. Supreme Court examined C.R.C. minutes and notes to give effect to language in Art. VII, § 9(b), Fla. Const.).

Our review of the minutes of the C.R.C. meetings reveals a great deal about the manner in which the C.R.C. members envisioned that Florida’s Equal Protection Clause was intended to function. Article I, Section 2 of the 1968 Constitution was made a part of the proposed constitution with no discussion of relevance to this case. However, on December 13, 1966, Amendment No. 127 was adopted which reworded the last sentence in the section to read, “No person shall be deprived of any right because of race, religion or sex.” 4 Convention of the Florida Constitution Revision Commission 264-265; 294-297 (Dec. 13, 1966) (unpublished transcripts available in Florida Supreme Court Law Library).

The minutes reveal that Amendment No. 127 was reconsidered, and the words “or sex” were stricken from the last sentence of the section. 5 Convention of the Florida Constitution Revision Commission 33-44 (Dec. 14,1966). During the floor debate on reconsideration, various members discussed the fact that the section was intended to function in a manner similar to the Fourteenth Amendment to the U. S. Constitution. Id. at 33-36. Therefore, it seems apparent to us that Article I, Section 2 of the 1968 Florida Constitution, in its present form, was intended to have a “state action” requirement, and that the last sentence of the section specifically identifies three “suspect classes,” including race, religion and physical handicap.

Assuming there is a state action requirement, we are required to determine whether there has been a demonstration of state action in this case. “[T]he question whether particular conduct is ‘private,’ on the one hand, or ‘state action,’ on the other, frequently admits of no easy answer.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349-350, 95 S.Ct. 449, 452-453, 42 L.Ed.2d 477 (1974). Fashioning an all encompassing rule in an effort to define what conduct constitutes state action is impossible. Each case must be weighed on its own facts. Wilmington Parking Authority, supra, at 365 U.S. 722, 81 S.Ct. 860. The U. S. Supreme Court in the Wilmington Parking Authority case explained the first of two state action theories. In that case, the existence of a symbiotic relationship between the state and private concern which in effect made them joint partners in discrimination was found to be necessary.

A second state action theory was identified in Jackson, supra, 419 U.S. at 351, 95 S.Ct. at 453, wherein it was noted that the inquiry must be whether there is a sufficiently close nexus between the state and the challenged action of the private party so that the action of the later may be fairly treated as that of the state itself.

The federal judiciary has never clarified the extent to which either the symbiotic relationship or close nexus theories must be satisfied before state action can be found to exist. Greene v. John Hopkins University, 469 F.Supp. 187, 194 (D.Md.1979). This is most likely due to the difficulty in fashioning an all encompassing rule as previously noted. Nor is it entirely clear which of the two theories must be utilized in testing for state action.

The various federal circuits have differed greatly as to the weight to be accorded each theory. Some courts have accepted the view that the symbiotic relationship test is one having a continuing vitality. See, Foster v. Ripley, 645 F.2d 1142, 1146 (D.C.Cir. 1981). At least one other court has suggested that the two theories both continue to be in vogue. Speaking for an en banc meeting of the U. S. Court of Appeals for the Third Circuit, Judge Adams suggested that, “It may be only in the absence of an inextricably-linked [symbiotic] relationship between the state and a private entity does the ‘close nexus’ test of Jackson come into play.” Braden v. University of Pittsburgh, 552 F.2d 948, 958 (3rd Cir. 1977).

However, the general trend of both the U. S. Supreme Court and the U. S. Court of Appeals for the Fifth Circuit would seem to favor the utilization of the close nexus approach. The more recent theory advocated by the U. S. Supreme Court is the close nexus approach, which was alluded to in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175-179, 92 S.Ct. 1965, 1972-1974, 32 L.Ed.2d 627 (1972), and specifically identified in Jackson, supra, at 419 U.S. 351, 95 S.Ct. 453. So too, the Fifth Circuit appears to be utilizing the close nexus test in analyzing state action problems. See, Sims v. Jefferson Downs, Inc., 611 F.2d 609, 611 (5th Cir. 1980).

Nevertheless, whichever approach is used, we are unable to determine that either a close nexus or symbiotic relationship exists herein. The parties have not briefed this point, but we find four possible sources of state action, including: (1) the fact that Appellee Risk Management, Inc., is an insurance company most likely regulated by the state under Chapter 624, et seq., Florida Statutes; (2) the fact that at the time of the alleged discrimination Appellee McKenzie Tank Lines, a trucking company, was regulated by the state under Chapter 323, Florida Statutes (now repealed); (3) the fact that appellant’s driver’s license, which was necessary to his road work on the job, was suspended after his first seizure; and (4) the fact that this action will be determined by a state judicial tribunal.

As for state regulation of either of the appellees pursuant to the insurance or trucking regulation statutes, we are unable to find that the factual situation at bar satisfies either the close nexus or symbiotic relationship approach. It is not enough to merely claim that extensive and detailed regulation of the private conduct exists. Jensen v. Farrell Lines, Inc., 625 F.2d 379, 387 (2d Cir. 1980); cf., Jeffries v. Georgia Residential Finance Authority, 503 F.Supp. 610, 614 (N.D.Ga.1980). Even mere acquiescence by the state in a private action requested by a regulated enterprise, when the state does not put its weight on the side of the proposed practice by ordering it, does not convert the action of the enterprise into that of the state. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 164, 98 S.Ct. 1729, 1737, 56 L.Ed.2d 185 (1978).

Fulton v. Hecht, 545 F.2d 540 (5th Cir. 1977), is instructive. Fulton involved a greyhound breeder who alleged that the non-renewal of his dog racing contract at Miami’s Flagler Kennel Club constituted state action resulting in an equal protection violation. The state action symbiotic relationship or close nexus was alleged on the basis that Florida regulates the dog racing industry; allocates racing days, thereby creating a monopoly; and shares in revenues gained by the Flagler Kennel Club. The court held that the combination of these three factors was insufficient to constitute a symbiotic relationship. Id. at 542.

In the case at bar any symbiotic relationship between the State of Florida and the appellees is much more distant. The state doesn’t allocate anything to either appellee and does not share in their profits. Only state regulation of appellees is present, and regulation standing alone does not constitute a symbiotic relationship. Jensen, supra.

Similarly, in Fulton, it was not shown that the state^directly or indirectly participated in the decision not to renew the dog racing contract. Therefore, there was not a nexus between the state and the alleged discriminatory activity. Id. at 543. Because it was not shown that the state directly or indirectly participated in the decision to dismiss the appellant from his job, there is no nexus in the case at bar between the state and any alleged discrimination by the appellees.

Even revocation of the appellant’s driver’s license does not provide the necessary nexus between state action and the discrimination alleged. Schreiner’s license revocation came after his first seizure, but he was kept on the job until two more seizures occurred. Any connection between the license revocation and the appellant’s dismissal from his job became so attenuated by the passage of time until appellant suffered two more seizures and was dismissed as to negate any inference of a nexus between the two. No nexus has been shown in this case by the appellant, who bears the burden of clearly showing any discrimination. Lewis v. Mathis, 345 So.2d 1066 (Fla.1977).

Similarly, the fourth source of state action, judicial state action, does not assist the appellant. Although the appellant has sought resolution of his grievance in a state court, neither his actions in doing so nor a court’s rulings constitute the requisite state action. It is clear that “the mere availability of a forum for the resolution of private conflicts does not clothe private litigants with the authority of state.” Henry v. First National Bank of Clarksdale, 595 F.2d 291, 296 (5th Cir. 1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). “To say that an open courthouse door constitutes ‘state action’ is to demean the judicial process.” Girard v. 94th Street and Fifth Avenue Corp., 396 F.Supp. 450, 455 (S.D.N.Y.1975), affm’d., 530 F.2d 66 (2d Cir. 1976), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798. By stating that an open courthouse door constitutes “state action,” it is assumed “that the party whose private suit is challenged as ‘state action’ already has the court on his side before the adjudicatory process even commences.” Henry v. First National Bank of Clarksdale, 444 F.2d 1300, 1310 (5th Cir. 1971), cert. denied, 405 U.S. 1019, 92 S.Ct. 1284, 31 L.Ed.2d 483 (1972), reh. denied, 406 U.S. 963, 92 S.Ct. 2057, 32 L.Ed.2d 351.

It has been held that “the forbidden discrimination need not originate with the state if it is state action that enforces privately originated discrimination.” Moose Lodge, supra, at 407 U.S. 172, 92 S.Ct. 1971; Shelley v. Kraemer, supra. In Shelley, two blacks purchased a parcel of land. Unknown to them was the fact that the land was the subject of a restrictive covenant barring sale of the property to blacks. The Kraemers asked the Supreme Court to enforce the racially restrictive covenant, but the Court refused, finding an equal protection violation based on race. The state action in this case hinged on the fact that the state court had enforced a racially restrictive agreement.

While Shelley, supra, has set up a very general rule for the proposition that judicial enforcement of private rights may, at least in some instances, involve state action, the “contours” and reach of Shelley remain undefined. Edwards v. Habib, 130 App.D.C. 126, 397 F.2d 687, 691 (D.C.Cir.1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969). The reason that the reach of Shelley is so unclear rests in great part on the scarcity of case law. Note, State Action: Theories for Applying Constitutional Restriction to Private Activities, 74 Colum.L.Rev. 655, 677 (1974).

However, it appears that there are basically two types of cases in which state action based solely on the determinations of a state judicial tribunal has been found. The first type of case involves the judicial enforcement of a discriminatory statute. See, Parks v. “Mr. Ford”, 556 F.2d 132, 135-136, n. 6a (3rd Cir. 1977). The second type of case involves cases in which a state court is called upon to enforce the actions of private individuals permitted but not compelled by law. Shelley, supra. Because the instant case does not involve enforcement of a statute but does involve a case of a private company seeking enforcement of its actions permitted but not compelled by law, this case is obviously similar to the second type of judicial state action.

To be sure, some courts have indicated that judicial state action of the second type may only result in cases of racial discrimination. See, “Mr. Ford”, supra, at 136, n. 6a; SMI Industries, Inc. v. Lanard & Axilbund, Inc., 481 F.Supp. 459, 461-463, n. 5 (E.D.Pa.1979). However, we reject that conclusion based on Franklin v. White Egret Condominium, Inc., 358 So.2d 1084 (Fla. 4th DCA 1977). The case is strikingly similar to Shelley, but rather than a racially restrictive covenant, a covenant for age restriction was involved. Franklin received an interest in a Fort Lauderdale condominium which prohibited residency by children under age twelve. The prohibition was in a covenant in White Egret’s Declaration of Condominium. White Egret sued to force Franklin to transfer his interest, because he violated the covenant. The Fourth District Court of Appeal, on a petition for rehearing, specifically stated that when White Egret attempted to invoke the trial court’s powers to force a reconveyance, that “it invoked the sovereign powers of the state to legitimize the restrictive covenant at issue.” Id. at 1089.

The distinguishing point of this type of judicial state action does not lie so much in discrimination based on age. Rather, the factor underlying not only White Egret but other discrimination cases involving judicial state action seems to rest on the fact that the use of the power of the judiciary to compel or legitimize private actions is really state encouragement of forbidden discrimination. A number of commentators and courts have suggested this to be the case. See, Habib, supra, at 692, n. 11. It also appears to be the view in one of the latest state action determinations by the U. S. Supreme Court in Flagg Brothers, supra.

In Flagg Brothers, the Court considered a New York statute that permitted a bailee to enforce a lien on goods entrusted to him, if storage charges on the goods were not paid by’the bailor. After finding that there was no state action under the statute in question, the Court reviewed the possibility that a denial of state judicial relief to the bailee for return of his goods or compensation might result in state action.

A judicial decision to deny relief would be no less an “authorization” or “encouragement” of that sale than the legislature’s decision embodied in this statute.... If the mere denial of judicial relief is considered sufficient encouragement to make the State responsible for those private acts, all private deprivations of property would be converted into public acts whenever the State, for whatever reason, denies relief sought by the putative property owner.

Flagg Brothers, supra, at 436 U.S. 149, 165, 98 S.Ct. 1729, 1738, 56 L.Ed.2d 185 [emphasis added].

The Fifth Circuit Court of Appeals has described to what level state judicial action must rise to become state action. In Henry v. First National Bank of Clarksdale, supra, at 444 F.2d 1300, 1310, it was stated that, “Only after both parties to a private civil action here had their day in court and the court has reached its decision and rendered its judgment does the full power of the state come into play in enforcing the judgment.”

This view comports with the Shelley, Flagg Brothers, and White Egret decisions, because at this point the judicial decision may be characterized as actively encouraging discrimination. In Shelley and White Egret, a decision was sought to force the Shelleys and the Franklins to move from their homes. If the courts had agreed to such an order, it would have been used offensively to force compliance. In Flagg Brothers, as in the case at bar, the court refused to act. See, Flagg Brothers, supra, at 436 U.S. 149, 165, 98 S.Ct. 1729, 1738, 56 L.Ed.2d 185. Considering the totality of the circumstances in this case, it can fairly be stated that state judicial action was not a significant contributing factor in the appellant’s loss of work. The decision in this case neither enforced nor encouraged the act of dismissing the appellant from the appellee’s employ.

We acknowledge the fact that this opinion could be criticized as fostering discrimination by not acting to find an unconstitutional discrimination. Arguably, state judicial inaction could be viewed as state action. That argument deserves consideration in another case with a stronger factual setting where it can be demonstrated that state judicial inaction is truly the foundation or significant contributing factor that encourages discrimination.

However, to view the facts herein in such a manner has the effect of taking Shelley to its logical end by causing any state court decision to act or decline to act to be classified as state action. Such a step, indeed a leap, would cause the concept of state action to become a nullity. It would obliterate the line between private and state actions. “Mr. Ford”, supra, at 162 (Hunter, J., concurring); Fallis v. Dunbar, 386 F.Supp. 1117, 1121 (N.D.Ohio 1974), affm’d., 532 F.2d 1061 (6th Cir. 1976). We have no doubt that such a situation would be contrary to the intent of the framers and adopters of both the U. S. and Florida Constitutions.

Therefore, because this case does not involve state action, the trial court decision dismissing appellant’s complaint is AFFIRMED. However, because the issue of state action is one of great public importance, we certify the following question to the Florida Supreme Court pursuant to Article V, Section 3(b)4, Florida Constitution:

IS THERE A REQUIREMENT OF STATE ACTION, SIMILAR TO THAT OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, THAT MUST BE FOUND TO EXIST PRIOR TO INVOKING ONE’S RIGHT TO SEEK RELIEF UNDER THE FLORIDA CONSTITUTION OF 1968, ARTICLE I, SECTION 2?

2. Arrest &wkey;63.5(5)

Defendant’s behavior, which, taken for its most insidious implications, indicated only that he wanted to avoid police, could not give rise to reasonable suspicion that he was engaged in criminal activity, and thus initial stop of defendant by police was unconstitutional seizure. U.S.C.A.Const. Amend. 4.

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

      . Two other states have constitutional provisions protecting handicapped individuals. The sections are set out below as they appear in the Louisiana and Illinois Constitutions.
      La.Const. art. I, § 3 (1974).
      No person shall be denied the equal protection of the law. No law shall discriminate against a person because of race or religious ideas, beliefs or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.
      The Louisiana Constitution has two sections. “In access to public areas, accommodations, and facilities, every person shall be free from discrimination based on race, religion, or national ancestry and from arbitrary, capricious, or unreasonable discrimination based on age, sex, or physical condition.” La.Const. art. I, § 12 (1974). The second section states, “All persons with a physical or mental handicap shall be free from discrimination in the sale or rental of property and shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer.” Ill. Const, art. I, § 19 (1970).

      . Whether or not epilepsy is a “physical handicap” within the scope of Article I, Section 2 of the Florida Constitution, is a question not ruled upon by the trial judge nor briefed by the parties. At least one court has stated that whether one is handicapped in the instance of particular employment turns on the character of the disability in relation to the requirements of the job. Advocates for Handicapped v. Sears, Roebuck & Co., 24 Ill.Dec. 272, 67 Ill.App.3d 512, 385 N.Ed.2d 39 (1978), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979). For a further explanation, see Carson, What Public Employers Should Know About Laws Protecting the Handicapped From Hiring Discrimination, 55 Fla.B.J. 723, 724-725 (1981).
      “Epilepsy” is a medical term for brain disease occurring in paroxysms at uncertain intervals. Hall v. State, 248 Ala. 33, 26 So.2d 566, 569 (1946). It is characterized by seizures, convulsions or a temporary loss of consciousness. People v. Martin, 69 Ill.App.2d 12, 216 N.Ed.2d 170, 172 (1966): see also, People v. Thompson, 3 Ill.App.3d 684, 278 N.E.2d 1, 4 (1972). Whether epilepsy is a “physical handicap” is an issue we do not reach. For the purposes of this appeal, we shall assume epilepsy is a physical handicap within the scope of the Florida Constitution.

      .Count III of Schreiner’s complaint was voluntarily dismissed, and therefore, it does not play a role in our decision today. Schreiner alleged therein that he was not permitted by McKenzie Tank Lines to reapply for his job due to his handicapped condition. This situation occurred after the enforcement provisions of § 23.161, Florida Statutes, et seq., became effective.

      . Article I, Section 1, of the Pennsylvania Constitution, states that: “All men are bom equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”

      . Courts have differed in their approach to the interpretations to be accorded to .state constitutional clauses parallel to the Fourteenth Amendment. For example, Connecticut’s view is that Article I, Section 1 of the Connecticut Constitution and the Fourteenth Amendment are of the same meaning and create similar limitations. State v. Anonymous (1972-1), 29 Conn.Supp. 333, 287 A.2d 111 (1972).
      Indiana’s view is that rulings under the Fourteenth Amendment are only persuasive as to rulings on parallel provisions of the Indiana Constitution. Dept. of Insurance v. Schoonover, 225 Ind. 187, 72 N.E.2d 747 (1947); see also, Bulova Watch Co. v. Brand Distributors of North Wilkesboro, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974) (similar view in North Carolina). Alaska’s Supreme Court has stated that it is under a duty to provide greater protection under Article I, Section 1 of the Alaska Constitution than would be available under the parallel federal provision. Breese v. Smith, 501 P.2d 159, 167 n. 30 (Alaska 1972).

      . The Connecticut Constitution states that: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex.” Art. I, § 20, Conn.Const.

      . It will be recalled that “physical handicap” was not added to this sentence until 1974. Although not added to Article I, Section 2, until that date, there is no evidence to indicate that any change was intended in the interplay between the first and second sentences of the section. The second sentence specifically names certain suspect classes.

      . Our opinion does not reach the issue of whether there are other unspecified suspect classes or fundamental interests applicable to Article I, Section 2.

      . While we rely heavily in this opinion on constitutional precedent from the U. S. Court of Appeals for the Fifth Circuit, we recognize that Florida is now in the eleventh circuit effective October 1, 1981. However, in a recent opinion of the eleventh circuit that court announced that it would be guided by fifth circuit precedent until altered by an en banc hearing of the eleventh circuit. See Bonner v. City of Pritchard, Alabama, 661 F.2d 1206 at 1207, 1208-1209 (11th Cir. 1981).

      .Although Jackson relied on the close nexus approach, we acknowledge the fact that the Court did not recede from or overrule the symbiotic relationship test.

      . In an opinion by the Florida Supreme Court in White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979), reh. denied (1980), the results reached by the Fourth District Court of Appeal were affirmed, but the Court did not mention the state action discussion in the District Court’s opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Kelvin David McCLAIN, Appellant, v. STATE of Florida, Appellee.
    No. YY-243.
    District Court of Appeal of Florida, First District.
    Jan. 12, 1982.
    Michael Allen, Public Defender, and Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, and Todd Foster, Legal Intern, for appellee.
   SHIVERS, Judge.

McClain pled no contest to a charge of possession of a firearm by a convicted felon, preserving his right to appeal the trial court’s denial of his motion to suppress the weapon. Because McClain is correct that the firearm was unlawfully seized, we reverse his conviction.

A Jacksonville sheriff’s detective was patrolling in his unmarked car through the west side of the city in the early afternoon when he noticed McClain and a companion. The pair had walked out of a store but then turned around and entered it again. The detective later said he thought he might have “spooked them,” so he radioed for assistance and two officers in another car responded. Meanwhile, McClain and his companion emerged from the store and started walking down the sidewalk on the detective’s side of the street, approaching him. But before they reached him, they crossed the street and continued on the other sidewalk. The officer said this action “gave me the impression they were avoiding me,” and that “at this time I really thought they were up to something.”

The detective maneuvered his car behind them, and the backup police car fell in behind him. By this time, the officer said, the pair was walking “briskly ... at a pretty good pace.” When they rounded a corner, the detective sped ahead and pulled up in front of them. The two reversed direction and re-rounded the corner, where they were met by the backup officers. An eventual search of McClain revealed the gun on which his conviction was based.

In this appeal, McClain urges that the weapon should have been suppressed because the initial stop was improper or because the subsequent detainment and search were improper. We find reversible error was committed on the first point, so we will not address the remaining issues.

Initially the state argues that the incident did not amount to a “police stop” but was merely an “encounter” which does not- call up the protection of the Fourth Amendment. See United States v. Wylie, 569 F.2d 62 (D.C.Cir.1977); State v. Cahill, 388 So.2d 354 (Fla.2d DCA 1980). The detention of a citizen does not take on constitutional dimension unless “in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). However, in view of the fact that the officers stalked these suspects, headed them off at the pass and rounded them up, the state’s argument is without merit. It is cléar that the officers’ action “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” 446 U.S. at 552, 100 S.Ct. at 1876, quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). In short, there was a seizure here.

To sustain their stop of McClain the officers were required to have a reasonable suspicion — well founded, articulable and based on objective facts — that he was involved in criminal activity. See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). See generally Robinson v. State, 388 So.2d 286 (Fla. 1st DCA 1980). However, the detective here said he stopped McClain and his companion only because they seemed to be avoiding him. We hold that under the circumstances of this case, McClain’s behavior which, taken for its most insidious implications, indicated only that he wanted to avoid police, could not give rise to a reasonable suspicion that he was engaged in criminal activity. Although we know of no case in which a court has been asked to decide if “pure police avoidance behavior” may justify stop, our decision today is in accord with other opinions which hold that more than a “bare suspicion” of criminal activity is required. See Coladonato v. State, 348 So.2d 326 (Fla.1976); Stanley v. State, 327 So.2d 243 (Fla. 2nd DCA 1976); Vollmer v. State, 337 So.2d 1024 (Fla. 2nd DCA 1976); Parker v. State, 363 So.2d 383 (Fla. 3rd DCA 1978).

Accordingly, judgment and sentence are REVERSED.

ROBERT P. SMITH, Jr., C. J., and McCORD, J., concur.


author: McCORD, Judge.

text:
    Arthur Hayes BURWICK, Appellant, v. STATE of Florida, Appellee.
    No. YY-293.
    District Court of Appeal of Florida, First District.
    Jan. 12, 1982.

      Michael Allen, Public Defender, Melanie Ann Hines and Alan Chipperfield, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Burwick appeals his conviction and sentences on charges of sexual battery and burglary with assault. We reverse and remand.

Burwick contends that the trial judge committed reversible error by admitting testimony by two policemen who stated they had asked him shortly after the arrest “if he would like to make a statement . . . and he said he did not” and that a police interview had ended “when the defendant said that he wanted to talk to a lawyer.” We agree. See Marshall v. State, 393 So.2d 584 (Fla. 1st DCA 1981), and cases cited therein.

The trial judge admitted this evidence by relying on Greenfield v. State, 337 So.2d 1021 (Fla. 2d DCA 1976); remanded without opinion, 364 So.2d 885 (Fla.1978), in which the second district held that a prosecutor in closing argument may comment on a defendant’s request for an attorney and his desire to remain silent because they indicate he was not insane. As in Greenfield, the appellant here pled not guilty by reason of insanity.

We disagree with the ruling in Greenfield that when the defense of insanity is raised, evidence of the defendant’s exercise of his right to remain silent thereby becomes admissible. The Greenfield opinion cited as authority Parkin v. State, 238 So.2d 817 (Fla.1970), quoting, and relying on, the broad language that “if the statutes and case law permit a defendant the privilege of raising [an insanity defense], he must waive certain constitutional rights with respect to it, including the privilege against self-incrimination.” That statement was made, however, only in the context of the circumstances presented in that case. It did not involve, as here, the admissibility of testimony of the defendant’s exercise of his right to remain silent. There the question was whether a defendant who pleads insanity could then exercise her right to remain silent and refuse to answer a court-appointed doctor’s questions regarding her mental status or medical history. This is unrelated to the question presented here.

Greenfield also referred to Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), to support its position that the protection required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), should not preclude the state from introducing relevant evidence to rebut an insanity defense. However, Harris and its forebearers were concerned with defendants who commit perjury and then call upon their constitutional rights in an attempt to exclude proof of that perjury. We have no such situation here.

Burwick is also correct that he should have been allowed to ask a state witness on cross examination if he had been involved in a romantic relationship with the victim. Unfortunately, the judge did not permit the witness to respond to the question during a defense proffer, so neither we, nor the trial court, can determine whether the answer would include evidence of specific instances of sexual activity by the victim, excluded by Section 794.022(2), Florida Statutes (1979). The question as asked goes to the bias and credibility of the witness and is a proper question. The answer, however, could be inadmissible as a violation of the statute.

We find no merit to Burwick’s contention that there was a discovery violation; the trial judge comported with the requirements of Richardson v. State, 246 So.2d 771 (Fla.1971). We also find that the judge did not err in entering judgment and sentence on both charges; the state’s pleadings and proof were sufficient to establish two separate crimes. Finally, we reject Burwick’s attack on the constitutionality of Section 947.16. See Arnett v. State, 397 So.2d 330 (Fla. 1st DCA 1981).

Accordingly, this cause is reversed and remanded for a new trial.

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

      . “The shield provided by Miranda cannot be perverted into a license to use perjury . . .” 401 U.S. at 226, 91 S.Ct. at 646 (otherwise inadmissible testimonial evidence may be introduced for impeachment purposes). Cf. Walder v. U. S., 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (otherwise inadmissible physical evidence may be used for impeachment). And cf. Dennis v. U.S., 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) (person who furnished false information to the government cannot defend on the ground that the law requiring the information was invalid) with United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1979) (person who furnished false information to the government cannot defend on the ground that the law requiring the information violated his right against self-incrimination).


author: WILLIS, BEN C., Associate Judge.

text:
    Woodrow TUFF, Jr., Appellant, v. STATE of Florida, Appellee.
    No. ZZ-371.
    District Court of Appeal of Florida, First District.
    Jan. 12, 1982.

      Michael Allen, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   WILLIS, BEN C., Associate Judge.

The appellant was defendant in the trial court on a charge of armed robbery of a convenience store on July 14,1980 in Duval County. He was found guilty as charged, and thereupon was adjudged guilty and sentenced to seventy-five years imprisonment, with the Court retaining jurisdiction over one-third of the sentence. Appellant will hereafter be referred to as “defendant.”

Prior to trial, defendant filed several pleadings involving attempts to suppress certain evidence, including evidence of statements made by him following his arrest. A hearing on the motions was held on November 14, 1980, when testimony was received from Detective Kearney and Officer Wilson of statements made by defendant, and the voluntariness of those statements. No ruling on the motion to suppress was made on the record immediately following this hearing, and the case was passed to a later date. On November 21, 1981 the Court made a written notation of the word “denied” on the motion. A trial jury was selected on December 15,1980, but was not sworn until December 17, 1980, when it was convened to hear testimony. Evidence was received including testimony of Officer Kearney, regarding the voluntar-iness of defendant’s statement. The Court then denied the motion to suppress the statement, and in overruling defendant’s objection stated that it had “already ruled it’s an admissible statement.”

The evidence at the trial shows that an armed robbery occurred just prior to 11:00 o’clock in the evening of July 14, 1980 at a Lil Champ convenience store. At that time, a Ms. Laura Denise Mette, the only employee of the store in attendance, was preparing to close up when a black man walked in, pointed a gun at her and directed her to “put the money in the bag.” The robber was wearing a brown knit turtle-neck sweater or shirt, and there was a blue towel around his neck and shoulders as a partial mask. Ms. Mette was in the process of gathering the store receipts to comply with the robber’s directions when a car pulled up to the store and a customer came in. The robber then hid behind a door to the bathroom while Ms. Mette waited on the customer. The customer remarked that Ms. Mette was “as white as a sheet,” and he asked her what was the matter. No reply was given, and the customer left after he was served. The robber then came out, gathered up the money, estimated by Ms. Mette to be something over $150, and also taking Ms. Mette’s change purse with all of her identification, left the store, stating to Ms. Mette “If you identify me I’m going to come back and get you.”

The customer, a Mr. Fee, lived next door to the store. He was driving past the store at about 10:50 P.M. on the date of the robbery when he noticed a Cadillac pull in front of the complex in which he resided, and observed two black males exit the car and walk to the side of the store. He became suspicious and made a U-turn to drive up to the store. He knew Ms. Mette as an employee there, and recognized her as she was working behind the counter. He noticed that a young man was using a telephone outside the store. He observed Ms. Mette as being “white as a sheet” and not responsive, but kept glancing toward a storeroom or closet door. When he left the store, he made note of the first three letters of the Cadillac’s license tag, namely, “SBS.” He then went to his apartment and called the police. Ms. Mette locked the front door, and also called the police. Mr. Fee returned to the store, saw Ms. Mette in tears behind the counter. She refused to open the door until Deputy Sheriff Toohey arrived a few minutes later. The deputy received a description of the robber from Ms. Mette, and from Mr. Fee obtained the first three letters of the tag number on the Cadillac he had observed. The deputy relayed the information to the radio dispatcher. Responding officers soon stopped a Cadillac which fit the description which had been broadcast. In it were the defendant driving, and a juvenile black male as a passenger. The first officer to spot the vehicle was a Sergeant Johnson, of the Sheriff’s Office, who noticed it when it was about two miles from the store which had been robbed. Sergeant Johnson was then winding up his evening shift, which terminated at 11:00 P.M. He did not participate in the arrest of the occupants of the Cadillac. As he was going off duty, the further handling of the matter was done by Deputy William Wilson and other officers who came into the investigation. When he arrived, Wilson directed everyone to stand clear of the vehicle until an evidence technician arrived. Though he was one of the arresting officers, Wilson did not advise defendant of his rights, but transported the juvenile, who had been a passenger in the car, away from the scene.

There were found in the car, a paper bag which contained $167 and a small pop-open purse with a few cents; three towels, one of which was blue; two sweaters, one of which was brown; and a lady’s purse.

Both of the suspects were taken to the store of the robbery, where defendant was identified by Ms-. Mette as the person who had robbed her. This occurred approximately ten or fifteen minutes after the robbery. Mr. Fee was only able to identify the juvenile as the person he saw using the telephone outside the store.

Officer Wilson did not interrogate the defendant. After the arrest was made, Wilson prepared and completed a vehicle impoundment storage report on the Cadillac, with the hold on it for robbery. He explained to defendant the purpose of the report, told him he would give him a copy, that the car was going to be stored with a hold on it for robbery, and that he needed defendant’s signature on the impounding sheet. He further explained that the signature was not saying he was guilty or anything like that, but was information as to who was storing the car, the wrecker service, and where it was being taken. Defendant replied that he didn’t want to sign anything and that he wanted a lawyer. Officer Wilson replied that that was “fine” and noted on the report “refused his signature” at the spot where there was a place for a signature.

Detective P. H. Kearney was one of the officers called to the arrest scene, and later he interviewed defendant in the robbery office at the police station. The officer advised defendant of his rights, including the right to have an attorney at any time that he wished. No request was made by defendant for an attorney. Defendant stated that he had been riding around, and as he needed money he decided to rob the Lil Champ, and that his stepson, who was in the car with him, had nothing to do with the robbery and didn’t know there was or had been a robbery. He gave some details of the robbery, which were consistent with the accounts of Ms. Mette and Mr. Fee. This interview was not recorded, but the officer was allowed to testify as to what was said. The defendant stated that the officer told him he was in serious trouble, that the officer knew he had committed the robbery, and that he was going to get the stepson sixty years. The officer denied making these threats.

Defense witnesses included defendant’s wife and his girl friend. The latter testified she had been with defendant from 10:15 to 10:40 P.M. at a restaurant. The wife testified the defendant and her son left the house where they were living on the evening of July 14. Defendant testified that he made arrangements to meet his girl friend for the purpose of breaking off their relationship, and after leaving her he drove away and was soon afterward stopped by police. Defendant denied ever having worn a shirt or sweater, or having owned a gun like those introduced in evidence and which had been identified by Ms. Mette as having been on and with the defendant at the robbery.

Over strenuous objections of the defense, the State was allowed to present two rebuttal witnesses, each of whom testified that defendant had committed a robbery on them at Shoe City on July 2, 1980, and that he was wearing the brown shirt or sweater which was in evidence, and used the blue towel, also in evidence, to partially cover the gun used in the robbery. Both identified the handgun in evidence as having been the weapon used in the robbery of them.

The defendant contends the trial Court erred in allowing the State to present testimony of his alleged confession, because there was no express finding by the trial judge that the confession was voluntary, and also because he did not waive the right to have counsel present during the interrogation. He also claims error in permitting the State to use the rebuttal evidence which was presented, because of failure to give notice of intent to rely on the Williams [v. State, Fla., 110 So.2d 654] case type of evidence, and also because it involved evidence of another crime which was irrelevant to the case being tried. We affirm.

Turning to the reception of evidence of the confession, we first dispose of the point of a lack of express finding by the trial Court that the confession was given voluntarily. The judge made a written notation that the motion to suppress was denied, and later overruled an objection to the admission of testimony of the statement given, remarking that he had previously ruled the statement was admissible. It is abundantly clear that there was a sufficiently definite finding by the Court that the confession was voluntary. The very basis of the motion to suppress was a contention that it was involuntary, and conflicting evidence was presented on the issue. The denial of the motion and reception of the evidence, together with the notation of the motion and the remark of the judge, express unequivocally a requisite finding of voluntariness. The case of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) requires that there be a reliable clear-cut determination of voluntar-iness of a confession, including resolution of disputed facts with regard to voluntariness. In Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed. 593, it was held that the judge need not make formal findings of fact or write an opinion but “his conclusion that the confession is voluntary must appear with unmistakable clarity.” Defendant relies upon McDole v. State, Fla.1973, 283 So.2d 553 to support his contention that there was an inadequate finding of volun-tariness by the Court in this case. It was held there that a trial judge’s statement that a motion to suppress confessions “will be denied” together with a statement that the same evidence may be presented to the jury on the issue of voluntariness, did not sufficiently indicate that the judge had made the required determination that the confessions were voluntarily given before allowing them to be considered by the jury. However, the Court there also held that even if the Court had found voluntariness, such finding would not have been supported by the evidence. The Court set forth an abundance of evidence to show flagrant coercion in obtaining the confessions. In the later case of Wilson v. State, Fla.1974, 304 So.2d 119, the Court held that a denial of a motion to suppress was a sufficient finding of voluntariness when there was no contention or attempt made to espouse a theory of coercion, brutality or involuntariness. In Peterson v. State, Fla. 2nd DCA 1979, 372 So.2d 1017, the Court considered the statement by the Court, upon denying a motion to suppress, that it had “considered the totality of the circumstances and the testimony in the proffer,” as a sufficient finding of voluntariness, and that such appeared on the record with unmistakable clarity. The Court certified to the Supreme Court the question:

“Where the voluntariness of a defendant’s statement has been challenged and coercion has been alleged, must the trial judge specifically state on the record that he finds the statement to be voluntary before permitting the confession to be submitted to the jury?”

On review by the Supreme Court, it was set forth the great confusion and conflicts that had arisen on this point among the appellate decisions. It held that the lower court had correctly answered the question in the negative. The rule was recognized of the necessity that the record show with unmistakable clarity that the trial judge found that the statements were voluntary, but also stated that failure of a trial judge to recite conclusory findings of voluntariness were not fatal when the record does show “with unmistakable clarity” that the trial judge understood his responsibilities, and properly fulfilled them. Peterson v. State, Fla.1980, 382 So.2d 701.

We deem the record here shows with unmistakable clarity that the issue of vol-untariness was squarely before the Court on the motion to suppress, and that the rulings made and expressed constituted a finding of voluntariness before the evidence was presented to the jury.

The defendant further asserts that as he had indicated to Officer Wilson a desire to see a lawyer, that the interrogation by Officer Kearney was improper under the rulings of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). This case holds that when an arres-tee requests counsel “the interrogation must cease until an attorney is present.” The case discusses the Miranda rights and the effect of an accused validly waiving his rights and giving response to interrogation. However, it observed that additional safeguards are necessary when the accused asks for counsel. The definitive holding in the case is contained in the following language:

“. . . and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.”

In the Edwards ease, the accused was arrested on robbery, burglary and murder charges. He was informed of his rights and then he gave a statement denying involvement, and presented a claim of alibi. He then sought to “make a deal” but added he wanted to speak to a lawyer before doing so. The questioning ceased and accused was taken to jail. The next day two detectives visited him in jail, and were told by the accused he didn’t want to talk to anyone. He was again advised of his rights, but he heard a taped statement of an alleged accomplice. He then gave an oral statement implicating himself in the crime. The Court ruled that as Edwards had expressed a desire to deal with the police only through counsel, he was not subject to further interrogation until counsel had been made available to him.

We do not view Edwards as mandating that a desire to consult a lawyer, expressed by an accused in custody but with regard to a matter unrelated to interrogation, renders wholly unlawful a subsequent interrogation by another officer who does explain in proper and adequate manner the Miranda rights. The statement of defendant of a desire for counsel was to Officer Wilson, who was not interrogating defendant but only consulting him about the impoundment storage report involving defendant’s vehicle. It was in seeking his signature to the report that defendant expressed an unwillingness to sign, and mentioned a desire for legal advice. It is also significant that he refused to sign a written acknowledgement of a waiver of rights in the interrogation, but nevertheless made the statements to Officer Kearney, after being informed of his rights, including the right to have counsel present at interrogation. There is a sharp dispute in the testimony of Officer Kearney and the defendant, with the latter claiming some threats were made with reference to the stepson, and further that defendant did not admit guilt. These disputes of fact were resolved by the trial judge, and also were submitted to the jury. Furthermore, it does not appear that Officer Kear-ney was aware of the mention of a lawyer to Officer Wilson.

Edwards deals with a case in which the desire for a lawyer arose in connection with interrogation and after such had commenced. In the case before this Court, there was no interrogation involved at the time defendant mentioned a lawyer, and the reference was confined to the signing of a document pertaining to handling of defendant’s vehicle. We do not find Edwards to be applicable here.

The last point is the claim of error in allowing the State to introduce rebuttal evidence of two witnesses who identified defendant as having committed an armed robbery on them on July 2, 1980, and also identified the brown turtle-neck sweater, the blue towel and the pistol which were in evidence as having been worn or used by defendant in the earlier robbery. The State contends the evidence was rebuttal to defendant’s testimony.

The “Williams Rule,” established in Williams v. State, Fla.1959, 110 So.2d 654, states that similar fact evidence is admissible if relevant to a fact in issue, even though it points to the commission of a separate crime, subject to the exception that it is inadmissible if its sole relevancy is to establish bad character of the accused. It is deemed relevant if it tends to establish a plan, scheme, or design, or to identify defendant, or to demonstrate a plan or pattern followed by defendant in committing the type of crime charged in the case being tried.

Section 90.404(2), Florida Statutes, 1979, sets forth the pertinent rule of evidence involved here. It states, in pertinent part, as follows:

“(2) Other Crimes, Wrongs or Acts
(a) Similar fact evidence of other crimes, wrongs or acts is admissible when relevant to prove a material fact in issue, such as proof of ... preparation, plan, .. . identity ... but it is inadmissible when the evidence is solely to prove bad character or propensity.
(b) 1 When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a), no fewer than 10 days before trial, the state shall furnish to the accused a written statement of the acts or offenses it intends to offer . . . No notice is required for evidence of offenses used for impeachment or on rebuttal. (Emphasis supplied.)

We are of the view that the trial court properly admitted the evidence. It was relevant to impeach defendant’s credibility and to rebut his testimony of his unfamiliarity with the sweater, towel and gun in evidence. It also was relevant under the principles of the Williams Rule and the statute to establish identity of the accused and his method of operation.

As this evidence was used for impeachment and for rebuttal, there is no requirement of notice to defendant by the State of intent to offer such evidence.

We find the rulings of the trial Court, which have been challenged here, are in accordance with law, and no reversible error has been shown.

Judgment affirmed.

ROBERT P. SMITH, Jr., C. J., and MILLS, J., concur.


author: PER CURIAM.

text:
    Samuel E. STEPHENSON, Appellant, v. Dorothea C. STEPHENSON, Appellee.
    No. AC-448.
    District Court of Appeal of Florida, First District.
    Jan. 12, 1982.
    Barry L. Zisser of Zisser, Robison, Spohrer, Wilner & Harris, P. A., Jacksonville, for appellant.
    Joseph M. Glickstein, Jr., Jacksonville, for appellee.
   PER CURIAM.

The husband appeals the trial court’s order denying his petition for modification of alimony payments. We affirm.

The parties were divorced by final decree entered on March 18, 1970. The decree provided the husband would pay, during his life, $675.00 each month for the wife’s support and maintenance. At the time of the divorce, the husband earned $40,000 per year. The wife was not employed.

On February 6, 1980, the husband petitioned for modification asserting he had just entered private medical practice and that his wife was now employed and earning $13,000 per year. On January 21, 1981, the trial court entered an order denying the petition for modification holding the parties failed to establish cause for modification and that the parties waived their right to modification under the dictates of Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946).

Section 61.14, Florida Statutes (1979), provides the parties have the right to seek modification of a final dissolution decree. This right, however, is subject to intentional or implied waiver. Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980); Fireman’s Fund Insurance Co. v. Vogel, 195 So.2d 20 (Fla. 2d DCA 1967). In Lee, the parties agreed the husband would, “during his life” pay alimony based upon a complicated schedule which varied with the husband’s ability to produce income. Based on the entirety of the circumstances, the court noted the only logical construction of the stipulated settlement was that the parties had “forever settled” the amount the wife would receive.

This emphasis on the totality of the circumstances was underscored in Turner, supra, at 704, where the court noted the Lee opinion “does not indicate that the agreement before the court contained a clearcut waiver; however, the court found that the totality of language pointed toward an intent to waive.” We have reviewed the record and have found no evidence of an agreement to waive or conduct which would imply a waiver. The order, however, also specifies there was no change of circumstances which could justify a modification. We agree and note particularly that the wife should not be faced with the prospect of losing her right to alimony simply because she began earning a modest income. Mosher v. Mosher, 321 So.2d 450 (Fla. 2d DCA 1975). Accordingly, the trial court’s order is AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and SHAW and JOANOS, JJ„ concur.


text:
    Thomas G. HIGGINS, Appellant, v. Anne E. HIGGINS, Appellee.
    No. AC-480.
    District Court of Appeal of Florida, First District.
    Jan. 12, 1982.

      William D. Barrow, Law Offices of Barrow & Holley, Crestview, for appellant.
    Charles J. Kahn, Jr., Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellee.
   PER CURIAM.

In 1976, Thomas, a Navy captain, and Anne were divorced following a 20 year marriage. The judgment awarded her $1,000 monthly alimony, possession of a home in New Jersey, custody and child support. It divided responsibility for the bills. After a history of noncompliance resulted in a garnishment of his pension, Thomas petitioned for a reduction in alimony, alleging that Anne was better able to support herself and that he was less able to support himself. The day before the hearing below Thomas deeded his share of the marital home to Anne in satisfaction of over $43,-000 in alimony arrearages. The trial court found a substantial change in circumstances and made a new alimony award of $800 monthly. We affirm.

Two issues which are raised on appeal require discussion. First the propriety of considering a military pension as an asset for purposes of alimony after McCarty v. McCarty, -U.S. -, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), and second the correctness of the award under the standard of need and ability as expressed in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

In the well publicized McCarty case the U.S. Supreme Court held that a military pension was not community property subject to distribution by a state divorce court. The court did not hold that a pension was an asset which could not be drawn on to provide support for the ex-spouse and children. Indeed, as noted in McCarty, Congress has provided for the garnishment of military wages and pensions for just such support, 42 U.S.C. §§ 659, 662. It is clear that the needs of national defense, as seen by Congress, do not require state courts to avoid all use of military pensions in support cases. The McCarty ruling does not prohibit a state divorce court from considering military pensions in support proceedings.

The primary purpose of permanent periodic alimony is “to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.” Canakaris, 382 So.2d at 1201. Permanent periodic alimony is used to provide support within the meaning of McCarty, so there is no violation of McCarty when a Florida court awards permanent periodic alimony after consideration of a military pension as an asset of and property of the retiring spouse. Accord, In re Marriage of Jones, 309 N.W.2d 457 (Iowa 1981).

The factors to be considered in an award of alimony are fully expressed in Canakaris. Anne’s testimony as to her needs supports a finding that an award of permanent periodic alimony is not an abuse of discretion. Additionally, Thomas has considerable earning potential. No abuse of discretion was present in the award of $800 monthly permanent periodic alimony.

No abuse of discretion is present in the remaining points on appeal and cross-appeal and they do not require discussion. The judgment is AFFIRMED. Anne Higgins’ petition for appellate attorney’s fees is GRANTED and the cause REMANDED for determination of the appropriate amount.

ERVIN, BOOTH and THOMPSON, JJ„ concur.


text:
    The STATE of Florida, Appellant, v. Lloyd GARMISE, Appellee.
    No. 78-2185.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 12, 1982.

      Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., and Janet Reno, State Atty., and Arthur Joel Berger, Asst. State Atty., for appellant.
    Roy E. Black and Frank C. Furci, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   ON REMAND

PER CURIAM.

This appeal is before us on remand from the Florida Supreme Court. The order under review is a trial court order granting a criminal defendant’s motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850 and ordering a new trial on the ground that the defendant was denied effective assistance of counsel at trial. We have previously reversed this order on the basis that the defendant was represented at trial by privately retained counsel of his own choice, which, under the then established law, precluded him from collaterally attacking his criminal conviction based on a claim of ineffective assistance of counsel. State v. Garmise, 382 So.2d 769 (Fla. 3d DCA 1980). Subsequently, the Florida Supreme Court held that ineffective assistance of a defendant’s privately retained counsel constituted a valid ground for collateral attack of a criminal conviction under Fla.R.Crim.P. 3.850. Vagner v. Wainwright, 398 So.2d 448 (Fla.1981). Following that decision, the Florida Supreme Court in the instant case has, quite properly, reversed, upon certiorari review, our prior contrary decision and has remanded the cause to this court for reconsideration in the light of the Vagner case. Garmise v. State, 398 So.2d 819 (Fla.1981). In compliance with that mandate, we conclude, as required by Vag-ner, that the order under review setting aside the defendant’s conviction and awarding a new trial must be sustained if the defendant was denied effective assistance of counsel at trial, which result is not changed by the fact that said counsel was privately retained. Indeed, this result is in accord with a pre- Vagner decision of this court which itself receded from Garmise. Blatch v. State, 389 So.2d 669 (Fla. 3d DCA 1980).

The Florida Supreme Court in Knight v. State, 394 So.2d 997 (Fla.1981), states the established law with respect to a claim of ineffective assistance of counsel as a ground for collateral attack relief under Fla.R.Crim.P. 3.850 as follows:

“In determining whether defendant has been provided with reasonably effective assistance of counsel, we believe the following four-step process encompassed in United States v. DeCoster (DeCoster III), 624 F.2d 196 (D.C.Cir.1979) (en banc), provides a means to discover a true miscarriage of justice and yet does not place the judiciary in the role of interfering with defense counsel’s legal and tactical conduct at trial or on appeal. We adopt the following four principles as a standard to determine whether an attorney has provided reasonably effective assistance of counsel to his client.
First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. As was explained by Judge Leventhal in DeCoster III: ‘To be ‘below average’ is not enough, for that is self evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel’s acts or omissions deviated from a checklist of standards.’ 624 F.2d at 215. We recognize that in applying this standard, death penalty cases are different, and consequently the performance of counsel must be judged in light of these circumstances.
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions, (footnote omitted).
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. This opportunity to rebut applies even if a constitutional violation has been established. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); DeCoster III” Id. at 1000-01.

Turning to the instant case, we have no problem in sustaining the order under review on the basis of the Knight decision, as, in our view, the defendant was not afforded effective assistance of counsel at trial. In particular, we are persuaded that counsel’s failure to call as a defense witness at trial Dr. Charles Garrett, the Dade County Deputy Chief Medical Examiner, constituted a substantial and serious deficiency measurably below that of competent counsel, which, in turn, prejudiced the defendant to the extent that there is a likelihood that it affected the outcome of the proceedings. Dr. Garrett went to the homicide scene in the instant ease, examined the deceased and the entire homicide scene, and was prepared to give testimony that supported the defendant’s claim at trial that he killed the deceased in self defense. As this was an exceedingly close case on the issue of self defense, it is our view that Dr. Garrett’s testimony might very well have tipped the scales in the defendant’s favor. In addition, no reason, tactical or otherwise, was ever given below for defense counsel’s failure to call this witness.

We express no opinion, however, on the plethora of other asserted errors committed by defense counsel below — although we confess to being disturbed, as was the trial court, with the apparent total lack of preparation by counsel for the instant trial. In any event, the trial court was eminently correct in entering the order under review which is hereby,

Affirmed.


author: HENDRY, Judge.

text:
    LIZA DANIELLE, INC., a Florida corp., d/b/a Shoes R US and Joseph Moriber, as Agent and Attorney-in-Fact for all the Beneficial Owners of Land Trust No. 5000018 wherein City National Bank of Miami is Trustee, Appellants, v. JAMKO, INC., a Florida corp., d/b/a Shoe Bazaar, Appellee.
    Nos. 80-2115, 80-2125.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 9, 1982.

      Abramson, Sazant, Diamond & Schwartz and Paula L. Schwartz, North Miami Beach, Meyer, Weiss, Rose, Arkin, Shampanier, Ziegler & Barash, Miami Beach, Julio C. Alonso, Miami, and Frederick J. Damski, Miami Beach, for appellants.
    Howard W. Mazloff, Coral Gables, for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

By these consolidated appeals we are asked to review a final judgment of permanent injunction entered against appellants in the circuit court. Because the facts of this case fail to satisfy the rather strict legal requirements necessary to obtain a remedy other than that available in an action at law, we hold that the injunction was improvidently entered against appellants, and reverse.

Plaintiff-appellee Jamko, Inc., d/b/a Shoe Bazaar (“Jamko”), entered into a lease with appellant Joseph Moriber for space in a warehouse merchandise mart. The lease provided that lessee, Jamko, would use the premises solely for operation of a retail shoe store and contained the following “exclusivity” clause which is at the heart of this legal controversy: “Lessor shall not lease any other space in the warehouse to a retail shoe store.” Subsequent to Jamko’s entering into possession of the leased premises, a second warehouse building was constructed on the property, and one and a half years after Jamko executed its lease, appellant Liza Danielle, Inc., d/b/a Shoes R Us (“Danielle”), signed a lease for space in the second building and, some four months later, commenced operation therein as a retail shoe store. Jamko brought suit seeking equitable relief and damages for injuries which it alleged were “immediate, continuing and irreparable,” resulting from the lease to Danielle in contravention of Jam-ko’s exclusive rights under its lease.

A non-jury trial was had at which the proofs centered around the issue of whether the exclusive provision was intended to apply to the second building, and the related inquiries as to what damages Jamko had suffered and what were its appropriate remedies. The court entered its final judgment of permanent injunction which provided, in summary, that: (1) Moriber be permanently enjoined from leasing any portion of the “Lakes Merchandise Mart located on N.W. 19th Street and East of State Road No. 7 (U.S. # 441)” as a retail shoe store; (2) Danielle be similarly enjoined from operating a retail shoe store; (3) City National Bank of Miami’s motion for involuntary dismissal be granted; (4) plaintiff failed to prove its claim for damages; and (5) plaintiff recover its costs from defendants in the amount of $337.75.

The court’s conclusions as to the legal issues underlying the injunctive order are set forth in the following excerpt from the trial transcript:

“I want to tell you what my ruling is and how I reached the conclusion. As to the question of damages, I don’t think they have been established with sufficient particularity. It’s difficult. They don’t have to be proven with exactness, but they do have to be established with some degree of certainty. I don’t think it’s possible for this Plaintiff to have accomplished it because, as has been pointed out by [counsel for Moriber] there are lots of factors that go into shopping center businesses, and those factors are just difficult, if not impossible, to correlate to the point where you can develop loss of business in a shopping center with that degree of certainty.
I think the law requires — I don’t think your remedy at law is adequate, and I think you’re entitled to one.
I think this clause that gives them the exclusive right to sell shoes applies to Warehouse West and Warehouse East.
Now, it’s difficult for me to reconcile the fact that the two leases — that both say Warehouse Lease. The lease to the Plaintiff and the lease to Liza Danielle are both headed Warehouse Lease.
Now, it would seem consistent in the first lease, if there was no contemplation of the construction of Warehouse East, to have simply said in the attached addendum, Warehouse. It’s a warehouse lease with a warehouse diagram; why Warehouse West, if it wasn’t within somebody’s contemplation at that time that there would be a Warehouse East?
I think that the testimony, credible testimony, the believable testimony, the testimony that is most consistent establishes that when this lease was prepared, it was contemplated that this Plaintiff have the exclusive right to sell shoes in this shopping center, which consists of Warehouse West and Warehouse East.
The problem that exists with Liza Danielle is an unfortunate one that I think can be resolved with an adequate remedy at law.
I’m going to enjoin the further sale of shoes in this particular shopping center by anyone other than Plaintiff.”

Appellant Moriber raises two issues for our consideration: (1) the record does not support the trial court’s finding that the exclusive clause of plaintiff’s lease was intended by the parties to the lease to grant an exclusive as to both buildings, and (2) the court abused its discretion in granting an injunction where plaintiff had an adequate remedy at law which it failed to prove and where there was no showing of irreparable harm. Appellant Danielle’s arguments are in line with Moriber’s latter point. It contends that: (1) the trial court erred in ruling Jamko was without an adequate remedy at law and thus entitled to injunctive relief, and (2) it was error to grant Jamko injunctive relief against Danielle.

With regard to Moriber’s first point, we have reviewed the record and found it to contain sufficient evidence to support the holding of the trial court upon this issue. It is well settled law that the trial judge’s interpretation of a contract will not be disturbed on appeal unless it is clearly incorrect and unsupported by the evidence in the cause, Safeco Insurance Co. v. Rochow, 384 So.2d 163 (Fla. 5th DCA 1980); General Insurance Co. of America v. Sentry Indemnity Co., 384 So.2d 1305 (Fla. 5th DCA), pet. for rev. dism., 389 So.2d 1110 (Fla.1980); Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979), or unless no valid legal basis exists for the conclusion reached as to the meaning of the ambiguous provision, Spurrier v. United Bank, 359 So.2d 908 (Fla. 1st DCA 1978); Posner v. Flink, 167 So.2d 259 (Fla. 3d DCA 1964). Sub judice, there was testimony, albeit contradicted, which supports the court’s finding that the parties intended the exclusive to apply to whatever buildings were constructed on the property which now contains both warehouses. The lease, by a fair reading of its various provisions, also supports this interpretation. We therefore affirm the correctness of the court’s interpretation of the lease and the exclusive covenant in question.

We are further unpersuaded by Moriber’s contention, raised ancillary to his first point, that the court erred in failing to apply the proper legal standard of construction to the exclusive covenant. The rule of construction urged is that an ambiguous provision in a contract or, more particularly, in an exclusive clause in a commercial lease, is to be strictly construed against its drafter or the party for whose benefit it is inserted in the contract. While we are unable to determine from the record whether or not this standard was applied, in our view it is uncertain whether application of the standard would lead to the conclusion suggested by appellant, i.e., that the exclusive clause applied only to the one warehouse in which Jamko’s store was located, and since the construction reached was, as previously stated, supported by the terms of the lease as well as by competent testimony (that which the court considered to be credible), we discern no error in this finding.

Having determined that no error has been shown in the court’s finding that Jam-ko’s exclusive covered both warehouse buildings, which finding is essential to plaintiff’s cause of action under either an equitable or an at-law theory, we nonetheless conclude that the pleadings and proofs fail to present a proper case for redress by the extraordinary equitable remedy of injunction and that plaintiff should have been restricted to a purely legal remedy.

We are in agreement with the second point raised by appellant Moriber that the plaintiff failed to prove two interrelated requirements necessary to establish its right to injunctive relief: (1) that it was without an adequate remedy at law, or (2) that it would suffer irreparable harm if the injunction were denied.

Lack of an adequate remedy at law is a prerequisite for equitable relief, and furthermore, “an injunction will not lie where there is a choice between the ordinary processes of law and the injunction, the former being sufficient to furnish the full relief to which the complaining party is entitled.” 29 Fla.Jur.2d, Injunctions § 17. On the other hand, however, it has been said that “in order to preclude pursuit of equitable remedies an available legal remedy must be plain, certain, prompt, speedy, sufficient, complete, practical, and efficient in attaining the ends of justice.” 29 Fla. Jur.2d, Injunctions § 18. The second of these requirements, that of irreparable injury, has been defined as follows:

Irreparable injury is an injury of such a nature that it cannot be redressed in a court of law, or, as the rule has been otherwise stated, the injury must be of a peculiar nature, so that compensation in money cannot atone for it.

29 Fla.Jur.2d, Injunctions § 22 at 674-75.

We recognize that impossibility of ascertaining the amount of plaintiff’s legal damages may establish inadequacy of the legal remedy so as to support an award of injunctive relief, Southern Colonization Co. v. Derfler, 73 Fla. 924, 75 So. 790 (1917); 42 Am.Jur.2d, Injunctions § 40 at 780, and additionally, may establish the requisite irreparable character of the injury:

[A]n injury is irreparable where the damages are estimable only by conjecture, and not by any accurate standard. But mere difficulty in proving injury does not establish irreparable injury. One must distinguish between the difficulty of proving that an injury exists and the difficulty of measuring the amount or extent of a proven injury.

42 Am.Jur.2d, Injunctions § 49 at 790. However, Jamko’s failure to prove its claim for legal damages as against its lessor, Mor-iber, may not be equated with inadequacy of its remedy at law or irreparableness of its injury, since it is clear from the record that the failure was due not to the impossibility of making such a determination, but rather to the minimal and insufficient effort made by plaintiff to prove its damages. The only evidence brought forth by Jamko on this issue was monthly State of Florida sales tax returns for the one year periods prior to and after the opening of Danielle’s competing shoe store. While these reports purportedly showed a decrease of some $38,000 in Jamko’s gross sales during the one year period covered in which Danielle was in business, Jamko’s own witness testified that its lost profits could be anywhere in a range of from three to forty percent of that amount, and no further effort was made to establish the amount of this item of its actual legal damages. We would thus characterize Jamko’s difficulties on this question as difficulty in proving that an injury existed, which according to the distinction recited, supra, does not constitute irreparable injury sufficient to invoke equitable relief.

In determining whether plaintiff’s legal remedy, a major element of which would apparently be damages for lost profits, was sufficiently certain, prompt, complete and practical so as to preclude resort to injunctive relief, one factor which must be considered sub judiee is the general rule, which is followed in Florida, that “[i]n order to recover lost profits, there must be an ongoing business with an established sales record and proven ability to realize profits at the established rate.” Daytona MIGI v. Daytona Automotive Fiberglass, Inc., 388 So.2d 228, 232 (Fla. 5th DCA 1980); Conner v. Atlas Aircraft Corp., 310 So.2d 352 (Fla. 3d DCA 1975); Belcher v. Import Cars, Ltd., 246 So.2d 584 (Fla. 3d DCA 1971). Jamko had been operating its shoe store for nearly two years as of the time that Danielle opened its doors, so while it may not have been a well-established business, it was, on the other hand, not new either. On remand plaintiff will have the burden of establishing the amount of its actual loss of profits, if any. It may meet this burden by introducing competent proof of its income and expenses for a reasonable time anterior to the opening of Danielle’s store, Belcher v. Import Cars, Ltd., supra.

An additional factor supporting our conclusion that Jamko had an adequate remedy at law which it failed to prove and to which it should be restricted is that the plaintiff entirely ignored one relevant measure of damages available to it, i.e., the diminution in value of its leasehold with the exclusive covenant broken, as compared to its value with the exclusive unbroken, which damages may be allowed as a set-off against rental payments due the lessor under the terms of the lease. See Fontainbleau Hotel Corp. v. Crossman, 323 F.2d 937 (5th Cir.1963); Annot. 97 A.L.R.2d 111-113 (1964).

The two measures of damages which we have outlined should serve to adequately compensate the plaintiff for legal damages which it may, on remand, prove that it has sustained, or will sustain during the term of its lease in which Danielle has operated, and continues, pursuant to this opinion, to operate its shoe store in competition with Jam-ko. Since the recovery available to plaintiff in an action at law would include, if proven, damages for future injury, it will not be necessary for Jamko to seek relief through multiple lawsuits, prevention of which is a basic ground for equitable relief. Pensacola & A. R. Co. v. Jackson, 21 Fla. 146 (1884); see generally, 42 Am.Jur.2d, Injunctions § 50.

Perhaps the most compelling reason for our conclusion that it was error to grant an injunction under the facts of this case is the harsh effect of this remedy upon Danielle, who, the proofs strongly suggest, may be characterized as an innocent subsequent lessee without notice of Jamko’s exclusive. The obvious inequity of forcing Danielle to close down its business, which had been operating for one year at the time of trial, is borne out by cases from several jurisdictions which have held that enforcement of an exclusive clause in a commercial lease by injunction is improper where it would operate harshly against an innocent third-party without notice: Hendricks v. Lake, 12 Wash.App. 15, 528 P.2d 491 (Wash.Ct.App.1974); Buckaway v. J-Town Center, Inc., 475 S.W.2d 642 (Ky.1972); Baron v. Crossroads Center of Iowa, Inc., 165 N.W.2d 745 (Iowa 1969); Wolfe v. North Shreveport Development Co., 228 So.2d 148 (La.App.1969), writ refused, 225 La. 159, 229 So.2d 736 (1970); Annot. 97 A.L.R.2d 88-90 (1964). The legal basis for the result in these cases is found in the equitable principle of balancing the relative conveniences of the parties. The rule, as stated in 29 Fla.Jur.2d, Injunctions § 23 at 676, is that:

equity will not require by injunction the performance of an act where the harm to the person coerced is wholly disproportionate to the benefit to the other party, or, indeed, when greater injury and inconvenience will result to the defendant from an injunction than will be caused to the plaintiff by its refusal.

In applying this rule to the facts of the instant case, the nature of the injunction entered against Danielle is of some significance. Danielle was required to cease operating its shoe store at the location leased from Moriber, thus the injunction against Danielle has the characteristics of a mandatory injunction, i.e., one which “goes beyond a mere restraint and commands acts to be done or undone.” 29 Fla.Jur.2d, Injunctions § 6 at 659. It has been stated that “[i]n view of the drastic character of mandatory injunctions, the rule about balancing the relative conveniences of the parties applies with special force where mandatory injunctive relief is sought.” 29 Fla.Jur.2d, Injunctions § 24 at 676-77. Because the record reflects a total absence of consideration of the effect of entry of the injunction against Danielle, we conclude that this stringent requirement of balancing the relative conveniences of the parties where mandatory relief is concerned has not been met. The trial court committed reversible error in enjoining Danielle’s business operation under the circumstances presented. And since the only relief sought by plaintiff against Danielle was injunctive in nature, judgment should be entered on remand against the plaintiff and in favor of Danielle, and Danielle should further be allowed to pursue its cross-claim for damages against appellant Moriber. Moreover, since the effect of upholding the injunction against the lessor, Moriber, would be to enforce it against the subsequent lessee, Danielle, against whom it is not enforceable, the injunction entered against Moriber is improper and must likewise be reversed. Skaggs v. Jensen, 94 Idaho 179, 484 P.2d 728 (1971).

Accordingly, the order granting the injunctions is reversed and the cause is remanded with directions to vacate the order and to conduct further proceedings in conformity with this opinion. On remand plaintiff may bring forth all evidence which bears upon the count in its complaint for legal damages against its lessor, appellant Moriber.

Affirmed in part, reversed in part, and remanded with directions.

      . Moriber executed the lease “as Agent and Attomey-in-Fact for all of the Beneficial Owners of Land Trust # 5000018 wherein City National Bank of Miami is Trustee (Lessor) [.]”

      . The leased premises are described in paragraph 1 of the lease as follows:
      “1. DEMISED PREMISES: (a) Lessor leases to Lessee and Lessee rents from Lessor those certain premises, as part of now or hereafter to be erected in the Warehouse Center (hereinafter referred to as “Warehouse”), located at N.W. 19th Street and E. of 441, City of Lauderdale Lakes, State of Florida, which premises are more particularly described as follows:
      3993, 3995, 3997 and 3999 N.W. 19th Street, Lauderdale Lakes, Florida. A store having a frontage of 48'8" ...”
      (Exhibit “A” to the lease is a diagram of the general layout of the warehouse depicting one building, labelled “Warehouses West[.]”

      .The complaint, which originally named only City National Bank of Miami, as Trustee of Land Trust No. 5000018, and Liza Danielle, Inc., as defendants, was amended to include Moriber as agent and attorney-in-fact for the beneficial owners of said Land Trust, as an additional defendant. City National Bank of Miami was granted an involuntary dismissal and is not a party to this appeal.

      . Neither of the appellants complain about, nor do we find to be improper, the court’s consideration of extrinsic evidence in addition to interpreting the language of the lease itself, in order to determine what premises were intended by the parties to be covered by the ambiguous language of the exclusive clause (“Lessor shall not lease any other space in the warehouse to a retail shoe store.” (e.s.) The following cases have affirmed the propriety of consideration of all available, appropriate, parol or other extrinsic evidence in order to ascertain the true intent of the parties where the language of their agreement is ambiguous: Morton v. Morton, 307 So.2d 835 (Fla. 3d DCA), cert. denied, 324 So.2d 90 (Fla.1975); Royal American Realty, Inc. v. Bank of Palm Beach and Trust Co., 215 So.2d 336 (Fla. 4th DCA 1968); see also Pickren v. United States, 378 F.2d 595 (5th Cir.1967); Adler v. Nicholas, 381 F.2d 168 (5th Cir.1967); Bal Harbour Shops, Inc. v. Greenleaf & Crosby Co., Inc., 274 So.2d 13 (Fla. 3d DCA 1973); 11 Fla.Jur.2d, Contracts § 117.

      . 11 Fla.Jur.2d, Contracts § 106.

      . E.g., Norwood Shopping Center, Inc., v. MKR Corp., 135 So.2d 448 (Fla. 3d DCA 1961) (lessor’s covenant not to lease retained property for purpose of conducting business in competition with lessee must be strictly construed, since it is in restraint of trade). Accord: Reed v. O.A. & E., Inc., 390 So.2d 487 (Fla. 4th DCA 1980); Winter Park Appliance Center, Inc., v. Walling Crate Co., 196 So.2d 198 (Fla. 2d DCA 1967).

      . Conner v. Atlas Aircraft Corp., 310 So.2d 352, 354 (Fla. 3d DCA 1975), sets forth the applicable standard of proof for establishing lost profits as an element of plaintiffs legal damages, as follows:
      Such damages are recoverable if the loss of prospective profits is the natural result of the wrong and the amount can be established with reasonable certainty. The standard for the degree of certainty requires that the mind of a prudent impartial person be satisfied with the damages. .. However, uncertainty as to the amount of damages or difficulty in proving the damages will not prevent recovery if it is clear that substantial damages were suffered as a result of the wrong. Inability to give the exact or precise amount of damages does not preclude recovery so long as there is a reasonable basis in the evidence for the amount awarded.

      . Testimony was heard on this issue, however, the court ultimately found that notice was not material to plaintiffs case and the issue would be more appropriately addressed in Danielle’s action for damages against Moriber. Danielle’s crossclaim for damages against its lessor, Mori-ber, was dismissed prior to trial by stipulation of counsel, without prejudice to refile same following conclusion of the litigation with Jam-ko.