text:
    VILLAGE OF PALM SPRINGS, Florida, Appellant, v. RETIREMENT BUILDERS, INC. et al., Appellees.
    No. 80-941.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1981.

      Arthur C. Koski, of Koski, Mateer & Gillespie, P. A., Boca Raton, for appellant.
    Andrew T. Lavin, of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellees.
   ANSTEAD, Judge.

This is an appeal from an order denying an award of attorneys fees following a successful defense by appellant of an action brought by appellees pursuant to the provisions of Section 180.191, Florida Statutes (1973).

The appellees, representing all non-resident consumers of appellant’s water and sewage services, sought to invalidate the higher rates charged by appellant to such consumers. After prevailing on the merits, the appellant sought attorneys fees pursuant to the provisions of Section 180.-191(5). The trial court denied appellant’s request in a well-reasoned order which we quote and hereby approve in its entirety:

The defendant, Village of Palm Springs, prevailed in this litigation and has moved the court for award of attorney’s fees in excess of $220,000, pursuant to the provisions of F.S. 180.191(5).
The issue presented to the court is of first impression in this state; therefore, the court deems it appropriate to set forth its rationale in support of its ultimate conclusion.
For the sake of brevity, in this order, the court adopts and includes herein by reference, this court’s final judgment entered in this cause dated February 8, 1980. The final judgment recites the case history, law, findings of fact and ultimate adjudication upon the merits of the case. These matters are of utmost importance, for the decision of this court in the exercise of its discretion must be determined upon findings as to whether the plaintiff’s action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith, or continued in bad faith.
The award of attorney’s fees is in derogation of the common law and statutes allowing for such an award should be strictly construed. See Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34, ([Fla.] 1975); Stone v. Town of Mexico Beach, 348 So.2d 40, (Fla. 1st DCA 1977) and Hartford Accident and Indemnity Co. v. Smith, 366 So.2d 456, (Fla. 4th DCA 1979).
The Legislature of the State of Florida has enacted legislation awarding attorney’s fees in certain cases, either manda-torily or in the exercise of judicial discretion. See for example: F.S. 57.105, which provides the court shall award a reasonable attorney fee to the prevailing party in any civil action in which the court finds there was a complete absence of a justiciable issue of either law or fact raised by the losing party; F.S. 61.16 providing a court may, after considering the financial resources of both parties involved in a dissolution of marriage proceedings, order a party to pay a reasonable amount for attorney’s fees to the other party; F.S. 83.756 provides the court may also allow reasonable attorney’s fees to the mobile home owner whenever he prevails in any action by or against him if the rental agreement contains a provision allowing attorney’s fees to the mobile home park owner; to a like effect is F.S. 718.125 as it relates to contract or lease between a condominium unit owner or association and a developer; F.S. 713.29 provides any action brought to enforce a lien, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, and F.S. 501.2105 provides in any civil litigation resulting from a consumer transaction involving a violation of the chapter, the prevailing party shall receive his reasonable attorney’s fees from the non prevailing party, (emphasis supplied)
Turning now to Chapter 70-997, the preamble to the legislation which is under consideration stated:
“WHEREAS, it is the legislative finding that there are consumers of electric and gas utilities who live outside of municipalities that own, operate, manage or control plants or other facilities supplying electricity, gas or water and sewer services to or for them within the state who should be protected from excess charges for such utilities by said municipality in view of the exclusive privilege that the municipality enjoys,
NOW THEREFORE,
Be It Enacted by the Legislature of the State of Florida:
Section 5. In any action commenced pursuant to this act the court in its discretion may allow the prevailing party treble damages and in addition a reasonable attorney’s fee as part of the cost.” (F.S. 180.191(5))
The Supreme Court of the United States of America, in the case of Christianburg [Christiansburg] Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978), was called upon to interpret Section 706(k) of Title 7 of the Civil Rights Act of 1964 which provides:
“In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee.... ”
Justice Stewart delivered the opinion of the court which is most exhaustive and analogous to the case presently before this court. The Justice’s opinion recites the general rule in our country that in the absence of legislation providing otherwise, litigants must pay their own attorney’s fees; some statutes awarding fees are mandatory for prevailing plaintiffs, others allow awards on a permissive basis but limited to certain parties, usually prevailing plaintiffs, and others are even more flexible authorizing the fees to be paid either the plaintiffs or the defendants and entrusting the effectuation of the statutory policy to the discretion of the court.
Recognizing the State of Florida is not bound by this decision, it is equally clear the rationale of the Justice may be received as persuasive. This court finds the situation so sufficiently analogous and written with such clarity, expansion or comment upon it would be acts of futility. Therefore, this court adopts the rationale and holding contained in the cited case and applies it to F.S. 180.191(5). The introductory paragraph of Chapter 70-997 evidences an intent and knowledge on the part of the Legislature of the State of Florida that certain consumers were in need of protection from excess charges for utility services made by municipalities who exercise the exclusive privilege of providing the particular utility service. The statute specifically granted to aggrieved consumers a civil cause for relief whenever any municipality has engaged, or there were reasonable grounds to believe it would engage, in an act prohibited by the statute.
Judicial discretion does not imply a court may act or fail to act according to the whim or caprice of the deciding judge; it means a discretion exercised within the limits of the applicable principles of law and equity, the exercise of which if clearly arbitrary, unreasonable or unjust is erroneous. See Florida Jurisprudence, Words & Phrases “Judicial Discretion.” The only unique fact occurring during the course of this litigation which is in need of further comment is the decision emanating from the Supreme Court of the State of Florida in the case of Mohme v. City of Cocoa, 328 So.2d 422 (Fla.1976). This decision, had it been determinative of the entire case, may very well have authorized this court to award attorney’s fees for the continuation of this litigation subsequent to the date of the decision. Examination of the pleadings, issues raised and evidence presented to the court during the course of the trial, reveal a far more complex issue which required resolution before the ultimate decision by the court could be rendered; that being the contractual provisions in the purchase agreement and franchise agreement granted to the defendant, Village of Palm Springs, and the quantum of evidence submitted to the court during the course of the trial in resolution of that issue. The plaintiffs did not continue their claim in bad faith warranting the assessment of attorney’s fees against them.
Based upon the foregoing, the court finds the plaintiff’s action was not frivolous, unreasonable, without foundation, not brought in subjective bad faith or continued in bad faith, and it is thereupon ADJUDGED the claim by the prevailing defendant, Village of Palm Springs, for attorney’s fees in this cause pursuant to the provisions of F.S. 180.191(5) is denied.

The order of the trial court is hereby affirmed.

LETTS, C. J., and HURLEY, J., concur.


source: Caselaw Access Project

author: SCHEB, Chief Judge.

license: Public Domain

text:
    Fern E. KALB, Appellant, v. INTERNATIONAL RESORTS, INC., Appellee.
    Nos. 80-20, 80-1666.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 1981.
    Rehearings Denied March 31, 1981.

      John T. Allen, Jr., St. Petersburg, for appellant.
    Leonard S. Englander of Schrader, Eng-lander & Schachter, St. Petersburg, for ap-pellee.
   SCHEB, Chief Judge.

International Resorts, Inc., sued Fern E. Kalb alleging that she had fraudulently induced it to purchase her motel in 1977 by representing that the motel’s gross income for 1976 was $150,000 when, in fact, it was $97,565. A jury awarded Resorts $250,000 in compensatory damages. We hold that the trial court erred in refusing Kalb’s request to admit Resorts’ income tax returns for 1977 and 1978 showing the motel’s gross incomes for those years and in refusing her request to admit subsequent real estate listings of the property by Resorts.

In these appeals Kalb raises several points. We have examined each contention and conclude that only three merit discussion. First, Kalb contends that Resorts did not introduce sufficient evidence to support the jury’s conclusion that she acted fraudulently. We disagree. The evidence disclosed that Hunter, Resorts’ agent, was concerned about verifying the $150,000 gross-income figure which Kalb had given the real estate agent who prepared the listing. He testified that just prior to the closing, Kalb brought him two containers filled with checks, bank statements and bills in no specific order. She stated that there were no books or records kept and that she had not yet filed her tax return. Hunter and two real estate agents examined the records but could not verify the gross-income figure. Hunter then checked with Kalb’s bookkeeper and found that Kalb’s tax returns were delinquent and could not be verified. Finally, he contacted Kalb. He testified that she said “she could guarantee . .. that she could produce evidence of [at least] $150,000 . .. gross income” for 1976. Hunter testified that it was solely on this basis that he closed the transaction.

Kalb argues that Hunter should not have relied on the gross-income figure because his review of Kalb’s documents should have led him to question its accuracy. Therefore, she contends that Hunter was negligent in failing to ascertain the actual 1976 gross income. Florida courts have recently rejected this contention. In Besett v. Basnett, 389 So.2d 995, 997 (Fla.1980), the supreme court, quoting section 540 of the Restatement (Second) of Torts (1976), stated, “The recipient of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation.” See Upledger v. Vilanor, Inc., 369 So.2d 427 (Fla. 2d DCA 1979). Even though Hunter might have been negligent in failing to establish the actual gross income, that does not bar him from recovery. As the supreme court stated in Besett:

A person guilty of fraud should not be permitted to use the law as his shield. Nor should the law encourage negligence. However, when the choice is between the two — fraud and negligence — negligence is less objectionable than fraud. Though one should not be inattentive to one’s business affairs, the law should not permit an inattentive person to suffer loss at the hands of a misrepresentor.

Id. at 998. Consequently, although Hunter’s limited investigation may have given him cause to question the gross-income figure contained in the listing sheet, he was justified in relying on Kalb’s guarantee that she could produce evidence supporting the figure. Accordingly, the evidence supported the jury’s finding of liability.

Second, Kalb contends that the trial court erred in denying her motion for directed verdict because the evidence did not support the award of damages. Resorts sought damages of $250,000 based on the premise it would have offered only $500,000 rather than $750,000 had it known the motel’s actual 1976 gross income. Kalb argues that the jury erred in relying solely on gross income to determine the actual value of the motel at the time of sale.

Initially, we note the court properly instructed the jury that, “The measure of damages for fraud in the sale of property is the difference between the value of the property as represented and the actual value of the property at the time of sale.” Williams v. McFadden, 23 Fla. 143, 1 So. 618 (1887); Srybnik v. Ice Tower, Inc., 162 So.2d 294 (Fla. 3d DCA 1964). The only testimony of the actual value of the motel was given by Hunter and Siemetz, a real estate agent who assisted Hunter in purchasing the motel. Hunter testified that he computed his offer and the sale price of $750,000 by multiplying the motel’s listed 1976 gross income of $150,000 by five. He explained that he, Siemetz and another agent had arrived at this method of calculating value by comparing the asking prices of other motels in the area with their gross incomes. The motels that were for sale for as much as six times their annual gross incomes were in immaculate condition, and, based on the condition of Kalb’s motel, they concluded that five times gross income would be a reasonable price.

Siemetz testified that he, Hunter and the second real estate agent discussed recent sales of other motels and the gross incomes of those motels in arriving at the offer of $750,000 for Kalb’s motel. He detailed how they had examined per unit prices of the motels and prospective per unit incomes as well as a market analysis.

Hence, calculating value by using a multiplier times the gross income incorporated more than just a consideration of gross income in that a number of factors determined the .value of the multiplier. These included comparable sales, location and condition of the property and prospective income. Accordingly, we conclude that the jury did not rely solely on the gross income of Kalb’s motel in calculating damages and that there was sufficient evidence to support its award.

Finally, Kalb contends that the trial court improperly excluded Resorts’ 1977 and 1978 tax returns which showed the motel’s gross income as well as a valuation of the buildings and that it improperly excluded Resorts’ subsequent listings of the property for sale. The tax returns showed gross incomes of $159,352 for May through December 1977 and $195,126 for 1978. The 1977 return also showed a valuation of $628,723.21 for the buildings and improvements without the land. The listing agreements showed that Resorts listed the property in 1978 for $1,300,000 and again in 1979 for $1,159,000.

The court, without further explanation, excluded all of these documents as being irrelevant. In doing so it is likely the court concluded that the increases in gross income, the apparently high valuation, and the higher listing prices were attributable to a change in management, as it did later in denying Kalb’s motion to vacate the judgment. These changes, however, could have been due to many factors other than just a change in management; for example, general economic changes, fluctuations in the tourist market, changes in transportation costs, advertising campaigns and varying weather conditions. On that basis Kalb might have shown that 1976 gross income was abnormally low and did not reflect the actual value of the motel. Hence, the documents were relevant, and the trial court improperly excluded them. § 90.402, Fla. Stat. (1979).

Given the sparsity of evidence on value, the only way the jury had of determining actual value at the time of the sale was the formula of gross income times a multiplier. Therefore, it was crucial for the jury to have had as much information as possible comparing the 1976 gross income with that of other years. If it was unusually low and not representative of the motel’s gross income generally, the jury might well have awarded fewer damages. Consequently, the trial court’s exclusion of the tax returns and real estate listings constituted reversible error.

Accordingly, we reverse the jury’s award of damages; otherwise, we affirm. We remand for a new trial on damages.

BOARDMAN and DANAHY, JJ., concur.

      . Kalb relies on City of Tucson v. El Rio Water Co., 101 Ariz. 49, 415 P.2d 872 (1966), and Department of Highways v. McDuffie, 240 La. 378, 123 So.2d 93 (1960).

      . Kalb appeals the denial of this motion in Case No. 80-1666.

      . We are aware of the principle that “Neither the ‘asking price’ of an owner of real property, no buyers appearing, nor the offer made by a buyer to an owner would appear to be admissible on the question of value.” 13 Fla.Jur. Evidence § 172 (1957); see Leslie E. Brooks Co. v. Long, 67 Fla. 68, 64 So. 452 (1914); Atlantic Coastline R. Co. v. United States, 132 F.2d 959 (5th Cir. 1943). The rationale for this rule is that, “An offer for property depends on so many considerations that it is not generally regarded as a sound test of value. This kind of proof is said to be so easily manufactured that its admission on [sic] evidence should not be tolerated.” 13 Fla.Jur. Evidence § 172 (1957).
      In Brooks and Atlantic Coastline R. Co., the plaintiffs as lessee and as landowner were seeking damages for breach of a lease agreement and for an inadequate valuation in a condemnation action respectively. They had reason to attempt to establish higher actual values of the leasehold and the property by “manufacturing” offers since to do so would increase their potential damages. On the other hand, in the present case Resorts would increase its entitlement to damages by establishing as low an actual value at the time of sale as possible since its damages were the difference between the actual value of the motel and the sale price computed on the basis of the incorrect gross income. Consequéntly, Resorts had no incentive to “manufacture” the offers to sell. Indeed, this is shown by the fact that Kalb rather than Resorts attempted to introduce the listings.
      Further, although listing offers might generally be inflated above actual value, Resorts would have had an opportunity to explain that at trial. Consequently, we find neither the rationale for the exclusionary rule nor the rule itself applicable.
      Finally, Resorts’ listings constituted admissions against interest. See cases cited at An-not., 7 A.L.R.2d 781, 814 (1949).


author: NESBITT, Judge.

text:
    Antonio Bernardo LEON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-51.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Rehearing Denied April 20, 1981.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT, J. and MELVIN, WOODROW M. (Ret.), Associate Judge.
   NESBITT, Judge.

The sole issue on appeal is whether the trial court erred in refusing to excuse a juror for cause. Finding that it did, we reverse the defendant’s judgment of conviction and remand for a new trial.

The defendant was charged by information with burglary and grand theft. He entered a plea of not guilty and demanded a trial by jury. During the voir dire, one of the prospective jurors stated that her home previously had been burglarized. The record reveals the following voir dire of that prospective juror:

DEFENSE COUNSEL: Is there anything about the nature of this case; that is, the charge [of] burglary that disturbs you in such a way that you are not sure you can be fair to Mr. Leon?
PROSPECTIVE JUROR: Yes.
DEFENSE COUNSEL: Would you please relate what that feeling is so that [the prosecutor] and myself can understand?
PROSPECTIVE JUROR: Well, burglary, I guess because it happened to and happened to, you know — I just don’t feel that I could be unpartial [sic] with him because still there is something I don’t— stealing is something I don’t condone. I think it is wrong, number one, for a person to go and take something from someone else.

Then the court undertook to examine the prospective juror:

THE COURT: Do you understand he is not guilty of anything at this time?
PROSPECTIVE JUROR: Yes.
' THE COURT: He is innocent as he sits there.
PROSPECTIVE JUROR: Until found guilty. Right.
THE COURT: I know it is a natural feeling. You just find it difficult to be fair considering the fact that you were involved in something like this before.
PROSPECTIVE JUROR: Yes.
THE COURT: Would it affect your ability to sit and listen to the evidence fairly and impartially?
PROSPECTIVE JUROR: I will listen, yes.
THE COURT: Can you judge a case based on the evidence rather than by some feeling for or against the State or the defendant?
PROSPECTIVE JUROR: I don’t know.

Defense counsel then challenged the prospective juror for cause. At that point he had used three of six peremptory challenges. Before ruling on the challenge, the trial court allowed the prosecutor to additionally voir dire the prospective juror and the following occurred:

PROSECUTOR: I will tell you that this alleged burglary did not occur in the same area of the city as your breaking and entering. Would that make any difference to your feelings in judging this case?
PROSPECTIVE JUROR: No.
PROSECUTOR: Even though it has been six years and this is not the same area, do you still feel that you could not sit and judge these facts objectively?
PROSPECTIVE JUROR: I really don’t know.

The court then re-examined this prospective juror as follows:

THE COURT: You are not sure that you can be fair and impartial because of your strong feeling about theft?
PROSPECTIVE JUROR: Right.
THE COURT: You do not know that you cannot be fair?
PROSPECTIVE JUROR: No. I don’t.

At the conclusion of the court’s examination the court denied the challenge for cause stating:

I will not discharge her for cause. She has not indicated that she has a predisposition or a feeling that she cannot control during the course of the testimony.

During subsequent voir dire examination, defense counsel continued to voir dire the prospective juror who then acknowledged defendant’s presumption of innocence and the state’s burden of establishing the defendant’s guilt beyond and to the exclusion of every reasonable doubt. When again asked if she could find the defendant not guilty if the state failed in its burden, this prospective juror candidly responded: “I don’t know.” When a similar question was later put to her, she responded: “No, not if it cannot be proved.” Later, after the denial of the challenge for cause, this juror ultimately stated that she could “be fair.”

The initial determination of a juror’s competence for cause lies within the discretion of a trial court, Singer v. State, 109 So.2d 7, 22 (Fla.1959); Ashley v. State, 370 So.2d 1191 (Fla. 3d DCA 1979). This discretion, however, is not unlimited.

At stake is the party’s right guaranteed by the Sixth Amendment to an impartial jury; the principal way this right is implemented is through the system of challenges exercised during the voir dire of prospective jurors.... Although a trial court has broad discretion in its conduct of voir dire, ... its exercise of that discretion is “subject to the essential demands of fairness.” [citations omitted]

United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976).

The test for determining the competence of a juror is not whether he will be able to control any bias or prejudice but rather whether he may lay aside those considerations and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court. Singer v. State, supra; McCullers v. State, 143 So.2d 909 (Fla. 1st DCA 1962), cert, dismissed, 155 So.2d 696 (Fla.1963); § 913.03(10), Fla.Stat. (1979). Where there is any reasonable doubt as to a juror’s possessing the requisite state of mind so as to render an impartial verdict, the juror should be excused, Singer v. State, supra, and the defendant given the benefit of the doubt, Blackwell v. State, 101 Fla. 997, 132 So. 468 (1931); Walsingham v. State, 61 Fla. 67, 56 So. 195 (1911).

In this case it is true that the prospective juror ultimately gave affirmative answers lending credence to her ability to render a dispassionate, neutral, and unbiased verdict. On the other hand, that may have been the result of the psychological impact requiring such a declaration. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). However, we do not need to speculate as to the inner workings of the juror’s mind, nor her sincerity. In Singer v. State, our Supreme Court stated:

[A] juror’s statement that he can and will return a verdict according to the evidence submitted and the law announced at the trial is not determinative of his competence, if it appears from other statements made by him or from other evidence that he is not possessed of a state of mind which will enable him to do so.

109 So.2d at 24. Gauged by the foregoing test, it is apparent that the challenge for cause to the juror should have been granted.

At the time the defendant challenged the prospective juror for cause, he had three remaining peremptory challenges. Following the denial of his challenge for cause of this prospective juror, he did not utilize any of his remaining peremptory challenges against her. Instead, he exercised his peremptory challenges against other prospective jurors to the point that all peremptory challenges were exhausted. For this reason, the state contends the defendant did not preserve the matter for appellate review arguing that he was first required to have exercised his peremptory challenge against the particular juror and then exhaust any remaining peremptory challenges and, following that, again renew his challenge for cause to the juror who was allegedly biased. We can find no support for such a proposition. Instead, we find the general rule to be that it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause since it has the effect of abridging the right to exercise peremptory challenges. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919).

For the foregoing reasons, defendant’s judgment of conviction is reversed with directions to award him a new trial.

      . Fla.R.Crim.P. 3.350(b).


author: PER CURIAM.

text:
    James Angelo ARGENTO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1567.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Rehearing Denied April 24, 1981.
    Alan Jay Braverman, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

For the reasons and authorities expressed in State v. Frost, 374 So.2d 593 (Fla.3d DCA 1979), we find that the trial court erroneously denied the appellant’s motion to suppress tangible evidence. Accordingly, the judgment of conviction is reversed with directions to discharge him from custody.

Reversed and remanded.


author: BOARDMAN, Acting Chief Judge.

text:
    Lorraine Day SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 80-978.
    District Court of Appeal of Florida, Second District.
    March 6, 1981.
    Rehearing Denied April 8, 1981.

      Jack 0. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant’s conviction is affirmed. However, portions of the sentence and the order placing appellant on probation are invalid and must be stricken.

Appellant was charged with second-degree murder and convicted of the lesser included offense of manslaughter. She was placed on probation for fifteen years with the special condition (Condition 11) that she serve two years in prison. Subsequent to appellant’s sentencing, our supreme court held in Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980), that the maximum period of incarceration which may be imposed as a condition of probation may not equal or exceed one year. The prison term specified in this special condition is therefore excessive.

In addition, standard condition 4 of appellant’s probation requires that she not possess, carry, or own any weapons or firearms “without first securing the consent of your Probation Officer.” This condition must be stricken. Under section 790.23, Florida Statutes (1979), which prohibits a convicted felon from owning, possessing, or controlling any electric weapons or firearms, there is no authority for appellant’s probation officer to consent to what would otherwise be a violation of the statute.

We find no merit to the other points raised by appellant. However, one of those other points requires a brief discussion, lest this opinion be misconstrued. That point is the trial court’s failure to instruct the jury that a homicide defendant has no duty to retreat in his own home even if the victim is a co-occupant. The record reflects that defense counsel requested such an instruction, but the trial court did not specifically agree or refuse to give it. After the jury had been instructed and retired to consider its verdict, the trial court afforded defense counsel the opportunity to dictate into the record his objections to the instructions. Counsel availed himself of this opportunity, but did not mention the trial court’s failure to give the defense of home instruction. His failure to do so constituted a waiver of this objection. Fla.R.Crim.P. 3.390(d); Fe-bre v. State, 158 Fla. 853, 30 So.2d 367 (1947); Zuberi v. State, 343 So.2d 664 (Fla.3d DCA), cert. denied, 354 So.2d 988 (Fla.1977). Accordingly, we do not decide this issue, and our opinion is therefore not to be construed as any indication whatsoever of our views on the merits of the question.

Accordingly, the judgment is affirmed, but the sentence and order of probation are vacated and the cause remanded with directions to resentence appellant in accordance with this opinion.

OTT and CAMPBELL, JJ., concur.


author: SCHWARTZ, Judge.

text:
    Barbara A. LEE, Appellant, v. Martin L. MARCUS, Individually and Marvell Stables, Inc., a Florida corporation, Appellees.
    No. 80-1117.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Rehearing Denied April 20, 1981.
    Leib, Martinez & Mark and Jose E. Martinez, Coral Gables, for appellant.
    Martin Levinson and Stephen R. Schnieder, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

This is an appeal from a final judgment confirming an arbitration award over the appellant Lee’s contention that it had been tainted by fraud or corruption within the meaning of Section 682.13(l)(a), (b), Florida Statutes (1979). The foundation of the claim, as now presented to this court, is that the individual appointed by the appellees to the tripartite arbitration was not neutral or unbiased because of his unrevealed association with their attorney. We reject this argument and affirm.

The underlying controversy concerned the expenses required for a thoroughbred racehorse of which a 75% share was owned by Barbara Lee and 25% by Marvell Stables, Inc. Their partnership agreement provided for the resolution of any dispute by a three-person board of arbitrators, with one “selected” by each party and the third chosen by those two. After Lee filed an action in the circuit court, concerning the expense issue, the trial judge ordered the parties to arbitrate in accordance with that clause. Ms. Lee chose George Onett. After Marvell’s first choice was unable to serve, it selected Jerome Amster, identified by his home address and telephone number, as its arbitrator. Onett and Amster chose Harry Benson as the neutral arbitrator and the case proceeded to hearing, which took place with no impropriety' and in a manner concerning which the appellant does not complain. The result was a 2-1 decision, with Benson and Amster in the majority, in favor of Marvell. Lee then moved to set aside the award on the ground that Amster was not a legally acceptable member of the arbitration panel. The basis of this contention was that he was in fact an attorney who shared offices and services with Marvell’s lawyer and that this had been concealed until after the arbitration by the calculatedly misleading use of his home rather than his business address and phone number. The trial judge denied the motion and confirmed the award. These rulings were correct.

As the very nature of the widely-employed three-person arbitration panel itself implies, the arbitrators designated by the parties are not intended to be entirely disinterested or impartial. To the contrary, each is expected to be, in the vernacular, no more than unprejudiced on the .side of the contestant which has appointed him. As was accurately said in Finkelstein v. Smith, 326 So.2d 39, 40 (Fla. 1st DCA 1976),

[arbitrators appointed by disputants to a tripartite panel are expected by the disputants and should be understood by the courts to act as partisans only one step removed from the controversy.

The Florida Arbitration Code embodies this view. Section 682.13(l)(b), Florida Statutes (1979) provides that an award shall be vacated when

(b) [tjhere was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.

Since “evident partiality” is pointedly a basis for vacation only in the case of a neutral arbitrator, it is apparent that this provision reflects an understanding of the not disinterested nature of the party-appointed arbitrator.

Accordingly, it has been held, seemingly without exception, that — absent overt corruption or misconduct in the arbitration itself, which is not alleged here — no arbitrator appointed by a party may be challenged on the ground of his relationship to that party. The leading case in the field is Astoria Medical Group v. Health Ins. Plan of Greater New York, 11 N.Y.2d 128, 227 N.Y.S.2d 401, 182 N.E.2d 85 (1962), in which the following appears:

[T]he very reason each of the parties contracts for the choice of his own arbitrator is to make certain that his ‘side’ will, in a sense, be represented on the tribunal. And, it was with that thought in mind that this court held the choice of an arbitrator to be a ‘valuable’ contractual right not lightly to be disregarded....
The right to appoint one’s own arbitrator, which is of the essence of tripartite arbitration and which was vindicated in the Lipschutz ease, would be of little moment were it to comprehend solely the choice of a ‘neutral’. It becomes a valued right, which parties will bargain for and litigate over, only if it involves a choice of one believed to be sympathetic to his position or favorably disposed to him.
In the light of accepted practice, which sanctions and contemplates two non-neutral arbitrators on a tripartite board, the parties must be deemed to have intended that each was to be free to appoint any arbitrator desired, however close his relationship to it or to the dispute. Moreover, this conclusion is reinforced by the fact that the provision relating to arbitration contains no word of limitation on the identity, status or qualifications of the arbitrators; had the parties intended that their appointees be completely impartial or disinterested, they could have readily so provided. 227 N.Y.S.2d at 405, 182 N.E.2d at 88.

Accord, e. g., First National Bank in Cedar Falls v. Clay, 231 Iowa 703, 2 N.W.2d 85, 92 (1942) (“Choosing arbitrators wholly disinterested is an admirable standard to aspire to, but the parties seldom do that, and if all awards were set aside in which it was not done, few awards would stand.”); Petition of Dover Steamship Co., 143 F.Supp. 738, 741 (S.D.N.Y.1956) (“[T]he designation by the parties themselves of arbitrators who may not be completely disinterested, accords with the generally accepted practice in arbitration proceedings of this type. In such case, it is quite frankly recognized that the ‘neutral’ arbitrator is the one selected by the parties’ arbitrators.”)

Consistent with these principles, ties between appointed arbitrators and parties much closer than those between Amster and the appellees have been repeatedly approved. E. g., Astoria Medical Group v. Health Insurance Plan of Greater New York, supra (incorporator, director, and past president of corporate party); Karpinecz v. Marshall, 14 A.D.2d 569, 218 N.Y.S.2d 88 (1961) (attorney of party); Modern Brokerage Corp. v. Massachusetts Bonding & Ins. Co., 56 F.Supp. 696 (S.D.N.Y.1944) (survey- or previously repeatedly employed by party); see, Carol City Utilities, Inc. v. Gaines Construction Co., 201 So.2d 242 (Fla.3d DCA 1967), cert. denied, 210 So.2d 221 (Fla. 1968). It is plain, therefore, that the fact that Amster shared space with Marvell’s attorney provides no basis for vitiating the award.

The appellant strongly emphasizes, however, that Amster’s relationship to Marvell, such as it was, was affirmatively concealed from her until after she had lost. We agree that the apparently deliberate choice of the address and phone number reflects, at best, a lack of candor which was totally unacceptable and should not be repeated. Nevertheless, it cannot change the result of this case. We conceive that one may suffer legal detriment by failing to disclose particular information only when those facts are such that the opposite side may base some meaningful action upon them; in other words, those which are material to the matter at hand. See, Gruman v. Sam Breedon Construction Co., 148 So.2d 759 (Fla.2d DCA 1963), app. dismissed, 155 So.2d 756 (Fla.1963); 37 Am.Jur.2d, Fraud and Deceit, § 177 (1968). But, in this case, even if Lee had known all about Amster and his relationship with her opponents, she could not, as we have seen, have successfully challenged his role as an arbitrator before the award — just as she is unable to do so afterwards. Thus, the concealment made no difference. See, North American Steel Corp. v. Siderius, Inc., 75 Mich.App. 391, 254 N.W.2d 899 (1977); San Luis Obispo Bay Properties, Inc. v. Pacific Gas and Electric Co., 28 Cal.App.3d 556, 104 Cal. Rptr. 733 (1972). In short, the appellees or their representatives sought to hide the truth when it wouldn’t have hurt them to reveal it. However the propriety of those actions may appear to other, less earthly tribunals, they have no legal consequences in this one.

Affirmed.

      . The precise provision of the contract is that,
      In the event of any dispute arising from or as a result of this Agreement, such dispute shall be determined by arbitration of three (3) individuals, one selected by MARVELL STABLES, INC., one selected by Buyer, and a third by the two so selected, and the decision of such arbitrator shall be binding upon all parties.
      Under this clause, it would appear that the decision of the third or neutral arbitrator — as opposed to that of the arbitration —is binding. Although neither side has referred to this fact, we rely upon it as additional support for our conclusion that the identity of Marvell’s appointee did not infect the ultimate result, in which the third arbitrator of course concurred.

      . This order provided for each party “to select an impartial arbitrator of their choice.” Although the appellant argues to the contrary, we ascribe no significance to the court’s perhaps inadvertent use of the word “impartial,” which does not appear in the contract itself. See, Astoria Medical Group v. Health Insurance Plan of Greater New York, infra, 227 N.Y.S.2d at 405, 182 N.E.2d at 88. In any event, “impartial” must be given only the meaning implied by the authorities which are discussed infra; that is, as to an arbitrator appointed by a party, one which does not exclude a non-corrupt partisanship.

      .Lee refers in passing to the possibility that Amster gained some information about the case from some extra-hearing source, presumably the appellees. As she herself seems to recognize, however, such a discussion is not improper, because “[i]t would be unrealistic to expect a party engaged in an arbitration dispute to nominate an arbitrator without telling him what the dispute is about.” Stef Shipping Corp. v. Norris Grain Co., 209 F.Supp. 249, 253 (S.D.N.Y.1962); First National Bank in Cedar Falls v. Clay, 231 Iowa 703, 2 N.W.2d 85, 92 (1942).

      . Compare Finkelstein v. Smith, supra, in which a contestant unsuccessfully attempted to appoint himself an arbitrator.

      . Compare the Florida cases cited by the appellant, Cassara v. Wofford, 55 So.2d 102 (Fla. 1951); Tassinari v. Loyer, 189 So.2d 651 (Fla.2d DCA 1966) and Gaines Construction Co. v. Carol City Utilities, Inc., 164 So.2d 270 (Fla.3d DCA 1964), all of which involved claims of bias or misconduct by the neutral third or sole arbitrator.

      . Compare, Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968), upon which the appellant heavily relies, which involved the failure to reveal prior business relationships between one of the parties and the neutral arbitrator. See note 5, supra.


text:
    William McGRATH, Appellant, v. The STATE of Florida, Appellee.
    Case No. 80-1369.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Michael L. Brodsky, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. State v. Nova, 361 So.2d 411 (Fla.1978); Robertson v. State, 94 Fla. 770, 114 So. 534 (1927); State v. Henry, 390 So.2d 92 (Fla. 3d DCA 1980); State v. Parsons, 389 So.2d 1207 (Fla. 3d DCA 1980); Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979); Wilson v. Renfroe, 91 So.2d 857 (Fla. 1956); State ex rel. Sagonias v. Bird, 67 So.2d 678 (Fla.1953); United States v. Serrano, 607 F.2d 1145 (5th Cir. 1979), cert. denied, 445 U.S. 965, 100 S.Ct. 1655, 64 L.Ed.2d 241 (1980); 13 Fla.Jur.2d, Courts and Judges §§ 247, 249 (1979); United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); Hendricks v. State, 360 So.2d 1119 (Fla. 3d DCA 1978), cert, denied, 366 So.2d 881 (Fla.1979).


author: DANIEL S. PEARSON, Judge.

text:
    GENSTAR SOUTHERN DEVELOPMENT CORPORATION, a corporation, Appellant, v. TROUP BROTHERS, INC., a corporation, Appellee.
    No. 80-1430.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Rehearing Denied April 20, 1981.

      Britton, Cohen, Kaufman, Benson & Schantz and Frank J. Sinagra, Fort Lauder-dale, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Paul T. Dee, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

The undisputed facts leading to the entry of summary judgment in favor of Troup Brothers, Inc. as recited by the trial court are:

(a)By the letter dated March 15,1979, of James Nemethy, Land Development Manager of GENSTAR SOUTHERN DEVELOPMENT CORPORATION, to James F. Aylward of Carr-Smith and Associates, Inc., Project Engineer for “The Hammocks” project (attached as Exhibit A to Troup’s reply), GENSTAR SOUTHERN DEVELOPMENT CORPORATION referred for the Engineer’s decision pursuant to Article 9 of the Contract, the dispute concerning the quality of TROUP BROTHERS, INC., performance under the contractual specifications which is the subject of the action asserted in, and refused payment to TROUP of the final retainage figure pending the Engineer’s decision on the various disputes;
(b) By letter dated May 30, 1979, from James F. Aylward to GENSTAR SOUTHERN DEVELOPMENT CORPORATION (Exhibit B to Troup’s reply), the Project Engineer rendered his decision on the disputes pursuant to Article 9 of the Contract, and decided that the work had been satisfactorily performed under the Contract and that GENSTAR SOUTHERN DEVELOPMENT CORPORATION should pay to TROUP BROTHERS, INC., the final retainage figure;
(c) That Article 9 of the General Conditions of the Contract which the parties operated under provides that the failure of the aggrieved party to demand arbitration from the Engineer’s decision within thirty (30) days makes the Engineer’s decision final and binding upon the parties;
(d) That TROUP BROTHERS, INC., was the prevailing party at the first level of arbitration by virtue of the Engineer’s decision that it should be paid pursuant to the Contract;
(e) That GENSTAR SOUTHERN DEVELOPMENT CORPORATION failed to demand arbitration of the Project Engineer’s decision;
(f) That GENSTAR SOUTHERN DEVELOPMENT CORPORATION failed to make payment to TROUP BROTHERS, INC. as required by the Engineer’s decision;
(g) That TROUP BROTHERS, INC., filed a claim of lien in the Official Records Books for Dade County, Florida, pursuant to the Florida Mechanic’s Lien Law in order to preserve its right to receive payment of the final retainage figure;
(h) That GENSTAR SOUTHERN DEVELOPMENT CORPORATION initiated the action before this Court by filing a Complaint to Discharge Lien and that in response thereto, TROUP BROTHERS, INC., filed an Answer and Counterclaim seeking, among other things, foreclosure of its lien and the preservation of its right to the payment of $103,668.47.

Upon these facts the trial court determined as a matter of law that Genstar Southern Development Corporation could not assert as a defense to Troup’s mechanic’s lien foreclosure action that the arbitration provisions of the contract between the parties were waived by Troup’s filing of a claim of lien and counterclaiming to foreclose the lien. The consequence of this ruling that the contractual arbitration provisions were not waived was that Genstar’s failure to demand arbitration from the project engineer’s decision that Genstar owed Troup $103,668.47 made the project engineer’s decision binding and Troup’s right to this payment uncontestable.

We affirm the judgment of the trial court. Troup’s actions under the compulsory provisions of Chapter 713, Florida Statutes (1979), see Goldberger v. United Plumbing & Heating Company, Inc., 358 So.2d 860 (Fla. 4th DCA 1978); Wesley Construction Co. v. Yarnell, 268 So.2d 454 (Fla. 4th DCA 1972), in filing a claim of lien and counterclaiming for foreclosure were acts calculated to secure such debt as might otherwise be determined to be due from Genstar, and, as such, these actions were not inconsistent with Troup’s position that the amount of the debt was determinable under the arbitration clause of the contract. Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla. 4th DCA 1973) (once the arbitration is completed, the trial court'may enter judgment thereon and contemporaneously adjudicate the right to a mechanic’s lien for the purpose of enforcing such judgment). Cf. Collier Land Corporation v. Royal Palm Beach Realty, Inc., 338 So.2d 859 (Fla. 3d DCA 1976) (institution of action for injunction, accounting and appointment of receiver did not constitute waiver of right to move to compel arbitration); A. Sangivanni and Sons v. F. M. Floryan and Company, 158 Conn. 467, 262 A.2d 159 (1969) (institution of mechanic’s lien foreclosure action did not constitute waiver of right to move to compel arbitration). A party may be said to have waived the arbitration provisions of a contract only when such party submits the matter which was to be arbitrated to a court for its resolution. See Ojus Industries, Inc. v. Mann, 221 So.2d 780 (Fla. 3d DCA 1969). That did not occur here. Affirmed.

      . It could be said that Collier and Sangivanni, unlike Troup, evinced their intent to keep the arbitration provisions of the contracts in force by moving to compel arbitration. But in the present case the arbitration provisions of the contract had been invoked by Genstar’s action in referring the dispute to the project engineer before Troup filed its claim of lien. It was Genstar, not Troup, which was aggrieved by the project engineer’s decision, and it was up to Genstar to keep the arbitration mechanism going or be bound by the engineer’s decision. Thus, unlike Collier and Sangivanni, there was no occasion for Troup to move to compel arbitration, and the fact that Troup made no such motion does not make its foreclosure action any less consistent with arbitration than the actions of Collier and Sangivanni.


text:
    Edward E. BENNETT, Appellant, v. The STATE of Florida, Appellee.
    No. 79-304.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Rehearing Denied April 24, 1981.
    Bennett H. Brummer, Public Defender and Paul Morris, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

We reverse on the ground that the trial judge’s error, so established by the later case of Tascano v. State, 393 So.2d 540 (Fla.1980) was adequately preserved as a basis for appeal by the colloquy which took place between the bench and defense counsel at the time the erroneous ruling was made.

Reversed.


text:
    MARYLAND CASUALTY COMPANY, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
    NO. 79-1448.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Rehearing Denied April 14, 1981.
    Jeanne Heyward, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart, Miami, for appellant.
    Steven R. Berger, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We affirm the summary final judgment rendered in favor of appellee United States Fidelity and Guaranty finding no coverage under the subject insurance policy. The coverage extension for newly acquired buildings is restricted to “similar occupancies” and applies only to property damage; not liability for personal injury.

Affirmed.


text:
    Francis B. PITT, Appellant, v. Carol H. PITT, Appellee.
    No. 80-1330.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Rehearing Denied April 24, 1981.
    Whiteman, Wolfe & Gross and Melvin Wolfe, Miami, for appellant.
    Snowden, Kornreich, Reichenthal & Mig-dall and Gerald I. Kornreich, Daniel W. Levin, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Ball v. Ball, 335 So.2d 5 (Fla.1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Leonard v. Leonard, 389 So.2d 256 (Fla. 3d DCA 1980).


author: HERSEY, Judge.

text:
    Ronald CLEMENTS, Appellant, v. STATE of Florida, Appellee. Carl David LOWE, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-1905, 79-1913.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Rehearings Denied April 29, 1981.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant-Clements.
    Alan Jay Braverman of Law Offices of Alan. Jay Braverman, P.A., Fort Lauder-dale, for appellant-Lowe.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

On July 6, 1978, appellants were twice stopped by the police. Evidence seized as a result of these stops culminated in separate formal charges arising out of two unrelated incidents. This appeal involves one set of charges; Clements v. State, 396 So.2d 217 (Fla.4th DCA 1981) involves the other.

Appellants pled nolo contendere to kidnapping, sexual battery without a firearm and attempted robbery without a firearm, specifically reserving the right to bring these consolidated appeals from the partial denial of their motions to suppress evidence.

The issue presented by these motions was whether the July 6,1978 stops of appellants were illegal so as to make the subsequent arrest and seizure of evidence illegal and all resulting evidence (including fingerprints, blood and saliva samples, show-ups, lineups, and statements) fruits of the poisonous tree.

After an evidentiary hearing on the motions, the trial court made the following findings of fact, all of which are substantiated by the record and therefore adopted by this Court:

(a) On Thursday July 6, 1978 at approximately 4:30 A.M. there was a BOLO broadcast by the Deerfield Beach Police Department that a rape-hostage situation existed at Fire Station # 2 in Deerfield Beach.
(b) Officer Mugridge of the Deerfield Beach Police Department was in the area and responded to the BOLO, arriving at the fire station within thirty (30) seconds.
(c) Mudgridge [sic] spotted a vehicle pulling away from the Deerfield Beach Police Training Center with its lights out. There was no other traffic in the area.
(d) The Training Center is located approximately 150-200 feet north of Fire Station # 2 with a driveway and parking area between it and the fire station.
(e) The position of the vehicle with respect to a fence located on the north side of the training center indicated to Mu-gridge that the vehicle had to have backed in.
(f) The Training Center is not open at night and Officer Mugridge knew this.
(g) Mugridge immediately radio’ed his sighting, and Lt. Jackson of the Deerfield Beach Police Department radio’ed to stop any car leaving the area.
(h) Officer Mugridge and Officer Mitchell, who just arrived on the scene, pulled the vehicle over on Powerline Road within several blocks of the fire station and training center.
(i) Mugridge radio’ed in the tag number of the vehicle before exiting his car. The car was a blue Chevy.
(j) The occupants of the car (four, young, white males, including the two defendants) were ordered to exit at gun point.
(k) Officer Williams, who now was on the scene, got the names of the occupants.
(l) Officer Mitchell searched the car and found two (2) knives and a pellet gun under the passenger’s seat.
(m) The car had been stopped for three (3) to five (5) minutes when a broadcast over the radio indicated that the rape-hostage situation still existed at the fire station.
(n) Upon hearing this, the Officers returned the knives and gun and allowed the vehicle and occupants to leave.
(o) Responding to the fire station, the officers found two young females there who related that they had been taken against their will to a rock pit area near the fire station by four young white males with long hair in a blue Chevy. One of the girls said she was raped, and they both had been left there and had run to the fire station, where the firemen on duty called the police.
(p) Lt. Jackson immediately ordered that the blue Chevy with the four young white males be located and stopped again.
(q) Officer Williams located the car within minutes several miles from the fire station on Hillsboro Boulevard in Deer-field Beach.
(r) He recognized the vehicle from the first stop, and after calling in the tag number and having it verified as the same number that he had called in before, he stopped the car and arrested the four occupants including the Defendants on charges relating to the kidnapping and sexual battery of the two girls.
(s) The modus operandi of the crimes committed on the two girls on July 6, 1978 and the evidence developed from the July 6, 1978 stop and arrest led to the placing of the charges against the Defendants for the June 30, 1978 kidnapping, sexual battery and robbery which are the subject of the case sub judice.

The trial court then determined that these facts were sufficient to create a “founded suspicion” at the time of the first stop that the persons in the vehicle had committed or were about to commit a violation of the criminal laws of the State. The court further determined that the evidence relating to the vehicle’s tag number, make, and color and the identification, number, and description of the occupants was all legally obtained, but that the seizure of the knives and gun was not justified. We agree.

A “founded suspicion” is a suspicion which has some factual foundation in the circumstances observed by the detaining officer, when those circumstances are interpreted in light of the officer’s knowledge. To determine whether the circumstances reasonably suggest the suspect’s possible commission, existing or imminent, of a crime, certain factors should be evaluated: time, day of the week, location, physical appearance of the suspect, behavior of the suspect, appearance and manner of operation of any vehicle involved, and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge. State v. Stevens, 354 So.2d 1244 (Fla.4th DCA 1978).

The officer observed the car at 4:30 A.M. pulling away from the closed Training Center with its lights out. There was no other traffic in the area and the detaining officers knew that just thirty (30) seconds earlier, a BOLO concerning a rape-hostage situation within 200 feet of that location was broadcast. These circumstances were sufficient to create the required “founded suspicion.” Romanoff v. State, 391 So.2d 783 (Fla.4th DCA 1980).

We also agree with the trial court’s ultimate finding that the legally obtained evidence in conjunction with the information received from the victims gave the officers probable cause to make the second stop of the vehicle and to arrest appellants.

The victims’ description of the automobile and its occupants coupled with the officers’ previous lawful observations provided the officers with probable cause to arrest. Thus, the evidence obtained as a result of the arrest, with the exception of the knives and gun, was not fruit of the poisonous tree.

AFFIRMED.

MOORE and GLICKSTEIN, JJ., concur.


text:
    Ronald CLEMENTS, Appellant, v. STATE of Florida, Appellee. Carl David LOWE, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-1228, 79-1239.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Rehearing Denied April 29, 1981.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant-Clements.
    Alan Jay Braverman of Law Offices of Alan Jay Braverman, P.A., Fort Lauder-dale, for appellant-Lowe.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellants Clements and Lowe were each charged by indictment with two counts of kidnapping with intent to terrorize and two counts of sexual battery with a deadly weapon. Appellant Lowe was additionally charged with robbery with a deadly weapon. These crimes allegedly occurred on July 6, 1978. After jury trial each appellant was adjudicated guilty and sentenced on all charges against him except for one count of sexual battery. It is from these judgments and sentences that appellants appeal.

Appellants first challenge the denial of their motions to suppress evidence resulting from two separate stops of a vehicle in which they were riding. The facts surrounding these stops are set forth in Clements v. State, 396 So.2d 214 (Fla.4th DCÁ 1981). We adhere to the holding of that case; the stops and ultimate arrests of appellants were legal, thus suppression of the evidence obtained as a result thereof, with the exception of the knives and gun, was properly denied.

In the present case, however, we are faced with an additional question. Unlike the trial court in Clements v. State, supra, the trial court here did not suppress the knives and gun found in the search of the vehicle conducted during the initial stop and seized after the second stop. Thus, we must determine whether that evidence should have been suppressed.

The State argues that the search was justified as a protective search for weapons, extending beyond the immediate control of the suspects to an area where the officers could be endangered if the occupants were permitted to re-enter the vehicle, citing Brown v. State, 358 So.2d 596 (Fla.2d DCA 1978). However, the Brown decision was specifically limited in the following manner:

We hold that under proper circumstances a police officer making a valid investigative stop involving an automobile may conduct a carefully limited search of areas accessible to occupants of the vehicle and in which the officer has, based upon specific and articulable facts, well-founded reason to believe an accessible weapon is hidden. This protective search may take place even though the occupants have been temporarily removed from the vehicle. The protective search must be limited to circumstances in which the investigating officer has received some reliable information, or has observed some furtive gesture, indicating the presence of a weapon in a particular and accessible area of the vehicle. The protective search must be conducted in a manner reasonably calculated to uncover weapons only. This extension of the scope of a protective search applies only where, at the time of the search, it appears that the suspect should be allowed to return to his vehicle. Id. at 600-601.

In the instant case, because of the nature of the crime reported in the BOLO and the circumstances surrounding the initial stop, the police officers had reason to believe that the suspects may be armed and dangerous. Nevertheless, the search cannot be justified. There was no reliable information received or furtive gesture observed indicating the presence of a weapon in a particular and accessible area of the vehicle. More importantly, the search was conducted before it appeared that appellant suspects should be allowed to return to the vehicle.

Therefore, the knives and gun seized in the search should have been suppressed as fruits of the poisonous tree and admission of these items into evidence over objection was reversible error.

Appellants’ remaining points are either without merit or are particular to the facts as developed at trial. Accordingly, those issues will not be addressed at this time.

REVERSED AND REMANDED.

MOORE and GLICKSTEIN, JJ., concur.


text:
    Raquel QUESADA, Appellant, v. Ernesto QUESADA, Appellee.
    No. 80-2041.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied April 24, 1981.
    Swope, Stobs & Koltnow and H. Robert Koltnow, Miami Shores, for appellant.
    Carlos L. DeZayas, Hialeah, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Schwartz v. Schwartz, 336 So.2d 18 (Fla. 3d DCA 1976); Walton v. Walton, 290 So.2d 110 (Fla. 3d DCA 1974).


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Michael G. MANNING, Jere Daniel Bell, Darrell Armbruster, Fred Cunningham, William M. Norrell, Adrian T. Perschl, Jr., James Lee Winberry and Cary Cawthornes, Appellees.
    No. 79-2304.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Rehearing Denied April 29, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zaeks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Charles I. Poole, Law Office of Charles I. Poole, South Miami, for appellees-Manning, Armbruster, Cunningham, Norrell, Perschl, Winberry, and Cawthorne.
    James W. Reilley and Barry E. Witlin, Chicago, Ill., and Robert P. Foley, West Palm Beach, for appellee-Bell.
   DOWNEY, Judge.

The State of Florida has perfected this appeal from an order suppressing a quantity of marijuana, obtained by the police in the search of a residence pursuant to a search warrant. We reverse.

The motion to suppress filed by the appel-lees contended that the search warrant was defective for two reasons; one, because the affidavit upon which the warrant was issued was itself insufficient, and two, because the warrant was improperly executed. After hearing the evidence of the parties, some of which was conflicting, the trial court found that the affidavit was sufficient, but due to the improper execution of the warrant the evidence discovered should be suppressed.

There was some conflict in the evidence regarding the manner in which the warrant was. executed. The trial judge resolved those conflicts by finding:

The evidence shows that the officers approached the residence for the purpose of serving the warrant. They knocked on the door and, when someone opened the door, they (the officers) announced their purpose and entered. There is a dispute as to exactly how they entered, but there is no dispute that they entered without permission, but before any occupant refused their admission.

In view of the finding, the trial court held that the officers had failed to comply with Section 933.09, Florida Statutes (1977).

The State submits that the officers scrupulously observed the procedures enumerated in Section 933.09, Florida Statutes (1977), prior to entering the residence which was the subject of the search warrant. Admission to the premises was gained only after the officers knocked, an occupant opened the door and the purpose of the visit was announced. The error attributed to the trial court is that of requiring an actual acknowledgment on the part of the occupants, either granting or refusing the officers permission to enter the residence, before such entry could be lawfully gained.

The greater portion of appellees’ argument is focused upon their own testimony that the officers thrust open the door and entered without announcing their purpose, without permission, and consequently in total abrogation of the procedures prescribed in Section 933.09. The trial judge, however, rejected appellees’ version of the facts and there is competent evidence in the record to support the finding that the officers knocked, announced, and entered the residence once the door had been opened from the inside. It is uncontroverted that the officers were never invited to enter the residence, nor were they denied permission by the appellees. The error which we perceive is not in the finding of fact, but rather in the legal conclusion ascribed thereto by the trial court; that is, that the uninvited entry invalidated the entire procedure.

Section 933.09 is the statutory embodiment of a common law rule which has its roots in a tradition of respect and privacy afforded a man in his own home. Such a concept, that the sanctity of a man’s home is inviolate, can be traced back as early as Thirteenth Century England. In commenting on the federal counterpart to Section 933.09, the United States Supreme Court stated in Miller v. United States:

The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. 357 U.S. at 313, 78 S.Ct. at 1197.

The Florida courts have long recognized this principle. In Benefield v. State, 160 So.2d 706 (Fla.1964) the Florida Supreme Court emphasized the importance of the “knock and announce rule”:

This sentiment has moulded our concept of the home as one’s castle as well as the law to protect it. The law forbids the law enforcement officers of the state or the United States to enter before knocking at the door, giving his name and the purpose of his call. There is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. This is why the law protects its entrance so rigidly. The law so interpreted is nothing more than another expression of the moral emphasis placed on liberty and the sanctity of the home in a free country. Liberty without virtue is much like a spirited horse, apt to go berserk on slight provocation if not restrained by a severe bit. 160 So.2d at 709.

The purpose for such a rule, beyond mere deference for an historical tradition, is the protection of three significant interests:

(1) the prevention of violence and physical injury to the police and the occupants;

(2) the unexpected exposure of the private activities of the occupants;

(3) the property damage resulting from forced entry.

Thus, the knock and announce rule was designed to safeguard the integrity and privacy of one’s home as well as to promote the safety of all concerned in situations where a police officer must “break open” some part of a dwelling in order to effectuate an arrest or serve a warrant. Since the rule is specifically addressed to instances where a “breaking” occurs, it is incumbent on a law enforcement officer to comply with the knock and announce requirements where it appears a breaking may well precede the entry. State v. Clarke, 387 So.2d 980 (Fla. 2d DCA 1980). The concept of a breaking is not limited nor synonymous with that of force. In fact, the United States Supreme Court in- Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), has strictly construed the federal statute, substantially similar in form to Section 933.09, Florida Statutes (1977), to apply to an entry by officers through a closed, but unlocked, door. The Court held:

An unannounced intrusion into a dwelling — what § 3109 basically proscribes — is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially opened door, open a locked door by use of a passkey, or, as here, open a closed but unlocked door. At 589, 88 S.Ct. at 1757.

With this as background, we now turn to the facts of the instant case. The trial court found, and the record supports this finding, that the officers both knocked and announced prior to stepping inside the ap-pellees’ residence. Since the knock resulted in the door’s being voluntarily opened by an occupant, the officers never had to resort to a “breaking” to gain entry. Consequently, the language in Section 933.09 requiring an officer be “refused admittance” before “breaking open” any portion of the residence to gain entry was not applicable. However, since the officers were confronted with a closed door on their initial approach to the residence, they were nevertheless required to knock and announce.

In order to determine whether the officers’ method of entry somehow violated the spirit of the knock and announce rule it is necessary to examine it in light of the three prevailing interests promoted by the rule. First, since the officers, at least one of whom was in uniform, stated their purpose prior to entering the home, it was thus clear to the occupants that the officers were not intruders who had come for an illegal purpose. Thus, the potential for violence was somewhat reduced. Second, since the occupants saw fit to open the door before inquiring who was there, their expectations of privacy were greatly diminished. The language in 933.09 pertaining to “refused admittance” is included to provide an occupant with time sufficient to voluntarily open the door and thereby avoid unnecessary destruction of property. This is not a consideration in the instant case. It is inconceivable to us what purpose, if any, would be served by requiring the officer to await either refusal or approval by the occupants before entering the apartment.

Accordingly, we reverse the order appealed from and remand the cause for further proceedings.

REVERSED AND REMANDED, with directions.

BERANEK and GLICKSTEIN, JJ., concur.

      . 933.09 Officer may break open door, etc., to execute warrant. — The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of his authority and purpose he is refused admittance to said house or access to anything therein.

      . Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Therein the Supreme Court traces the common law development of the knock and announce rule.

      . 18 U.S.C. § 3109.

      . Although Benefield deals with section 901.19, Florida Statutes (1961), the right of officers to break into a building to make an arrest, the requirements to knock and announce, as well as the reasons therefor, are the same as those found in Section 933.09, Florida Statutes (1977), the right of an officer to break into a house to execute a warrant.

        .Payne v. United States, 508 F.2d 1391 (5th Cir. 1975) at 1393-4, U.S. cert, denied, 423 U.S. 933, 96 S.Ct. 287, 46 L.Ed.2d 263 (1975). See also: 2 W. LaFave, Search and Seizure, § 4.8 at 124 (1978).

      . 2 W. LaFave, Search and Seizure, § 4.8 at 129-130 (1978).