author: ANSTEAD, Judge. LETTS, Chief Judge,

text:
    Dorothy R. LOFT, etc., et al., Appellants, v. John G. FULLER, et al., Appellees.
    Nos. 79-1031, 79-1901.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Rehearing Denied Feb. 4, 1982.

      Richard A. Barnett of Law Office of Krupnick & Campbell, P. A., Fort Lauder-dale, for appellants.
    Larry S. Stewart and Gary D. Fox of Floyd, Pearson, Stewart, Richman, Greer & Weil, P. A., Miami, and Harriet F. Pilpel and Charles D. Bock of Greenbaum, Wolff & Ernst, New York, for appellees.
   ANSTEAD, Judge.

This is an appeal by Dorothy R. Loft and her two children, Kimberly and Robert, Jr., from an order dismissing with prejudice their second and third amended complaints which sought injunctive relief and damages against the appellees for the alleged unauthorized publication of the name and likeness of the Lofts’ deceased husband and father Robert A. Loft; for invasion of privacy incidental to the publication; and for the intentional infliction of emotional distress; all alleged to have resulted from reference to Robert Loft as a “reappearing ghost” as described in a book entitled The Ghost of Flight 401 and a movie based on the book.

On December 29, 1972, Eastern Airlines Flight 401 crashed while enroute from New York to Miami, Florida. Robert Loft, the captain of Flight 401, was killed. The crash was followed by reports of the appearance of apparitions of Flight 401 crew members, including Captain Loft, on subsequent flights. These reports received extensive publicity by the news media.

Subsequent to these press stories, The Ghost of Flight 401 was published in 1976. The book, a non-fictionalized account by the author, John Fuller, of his investigation of the reports, reported that the ghost of Captain Robert Loft, and other members of the flight crew, had reappeared to other Eastern flight crews and members of the general public on subsequent Eastern Air Line flights. In this action, the appellants, who themselves are not alleged to have been mentioned in the book, complain about the attention the book has attracted to them as the surviving relatives of Captain Loft.

In dismissing the counts purporting to allege a violation of Section 540.08, Florida Statutes (1977) and a common law invasion of privacy, as set forth in the appellants’ second amended complaint, the trial court elucidated the basis for its holding:

3. Counts II, IV and V of the Second Amended Complaint purport to allege common law invasion of privacy. A cause of action for invasion of the common law right of privacy is strictly personal and may be asserted only by the person who is the subject of the challenged publication. Relatives of a deceased person have no right of action for invasion of privacy of the deceased person regardless of how close such personal relationship was with the deceased. Cordell v. Detective Publications, Inc., 419 F.2d 989 (6th Cir. 1969); Fletcher v. Florida Publishing Co., 40 Fla.Supp. 1 (Cir.C. 1974), affirmed in material part, 319 So.2d 100 (1st DCA 1975), rev’d on other points, 340 So.2d 914 (1976), cert. denied, 431 U.S. 930 [97 S.Ct. 2634, 53 L.Ed.2d 245]; and Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d 590 (5th Cir. 1962) [applying Florida law]. Accordingly, as to Counts II, IV and V of the Second Amended Complaint, the various defendants’ motions to dismiss be and the same hereby are granted with prejudice.
4. Counts I, III and V of the Second Amended Complaint purport to allege a violation of Florida Statute 540.08. That statute is part of Chapter 540 of the Florida Statutes dealing with Commercial Discrimination. Although there has been no case law in Florida interpreting Florida Statute 540.08 which would in any way be relevant to the cause of action asserted here, examination of the statute together with decided cases from other jurisdictions involving similar statutes make it clear to the Court that no cause of action exists under the facts alleged herein. Florida Statute 540.08 applies only to actions in which a person’s name or likeness is used for commercial trade or advertising purposes. The use of the decedent’s name in the publication of “The Ghost of Flight 401” and the use of his name in the subsequent movie do not constitute commercial trade or advertising as those terms are used in the statute or as those terms have been interpreted in other jurisdictions. Florida Statute 540.08 also contains an exception to its application in sub-section 3. There it is specifically provided that the statute does not apply in the case of any book which is published as part of a bona fide news report or presentation having a current and legitimate public interest. “The Ghost of Flight 401” is such a publication. Were the rule otherwise, it would have an unconstitutional “chilling” effect upon the First Amendment freedoms of speech and press. See e.g. Donahue v. Warner Bros. Pictures, 2 Utah 2d 256, 272 P.2d 177 (1954). Accordingly, the motions to dismiss directed to Counts I, III and V of the Second Amended Complaint be and the same hereby are granted with prejudice.

Appellants were thereafter given an opportunity to file a third amended complaint in an attempt to state a cause of action for intentional infliction of emotional distress. Acting upon a motion to dismiss, the trial court also held that this count. failed to state a legal cause of action.

Appellants contend that a cause of action for intentional infliction of emotional distress accrued both because the portrayal of Captain Loft as a “ghost” in The Ghost of Flight 401 implied that they are the wife and children of a ghost; and because appel-lee Fuller, in preparing his book, secured the permission of the widow of another crew member who died in the crash of Flight 401, but did not even attempt to secure such permission from the Loft family. To find a cause of action we would have to conclude that these allegations constitute “conduct exceeding all bounds which could be tolerated, of a nature especially calculated to cause mental damage of a very serious kind.” Slocum v. Food Fair Stores of Florida, 100 So.2d 396, 397 (Fla. 1958), quoting Prosser, Mental Suffering, 37 Mich.L.R. 889. Also see Chopin, “Emotional Distress Caused by Outrageous Conduct,” The Florida Bar Journal Volume 54, Number 4, April 1980. We simply do not believe the allegations meet this test.

The other two claims are not as easy to decide. The Florida Supreme Court first recognized the tort of invasion of privacy in Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944), a recognition reconfirmed in Cason v. Baskin, 159 Fla. 31, 30 So.2d 635 (1947). Since then Florida decisions have filled out the contours of this tort right of privacy by accepting the following four general categories recognized by Prosser in his Law of Torts, p. 804-14 (4th Ed. 1971): (1) Intrusion, i.e., invading plaintiffs’ physical solitude or seclusion; (2) Public Disclosure of Private Facts; (3) False Light in the Public Eye, i.e., a privacy theory analogous to the law of defamation; and (4) Appropriation, i.e., commercial exploitation of the property value of one’s name.

Under the first three of the categories, the right of privacy has generally been considered personal in nature. The Restatement of Torts 2d provides that:

Except for the appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded.
Comment
a. The right protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded. The cause of action is not assignable, and it cannot be maintained by other persons such as members of the individual’s family, unless their own privacy is invaded along with his.
b. In the absence of statute, the action for invasion of privacy cannot be maintained after the death of the individual whose privacy is invaded. In a few states particular statutes permit the survival of an action for invasion of privacy that has occurred before death. In a smaller number of states there is statutory authorization for an action on the part of surviving relatives for invasion of privacy of one who is already deceased, with the invasion occurring after his death. Since appropriation of name and likeness is similar to impairment of a property right and involves an aspect of unjust enrichment of the defendants or his estate, survival rights may be held to exist following the death of either party.

Restatement of Torts, 2d, § 652 I (1977); see also W. Prosser, supra, at 815.

By enacting Section 540.08, the Florida Legislature has amplified the remedies available for the fourth form of invasion of privacy: commercial exploitation of the property value of a person’s name or personality. Section 540.08 prohibits unauthorized publication of the name or likeness of any person, for trade, commercial or advertising purposes. If the person involved is deceased, consent for such publication must be secured from the surviving spouse and children. The statute specifically exempts from its proscription the publication of any matter having a current and legitimate public interest unless such publication amounts to a direct advertisement of the publisher’s product. At issue is whether the name of Captain Loft was published in the Ghost of Flight 401 for a trade, commercial or advertising purpose as contemplated by the statute. Appellants claim the deceased’s name was used for the “commercial” purpose of selling books by publicizing the reports of Captain Loft’s reappearances as a ghost, and that hence the publication was in violation of Section 540.08 since appellants’ permission was not secured. We cannot agree.

In our view, Section 540.08, by prohibiting the use of one’s name or likeness for trade, commercial or advertising purposes, is designed to prevent the unauthorized use of a name to directly promote the product or service of the publisher. Thus, the publication is harmful not simply because it is included in a publication that is sold for a profit, but rather because of the way it associates the individual’s name or his personality with something else. Such is not the case here. While we agree that at least one of the purposes of the author and publisher in releasing the publication in question was to make money through sales of copies of the book and that such a publication is commercial in that sense, this in no way distinguishes this book from almost all other books, magazines or newspapers and simply does not amount to the kind of commercial exploitation prohibited by the statute. See e.g. Jenkins v. Dell Publishing Company, 251 F.2d 447 (3d Cir. 1958); Cordell v. Detective Publications, Inc., 307 F.Supp. 1212 (E.D.Tenn.1968), aff'd. 419 F.2d 989 (6th Cir. 1978); Mahaffey v. Official Detective Stories, Inc., 210 F.Supp. 251 (W.D.La.1962). We simply do not believe that the term “commercial,” as employed in Section 540.08, was meant to be construed to bar the use of people’s names in such a sweeping fashion. We also believe that acceptance of appellants’ view of the statute would result in a substantial confrontation between this statute and the first amendment to the United States Constitution guaranteeing freedom of the press and of speech. See, e.g., Cordell v. Detective Publications, Inc., supra; Jenkins v. Dell Publishing Company, supra; Mahaffey v. Official Detective Stories, Inc., supra. Having concluded that the publication as alleged is not barred by Section 540.08, we need not decide if, under the allegations of the complaint, the book was of current and legitimate public interest, thus removing it entirely from the scope of the statute.

Appellants also seek relief under the other three forms of common law invasion of privacy. However, as indicated before, the majority view, as represented by the Restatement of Torts, is that the deceased’s relatives may not maintain an action for invasion of privacy, either based on their own privacy interests or as a representative for the deceased where the alleged invasion was directed, as was the case here, primarily at the deceased. The court in Justice v. Belo Broadcasting Corp., supra, footnote 2, explained why most jurisdictions have refused to recognize a claim by the surviving relatives:

Certain policies have been identified by the courts in support of the majority rule. First, the law is wary of actions for injury which is purely emotional; the danger of spurious claims is too great, see Cordell v. Detective Publications, Inc., 419 F.2d at 991. A major problem is also defining the boundaries of the cause of action brought by a person not referred to or named in the publication or broadcast. In Nelson v. Maine Times, 373 A.2d at 1221, the court stated:
Section 6521 is in accord with general decisional law which holds this tort to be purely personal. In the context of this particular tort courts, being wary of spurious claims or those purely emotional in character have refused to recognize such actions. Additionally, if actions for violating the right of privacy were allowed by other than the person directly involved, fixing their boundaries and parameters would become an almost impossible task. For example, within what degree of relationship, if any, must a prospective plaintiff be? Might not a very close friend have as serious or emotional reaction as a mother or father? The consensus seems to be that limiting the action to the person directly involved is a sounder judicial policy. We agree. See Cordell v. Detective Publications, Inc., 419 F.2d 989 (6th Cir. 1969); Kelley v. Post Publishing Co., 327 Mass. 275, 98 N.E.2d 286, 287 (1951).
Id. at 1225. Other courts have stated that the decision should be left to state legislatures, Maritote v. Desilu Productions, Inc., 345 F.2d at 420, and some states have provided for, by statute, a cause of action to be maintained by the relatives of a deceased who is referred to in a publication, see W. Prosser, supra, at 815. Finally, some courts have expressed concern over double recoveries, see Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d at 12, although that problem is not presented in this case.
Alternatively, an analogy can be made to defamation cases, see Gruschus v. Curtis Publishing Co., 342 F.2d at 776; Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d at 12. Under Texas law, the plaintiffs could not recover for libel or slander under the facts presented in this case. No cause of action for defamation could arise in favor of the parents who were not identified in any way in the news report made the subject of the complaint, see Gonzales v. Times Herald Printing Co., 513 S.W.2d 124 (Tex.Civ. App. — Dallas 1974, no writ); Keys v. Interstate Circuit, Inc., 468 S.W.2d 485 (Tex.Civ.App. — Tyler 1971, writ dism’d). A libel upon the memory of the deceased person that does not directly cast any personal reflection upon his relatives does not give them any right of action, see Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246 (Tex.Comm.App.1942, opinion adopted). The defamation cases are, however, not directly on point since defamation is concerned with the different interest of reputation.

There are cases which support the view that under certain circumstances the deceased’s relatives may recover for the invasion of their own privacy interests even though they were not personally the focus of the publicity in question. For example, see Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849 (Ky.App.1912); Bazemore v. Savannah Hosp., 171 Ga. 257, 155 S.E. 194 (1930); Fitzsimmons v. Olinger Mortuary Ass’n, 91 Colo. 544, 17 P.2d 535 (1932); Varnish v. Best Medium Publishing Co., 405 F.2d 608 (2d Cir. 1968), cert. denied 394 U.S. 987, 89 S.Ct. 1465, 22 L.Ed.2d 762 (1969); Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 200 S.E.2d 127 (Ga.1973), reversed on other grounds, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). The rationale behind these decisions is that the relatives of the deceased have their own privacy interest in protecting their rights in the character and memory of the deceased as well as the right to recover for their own humiliation and wounded feelings caused by the publication. Some of these actions were also predicated on quasi-contractual grounds or on grounds similar to those which might constitute a cause of action for intentional infliction of emotional distress under Florida law.

We are wary of a blanket rule barring all relatives of a deceased from bringing a common law invasion of privacy action simply because the relatives were not directly involved in the publicity. However, in our view such relatives must shoulder a heavy burden in establishing a cause of action. When there are unusual circumstances, such as those that were involved in most of the cases which have recognized claims by the relatives, it may be that a defendant’s conduct towards a decedent will be found to be sufficiently egregious to give rise to an independent cause of action in favor of members of decedent’s immediate family. Absent the presence of such unusual circumstances, however, such actions will usually be barred for the reasons best expressed in the Justice case, quoted, supra.

In the case at hand we do not believe the appellants have stated a cause of action under any of the published decisions. It is not alleged that the publication contains any reference to appellants themselves. The appellants have not alleged any independent violation of their own personal privacy rights other than that alleged to have occurred indirectly by virtue of the publicity given to the deceased’s alleged reappearance. Further, appellees are not alleged to have invented, nor even having first published, the reports regarding Captain Loft’s reappearance as a “ghost.” They are not alleged to have made false or slanderous statements about the deceased; to have displayed grotesque pictures of the deceased’s body; or to have been guilty of any conduct similar thereto. Although we have great sympathy for the plight of appellants in enduring both the death of their father and husband, and the bizarre rumors of his reappearance as a “ghost,” we simply do not believe that these facts alone are of a sufficiently egregious nature to establish a claim of invasion of privacy against the appellees.

Accordingly, for these reasons, we affirm the orders of the lower court dismissing the amended complaints with prejudice.

HERSEY, J., concurs.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Judge,

specially concurring.

I agree with the opinion in all respects except for its hesitancy on the question of whether surviving relatives have standing to bring a cause of action for invasion of privacy.

To me they should unequivocally have standing and while their burden is heavy, it should not be any heavier than the norm for an invasion of right of privacy action. The Florida Legislature would appear to agree with me, because Section 540.08(l)(c) has specifically granted standing to close relatives. It is true that the section of the Statute applies only to invasion of privacy by means of commercial exploitation, but it is not easy to make a distinction. I am convinced that the passage of this section indicates that the Legislature is receptive to the view that the standing issue should be expanded beyond the traditional common law concept limiting the right to a personal one.

      . The flight engineer’s widow, unlike the appellants, was mentioned at length in the book and also cooperated with the author in performing certain experiments reported in the book.

      . See e.g. Young v. That was the Week That Was, 423 F.2d 265 (6th Cir. 1970); Maritote v. Desilu Productions, Inc., 345 F.2d 418 (7th Cir.), cert. denied 382 U.S. 883, 86 S.Ct. 176, 15 L.Ed.2d 124 (1965); Gruschus v. Curtis Publishing Co., 342 F.2d 775 (10th Cir. 1965); Starrels v. Commissioner, 304 F.2d 574 (9th Cir. 1962); Justice v. Belo Broadcasting Corporation, ATI F.Supp. 145 (N.D.Tex.1979); Meero-pol v. Nizer, 381 F.Supp. 29 (S.D.N.Y.1974), aff'd 560 F.2d 1061 (2d Cir. 1977); Nelson v. Maine Times, 373 A.2d 1221 (Me.1977); Henrickson v. California Newspapers, Inc., 48 Cal. App.3d 59, 121 Cal.Rptr. 429 (1975); Cordell v. Detective Publications, Inc., supra; Santiesteban v. Goodyear Tire & Rubber Co., supra. See also Annot. 18 ALR 3d 873 (1968).


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    BROWARD COUNTY, Gerald F. Thompson, Fran Gross, Jack Fried, Anne L. Kole, Howard Foreman, Howard Craft and Marcia Beach, as members of and constituting the Board of County Commissioners of Broward County, Florida, Appellants, v. CORAL RIDGE PROPERTIES, INC., a Delaware corporation, Appellee.
    Bankruptcy No. 81-69.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Rehearing Denied Feb. 5, 1982.

      Harry A. Stewart, Gen. Counsel, Fort Lauderdale, and F. Craig Richardson, Jr., of Ross,’ Hardies, O’Keefe, Babcock & Parsons, Chicago, Ill., for appellants.
    H. T. Maloney of Patterson, Maloney & Feige, Fort Lauderdale, for appellee.
   HERSEY, Judge.

Broward County appeals from an order granting a petition for writ of mandamus and requiring the County Commission to approve an application for a plat. We reverse.

The property which appellee seeks to develop is a rather narrow strip of land located between State Road A1A and Galt Ocean Drive in the City of Fort Lauderdale. Appellee’s application for plat approval was first submitted to and granted by the City. Thereafter application was made to the County. After several hearings and extended study the County determined to deny appellee’s application. The basis for denial was that the “testimony and evidence has demonstrated that there will not be safe and adequate access to and from the area sought to be platted and that waste-water treatment and disposal service will not be available to meet the needs of the development proposed for the area sought to be platted until late 1984.”

Lack of access is indicated to be in violation of Section 336.05(2), Florida Statutes (1979). The unavailability of wastewater treatment and disposal service is said to violate Sections 5-191(a)(l)(b) and 5-192(g), of the Broward County Code and Section 5.01(b) Chapter IV, of the Broward County Land Use Plan.

An initial question arises as to whether mandamus was an appropriate remedy even assuming the correctness of appellee’s legal position in all other respects and accepting appellee’s view of the facts.

In an earlier case, also involving an application for plat approval, we laid down the ground rules for utilizing mandamus to compel a governmental unit to act on such an application. State ex rel. Zuckerman-Vernon Corp. v. City of Miramar, 306 So.2d 173 (Fla. 4th DCA 1974). There we held:

Mandamus applies to legal duties of a specific imperative character as distinguished from those that are permissive or discretionary. The distinction between ministerial and judicial duties is that the duty is ministerial when the law prescribes and defines it with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Where the act to be done does involve the exercise of discretion or judgment, it is a judicial or discretionary duty.

Id. at 175. We then suggested that consideration of a plat involves the exercise of discretion so that ordinarily mandamus is inappropriate. An exception would exist where a governmental unit simply refuses to take any action on an application.

In Broward County v. Narco Realty, Inc., 359 So.2d 509 (Fla. 4th DCA 1978), we clarified and thereby limited our holding in Zuckerman by pointing out that where “the property owner has done all the law required of him to entitle his plat to be recorded” then mandamus was an appropriate remedy because nothing remained to be done which would permit or require an exercise of discretion.

In essence appellee argues that certain of the statutory requirements relied upon by the county are inapplicable and that those remaining are met by the proposed plat. With respect to whether the County has misapplied or misapprehended the legal requirements for plat approval this is a question properly dealt with by review pursuant to Rule 9.100(c), Florida Rules of Appellate Procedure. A merely erroneous decision will not support an application for mandamus. Thus, appellee’s contention that all applicable legal requirements are met by the proposed plat is not appropriate for consideration now since the County has applied other requirements and found the plat wanting. In other words, the County disputes appellee’s assertion that it has done all that the law required. Therefore, the present case is not controlled by Broward County v. Narco Realty, Inc., supra, because there the parties agreed that all legal requirements had been met — the County simply did not want to approve the plat. Whether or not the County’s use of other requirements was erroneous is a question properly dealt with by review, not mandamus. Remaining is appellee’s contention that all applicable' legal requirements are met by the proposed plat. We determine that it would be inappropriate to consider that contention in the context of the present appeal. Even if we were to determine that appellee is correct there would remain the impediment to final disposition that the County has applied other and additional requirements, whether or not erroneously, and made a finding that appel-lee’s application for plat approval should be denied.

Mandamus was not an appropriate remedy under these circumstances.

We therefore reverse the order on appeal and instruct the trial court to vacate the writ of mandamus.

REVERSED AND REMANDED.

BERANEK, J., and OWEN, WILLIAM C., Jr., Associate Judge (Retired), concur.


author: SCHOONOVER, Judge.

text:
    The DEPARTMENT OF MOTOR VEHICLES of the State of Florida, For the Use and Benefit of FIFTH AVENUE MOTORS, LTD., a Florida corporation, d/b/a International Motor Cars, Ltd. and Dwayne Hawkins, an individual; Fifth Avenue Motors, Ltd., a Florida corporation, d/b/a International Motor Cars, Ltd.; Dwayne Hawkins, an individual, Appellants, v. MERCEDES-BENZ OF NORTH AMERICA, INC., a Delaware corporation, Appellee.
    No. 81-420.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.

      Joseph W. Letzer of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., Wayne Thomas of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for appellants.
    W. 0. Birchfield and Dennis, E. Hayes of Martin, Ade, Birchfield & Johnson, Jacksonville, for appellee.
    J. Robert McClure, Jr., of McClure, Wig-ginton & Owen, P.A., Tallahassee, for ami-cus curiae Fla. Auto. Dealers Association.
    Walter E. Huizenga, Chief Counsel, and Rhonda P. Kurtis, Staff Atty., McLean, Va., for amicus curiae Nat. Auto. Dealers Association.
   SCHOONOVER, Judge.

The appellants, plaintiffs below, appeal an order of the lower court dismissing their complaint with prejudice. We hold that the appellants have alleged a cause of action which, if proved, would require the application of New Jersey law to their attempt to transfer an automobile franchise and accordingly reverse.

On September 24, 1976, the appellant, Fifth Avenue Motors LTD, d/b/a International Motor Cars, Ltd., a Florida corporation, hereinafter referred to as “Fifth Avenue,” entered into a Mercedes-Benz dealer agreement with the appellee, defendant below, Mercedes-Benz of North America, Inc., a Delaware corporation, headquartered in New Jersey, hereinafter referred to as “MBNA.”

On November 1, 1978, Fifth Avenue entered into a buy-sell agreement which included a transfer of their franchise to the other appellant, Dwayne Hawkins, and notified the appellee of the intended transfer. MBNA never accepted or rejected Mr. Hawkins.

The agreement provided that it was to be governed by the laws of the state of New Jersey, the place where the contract was entered into. The New Jersey Code, section 56:10-6, provided in pertinent part as follows:

The franchisor shall within 60 days after receipt of such notice either approve in writing to the franchisee such sale to proposed transferee or by written notice advise the franchisee of the unacceptability of the proposed transferee setting forth material reasons relating to the character, financial ability or business experience of the proposed transferee. If the franchisor does not reply within the specified 60 days, his approval is deemed granted.

When the appellee refused to transfer the franchise, the appellants filed suit, alleging in count I of their complaint that the agreement was governed by New Jersey law and under that law the appellee’s approval of the transfer was deemed granted. The court ruled that the New Jersey law did not apply and dismissed count I with prejudice.

MBNA contends that the complaint did not allege sufficient contact with New Jersey to validate the conflict of law provision contained in the contract, New Jersey law is limited to New Jersey franchises, the provision contravenes the laws of the state of Florida and therefore should be deleted, and the terms of the agreement should control.

A review of the agreement which is the subject matter of this action, together with the complaint, leads us to the conclusion that New Jersey law should be applied.

First, the parties provided in the agreement that it would be'governed by the laws of the state of New Jersey. It is well established that when the parties to a contract have indicated their intention as to the law which is to govern, it will be governed by such law in accordance with the intent of the parties. Hirsch v. Hirseh, 309 So.2d 47 (Fla. 3rd DCA 1975). The language used in the contract is the best evidence of the intent of the parties at the time they entered into the contract. Boat Town USA v. Mercury Marine Division, 364 So.2d 15 (Fla. 4th DCA 1978).

In addition to the express intent of the parties, a reasonable relationship to New Jersey is shown in the agreement itself. Under the agreement, cars were ordered in New Jersey, titles remained in New Jersey prior to receipt of payment, pricing and credit terms were established in New Jersey, claims for damages were made in New Jersey, and all parts were ordered from New Jersey.

Next, there is no evidence that the New Jersey legislature intended to restrict the application of this statute or to prevent its own citizen, MBNA, from making New Jersey law applicable to this contract. Since MBNA, a New Jersey resident, contracted in New Jersey to have New Jersey substantive law apply to it, it cannot now be heard to complain about the extraterritorial application of the act. Boatland, Inc. v. Brunswick Corp., 558 F.2d 818 (6th Cir. 1977).

It has been held that the principle of comity does not require the courts of this state to enforce a contract according to the law where it. is made if its enforcement would be in conflict with our laws and would work against our own citizens and give that nonresident an advantage which a resident has not. Walter v. Whitlock, 9 Fla. 86 (1860). Conversely, if the contract is not in conflict with our laws, and works to our citizens advantage, it may be applied.

MBNA’s last contention is that the agreement itself should control. However, since the clause contravenes the New Jersey Act it must be severed by the terms of the agreement itself. On grounds of public policy, clauses in a contract which violate a statutory provision are nugatory and will not be given effect. Boatland, Inc. v. Brunswick Corp. The New Jersey statute endeavored to equalize the bargaining power between the parties and to promote fair dealing. A manufacturer will not be permitted to evade or circumvent these provisions by the use of contracts providing different methods for transferring a franchise.

The lower court also dismissed count II of the complaint after finding that section 320.643, Florida Statutes (Supp.1980), was unconstitutional. The parties have agreed that the court intended to rule only that it is unconstitutional as applied to the parties in this case because if given retroactive application, it would impair their contract. We agree with the holding of the lower court, Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975), and accordingly affirm the dismissal of count II of the complaint.

We therefore reverse and remand for reinstatement of count I of the complaint. Since the lower court dismissed counts III and IV without prejudice based upon its rulings in connection with counts I and II, we also hold that the appellants should be allowed an opportunity to amend those counts of their complaint.

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

      . Paragraph seven reads as follows:
      This Agreement is to be governed by, and construed according to, the laws of the State of New Jersey. It is understood, however, that it is a general form of agreement designed for use in any state; and it is therefore agreed that any provision herein contained which in any way contravenes the laws of any state or constituted authority which may apply to this Dealer Agreement shall be deemed to be deleted herefrom in accordance with the applicable provision of the accompanying Dealer Agreement Standard Provisions.

      . The pertinent part of paragraph four provides that:
      Except as may be otherwise provided in this Agreement, neither the Dealer nor the persons named above shall permit any change in the ownership or active management of the Dealer without the prior written approval of MBNA.


author: COBB, Judge.

text:
    FLORIDA ROCK INDUSTRIES, INC., a Florida corporation, Appellant, v. UNITED BUILDING SYSTEMS, INC., a Florida corporation, and John Wilnau, Appellees.
    No. 80-364.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 1981.
    Rehearing Denied Jan. 20, 1982.

      Robert A. Hannah of Pitts, Eubanks & Ross, P.A., Orlando, for appellant.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, for appellees.
   COBB, Judge.

In this case the plaintiffs, John Wilnau and United Building Systems, Inc., (U.B.S.) brought an action for compensatory and punitive damages alleging conversion, trespass to chattels and trespass to land against the corporate defendant, Florida Rock, and individual defendants Thomas Pulsifer and John Pulsifer. Verdicts awarded compensatory and punitive damages against Florida Rock in favor of U.B.S. and Wilnau. The defendants Pulsifer were found free of liability. On appeal, Florida Rock raises multiple points. Only one has merit, but that requires reversal for a new trial.

During voir dire the trial court utilized a jury selection system of placing twenty-four prospective jurors in the jury box. Counsel for each side was allowed to question these twenty-four jurors, after which a bench conference, outside the hearing of the jurors, was held for the purpose of exercising peremptory challenges. Beginning with the first juror, the judge asked each side if a peremptory challenge was to be used. Under this method, for example, if the plaintiff were to exercise a challenge as to the first juror, then jurors in seats two through seven would be the jury, pending the exercise of further challenges. This procedure was repeated for each juror in sequence.

During the course of this procedure, and while counsel for the defendant Florida Rock had peremptory challenges remaining, said counsel attempted to “back-strike” a prospective juror already tentatively accepted. This was disallowed by the trial court, unless counsel could show “a special reason” for such challenge. Counsel responded that his reason was the over-all composition of the panel as it then stood, the fact that he had peremptory challenges remaining, and the fact that the jury had not yet been sworn. This motion to strike an “earlier” juror from whom consideration had shifted was denied by the trial judge.

Various Florida cases have considered the denial by a trial court of the exercise of peremptory challenges prior to the swearing of a jury. In Saborit v. Deliford, 312 So.2d 795 (Fla. 3d DCA 1975), cert. denied, 327 So.2d 32 (Fla.1976), the plaintiff’s attorney questioned the jury and tendered it to the court. Before the jury was sworn, he attempted to exercise his remaining peremptory challenge and this was summarily denied by the trial court. The appellate court observed that when an attorney has concluded his questions to a panel, there are infinite modes of tendering the panel for further questioning (“I tender,” “I accept the jury,” “No further questions,” etc.)— but all such language is to be regarded as conditional because anything can change with further questions and even further attorney contemplation, all of which may continue up until that terminal moment when the jury is sworn. Saborit, citing Funland Park, Inc. v. Dozier, 151 So.2d 460 (Fla. 3d DCA), cert. discharged and petition dismissed, 157 So.2d 815 (Fla.1963), and various other appellate cases, held that the denial to a litigant of peremptory challenges to which he is entitled constitutes reversible error.

In Brown v. McArthur Dairies, Inc., 280 So.2d 520 (Fla. 3d DCA 1973), the plaintiff’s attorney questioned the jury and then tendered it to the court. Before the jury was sworn, the attorney attempted to exercise his remaining peremptory, and the trial court denied this motion without giving any basis for the ruling. The appellate court accorded a new trial because of this error. See also Grabow v. Lehrer, 224 So.2d 767 (Fla. 3d DCA 1969).

Florida Rule of Civil Procedure 1.431, which deals with peremptory challenges, contains no requirement that a “reason” be established for the exercise of a peremptory challenge. A party litigant, whether plaintiff or defendant, is entitled to consider the panel as a whole at any time that litigant has peremptory challenges remaining, and exercise those challenges at any time until the jury is sworn. The denial of this right was error, and the error was preserved by the defendant’s motion to peremptorily challenge a juror, which was denied. We cannot accept the appellees’ contention that Florida Rock acquiesced in the voir dire procedure utilized below. It asked to be allowed to strike a previously selected juror and this was refused by the trial court absent the showing of some “special reason.”

The appellees rely on the case of Jones v. State, 332 So.2d 615 (Fla.1976), as authority in support of the voir dire procedure utilized in this case. We do not read Jones to support that proposition. Indeed, in Jones the Florida Supreme Court held:

We find that the court’s policy directly contravenes the established case law, as well as Rule 3.310, R.Cr.P., which provides that a defendant may challenge a prospective juror before the juror is sworn to try the case.

Nevertheless, because the evidence of the defendant’s guilt in Jones was so clear and convincing the error was held to be harmless. Given the conflicting and disputed areas in the instant case, we cannot utilize the harmless error statute to affirm the judgment below despite the patent voir dire error.

Accordingly, the judgment below is reversed and the cause remanded for a new trial against the defendant, Florida Rock Industries, Inc., in respect to the claims for compensatory and punitive damages by United Building Systems, Inc., and John Wilnau.

REVERSED and REMANDED.

DAUKSCH, C.J., and COWART, J., concur.

COBB, J., did not participate at oral argument.

      . §§ 59.041 and 924.33, Fla.Stat. (1979).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Irby SPROUSE, Jr., Appellant, v. Marian M. SPROUSE, Appellee.
    No. 81-140.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 1981.
    Rehearing Denied Jan. 20, 1982.

      William B. Barnett and Garrick N. Fox of Rothblatt, Barnett & Fox, Orlando, for appellant.
    No Appearance for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, Irby Sprouse, Jr., was found guilty by the Circuit Court for Orange County of indirect criminal contempt and sentenced to serve three days in the county jail. He appeals from the judgment and sentence.

Appellant and appellee, Marian M. Sprouse, in a stipulated fact statement declare that appellant had been charged with indirect criminal contempt for violation of a restraining order which provided that he would not harm, harass, molest or annoy appellee during the pendency of dissolution proceedings. On September 10, 1980, the trial judge issued a rule to show cause why appellant should not be held in indirect criminal contempt. On October 8,1980, the dissolution proceeding was transferred from Orange County to Seminole County because proper venue was determined to be there. The trial judge specifically retained jurisdiction to hear the contempt charge.

Appellant objected to the contempt proceeding in Orange County contending that the court lost jurisdiction because the dissolution proceeding had been transferred. We disagree and affirm.

Appellant contends that Kern v. Kern, 309 So.2d 563 (Fla.2d DCA 1975), provides the applicable rule in this case. Kern was also a dissolution case. Mrs. Kern had allegedly violated a restraining order. The Palm Beach Circuit Court, upon motion for change of venue, transferred the case to Collier County specifically retaining jurisdiction to hear the contempt proceeding. The Second District Court of Appeal held that the Palm Beach court lacked the power to reserve jurisdiction for that purpose because of the transfer. While it would seem that Kern is directly in point, we have concluded that it is not. While the facts are not clear in Kern, we believe that it involved civil rather than criminal contempt. The proceeding there was instituted by the husband filing a motion for contempt, the method used for enforcement of the court’s orders by civil contempt. See Florida Rule of Civil Procedure 1.570 and form 1.982. We agree that in such matters, because continuing compliance is the objective, the contempt proceeding should be a part and parcel of the parent litigation.

Criminal contempt is separate and distinct from the case in chief. A criminal contempt, direct or indirect, is an offense against the court itself for which punishment is the penalty. An indirect criminal contempt proceeding is not instituted by motion of a party but by motion of the court or affidavit of any person having knowledge of the facts. The court then issues and signs an order to show cause. Fla.R.Crim.P. 3.840(a)(1).

We conclude therefore that it was altogether proper for the Orange County Circuit Court to hear the indirect criminal contempt.

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.


author: PER CURIAM.

text:
    James STEVENS, Jr., Appellant/Cross-Appellee, v. Patricia JEFFERSON, as Personal Representative of the Estate of Earl Sidney Jefferson, Sr., deceased, Appellee/Cross-Appellant.
    No. 81-386.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 1981.
    Rehearing Denied Jan. 15, 1982.
    Robert L. Appleget, Jr. of Black, Landt, Appleget & Wiechens, Ocala, for appellant/cross-appellee.
    John W. Arnett, William H. Phelan, Jr., and Seymour H. Rowland, Jr., Ocala, for appellee/cross-appellant.
   PER CURIAM.

See Orlando Executive Park, Inc. v. P. D. R., 402 So.2d 442 (Fla. 5th DCA 1981); Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980). But see Worth v. Stahl, 388 So.2d 340 (Fla. 4th DCA 1980); Warner v. Florida Jai Alai, 221 So.2d 777 (Fla. 4th DCA 1969), cert. discharged, 235 So.2d 294 (Fla.1970), which we deem to be in conflict with this decision.

AFFIRMED.

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: SHARP, Judge.

text:
    Joseph E. FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. 81-974.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 1981.
    Joseph E. Fowler, pro se.
    No appearance for appellee.
   SHARP, Judge.

Appellant, Fowler, appeals the trial court’s denial of his motion for post-conviction relief made pursuant to Florida Rule of Criminal Procedure 3.850. We remand with instructions.

Fowler, while admitting that the trial court dutifully advised the appellant of the rights he was giving up by pleading guilty and inquired as to the factual basis for the plea, alleges in his motion that the trial court did not inform him of the charges against him. While we have reservations regarding the facial sufficiency of appellant’s motion, because the trial court predicated its denial of the motion for post-conviction relief upon the contents of the record, those portions of the record which conclusively refute appellant’s allegations should have been attached to the trial court’s order. Accordingly, this cause is remanded to the trial court so that it may attach those portions of the record which conclusively refute Fowler’s allegation.

REMANDED WITH INSTRUCTIONS.

FRANK D. UPCHURCH, J., concurs.

COWART, J., dissents without opinion.

      . Fla.R.Crim.P. 3.850; see, e.g., Miles v. State, 174 So.2d 576 (Fla. 3d DCA 1965); Adkins v. State, 165 So.2d 231 (Fla. 2d DCA 1964).


author: DANIEL S. PEARSON, Judge.

text:
    Reynold ENRIQUE a/k/a Reinolds Enrique Castro, Appellant, v. The STATE of Florida, Appellee.
    No. 80-914.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Rehearing Denied Jan. 29, 1982.

      John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON and FERGUSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The trial court’s determination that the defendant was financially able to afford counsel, born of inadequate inquiry and nourished only by repetition, led to its inexorable refusal to appoint counsel for the defendant, and, thereafter, the defendant’s counselless and otherwise unknowing and unintelligent waiver of jury trial, which leads us now to reverse the defendant’s convictions.

Between November 14, 1979, the date of Castro’s first appearance on charges of grand theft, and March 27, 1980, the date when the court imposed five-year concurrent sentences on these charges and an intervening charge of burglary of a conveyance, Castro came before the court nine times. On each occasion, he appeared without counsel.

At his initial appearance on the grand theft case, Castro, in response to the court’s questions, stated that he had not made arrangements to get an attorney, but would make such arrangements. The inquiry into Castro’s financial ability to employ counsel elicited the single fact that Castro was employed in construction work. Two weeks later, the court, learning that Castro was no longer employed, appointed the Public Defender to represent him. That same day Castro went before a magistrate for a first appearance hearing on the burglary case. The magistrate determined that Castro was not entitled to court-appointed counsel after an inquiry which revealed only that this eighteen-year-old defendant did not live with his mother; could make a bond, the cost of which would be no more than his two-week paycheck; earned $160 a week; and was single. The hearing concluded with the magistrate referring Castro to a “low cost attorney.”

At the defendant’s later arraignment on the burglary charge, the trial court learned of the magistrate’s action. Without further inquiry, the trial court adopted the magistrate’s ruling refusing to appoint the Public Defender and revoked its earlier appointment of the Public Defender in the grand theft case. A week later, Castro was again before the court:

“THE DEFENDANT: I called [a “low-cost” attorney], and he talked to me, and I couldn’t afford one. So, he told me to come in court and tell you.
“THE COURT: You have to get your own attorney. You are not eligible for a Public Defender.”

The court told Castro to return on January 9, 1980.

On January 9, Castro, still without counsel, waived jury trial on the burglary charge. The record reflects that, preceding the waiver, the court merely advised Castro that he was entitled to be tried by a jury of his peers, “six people from the community selected through the jury panel.” It then asked the defendant whether he wanted to be tried by the court or jury, and the defendant responded “whichever.” The defendant then executed a written waiver of jury trial.

The right to trial by jury is a constitutional right. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Molfetas v. State, 323 So.2d 598 (Fla.3d DCA 1975). As in the case of the waiver of any constitutional right, the waiver of trial by jury must be shown to have been knowingly and intelligently made. State v. Garcia, 229 So.2d 236 (Fla.1969); Viggiani v. State, 390 So.2d 147 (Fla.3d DCA 1980); Tosta v. State, 352 So.2d 526 (Fla.4th DCA 1977); Molfetas v. State, supra. The existence of a written waiver does not, ipso facto, show that a defendant freely, intelligently and voluntarily waived his right to trial by jury. Viggiani v. State, supra.

Here the defendant was without counsel, and there is not the slightest indication that he was possessed of any more information respecting the meaning of jury trial than that provided by the court. However, that meager information did not, for example, tell the defendant that he could participate in the selection of the jury or that any jury verdict must be unanimous. See Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979). Without such minimal information, the defendant could not possibly have understood the consequences of waiving jury trial, and the waiver could not be knowing and intelligent.

Three weeks went by before the defendant and his bondsman appeared in court. The bondsman informed the court that the defendant had been working only for three weeks, earning $140 per week, and could not afford an attorney. The court stated that it could not appoint an attorney for the defendant. The proceedings concluded with the defendant, still counselless, waiving jury trial on the grand theft charges with no further advice from the court as to the meaning of the waiver.

On February 14, 1980, the defendant, without counsel, was convicted after a non-jury trial on the charges of grand theft and burglary. While the defendant’s convictions must be reversed because the waivers of jury trial are not shown to be knowing and intelligent, we are impelled by the circumstances of this case to clarify the obligations of the trial court in determining the right of a defendant to appointed counsel.

It is axiomatic that an accused is entitled to counsel at every critical stage of a criminal proceeding, see, e.g., Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and that in every case the trial is a critical stage. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Absent a determination that an accused is financially able to retain counsel, he may not be denied the assistance of counsel. See Wood v. United States, 389 U.S. 20, 88 S.Ct. 3, 19 L.Ed.2d 20 (1967). Castro’s affirmative response at his very first hearing to the court’s question, “Are you going to make arrangements to get an attorney?” in the absence of a determination that he was financially able to carry out that intention simply does not constitute a waiver of his right to counsel. People v. Castile, 7 Ill.App.3d 728, 28 Ill.Dec. 259, 390 N.E.2d 426 (1979). Just as certainly, even had a valid initial determination of non-indigency been made, that early determination does not, without repeated inquiry, constitute a waiver of the right to counsel at later stages when the defendant appears without counsel. Pla.R.Crim.P. 3.111(d)(5); Machwart v. State, 222 So.2d 38 (Fla. 2d DCA 1969). See R. V. P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981). Accord, State v. Adams, 369 So.2d 1327 (La.1979); State v. Lande, 589 P.2d 666 (Mont.1979); State v. Moore, 203 Neb. 94, 277 N.W.2d 554 (1979).

The only moment during the entirety of these proceedings when any inquiry into Castro’s financial ability to employ counsel was made was when Castro appeared before the magistrate on the burglary charge. It is clear that this inquiry fell short of satisfying the guidelines for determining indigency found in Section 27.-52(2), Florida Statutes (1979), and even shorter of the constitutional right to counsel. Even if the prima facie evidence of solvency arose from the fact that the defendant’s stated gross income exceeded $75 per week (assuming, arguendo, that the defendant had no dependents), there is not the slightest indication that the court considered, as mandated by Section 27.52(2)(c), Florida Statutes (1979), the additional circumstances of:

“1. The probable expense and burden of defending the case;
“3. The amount of debts owed by defendant or debts that might be incurred by the defendant because of illness or other misfortunes within his family.”

The obvious design of the statute is to effectuate the constitutional right to counsel. Statutes providing benefits to insolvent parties are to be liberally construed. Loy v. State, 74 So.2d 650 (Fla.1954); Keur v. State, 160 So.2d 546 (Fla.2d DCA 1964); Brizzie v. State, 120 So.2d 27 (Fla.2d DCA 1960). See Hooks v. State, 253 So.2d 424 (Fla.), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1971). Were we to réad the statute, as it apparently was read by the magistrate and the trial court, as creating conclusive presumptions of non-in-digency where a defendant is released on bail in the amount of $1,500 or more, has a gross income in excess of $75 a week (or certain higher amounts with dependents), or owns cash in excess of $300, the statute would be constitutionally infirm. A determination of non-indigency must be made on as complete a financial picture as possible, Sapio v. State, 223 So.2d 759 (Fla.3d DCA 1969); People v. Castile, supra; State v. Lande, supra, and essential to this determination for the purpose of the right to counsel is the cost of available counsel. Sapio v. State, supra; State v. Lande, supra.

Finally, we note that the burden is not, as the State suggests, on a counselless accused to initiate proceedings for the appointment of counsel by the filing of the affidavit called for by Section 27.52, Florida Statutes (1979). Billions v. State, 399 So.2d 1086 (Fla. 1st DCA 1981); Fla.R.Crim.P. 3.111(d)(1). See Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971) (right to counsel not dependent on request). The statutory affidavit need only be filed at the trial court’s request after it has first advised the accused of his right to appointed counsel if he is financially unable to employ counsel.

Thus, it is the trial court’s continuing responsibility to determine that a defendant who is not represented by counsel at any critical stage of a criminal proceeding is financially able to employ counsel; that determination can only be made after a full and complete inquiry concerning the defendant’s financial circumstances, taking into account the cost of obtaining counsel in respect to the particular case; and the pri-ma facie evidence of non-indigency set forth in Section 27.52, Florida Statutes (1979), cannot by itself be employed to deny court-appointed counsel to an accused.

Reversed and remanded for new trials.

JORGENSON, J., concurs in the result only.

      . This “ruling,” which referred Castro to a program sponsored by the Dade County Bar Association designed to provide counsel at a low cost to non-indigents, is, of course, a refusal to appoint counsel.

      . The concurrence in Washington v. State (Fla.3d DCA 1981) (Case Nos. 78-706 and 79-24, opinion filed August 4, 1981), is based on the view that a presumption of regularity arises from a written waiver and is sufficient to show that jury was properly waived where the propriety of the waiver is uncontradicted. Here that is not the case. See also Durcan v. State, 383 So.2d 248, 249 (Fla.3d DCA 1980) (Baskin, J., dissenting).

      . Cases approving questionable jury trial waivers where the defendant is represented by counsel, see, e.g., Durcan v. State, supra; Quartz v. State, 258 So.2d 283 (Fla.3d DCA 1972), are, of course, inapposite. But see Viggiani v. State, supra; Tosta v. State, supra, where despite the presence of counsel, the court held the waiver of jury trial invalid as not shown to be knowingly and intelligently made.

      . The court remarked: “That is almost twice the statute. The statute says 75. I think 75 is unrealistic, but 140 is a different ballgame.” Section 27.52(2)(b) 2, Florida Statutes (1979), applicable here, provided, “If the defendant has no dependents and his gross income exceeds $75 per week,” the defendant is “prima facie” non-indigent. See n. 6, infra. In 1980, this amount was increased to $100. § 27.52, Fla. Stat. (Supp.1980).

      .It is apparent that the court construed Castro’s earlier statement that he did not have sufficient money to procure a low-cost attorney to mean that although he had the funds, he did not want to spend them. The court’s impression represents the seminal thought in the court’s ultimate and unfounded conclusion that the defendant adamantly insisted upon representing himself despite the court’s offer to appoint a Public Defender. Indeed, the court, by the time of sentencing on March 27, 1980, was so convinced of this that when it finally appointed the Public Defender to represent Castro on appeal, it made Castro promise that he would not discharge the Public Defender as he had done in the past.

      . “(2)(a) In proceedings for the determination of insolvency, there shall be a presumption of solvency, and the defendant shall have the burden of rebutting the presumption by competent proof.
      “(b) The following shall be prima facie evidence of solvency:
      “1. The defendant has been released on bail in the amount of $1500 or more.
      “2. The defendant has no dependents and his gross income exceeds $75 per week; the income limit shall be increased by $10 per week for each of the first two dependents of the defendant and by $5 per week for each dependent beyond the first two.
      “3. The defendant owns cash in excess of $300.”

      . Even a rebuttable presumption of non-indi-gency based on these findings may be so irrational as to be constitutionally invalid. See Gregory v. State, 405 So.2d 785 (Fla. 4th DCA 1981) (Beranek, J., concurring specially, “to point out that inflation has taken its toll on the numbers placed in the statute ... ”). We need not address this question here.


text:
    Shirley SPAR and Martin Spar, her husband, Appellants, v. HERTZ CORPORATION, Appellee.
    Nos. 80-2425, 81-233.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Rehearing Denied Jan. 28, 1982.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Brumer, Cohen, Logan & Kandell, Miami, for appellants.
    Adams & Ward and Robert Ward, Miami, for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Raisen v. Raisen, 379 So.2d 352 (Fla.1979); Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977); Blanton v. Blanton, 354 So.2d 430 (Fla. 4th DCA 1978).


author: DANIEL S. PEARSON, Judge. BASKIN, Judge

text:
    MERCY HOSPITAL, INC., Appellant, v. Alfredo MARTI, M.D., Appellee.
    No. 80-2449.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Rehearing Denied Jan. 26, 1982.

      Adams & Ward and Robert Ward, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Mercy Hospital, Inc., a defendant in a wrongful death action, filed a third-party complaint against Dr. Alfredo Marti seeking contribution. Marti moved for summary judgment asserting, inter alia, that he never agreed to undertake, nor undertook, the care and treatment of the plaintiffs’ decedent and therefore could not be a joint tortfeasor. The trial court entered summary judgment in favor of Marti, and Mercy appealed.

We determine, sua sponte, that the judgment under review is non-appeala-ble, and we dismiss Mercy’s appeal. We recently held in Belcher v. First National Bank of Miami, 405 So.2d 754 (Fla.3d DCA 1981), that the right of a defendant to appeal from a judgment exonerating a co-defendant, first accorded by Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), aff’d sub nom. Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1980), can be exercised only by a defendant against whom judgment has been entered. This rule applies whether, as in Belcher, the exonerated co-defendant was brought into the action by the plaintiff, or, as here, brought into the action by another defendant. Mercy’s liability to the plaintiffs has not yet been established, and since it may never be, its asserted right of contribution against Marti can only be academic at this stage. That being the ease, there is no present controversy for us to resolve.

Appeal dismissed.

BASKIN, Judge

(concurring).

I join in the majority opinion only because in Belcher v. First National Bank of Miami, 405 So.2d 754 (Fla.3d DCA 1981) footnote 4, the court read Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), aff’d sub nom. Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1980), to permit appeal at a later time.

      . Mercy also sought indemnity from Marti. The trial court, in a separate unappealed order, granted summary judgment in favor of Marti on the indemnity claim.

      . Nor does the summary judgment in Marti’s favor determine an issue of liability in favor of the party seeking affirmative relief (Mercy) so as to make it an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). See Aetna Casualty & Surety Co. v. Meyer, 385 So.2d 10 (Fla.3d DCA 1980).


author: HENDRY, Judge.

text:
    J. J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-375.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Rehearing Denied Feb. 12, 1982.
    Bennett H. Brummer, Public Defender, and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

The order of the trial court withheld adjudication of delinquency and placed appellant in a community control program. Because our review of the record in this case convinces us that the evidence failed to negate every reasonable hypothesis of innocence, we hold that the trial court erred in denying the juvenile’s motion for judgment of acquittal and reverse the decision with directions to discharge the juvenile.

Testimony at the adjudicatory hearing disclosed that J. J., along with another boy, “Mickey Mouse”, and two girls, accompanied Susan Wellman to her home several times one weekend while her mother was out of town. On the second visit, Susan saw Mickey Mouse put a gun from her mother’s night table'into his sock. Susan told the boy to leave and replaced the gun in a drawer with a second gun and some jewelry. After the youths’ final visit to the house on Monday morning, Susan discovered both guns and the jewelry missing. Several days later J. J. and his parents appeared at the police station at which time J. J. admitted knowledge of the crime to police, but claimed he was simply present while the other boy took the property. The only evidence linking J. J. with the robbery was testimony by the Wellman’s housekeeper that J. J. had pointed a gun at her on the second visit to the house and the fact that J. J.’s mother turned one of the guns over to the police the day after J. J. made his statement.

The law is well settled that where evidence of intent to participate in commission of a crime is entirely circumstantial, the evidence must be consistent with guilt and exclude every reasonable hypothesis of innocence. Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980); P. R. v. State, 389 So.2d 1078 (Fla.3d DCA 1980); K. W. U. v. State, 367 So.2d 647 (Fla.3d DCA), cert. denied, 378 So.2d 349 (Fla.1979). Appellant’s mere presence at the scene, Pack v. State, 381 So.2d 1199 (Fla.2d DCA 1980), his handling of the gun, and his mother’s return of the firearm are insufficient to eliminate a reasonable hypothesis of innocence. See J. L. B. v. State, 396 So.2d 761 (Fla.3d DCA 1981); D. M. v. State, 394 So.2d 520 (Fla.3d DCA 1981); J. O. v. State, 384 So.2d 966 (Fla.3d DCA 1980); J. H. v. State, 370 So.2d 1219 (Fla.3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1980).

Reversed.

      . The defendant was not charged with aggravated assault.


text:
    Wellington ROLLE, Appellant, v. CITY OF MIAMI, and Board of City Commissioners of the City of Miami; Maurice Ferre, Mayor of the City of Miami; J. L. Plummer, Joe Carollo, Father Theodore Gibson and Armando LaCasa, as City Commissioners; Miami Tele-Communications, Inc., and Americable of Greater Miami, Ltd., Appellees.
    No. 81-2415.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Rehearing Denied Jan. 29, 1982.
    Ellis S. Rubin and Bernard R. Young, Miami, for appellant.
    George F. Knox, Jr., City Atty., and Mik-ele S. Carter and John J. Copelan, Jr., Asst. City Attys., Paul, Landy, Beiley, Harper & Metsch and Robert M. Sondak, Myers, Ka-plan, Levinson, Kenin & Richards and Bruce J. Berman, Miami, for appellees.
    Before HUBBART, C.J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

The plaintiff Wellington Rolle appeals a dismissal of his declaratory judgment and injunction action below wherein he sought to have declared invalid and enjoin the enforcement of a Miami municipal ordinance granting certain cable television rights in the City of Miami to two private companies. The gravamen of his action was that the ordinance herein was not submitted to a referendum as required by Section 74 of the City of Miami Charter and was, therefore, invalid. It was further urged that he had standing to bring this action because the ordinance under attack deprived him of the right to vote on said ordinance, as a registered City of Miami voter, guaranteed by Section 74 of the City of Miami Charter.

We see no point in an extended discussion on the central issue briefed and argued before this court, namely, whether the plaintiff Rolle did or did not have standing to bring his action, because, in any event, his claim that he was denied the right to vote on said ordinance in a referendum was entirely devoid of merit. The Florida Supreme Court in State v. City of Miami, 379 So.2d 651 (Fla.1980), has held that Section 74 of the City of Miami Charter — upon which the plaintiff Rolle asserts his right to vote here — is invalid under the Municipal Home Rule Powers Act [§ 166.-021, Fla.Stat. (1979) ] as constituting an unauthorized restriction on the borrowing and leasing powers of the City of Miami. The Court in the above case states the applicable law as follows:

“The state asserts that section 74 of the city [of Miami] charter requires an election which has not been held and prohibits the lease of a portion of the facility for forty-five years. We reject these contentions and find these provisions constitute limitations on the borrowing and leasing powers of the City of Miami which have been nullified by section 166.-021(4), Florida Statutes (1977).
The Municipal Home Rule Powers Act [Act] set forth in chapter 166, Florida Statutes, was intended to secure the grant of the broad home rule powers to municipalities as provided by article VIII, section 2 of the Florida Constitution. Municipalities are granted the authority to conduct municipal government, perform municipal functions, and render municipal services so long as the powers are exercised for municipal purposes.- The Act not only fails to incorporate restrictions set forth in municipal charters, but also specifically provides that ‘[a]ny other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed.’ § 166.-021(4), Fla.Stat. Our decision is in accordance with an opinion rendered by the attorney general. See 1973 Op.Atty.Gen. Fla. 073-446 (November 29, 1973).” Id. at 653-54.

It is clear from the reasoning of this decision that the subject charter provision must also fall under the Municipal Home Rule Powers Act [§ 166.021, Fla.Stat. (1979)] as constituting an unauthorized restriction on the power of the City of Miami to grant franchises on its property to private persons; such franchises, like leases of city property or the issuance of revenue bonds, may be approved by the city commission without submitting same to a referendum. In any event, it is clear beyond dispute that the subject charter provision has been struck down by the Florida Supreme Court as having been nullified by the Municipal Home Rule Powers Act [§ 166.021, Fla.Stat. (1979) ].

Given the adjudicated invalidity of Section 74 of the City of Miami Charter, it follows that the plaintiff Rolle was not entitled to a declaration of his rights thereunder as no one could acquire any rights— voting or otherwise — under this null and void charter provision. No justiciable issue worthy of a declaratory judgment was presented in this case, and, accordingly, the trial court was correct in dismissing the action on that basis alone. See e.g., Washington v. Independent Realty Co., 99 So.2d 613 (Fla.1958); Johns v. Townsend, 160 Fla. 213, 34 So.2d 565 (1948); 19 Fla.Jur.2d “Declaratory Judgments” § 49 (1980).

We have examined the remaining contentions raised by the plaintiff on appeal and find them to be without merit. See e.g., Hohenberg v. Kirstein, 349 So.2d 765, 766-67 (Fla.3d DCA 1977). The final order under review is, therefore,

Affirmed.

      . Section 74 of the City of Miami Charter provides in relevant part as follows:
      “No ordinance granting, renewing or leasing the right to use the streets, alleys, public grounds, or buildings of the City of Miami to any private person, persons, firm or corporation shall become a law or effective in any way until the same has been approved by a majority of the qualified voters of the City of Miami, voting at an election held therefor and the question of its being granted, renewed, or leased shall not be submitted to such vote except upon deposit with the city clerk of the expense of such submission (to be determined by the commission) by the applicant for such grant, renewal or lease; and no such grant, renewal or lease shall be for a longer period than thirty (30) years and no such grant, renewal or lease shall be transferable except with the approval of the commission expressed by ordinance; and copies of all transfers and mortgages or other documents affecting the title or use of such grants, renewals or leases shall be filed with the city clerk within ten (10) days after the execution thereof. * * * ”

      . The parties to this appeal sharply divide as to whether Section 74 of the City of Miami Charter — even if valid — was applicable to the subject cable television ordinance so as to require a referendum. Much like the trial court, we have no occasion to discuss this issue or announce anyone’s rights under the subject charter provision as it is plain that this charter provision is in legal contemplation of no force and effect whatever.


text:
    Timothy Leroy FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. 81-409.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.
    Rehearing Denied Jan. 14, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

See Canty v. State, 402 So.2d 1232 (Fla. 5th DCA 1981).

AFFIRMED.

ORFINGER, FRANK D. UPCHURCH, Jr. and COWART, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    SARASOTA COUNTY PUBLIC HOSPITAL BOARD, a body corporate, Petitioner, v. Mahfouz El SHAHAWY, M.D., Respondent.
    No. 81-820.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1981.
    Rehearing Denied Jan. 26, 1982.

      William T. Harrison, Jr., A. Lamar Matthews, Jr., and Frazer F. Hilder of Williams, Parker, Harrison, Deitz & Getzen, Sarasota, for petitioner.
    Hugh E. Reams of Goldner, Reams, Mar-ger, Davis, Piper & Kiernan, P. A., St. Petersburg, for respondent.
   HOBSON, Acting Chief Judge.

Petitioner/Board seeks certiorari review of the order of the Sarasota County Circuit Court which required the Board to reconsider respondent Shahawy’s application for Cardiac Catheterization Laboratory privileges and which modified the Board’s criteria under which Shahawy and others would qualify for those privileges. Shahawy asks in a cross-petition that this court order the Board to grant his application for privileges. While we see no merit to the cross-petition, we find that the circuit court’s order constitutes a departure from the essential requirements of law.

Shahawy is a licensed medical doctor who has been certified by the American Board of Internal Medicine but not certified by the American Board of Cardiology. The criteria under which Shahawy sought laboratory privileges were as follows:

1. Privileges: The Standards Committee shall set forth clinical privileges of the Cardiac Cath physicians by making recommendations to the Medical Section Privileges Committee using these criteria:
a.) Board certified by the American Board of Cardiology.
b.) Two years of cardiac cath training and experience (it is desirable, but not absolutely necessary to have previous participation in a directorship capacity).
c.) Maintenance of a continuing level of activity sufficient to maintain quality and experience.
d.) Unusually qualified persons not fulfilling all of the above criteria may be given special consideration by recommendation of the Cardiac Cath Lab Standards Committee through the Medical Sections Privileges Committee to the Credentials Committee and the Executive Committee.

Because Shahawy was not Board certified in Cardiology and therefore not eligible for privileges under sections (a) through (c) of the criteria, his application was considered under section (d), the “unusually” qualified section. After the Board had denied Sha-hawy’s application, Shahawy filed a petition for writ of certiorari with the Sarasota County Circuit Court. The circuit judge reversed the Board’s action and ordered it to reconsider Shahawy’s application under section (d) of their criteria but without the term “unusually” qualified being considered.

The circuit court’s order was based upon the premise that section (d) of the criteria was in violation of section 395.0653, Florida Statutes (1979). Subsections (1) and (2) of that statute read as follows:

Use of Hospital and Staff.
(1) Any hospital licensed under this chapter in considering and acting upon applications for staff membership or professional clinical privileges shall not deny the application of a qualified doctor of medicine licensed under chapter 458, doctor of osteopathy licensed under chapter 459, doctor of dentistry licensed under chapter 466, or doctor of podiatry licensed under chapter 461 for such staff membership or professional clinical privileges within the scope of his respective licensure solely because the applicant is licensed under any of said chapters.
(2) Nothing herein shall restrict in any way the authority of the medical staff of the hospital to review for approval or disapproval all applications for appointment and annual reappointment to all categories of staff and make recommendations on each to the governing authority, including delineation of privileges to be granted in each case. In making such recommendations and in delineation of privileges, each applicant shall be considered on an individual basis pursuant to criteria applied equally to all other disciplines. (Emphasis supplied.)

The circuit judge held that because the criteria placed a higher standard on physicians not Board certified by the American Board of Cardiovascular Diseases, they were in violation of section 395.0653(2), which requires that applicants be considered pursuant to criteria applied equally to all other “disciplines”.

We disagree with the circuit court’s reasoning that this statute prohibits a hospital from denying privileges to a physician solely because he is not Board certified. Since subsection (1) of the statute prohibits denial of privileges solely because the applicant is licensed as a physician, an osteopath, a dentist or a podiatrist, the reference to “disciplines” in the next section must refer to those four different fields of licensure rather than the narrower classifications within one of the disciplines. Such a reading of the statute is mandated under the familiar principle of ejusdem generis. Shepard v. Thames, 251 So.2d 265 (Fla.1971).

Since the Board’s criteria did not violate section 395.0653, we proceed to the question of whether the criteria are otherwise reasonable.

Florida law has afforded great discretion to hospital boards in granting or denying privileges at their facilities under criteria which they have formulated. Usually, the hospital’s discretion is limited only by the constitutional requirement that the standards for privileges be reasonably related to furthering the goal of providing high quality patient care, that the power of the hospital not be exercised in an unreasonably arbitrary and capricious manner and that the decisions of the hospital be subject to judicial review. North Broward Hospital District v. Mizer, 148 So.2d 1 (Fla.1962). Bryant v. City of Lakeland, 158 Fla. 151, 28 So.2d 106 (Fla.1946). The Florida Supreme Court has also provided that merely being a physician licensed by the state does not guarantee admission on the staff of a hospital. Green v. City of St. Petersburg, 154 Fla. 339, 17 So.2d 517 (Fla.1944).

In Dade County v. Trombly, 102 So.2d 394 (Fla.3d DCA 1958), the district court of appeal upheld the following three out of nine requirements for appointment of a physician to the medical staff: (1) a graduate of an approved medical school, (2) an internship of at least one year in a hospital approved by the medical board and (3) competent in the line of work he proposes to do.

The criteria in the instant case are not as restrictive as the criteria upheld in Trombly in that section (d) provides for the granting of privileges to a doctor who does not meet the more restrictive requirements of sections (a) through (c) but who is otherwise “unusually” qualified. Accordingly, we hold that the criteria of the Board are reasonable and that the Board need not strike the word “unusually” from section (d) of those criteria.

Because the trial court did not make a finding as to whether the Board’s decision in denying Shahawy’s privileges was supported by competent substantial evidence, we remand this case for a determination on that issue.

Certiorari GRANTED. Order is QUASHED and the cause REMANDED for further consideration in accordance with this opinion.

GRIMES and DANAHY, JJ., concur.

      . The statute was apparently enacted to prevent the arbitrary denial of privileges to doctors of osteopathy, dentistry and podiatry. Florida courts have upheld the exclusion of osteopaths from hospitals prior to the enactment of section 395.0653. Richardson v. City of Miami, 144 Fla. 294, 198 So. 51 (Fla. 1940); Taylor v. Horn, 189 So.2d 198 (Fla.2d DCA 1966). As to the exclusion of some other fields of licensure in other states see Hayman v. Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927) (osteopaths); Greisman v. Newcomb Hospital, 40 N.J. 389, 192 A.2d 817 (1963) (osteopaths); Munroe v. Wall, 66 N.M. 15, 340 P.2d 1069 (1959) (osteopaths); Shaw v. Hospital Authority of Cobb County, 507 F.2d 625 (2d Cir. 1975) (podiatrists); Touchton v. River District Community Hospital, 76 Mich.App. 251, 256 N.W.2d 455 (1977) (podiatrists); Grodjesk v. Jersey City Medical Center, 135 N.J.Super. 393, 343 A.2d 489 (1975) (oral surgeons); Boos v. Donnell, 421 P.2d 644 (Okla.1966) (chiropractors). See generally Annot., “Exclusion of or Discrimination Against Physician or Surgeon By Hospital”, 37 A.L.R.3d 645 (1971); “Denial of Hospital Staff Privileges”, 1 Am.Jur. P.O.F.2d 605 (1974).

      . For examples of other criteria for admission to or removal from hospital staffs see: North Broward Hospital District v. Mizell, 148 So.2d 1 (Fla.1962) (upholding the following — “The Board of Commissioners reserves the right to remove any member of the medical staff or to deprive any physician or surgeon of the privileges of the hospital whenever in their sole judgment the good of the hospital or the patients therein may demand it.”); Hamilton County Hospital v. Andrews, 227 Ind. 217, 84 N.E.2d 469 (1949), c. d., 338 U.S. 831, 70 S.Ct. 73, 94 L.Ed. 506 (1949) and Jacobs v. Martin, 20 N.J.Super. 531, 90 A.2d 151 (1952) (upholding the requirements that physicians who wanted to do major surgical procedures at the hospitals be approved by or be a fellow of the American College of Surgeons); Foster v. Mobile County Hospital, 398 F.2d 227 (5th Cir. 1968) (striking down a requirement that a physician seeking privileges be a member of the local county medical society). See generally “Working Rules for Assuring Nondiscrimination in Hospital Administration”, 74 Yale L.J. 151 (Nov. 1964).


author: OWEN, WILLIAM C., Jr. (Retired) Associate Judge. HURLEY, Judge,

text:
    STATE of Florida, Appellant, v. Joseph GUNN, Appellee.
    No. 81-321.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1981.
    Rehearing Denied Feb. 5, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellee.
   OWEN, WILLIAM C., Jr. (Retired) Associate Judge.

Appellant, upon being arrested for driving while intoxicated, submitted without objection to a breathalyzer test. The trial court granted his motion to suppress the result of that test because the arresting officer, before giving the test, did not advise appellant that his failure to submit to the test would result in a suspension of his privilege to operate a motor vehicle for a period of three months. We reverse.

Without question, both the statute, Section 322.261(l)(a), Florida Statutes (1979), and the supreme court decision construing the statute, Sambrine v. State, 386 So.2d 546 (Fla.1980) state that the driver of an automobile, who is statutorily required to take the chemical test, shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of three months. Neither the statute nor the Sambrine opinion elaborates on this requirement. Indeed, the statutory language is reasonably susceptible of the construction that the cautionary warning need be given only if the driver should indicate his intention to refuse, to submit to the test. Nonetheless, for the purpose of our decision here, we assume that a driver required by the statute to submit to a chemical test must be informed, prior to the test being administered, of the consequence of his refusal to submit to the test even though the driver has given no indication of a refusal. The question is simply one of determining the appropriate sanction to be imposed on the state when the driver submits to the chemical test without being so informed.

In Sambrine v. State, supra, the court held that the results of a blood-alcohol test were inadmissible when the test was administered despite the driver’s refusal to submit to the test. However, we find nothing in the Sambrine opinion which would preclude the conclusion that chemical test results are admissible where the driver does not affirmatively withdraw his consent, even though the driver is not first informed of the consequence of his refusal to submit to the test. Granted, the statute gives the driver the right to refuse testing. Likewise, it provides a definite sanction for refusal, as well as a detailed procedure for the enforcement of such sanction. Taken as a whole, the statute manifests a legislative intent that a failure to inform a driver of the consequence of refusing to submit to testing will simply afford the driver an escape from suspension of driving privileges, should he, in fact, face such suspension by virtue of having refused testing.

We find no legislative intent to impose a further sanction on the state by excluding as evidence the results of a chemical test administered to a driver (who has not affirmatively revoked the statutory consent) merely because of his not being informed, prior to testing, of the consequences should testing be refused.

The order of the trial court suppressing the result of the breathalyzer test is reversed.

HERSEY, J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

As a preface to this dissent, I acknowledge that I can discern little wisdom in the present statutory scheme which permits individuals charged with crimes as serious as vehicular homicide to withhold vital non-testimonial evidence, viz., the results of blood or breathalyzer tests. The mounting carnage on our highways, coupled with the practical difficulty of proving intoxication without the aid of blood or breathalyzer tests, suggest an urgent need for the Legislature to reconsider the desirability of a statutory privilege to withhold non-testimonial evidence of impairment or intoxication. In my view, the right to refuse testing can no longer be justified in light of its terrible cost to society.

Nonetheless, the ability to grant a statutory privilege is a matter peculiarly within the legislative sphere. Sambrine v. State, 386 So.2d 546, 549 (Fla.1980). Therefore, any change must come from the Legislature. Until the legislative branch instructs otherwise, courts must diligently enforce the statute as drawn.

“Any careful reading of section 322.261 leads to the inescapable conclusion that a person is given the right to refuse testing.” Sambrine v. State, supra, at 548. Moreover, the section provides that a driver “shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 3 months.” Section 322.261(l)(a), Florida Statutes (1979) (emphasis supplied).

I cannot agree with the majority that “the statutory language is reasonably susceptible of the construction that the cautionary warning need be given only if the driver should indicate his intention to refuse to submit to the test.” At 648. In my view, the requirement to warn is a necessary predicate to the right to refuse. The warning, albeit obliquely phrased, indicates that the driver has a choice; he may submit to the test or he may refuse and suffer the loss of his license for a three month period. In either event, the driver is entitled to know his options before being forced to choose. To hold otherwise is to suggest that the Legislature created a right to refuse testing and, at the same time, devised a capricious scheme to induce unknowing waiver of the right.

In the case at bar, the statutory warning was not given to Joseph Gunn. Uninformed of his right to refuse, he submitted to the breathalyzer test. This case, therefore, poses the question whether suppression of the test results is the appropriate sanction for a police officer’s failure to follow the mandate of the statute. The majority answers in the negative on the theory that it can “find no legislative intent to impose . .. [such a] sanction.” At 649. I respectfully disagree. Suppression is the only sanction consistent with the legislative intent which will ensure compliance with the statute.

The majority opinion eviscerates the statute; by refusing to punish a present violation it invites rampant police abuse in the future. The most untutored rookie can read this message between the lines: “You may disregard the statute with impunity. The worst that can happen is that the driver’s license will not be suspended for the three month period; the best that can happen is that an uninformed driver will submit and provide conclusive evidence of criminal guilt.” With everything to gain and nothing to lose, there is no question as to how the police will conduct themselves in the future. The majority has consigned the statutory warning to oblivion.

Just as “it is fundamental that a statute be construed in such a manner as to effectuate legislative intent,” Department of Legal Affairs v. Rogers, 329 So.2d 257, 263 (Fla.1976), so too must courts fashion evi-dentiary sanctions to discourage statutory violations. To permit a statute to be violated with impunity is to void the statute as effectively as if it were declared a nullity. This is the practical effect of the majority’s holding and for this reason, I respectfully dissent.

      . Any person who shall accept the privilege extended by the laws of this state of operating a motor vehicle within this' state shall by so operating such vehicle be deemed to have given his consent to submit to an approved chemical test of his breath for the purpose of determining the alcoholic content of his blood if he is lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of alcoholic beverages. The test shall be incidental to a lawful arrest and administered at the request of a peace officer having reasonable cause to believe such person was driving a motor vehicle within this state while under the influence of alcoholic beverages. Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 3 months, (e. s.)

      . Section 322.261(l)(a), Florida Statutes (1979), does not require “that a driver be informed of his right to refuse; he must merely be informed that his failure to submit to a chemical test will result in a three-month suspension.” Sambrine v. State, 386 So.2d 546, 549 (Fla. 1980).