author: HERSEY, Judge.

text:
    DISCOUNT DRUGS, INC., Appellant/Cross-Appellee, v. TULIP REALTY COMPANY OF FLORIDA, etc., et al., Appellees/Cross-Appellants.
    No. 78-2671.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Rehearing Denied April 24, 1981.

      Edna L. Caruso, and Paxton, Crow, Tap-lin & Bragg, West Palm Beach, for appellant/cross-appellee.
    Anne-Lise Gustafson and Bernard B. Weksler of Aronovitz & Weksler, Miami, for appellees/cross-appellants.
   HERSEY, Judge.

Discount Drugs, Inc., takes this appeal from a final judgment construing a written lease agreement. Tulip Realty Company of Florida, the landlord, takes a cross appeal from the denial of its request for attorney’s fees. We affirm the final judgment with regard to interpretation of the lease agreement and we reverse the portion dealing with attorney’s fees.

THE PROVISIONS IN QUESTION

In June of 1968, the parties entered into a five year lease for the rental of certain commercial property. PARAGRAPH TWENTY of the lease, which is in contention here, provides:

TWENTY — Tenant agrees to pay to Landlord as rent, in addition to the foregoing minimum rent, a sum equal to the amount by which the minimum rent to be paid for any lease year is less than U/2% percent (1V2%) of the gross sales (as hereinafter defined) of the Demised Premises for said lease year, said sums being hereinafter sometimes referred to as “percentage rent”.
On or before the tenth (10th) day after the expiration of each month Tenant shall submit to Landlord a statement showing, in reasonable detail, the amount of gross sales of the Demised Premises during the preceding month. If 1V2% percent (1V2%) of the gross sales made during the preceding month shall be in excess of the minimum rent payable with respect to said preceding month then the amount of such excess shall be paid over to Landlord at the same time as the rendition of said monthly statement....

Also in contention is the language of a rider to the lease executed on the same day which provides:

PARAGRAPH FORTY-FIVE — With reference to Paragraph Twenty (20) herein, notwithstanding anything to the contrary contained, it is hereby understood and agreed that the excess percentage rent figure of One and one-half (1%%) percent shall not become effective and payable until the Tenants net gross sales shall exceed the sum of TWO HUNDRED FIFTY THOUSAND AND NO/100 ($250,000) DOLLARS per annum. No percentage rent shall be paid on the first $250,000 of gross sales. The U/2% shall apply only to gross sales in excess of $250,000.'

The tenant’s gross sales did not exceed $250,000 until 1971. In that year and thereafter the tenant paid percentage rent in addition to minimum rent as required by the terms of the lease.

In 1973, the tenant exercised its option to renew the lease for an additional five years under the same terms and conditions.

In 1977, the parties entered into an amendment and extension of the lease to run until 1982. The provision of that document in contention here provides:

Commencing September 1, 1977, the rent will be increased to EIGHT THOUSAND THREE HUNDRED THIRTY AND NO/100 ($8,330.00) DOLLARS, payable in equal monthly installments of SIX HUNDRED NINETY FOUR AND 17/100 ($694.17) DOLLARS each.
Tenant agrees to pay to Landlord as rent, in addition to the foregoing minimum rent, a sum equal to the amount by which the minimum rent to be paid for by any lease year is less than llh% over ±5,000.00 of gross sales (as hereinafter defined) of the Demised Premises for said lease year, said sums being hereinafter sometimes referred to as “percentage rent”. On or before the tenth (10th) day after the expiration of each year, Tenant shall submit to Landlord a statement showing in reasonable detail, the amount of gross sales of the Demised Premises during the preceding year. If U/2% over $555,000.00 of the gross sales made during the preceding year shall be in excess of the minimum rent payable with respect to said preceding year then the amount of such excess shall be paid over to Landlord at the same time as the rendition of said annual statement.

Shortly after execution of the 1977 instrument the tenant asserted for the first time an interpretation of the lease agreement which was different from the interpretation which both parties had, in practice, placed upon the lease since its inception. The tenant’s interpretation placed in question the amount of percentage rent due the landlord. Before an actual defaült in rental payments occurred, the parties entered into a stipulation that the disputed amount would be placed in an escrow account pending determination by the court of the proper interpretation to be placed upon the disputed language.

THE UNDERLYING DEVICE

An investment in the construction and maintenance of rental property involves risks not incident to more conservative methods of making capital productive. For that reason the investor seeks a greater return than might otherwise be reasonably anticipated. A device frequently employed to accomplish the desired result is the percentage lease. The basic formula is relatively simple. Reducing it to words is rather more complex and, as here, occasionally results in ambiguity with its attendant problems. In a percentage lease the landlord becomes, in one sense, a limited partner of the tenant. The amount of rental is computed as a percentage or fraction of the income generated by the tenant’s business. In the instant case, percentage rental is a function of gross sales, as that term is defined in the documents. Partly because the investor, now landlord, has risked capital in the construction process and partly for other reasons, most percentage leases also contain a minimum rent requirement. This is ordinarily based upon the area rented and is customarily referred to as the rental rate per square foot. The tenant is obligated to pay the minimum rent regardless of the amount of income generated by the business, thus guaranteeing to the investor-landlord a minimum return on his investment. Literal application of both the percentage rental formula and the minimum rent formula produces a duplicating effect as to that amount of business-generated income which would produce, by application of the percentage rental formula, an amount equivalent to the minimum rent figure. In order to avoid this duplication most percentage leases contain a provision that insulates from application of the percentage rental formula that amount of business-generated income that would produce an amount approximately equal to the minimum rent.

In the case at bar, both parties interpreted the original lease and rider as containing provisions conforming to this custom during the initial term and the option term of the lease, a period of nine years. The parties then entered into the amendment and extension agreement. The best that could be said for this document is that it was inart-fully drawn. In effect its language insulates twice as much business-generated income from application of percentage rental as is justified by the percentage rental philosophy and by the formulas customarily utilized in percentage leases.

COMPARISON OF THE TWO FORMULAS

It is first necessary to demonstrate that divergent results are occasioned by application of the two formulas. If we assume a hypothetical year in which gross sales were $400,000.00 and if we further assume that both the minimum rent figure ($3,570.00) and the excluded sales figure ($250,000.00) remain the same in each application so that only the language changes and not the amounts, we have a fair method of comparison.

Under the original terms (appellee’s position), gross sales of $400,000.00 is reduced by excluded sales of $250,000.00. The percentage of 1V2% is applied to the difference, $150,000.00, and produces percentage rent of $2,250.00. To this is added minimum rent of $3,570.00 to give Total Rent of $5,820.00.

The amended language (appellant’s position) requires, again, that gross sales of $400,000.00 be reduced by excluded sales of $250,000.00, producing a difference of $150,-000.00. The percentage is applied and $2,250.00 is the result. However, at this point the new language defines percentage rent as “a sum equal to the amount by which ... minimum rent ($3,570) is less than ...” the result of the previous computation ($2,250). Since $3,570.00 is not less than $2,250.00 there is no percentage rental to be added to minimum rent. Thus Total Rent is $3,570.00.

Demonstrably then, application of the original language (lease and rider) gives one result and application of the amended language (extension agreement) gives a different result.

The parties are in agreement that the changes intended to be made by the amendment were simply to increase the minimum rent from $3,570.00 to $8,330.00 and to substitute for the “excluded gross sales amount” of $250,000.00, the new exclusion of $555,000.00. However, the method of computation and the philosophy of the landlord’s expected economic return on his investment are reflected in one way by the original documentation and in another way by the 1977 amendment.

Lease and Rider

Minimum rent is computed by applying the rental rate of $1.50 per square foot to the amount of area covered by the lease. The record indicates this was approximately 2380 square feet. Minimum rent is thus $3,570. To determine what amount of gross sales should be insulated from percentage rental we need only ascertain the amount which, multiplied by 1V2%, would produce $3,570.00. This is accomplished by dividing $3,570.00 by 1V2%, the quotient of which is $238,000.00. This was then rounded off in the lease to $250,000.00 for ease of computation. The economic result is a return of 1V2% of gross sales with a minimum annual rental of $3,570.00 computed as a function of the square footage rental rate. Reducing these computations to a simple, mathematical formula produces the following:

Minimum Rent + 1V2% X (gross sales - $250,000) = TOTAL RENT.

This is appellee’s position and is the result mandated by the final judgment. It also is the result required by the relatively clear language of the lease and rider.

Amendment and Extension Agreement

Based on an area of 2380 square feet and an increased rental rate of $3.50 per square foot, the result is $8,330.00. This is the minimum rent figure in the amendment. $8,330.00 divided by llh% gives excluded sales of $555,333.00, rounded off to $555,-000.00. As in the original documents these computations produce a return of P/2% on gross sales over $555,000.00 plus the minimum rental amount of $8,330.00. HOWEVER, the language of the amendment and extension requires the application of still another computation: simplistically stated, the percentage rent so computed is to be further reduced by the amount of the minimum rent but not below zero. This latter step effectively insulates $1,110,000.00 of gross sales (rather than the STATED threshold of $555,000.00) from percentage rental consequences.

Minimum rent + [1V2% X (gross sales - $555,000)] - minimum rent = TOTAL RENT.

It is self-evident that application of the two formulas cannot produce the same result. The formulas are different; results will necessarily differ. Appellant nevertheless argues that the language in the original lease and rider mandates an interpretation of those documents consistent with the language of the amended documentation. It is appellant’s contention that the definition of “percentage rent,” contained in the rider, modifies paragraph twenty of the lease to require the same double deduction contained in the modification and extension agreement. This supposedly follows from the language that

the excess percentage rent figure of One and one-half (1V2%) percent shall not become effective and payable until the Tenants net gross sales shall exceed the sum of TWO HUNDRED FIFTY THOUSAND AND NO/100 ($250,000) DOLLARS per annum. No percentage rent shall be paid on the first $250,000 of gross sales. The U/2% shall apply only to gross sales in excess of $250,000.

We find nothing in that language to justify the double deduction urged by appellant. It provides that the B/2% shall apply only to gross sales in excess of $250,000.00. Elsewhere it is provided that the lVh% so computed shall be paid in addition to the minimum rent.

To reiterate and summarize then, the conduct of the parties for several years was to compute rent under appellee’s formula. Also under appellee’s formula percentage rent is payable on gross sales over the stated threshold figure, which relates functionally to an equivalence of minimum rent.

Appellant’s formula on the other hand necessitates a double deduction. The threshold figure reduces total gross sales and, after application of the percentage factor, minimum rent (the functional equivalent of threshold) is again deducted. Further, percentage rent is payable in the first instance on sales in excess of approximately $555,000.00 and in the second instance, $1,000,000.00. This renders the stated figures of $250,000.00 and $555,000.00, respectively, meaningless. It is almost inconceivable that such convoluted reasoning was ever originally intended by either of the parties.

CONCLUSION

Accordingly, we resolve the conflict created by the different methods of computation called for by the documents in favor of appellee and we affirm the final judgment in that respect. We do so not only in recognition of the duty of this court to affirm the trial court’s construction of the agreement, unless such construction is clearly erroneous, Clark v. Clark, 79 So.2d 426 (Fla.1955); Bornstein v. Somerson, 341 So.2d 1043 (Fla. 2d DCA 1977); Rylander v. Sears Roebuck & Company , 302 So.2d 478 (Fla. 3d DCA 1974), but also, in recognition of the fact that the parties themselves placed this construction on the documents for several years and the president of appellant corporation testified that the court should construe the language of the extension agreement the same as it construes Paragraphs 20 and 45 of the original lease.

ATTORNEY’S FEES

We turn next to the question of the disal-lowance of attorney’s fees. Paragraph 26 of the lease provides in pertinent part:

TWENTY-SIX — If Tenant shall make any default or defaults under this Lease, Landlord may, at its election, immediately or at any time thereafter, without waiving any claim for breach of agreement, and without notice to Tenant, cure such default or defaults for the account of Tenant; if the Landlord shall institute an action or summary proceeding against the Tenant based upon such default, or if the Landlord shall cure such default or defaults for the account of Tenant, then the Tenant will reimburse the Landlord for the expense of attorneys’ fees and disbursements thereby incurred by the Landlord, so far as the same are reasonable in amount....
Tenant agrees that in the event its default in performance of any of the terms, conditions or covenants of this Lease requires the Landlord, in the exercise of its sole discretion, to use the services of an attorney whether or not an employee of Landlord to attempt to, or to successfully remedy such default, that Tenant will reimburse Landlord for any and all expenses incurred in its use of such attorney and in any action which said attorney may take. Such expenses shall include, but are not limited to: legal fees, court costs, costs of filing and serving summons and/or complaints, etc. ...

We are bound to apply a strict construction to this agreement for attorney’s fees. Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34 (Fla.1975); Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So.2d 679 (Fla. 1974). Nevertheless, the parties agreed in rather clear language that in the event of default requiring the service of an attorney, the landlord would be entitled to attorney’s fees and costs. The stipulation entered into by the parties in 1977 reserved all of the landlord’s rights under the lease. Payment of the disputed percentage rental into an escrow account was not payment to the landlord, who was effectively deprived of the use of that money regardless of the good faith of appellant. It is our view that a default occurred which required the landlord to obtain the services of an attorney and that the provisions of paragraph 26 became operable.

Accordingly, we affirm the conclusion of the final judgment that the landlord was entitled to recover percentage rental on gross sales in excess of the threshold amount stated in the lease and restated in a larger amount in the amendment, in addition to the minimum rent called for by those documents. We reverse that portion of the final judgment denying appellees’ request for attorney’s fees and we remand for a determination by the trial court of reasonable attorney’s fees to be awarded to appellee together with costs.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

DOWNEY and HURLEY, JJ., concur.


source: Caselaw Access Project

author: GLICKSTEIN, Judge. MOORE, Judge,

license: Public Domain

text:
    Aloysia WOOD and Daniel Wood, Appellants, v. WALT DISNEY WORLD CO., d/b/a Disney World, Insurance Company of North America, a Pennsylvania Corporation, Rouse Brake & Wheel Inc., and Merlin, Inc., a Florida Corporation, and Hartford Accident and Indemnity Co., a Connecticut Corporation, Appellees.
    No. 79-101.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Rehearing Denied April 23, 1981.

      Simons & Schlesinger, P. A., Fort Laud-erdale, and Walter H. Beckham, Jr., and Joel D. Eaton of Podhurst, Orseck & Parks, P. A., Miami, for appellants.
    John H. Ward and John L. O’Donnell, Jr., of DeWolf, Ward, Morris, Wohlust, Jontz & O’Donnell, Orlando, for appellee, Walt Disney World Co.
    Pyszka, Kessler & Adams, Fort Lauder-dale, Bonnie Lee Daniels, Miami, and Larry Klein, West Palm Beach, for appellees, Rouse Brake & Wheel, Inc., Merlin, Inc., and Hartford Acc. and Indem. Co.
   GLICKSTEIN, Judge.

Appellant suffered back injuries on November 27, 1971, during a Thanksgiving holiday weekend visit to Disney World. The injuries were sustained while she was riding in a miniature race car with her son at the attraction known as the Grand Prix Raceway when her car was struck from behind by another car. Following'this accident, she had several subsequent accidents which aggravated her back injuries. Because the injuries and the subsequent aggravation of the injuries were difficult to apportion among the various tortfeasors, she brought a single action against them all. During the trial she settled her claims with all of the defendants except Walt Disney World Co., Rouse Brake & Wheel, Inc., Merlin Co., and their respective insurers. The jury found for the defendants and this appeal followed.

The only error we perceive requiring reversal of the final judgment involves Walt Disney World Co., and its insurer. We affirm the final judgment as to the remaining parties. The specific error which we find to be harmful is the trial court's refusal to admit into evidence any reports of subsequent incidents involving injuries sustained by persons in the cars at the Grand Prix Raceway which were offered into evidence to establish the dangerous condition of the raceway. The trial court made a specific distinction between prior and subsequent incidents, holding subsequent incidents to be inadmissible. We disagree and hold that while the trial court has discretion in this matter, exclusions of all subsequent incidents was error.

In Chambers v. Loftin, 67 So.2d 220 (Fla. 1953), the court said:

It is well settled that evidence of prior or subsequent similar accidents at or near the same place are admissible if they are not too remote in time, for the purpose of showing the dangerous character of the place and defendants’ knowledge thereof.

More recently, in Reese v. Seaboard Coastline Railroad Company, 360 So.2d 27 (Fla. 4th DCA 1978), cert. dismissed 366 So.2d 884 (Fla.1978), we held that it was error to exclude evidence of the railroad’s warning signal operation on the day following the accident. See also Seaboard Air Line Railroad Company v. Hawes, 269 So.2d 392 (Fla. 4th DCA 1972), cert. denied 272 So.2d 816 (Fla.1973).

Accordingly, we reverse the final judgment as to Walt Disney World Co. and its insurer, remand for new trial as to these same defendants, and affirm as to the remaining parties.

AFFIRMED in part, REVERSED in part, and REMANDED.

HURLEY, J., concurs.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

I respectfully dissent. In my opinion, the error if any, was harmless.

      . Unknown to the trial court at the time of its ruling, two of the excluded reports actually involved incidents occurring prior to appellant’s accident.


author: GLICKSTEIN, Judge. HURLEY, Judge, MOORE, Judge,

text:
    Lee W. PROCTOR, Appellant, v. CITY OF CORAL SPRINGS, Appellee.
    No. 79-1582.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Gaylord A. Wood, Jr., Fort Lauderdale, for appellant.
    Paul J. McDonough, P. A., Coral Springs, for appellee.
   GLICKSTEIN, Judge.

Section 18-5 of the City of Coral Springs, Florida, Code of Ordinances prohibited the owner or person having the use of a “commercial vehicle” from parking the vehicle for any period of time between 9:00 p. m. and 6:00 a. m., or for any period of time on Sunday, on a public right-of-way adjacent to or on private property zoned “R” or “D” unless parked in a covered garage or carport. The definition of “commercial vehicles” was based upon the State of Florida Vehicle Tax Class Codes and descriptive classifications.

On January 15, 1977, Lee Proctor owned a 8/4-ton pickup truck, which was classified as a commercial vehicle under the ordinance. While visiting friends in Coral Springs on that date, Mr. Proctor, parked his pickup truck in the friends’ front yard. At 11:00 p. m. he was issued a citation, charging him with violation of the ordinance. The testimony was undisputed that the pickup truck had no commercial marking and that it was not used for commercial purposes.

A zoning ordinance will be upheld unless it is clearly shown that it has no foundation in reason and is a mere arbitrary exercise of power without reference to public health, morals, safety or welfare. City of Coral Gables v. Wood, 305 So.2d 261, 263 (Fla. 3d DCA 1974). Zoning measures designed to enhance the aesthetic appeal of a community have been recognized as a valid exercise of the police power. See e. g. Merritt v. Peters, 65 So.2d 861 (Fla.1953); City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941); City of Coral Gables v. Wood, supra. In City of Coral Gables v. Wood, supra, the court held that a zoning ordinance aimed at preventing the unsightly appearances and diminution of property values that occurred when camper-type vehicles were parked or stored out of doors in residential areas of a community, was not arbitrary or unreasonable. Storage of the vehicles was permitted within a garage or other structure, and therefore the ordinance did not unconstitutionally deprive the owners of a right to have camper-type vehicles. More akin to the instant case was Henley v. City of Cape Coral, 292 So.2d 410 (Fla. 2d DCA 1974), where an ordinance intended to protect residential neighborhoods against the lingering presence of commercial vehicles was held not to be overbroad or unreasonable, particularly since the commercial vehicles could be garaged at residences. However, the court anticipated a situation such as the one sub judice and said “this ordinance may be unconstitutionally applied as for example to a station wagon which gives no outward sign of being used in business.” Id. at 411.

Notwithstanding the general propositions of law recited above, we hold that the subject ordinance is unreasonable and unconstitutional as applied to pickup trucks. It restricts drivers of pickup trucks from visiting with friends or family by making it illegal to be parked in a residential driveway, or on the hosts’ lawn, or in the street in front of the home after 9:00 p. m. even though the vehicle in question is not truly a commercial vehicle; i. e., without commercial markings of any nature and not used for commercial purposes.

Accordingly, we reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

HURLEY, J., concurs specially with opinion.

MOORE, J., dissents with opinion.

HURLEY, Judge,

concurring.

I join in the opinion of the court for in my view, the ordinance, as presently drawn, constitutes an impermissible infringement upon a citizen’s freedom of association which I consider to be an inalienable right guaranteed to the citizens of Florida by Article 1, Sections 2, 4, 5 and 23 of the Florida Constitution.

Over a century ago, Alexis de Toqueville observed that the “most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them.” It was for this reason that he thought “the right of association . . . almost as inalienable in its nature as the right of personal liberty.” Today it is well recognized that both the federal and state constitutions guarantee freedom of association. Indeed, the United States Supreme Court has repeatedly described this right as among the preferred rights derived by implication from the First Amendment’s guarantees of speech, press, petition and assembly. Though most of the cases treat freedom of association as ancillary to other rights protected by the First Amendment, it is agreed that “it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters.... ” NAACP v. Ala bama ex rel. Patterson, 357 U.S. 449,460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

In addition to its roots in the First Amendment and in Article 1, Sections 4 and 5 of the Florida Constitution, I believe that freedom of association is also an inseparable aspect of an individual’s rights of privacy and personhood. The decision to join with others in pursuit of a lawful common goal or simply to enjoy each other’s company is a fundamental aspect of individual liberty. It is deep within our traditions, and “[t]he right of association, the right to invite the stranger into one’s home is ... basic in our constitutional regime ....” Thus, I suggest that the time has come to enunciate clearly that freedom of association is one of the inalienable rights guaranteed to the citizens of Florida by Article 1, Sections 2 and 23 of the Florida Constitution. The import of the constitutional right of association is that “whatever action a person can [lawfully] pursue as an individual, freedom of association must ensure he can pursue with others.” So obvious is this right that it has largely been taken for granted, but the case at bar illustrates the need for explication; also, it is a particularly apt example of how rights of association, privacy and personhood are often inextricably entwined.

In an effort to regulate parking or storage of commercial or recreational vehicles, the City of Coral Springs enacted an ordinance which prohibits “commercial vehicles” from being parked on the side of the roadway, or on private property “for any period of time between 9:00 p. m. and 6:00 a. m.” during the week, “or for any period of time on Sunday.” The ordinance defines “commercial vehicles” to include all pickup trucks, irrespective of size or use. Furthermore, it subjects both the vehicle owner and the homeowner to possible criminal penalties. In a suburban community like Coral Springs, where transportation is a necessary incident to association, the inescapable effect of the ordinance is to substantially inhibit free association. It limits an individual’s ability to visit friends in the privacy of their home if the visitor must utilize a pickup truck for transportation. This is not far-fetched conjecture; it is precisely what occurred in the case at bar. Appellant, Lee Proctor, drives a 1974 Cheyenne Chevrolet pickup truck for every-day transportation. The vehicle bears no commercial designations, yet on January 15, 1977, at approximately 11:00 p. m., Proctor received a ticket while visiting at the Coral Springs home of Bob and Margaret Withrow. The record is not clear whether Proctor’s pickup was parked on the Withrows’ property or on the side of the roadway in front of their home. The violative conduct, however, was that the truck was parked, ungaraged, within a residential area of the City of Coral Springs after 9:00 p. m. Appellant’s vehicle was ticketed on two subsequent occasions during August of 1977 when his wife utilized the vehicle to visit her mother who resided within the City of Coral Springs.

From the beginnings of our constitutional history, we have exhibited a special sensitivity for the privacy of the homeplace. The Third and Fourth Amendments to the United States Constitution, for example, reflect that solicitude for freedom and privacy of one’s home was one of the most vital elements of English and colonial liberty. More importantly, that concern has continued unabated. In 1969, for example, the United States Supreme Court, in deciding a case with First Amendment implications, declared the privacy of the homeplace to be virtually sacrosanct. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). See also, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Similarly, our state courts have held that the right of privacy “includes the right to be free from unreasonable restrictions on the use of the residence.” Foss v. Foss, 392 So.2d 606, 607 (Fla. 3d DCA 1981). Indeed, Florida’s commitment to the protection of privacy was underscored on November 4, 1980, when our citizenry took the momentous step of amending the state constitution to include an express guarantee to the right of privacy. Given this unswerving tradition, it is not surprising that the courts have crafted demanding standards to safeguard this essential liberty. In NAACP v. Alabama ex rel. Patterson, supra, Mr. Justice Harlan noted that “state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” 357 U.S. at 460-61, 78 S.Ct. at 1170-1171.

Subjecting the Coral Springs ordinance to the closest scrutiny only heightens its arbitrary character. There is not the slightest suggestion in the record that such an all-inclusive enactment is necessary to meet the city’s legitimate responsibility of protecting the public health, safety or welfare. The ordinance does not speak in terms of weight, width or other relevant concerns, but merely contains a blanket prohibition of all pickup trucks. This is demonstrably excessive. It is common knowledge that a sizeable number of citizens, in addition to appellant, utilize pickup trucks for their normal mode of transportation. Many of these vehicles are no longer, wider or heavier than a standard American-made automobile. To ban such vehicles in the name of aesthetics smacks of the rankest form of elitism, and more significantly, fails to give due consideration to the associational rights of homeowners and visitors alike. In my view, the ordinance is so overbroad as to be constitutionally intolerable. Accordingly, I join in the opinion of the court.

MOORE, Judge,

dissenting:

In dissenting from the majority’s conclusion, I find myself in complete agreement with the principles of law cited by Judge Glickstein. Unfortunately, Judge Glick-stein then holds that these principles render a parking ordinance unconstitutional when applied to pick-up trucks, without any more reasoning than to say simply that the ordinance is “unreasonable.” I fail to see the unreasonableness.

I also fail to see how a violation of this relatively clear and simple parking ordinance rises to the level of such constitutional proportions as suggested by Judge Hurley.

The appellant sought a declaration in the trial court that the ordinance was unconstitutional as applied to him. After a non-jury trial final judgment was entered against appellant by the able trial judge. I would affirm that judgment on the authority of City of Coral Gables v. Wood, 305 So.2d 261 (Fla. 3rd DCA 1974) and Henley v. City of Cape Coral, 292 So.2d 410 (Fla. 2nd DCA 1974).

Moreover, we should not substitute our judgment for that of local government absent a clear constitutional violation which is not present here. The final judgment should be affirmed.

      . A. de Toqueville, Democracy in America, 196 (P. Bradley, ed. 1945).

      . Id.

      . See e. g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

      . United States Department of Agriculture v. Moreno, 413 U.S. 528, 543, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (Douglas, J., concurring).

      . Raggi, “An Independent Right to Freedom of Association,” 12 Harv.Civ.Rts. — Civ.Lib.L.Rev. 1, 15 (1977).

      . The amendment creates Section 23 of Article I of the Florida Constitution and provides that “[e]very natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”


author: ROBERT P. SMITH, Jr., Judge.

text:
    INTERNATIONAL PATROL AND DETECTIVE AGENCY, INC., Appellant, v. AETNA CASUALTY & SURETY COMPANY; New Hampshire Insurance Company; and National Council on Compensation Insurance, Appellees.
    Nos. TT-199, VV-76.
    District Court of Appeal of Florida, First District.
    March 25, 1981.
    Rehearing Denied May 1, 1981.

      Richard M. Goldstein of Peeples, Earl, Smith, Moore & Blank, Miami, for appellant.
    Richard Smoak of Isler, Brown, Smoak & Watson, Panama City, Edwin H. Underwood of Underwood, Gillis, Harcher, Rei-nert & Valle, Miami, and James E. Cobb of Mathews, Osborne, Ehrlich, McNatt, Cobel-man & Cobb, Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Judge.

This is a consolidated appeal from a summary final judgment, a non-final order denying leave to file a second amended complaint, and an order taxing costs. We affirm on all points.

The appellant, International Patrol, is an employer required by § 440.38, Florida Statutes (1977), to maintain workers’ compensation insurance. It contracted with Aetna and New Hampshire for policies of workers’ compensation insurance for the years 1967 through 1977. Aetna and New Hampshire are members of the National Council on Compensation Insurance, a rating organization which has a Florida office, called the Florida Compensation Rating Bureau (Rating Bureau).

Appellant alleged that Aetna, New Hampshire, and the Rating Bureau conspired to violate § 627.072, Florida Statutes (1977) by intentionally failing to consider investment income on unearned premium reserves and loss reserves, as required by § 627.072(l)(a)5, when computing insurance rates, thus resulting in excessive rates; and that Aetna and New Hampshire conspired to, and did breach their contracts by charging appellant excessive rates. Summary judgment was granted by the trial court on the grounds that there was no evidence supporting an inference of conspiracy to set excessive rates, and that appellant had failed to exhaust its administrative remedies. We agree and accordingly affirm.

The only evidence in the record which reflects on the conspiracy allegations is the fact that appellees met to discuss proposed rates. However, such a procedure is clearly authorized by § 627.314. Further, rating bureaus and insurers such as appellees merely arrive at “proposed” rates, which are then submitted to the Department of Insurance, along with the information upon which the rates are based. Such filings are open for public inspection and are reviewed by the department in order to determine whether or not the requirements of the statute have been met. Sections 627.091 and 627.101, Florida Statutes (1977). Thus, it is the department which has responsibility for final approval of the rates charged by an insurer.

Appellant has failed to exhaust its administrative remedies with regard to allegations that the rates in question were improperly calculated under the statute and, therefore, excessive. The statute provides an orderly procedure whereby an aggrieved party may receive a hearing on a rate complaint before the rating bureau or organization, seek review before the Department of Insurance if the rating bureau denies relief or simply fails to act within thirty days of the request, and ultimately appeal his case to this court. Sections 627.291, 627.371, 627.391, Florida Statutes (1977). Specifically, § 627.371(2) provides that if the Department of Insurance finds that the alleged noncompliance with the statute exists, the rating bureau will be given a reasonable time “in which the noncompliance may be corrected, including any premium adjustment.” We construe this section as providing that the department may investigate the insured’s allegations and order any refund which the insured may be due, by reason of being overcharged. Thus, International Patrol had an adequate administrative remedy available and was accordingly barred from bringing its action in circuit court. See Florida Welding and Erection Service, Inc. v. American Mutual Insurance Company, 285 So.2d 386 (Fla. 1973).

Appellant next urges that the trial court erred in denying it leave to file a second amended complaint. Appellant’s motion for such leave was made nearly two years after this action was commenced and after discovery was substantially completed. By its second amended complaint, appellant sought to convert the suit into a class action and add a new prayer for injunctive relief. Although generally leave to amend should be liberally granted so that matters may be tried on the merits, such amendments are not allowable if they would change the issue, introduce new issues, or materially vary the grounds for relief. Warfield v. Drawdy, 41 So.2d 877 (Fla.1949); accord, Brown v. Montgomery Ward, 252 So.2d 817 (Fla. 1st DCA 1971). The trial court was correct in finding that the addition of substantial new issues associated with a class action would interfere with the timely resolution of the already pending issues in this case.

The final point for our consideration is whether the trial court properly taxed costs against International Patrol for copies of depositions. Nearly thirty years ago, the Florida Supreme Court, in Florida Greyhound Lines v. Jones, 60 So.2d 396 (Fla. 1952), held without elaboration that the costs of copies of depositions in that case were not properly assessable. The District Courts of Appeal have placed different interpretations upon this holding. For example, the Second District Court of Appeal has interpreted Jones as completely precluding taxing costs for copies of depositions in any case. Paul v. Allstate Insurance Company, 380 So.2d 1307 (Fla. 2nd DCA 1980). Likewise, this court has stated in dicta that “costs for copies of depositions are not properly assessable.” Crabtree v. Rogers, 370 So.2d 857 (Fla. 1st DCA 1979). The Fourth District Court of Appeal, on the other hand, has held that Jones did not set down an ironclad rule against taxing costs of copies of depositions and that such costs may be taxable if the copies served a useful purpose, which is a question within the discretion of the trial court. County of St. Lucie v. Browning, 358 So.2d 253 (Fla. 4th DCA 1978); Moore v. Caughey, 368 So.2d 109 (Fla. 4th DCA 1979).

The present case is a good example of the expansive use of discovery in modem litigation (twelve depositions were made part of the record), and the active involvement of attorneys from several different areas of the state. In light of the realities of modern litigation, we feel that the better reasoned view is that costs of copies of depositions may be taxable when the facts warrant. We find that in this case the trial court’s award of the cost of one copy of each deposition, to be divided between the three appellees, was not an abuse of discretion.

Accordingly, the summary final judgment, order denying leave to a file a second amended complaint, and order taxing costs are AFFIRMED.

BOOTH and SHAW, JJ., concur.


author: MILLS, Chief Judge.

text:
    SUAVE SHOE CORPORATION and Employers Service Corporation, Appellants, v. Daniel SUAREZ, Appellee.
    No. UU-269.
    District Court of Appeal of Florida, First District.
    March 25, 1981.
    Rehearing Denied May 1, 1981.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellants.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, Miami, for appellee.
   MILLS, Chief Judge.

Appellants contend that the determination by the Deputy Commissioner in this case involving a workers’ compensation modification that the claimant, Daniel Suarez, has sustained a 55% loss of wage-earning capacity was error because Suarez failed to conduct a work search after the second date of maximum medical improvement. We agree and reverse.

Suarez suffered an admittedly compensa-ble accident while working with Suave Shoe Corporation, injuring his back. Since there have been two operations, two dates of MMI, and prior workers’ compensation orders, the chart of the dates and relevant incidents may be helpful:

20 October 1972 — date of accident.
6 December 1973 — first operation.
18 June 1974 — first date of MMI, with an assigned rating of 15% permanent physical impairment to the body as a whole.
2 February 1976 — workers comp order finding 27V2% permanent partial disability based on loss of wage-earning capacity.
10 September 1976 — second operation.
20 July 1977 — second date of MMI with an assigned rating of 15% permanent physical impairment of the body as a whole and 25% permanent physical impairment to the lower right extremity.

The record also shows that from 10 July 1974 to March of 1976 the claimant worked at Gator Shoes and that he had not worked since and had not sought employment since that time.

A recent case from this court, General Electric Company v. Osborne, Case No. UU-48, Opinion filed March 10, 1981, is directly on point. There, as here, though the worker was able to show a change of physical condition, the increase in benefits was based on an increased loss of wage-earning capacity, but there was no evidence that the work search requirement had been met. Walker v. Electronic Products, 248 So.2d 161 (Fla.1971).

In Exxon Company v. Alexis, 370 So.2d 1128 (Fla.1978), the Supreme Court reversed an award based on a 40% loss of wage-earning capacity where the claimant was reemployed after his first hospitalization, but made no further efforts to seek employment after he was terminated approximately three months prior to the date of maximum medical improvement, stating:

It is well established that in order to justify an award of compensation based upon a diminution of wage-earning capacity, a claimant must show that he has made an effort to test his employability in the open labor market after having reached maximum medical improvement. (370 So.2d 1132)

Since there is no evidence of a work search, Suarez has failed to demonstrate a disability in excess of the rating of 27V2% permanent partial disability in February 1976 and, therefore, recovery is limited to that rating.

Because of our disposition of the point raised on appeal, we need not rule on the issues raised on the cross-appeal.

REVERSED and REMANDED for proceedings consistent with this opinion.

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


author: LARRY G. SMITH, Judge.

text:
    FLORIDA DEPARTMENT OF TRANSPORTATION, Appellant, v. J. W. C. COMPANY, INC., and Department of Environmental Regulation, Appellees.
    No. OO-501.
    District Court of Appeal of Florida, First District.
    March 27, 1981.

      James W. Anderson, Tallahassee, for appellant.

      Kenneth Oertel of Oertel & Laramore, Alfred W. Clark, Tallahassee, Adrian Bacon, St. Petersburg, for appellees.
    Edward de la Parte, Jr. of de la Parte & Butler, Tampa, John T. Allen, Jr., St. Pe-tersburg, for amicus curiae, Agrico Chemical Co.
    William L. Earl and Paul H. Amundsen of Peoples, Earl, Smith, Moore & Blank, P. A., Miami, for amicus curiae, Freeport Sul-phur Co.
   LARRY G. SMITH, Judge.

The Department of Transportation (DOT) appeals an order entered by the State Department of Environmental Regulation (DER) denying DOT’s application for a permit under the environmental laws, Chapter 403, Florida Statutes. DOT relies for reversal upon its claims: First, that DER erred in accepting the order of the hearing officer recommending denial of the permit after a formal Section 120.57(1) hearing, without either granting DOT’s request to present additional evidence in support of its application directly to the Secretary of DER, or in the alternative remanding the case to the hearing officer for the purpose of receiving additional evidence; and secondly, that the proceedings before the hearing officer were not conducted in accordance with the essential requirements of law, because the hearing officer improperly placed the burden of proof upon DOT, rather than upon its opponents, appellees J.W.C. Company, Inc., and the other property owners who were objecting to the issuance of the permit sought by DOT.

Our consideration of the briefs of the parties and briefs of amici curiae , and our examination of the record lead us to conclude that reversible error has not been demonstrated in this appeal. We affirm.

As an incident to the proposed widening of Gulf Boulevard, Treasure Island, Pinellas County, DOT applied to DER for a permit to construct a complex source of air pollution, asserting in its application that pollutants in the form of automobile exhaust fumes along the proposed roadway would not exceed permissible standards adopted by DER . DER’s district office determined that “reasonable assurances” had been provided that the road widening project would not cause pollution in contravention of DER’s standards, and it then issued its “letter of intent”, to issue the permit. Appellee J.W.C. Company, Inc. and other property owners filed a petition complaining, among other things, that the proposed widening would cause air pollution to a degree prohibited by Florida’s law and regulations, and requested a “public” hearing . The hearing officer to whom the proceeding was referred by DER held a hearing, received evidence from DOT and the objecting property owners, and entered his order recommending that issuance of the permit be denied.

In its application and in its presentation before the hearing officer, DOT sought to establish that the proposed highway improvements would not cause air pollution exceeding acceptable limits. To do this DOT used what is technically known as “computer modeling techniques,” utilizing a computer model known as “Caline II.” Traffic data was gathered by DOT to determine the future increase in traffic, and this data was processed through a computer program known as “Mobile I,” to obtain predicted emissions of automobile pollutants. The data obtained from the Mobile I program was then fed into the Caline II model, along with data with respect to the “worst case conditions” at the point along the roadway where the greatest concentrations of pollutants would be likely to occur. Based on the data utilized by DOT, including its assumptions concerning the “worst case conditions,” the computer program produced results indicating highest concentrations of carbon monoxide well within DER’s standards. No evidence other than the computer model was presented by DOT.

Notwithstanding DOT’s evidence based on the computer model, the hearing officer found that DOT had failed to provide reasonable assurances that the proposed modifications of Gulf Boulevard would not result in pollution in violation of DER’s standards. The hearing officer pointed out in his order certain factors indicating that DOT had used “erroneous or insufficient data” in conjunction with the computer modeling. He emphasized particularly DOT’s erroneous assumption of an “average speed” of 30 miles per hour for vehicles traveling through the busiest intersection — Gulf Boulevard and Treasure Island Causeway. He found that this assumed speed was not based on evidence from which any firm conclusion could be reached. He observed that the speed limit was 35 miles per hour at that intersection, but that there was also a stop light which would drastically reduce the average speed of vehicles traveling through the intersection. He also found that DOT’s assumption of a 2 mile per hour wind speed for its “worst case conditions” could result in distorted data, and that a wind direction of 22 degrees from parallel was chosen for no apparently logical reason. Parallel winds, the hearing officer found, are generally thought to be the worst wind conditions for producing high carbon monoxide concentrations; but computer model results generally become distorted if parallel winds are assumed. Further, the “Ca-line II” program assumes the roadway is located on a grassy plain, a description which did not fit this particular locale; and there was a sharp conflict in the testimony on the extent to which developments on Gulf Boulevard would affect the result of the Caline II data. The hearing officer also questioned as “not necessarily valid” the assumption by DER personnel who considered the application that the modifications at the busy intersection would cause traffic to move at a faster rate than it does presently, thereby decreasing pollution in that area. Neither DER nor DOT presented evidence on whether the proposed modifications themselves would cause increased usage of the roadway, thus increasing emissions and pollution concentrations.

Based on his findings briefly summarized above, the hearing officer concluded that the data placed into the computer program was “not sufficient to assure any reasonable prediction” concerning pollutant concentrations. There was, he found, a “substantial possibility” that projected concentrations would exceed acceptable limits if proper data were utilized. Furthermore, because of the erroneous or insufficient data used by DOT in connection with carbon monoxide, predictions respecting concentrations of other automobile related pollutants could not be made.

Upon receipt of the hearing officer’s recommended order DOT filed exceptions to the order and also filed a “Motion To Consider New Information,” in which it requested permission to submit directly to the secretary of DER “new information” consisting of a graph and the affidavit of Dr. Gordon Morgan, one of the expert witnesses used in the administrative hearing. The graph and the affidavit purported to show that, based on recalculations using lower “average speeds,” even as low as 15 miles per hour (half of the average speed previously assumed by DOT), the resulting pollutant predictions were well within acceptable standards. The motion for permission to introduce the graph and the additional expert evidence was denied.

DER entered its Final Order, adopting the hearing officer’s recommended order, denying the permit, denying DOT’s request to consider new information, and (by implication) denying DOT’s alternative request that the proceeding be remanded to the hearing officer for the purpose of considering the “new information” tendered by DOT.

Appellant DOT’s first point, as indicated at the beginning of our opinion, is that DER’s rejection of the “new information” tendered by it was error, in that such information had significant bearing on the issues dealt with by the hearing officer. DOT argues that rejection of this additional evidence constituted a violation of the Administrative Procedures Act, and a denial of fundamental fairness. Under DOT’s theory of the case, the hearing officer simply made a “preliminary determination” that DOT had failed to provide “reasonable assurances” that DER’s air quality standards would not be violated. DOT further reasons that because the administrative process is an “on-going inquiry,” the secretary of DER, after receipt of the hearing officer’s recommended order, is compelled to consider all information relevant to the issues — even evidence not presented at the hearing — before entering a final order.

DOT’s argument relies to a great extent upon what we believe is a misreading of this court’s opinion in Couch Construction Company v. Department of Transportation, 361 So.2d 172 (Fla. 1st DCA 1978). DOT urges that this court’s remand to the agency in Couch “implicitly required the secretary either to discuss in his final order new information not previously addressed by the hearing, or himself to remand the case to DOAH for its entry of a new recommended order discussing the abolition of the pre-bid conference.” We do not read in the Couch opinion anything to support the rule or principle DOT draws from it. What the majority opinion in Couch did hold is that both the order of the hearing officer and the order of the agency were deficient in that they failed to address the earlier decision by the agency to abolish mandatory attendance by bidders at a pre-bid conference. This was a factor that could have had significant bearing on the validity of the agency’s decision to reject Couch’s bid because he had failed to attend just such a conference.

The fact that the agency in Couch had abolished mandatory attendance was not in any respect “new information,” as DOT assumes. This is evident from a reading of the hearing officer’s order in the Couch case, quoted in full in the dissenting opinion. The order contains the finding that at “the hearing” (referring to a second pre-bid conference held in January after readvertis-ing for bids), “the D.O.T. divulged that attendance at pre-bid conferences would no longer be required or mandatory...” (Couch, dissenting opinion, at page 180). The abolition of mandatory pre-bid conferences was therefore a matter of record before the hearing officer, not something presented “after the fact” by any party. This significant difference easily distinguishes the Couch case from this one.

We find no provision in the statutes or the rules of procedure (Chapter 28, Model Rules of Procedure) authorizing or permitting an agency head to “reopen” a hearing as suggested by DOT. The authority of the agency, upon receipt of the hearing officer’s recommended order, is set forth in Section 120.57(l)(b)9, Florida Statutes. The statute provides the following basic alternatives: (1) The agency may adopt the recommended order as the agency’s final order; or, (2) the agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the order, but may not reject or modify the findings of fact unless it determines from the record, and states with particularity in the order, that (a) the findings of fact were not based on competent substantial evidence, or (b) that the proceedings on which the findings were based did not comply with essential requirements of law. Neither this statute nor the model rules of procedure suggest the procedure urged by DOT of allowing the agency to receive additional or cumulative evidence on matters as to which evidence has already been received and evaluated by the hearing officer. Furthermore, this court has indicated, albeit indirectly, that this may not be done. If one side were permitted to produce additional evidence, as suggested by DOT, then the other side would necessarily have to be given the same privilege, and each side would of necessity have to be given the right of confrontation and cross-examination of the additional witnesses, and possibly rebuttal. We do not envision the Administrative Procedures Act as permitting such a never-ending process.

The decision of this court in Public Bank of St. Cloud v. State, 351 So.2d 73 (Fla. 1st DCA 1977), also relied upon by appellant, does not mandate a result different than the one we reach in this case. We observe initially that there are fundamental dissimilarities between an application for a bank charter as in St. Cloud, and an application for a permit to construct a complex source of air pollution. But more significantly, the context in which the procedural issue arose in St. Cloud bears little resemblance to the issue under consideration here. There was no motion by the applicant in St. Cloud requesting the Comptroller to receive additional evidence. That alone distinguishes the cases. In St. Cloud, the hearing officer’s order pointed out that evidence produced at the hearing cast some doubt concerning the financial standing and ability of two individuals named as members of the applicants’ proposed Board of Directors. Explaining that the applicants otherwise met the required statutory criteria, and that the criteria regarding the suitability of the proposed Board of Directors was a matter “substantially within the control of the applicant,” the hearing officer recommended that the applicant be permitted a short period of time within which to review its proposed directors, and, “if it so desires, submit an amended list” for the Comptroller’s review. (Id. at page 74). The Comptroller summarily denied this recommendation and denied the application. This court on appeal held that the Comptroller abused his discretion in refusing the amendment, pointing out that the Comptroller, during the pendency of the appeal, had permitted the amendment of a proposed charter by other applicants. This fact alone, said the court, “when considered in the light of the voluminous data” required in a charter application, demonstrated that the denial of the charter constituted an abuse of discretion.

If this case involved an amendment to the application, in the St. Cloud sense, and if the hearing officer had recommended that such an amendment be allowed by DOT based on evidence presented at the hearing, then the ruling in St. Cloud would have some application. Conceivably, DER might by rule provide for amendment to the application during the hearing process, or it might by rule prohibit substantial amendment in “mid-proceeding” as indicated by this court with reference to bank applications in McDonald v. Department of Banking and Finance, 346 So.2d 569, at 584 (Fla. 1st DCA 1977). Footnote 14 of that opinion (Id. at 584) reveals that the Department of Banking and Finance had adopted such a rule. We perceive, however, a substantial difference between an amendment to an application pertaining to a matter “substantially within the control of the applicant,” as in St. Cloud (Id. at 74) and the reopening of a hearing for the presentation of additional expert opinion evidence, as requested here by DOT. The mere chance that such additional evidence “might alter the recommended order,” as argued by DOT, does not furnish sufficient basis for a ruling by this court that the agency’s order should be reversed. We note, furthermore, that DER’s denial in this case was without prejudice to the right to submit a revised application to DER; and DER’s order further stated that in the event of a new application and another Section 120.57(1) hearing, DER would request that the same DOAH hearing officer who conducted the proceeding below be assigned to hear the new application.

Further, as to DOT’s first point, we find without merit its contention that Section 120.60(2), Florida Statutes, compels DER to accept additional information tendered by DOT, even after a formal Section 120.57(1) hearing. An agency’s free-form action is regarded as preliminary, irrespective of its tenor. Capeletti Brothers Inc. v. Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978). The petition for a formal 120.57(1) hearing, as in this case, commences a rife novo proceeding. See General Development Corp. v. Division of State Planning, 353 So.2d 1199 (Fla. 1st DCA 1977); Couch Construction Company v. Department of Transportation, supra; McDonald v. Department of Banking and Finance, supra. Section 120.57 proceedings “are intended to formulate final agency action, not to review action taken earlier and preliminarily.” McDonald v. Department of Banking and Finance, supra, at 584.

Regarding DOT’s contention that DER should have granted its request that the case be remanded to the hearing officer, we note initially that DOT concedes that neither Chapter 120, Florida Statutes, nor any other statutory provision expressly grants to an agency the authority to remand a proceeding to the hearing officer for consideration of further evidence. It urges, however, that such authority is inherent by reason of the nature of the agency and the functions it is empowered to perform.

This latter contention raises an issue not directly ruled upon in Florida, so far as we can determine. However, language in at least one Florida case gives support to DOT’s position. In Venetian Shores Home and Property Owners v. Ruzakawski, 336 So.2d 399, at 401 (Fla. 3rd DCA 1976), the court stated:

We believe the entire tenor of the provisions of the Administrative Procedure Act having to do with the functions of a Hearing Examiner leads to the inescapable conclusion that the action of the agency, after a full hearing, is in the nature of a procedural review. Extensive provisions aré made for remand or correction where the hearing is not complete or in accordance with the rules of due process, but there is no provision which suggests that the agency should make a new judgment upon the evidence. (Emphasis supplied)

It is not entirely clear whether the emphasized language in the above quote, considered in isolation, is referring to remand by the agency, or remand by the appellate court upon review of final agency action. However, since neither the statutes nor any rules provide for remand by the agency for further hearing by the hearing officer, prior to entry of the agency’s final order, we conclude that the writer of the opinion was referring to the authority of the reviewing court to remand to the agency under provisions of Section 120.68(6), (8)-(13).

However, without either accepting the proposition that an agency has inherent authority for “remand or correction where the hearing is not complete or in accordance with the rules of due process,” or on the other hand foreclosing the possibility of the existence of such authority under exceptional circumstances, we are confident that the present case does not justify the exercise of such authority. In any event, the agency’s decision to deny a remand would be a matter within the sound discretion of the agency itself, not subject to reversal by this court absent a showing of abuse of that discretion. Substantial authority holds that there is no abuse of discretion in denying a rehearing (or remand) sought for the purpose of introducing evidence that could, in the exercise of due diligence, have been offered at the original hearing. 2 Am.Jur.2d, Administrative Law, § 637; Bowman Transportation Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). We do not by this reference insinuate that rehearing may be granted pursuant to Chapter 120, under any circumstances, after final agency action. This court has only recently held that rehearings cannot be granted. See Systems Management Associates Inc. v. State Department of Health and Rehabilitative Services, 391 So.2d 688 (Fla. 1st DCA 1980), and opinion on motion for reconsideration, 391 So.2d 688 (Fla. 1st DCA 1980).

Having found no reversible error on the first point presented by DOT, we now turn to its contention that reversible error occurred because the hearing officer erroneously placed the burden of proof upon DOT at the formal hearing. On this point, our review convinces us that no consideration of due process or fundamental fairness was breached by the hearing officer’s allocation of the “burden of proof”.

It is apparent that DOT’s argument (and that of amicus curiae-Agrico) on this point proceeds upon the underlying premise that once DOT presented its application to DER and received DER’s notice of intent to issue the permit, its “burden of proof” to show “reasonable assurances” as required by the rule was discharged, and it had no further duty to “prove its case” a second time before the hearing officer at the 120.57(1) hearing.

We think that DOT’s position on this point is faulty in two respects. The first is that it ignores the firmly established principle, already alluded to in this opinion, that the proceeding leading up to the issuance of DER’s notice of intent is of the type that has been characterized as “free-form” action, and as such the decision produced is merely “preliminary.” Capeletti Brothers Inc. v. Department of Transportation, supra. Under Rule 17-1.62(3), Florida Administrative Code, a letter of intent to issue or deny a permit is “proposed agency action,” which becomes “final agency action” only if no hearing is requested- by an objecting party within fourteen days of receipt of notice of the proposed action. Clearly, there was no final agency action by DER in this proceeding prior to the petitioning landowners’ request for a hearing. Their request for a hearing commenced a de novo proceeding, which, as previously indi-cated, is intended “to formulate final agency action, not to review action taken earlier and preliminarily.” See McDonald v. Department of Banking and Finance, supra.

This issue was addressed by the hearing officer in his recommended final order, in which he stated:

DOT and DER have contended that the fact that DER has issued a “Notice of Intent to Issue Permit,” and that Petitioners thereafter requested a hearing, imposes upon the petitioners the burden of proof in this case. This contention, if accepted, would render the hearing a review of action already taken by DER. That is not the function of a hearing conducted in accordance with the provisions of Florida Statutes §§ 120.57(1), or 120.60. (Citing Couch Construction Company v. Department of Transportation, supra, and McDonald v. Department of Banking and Finance, supra.)

We are in accord with the hearing officer’s understanding that in permitting proceedings a formal hearing is not a mere “review” of action already taken by DER.

The second fault we find in DOT’s analysis of the burden of proof issue has more to do with a confusion of terms than any basic error of substance. We view it as fundamental that an applicant for a license or permit carries the “ultimate burden of persuasion” of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency. This burden is not subject to any “shifting” by the hearing officer, although it is entirely possible that a shifting of the burden of going forward with the evidence may occur during the course of the permitting proceeding. We think that part of the problem presented in this appeal stems from use of the term “burden of proof” to refer at times to the “burden of ultimate persuasion,” and at other times to the “burden of going forward with the evidence.” See Hughes, Florida Evidence Manual, Volume 1, Section 37 “Burden of Going Forward With Evidence,” and Section 38 “Burden of Persuasion, In General.”

A distinction in these terms was made by the court in In Re Estate of Ziy, 223 So.2d 42 (Fla.1969), utilizing an explanation found in a decision from the State of Alabama (Id. at 43):

The term ‘burden of proof’ has two distinct meanings. By the one is meant the duty of establishing the truth of a given proposition or issue by such a quantum of evidence as the law demands in the case in which the issue arises; by the other is meant the duty of producing evidence at the beginning or at any subsequent stage of the trial, in order to make or meet a prima facie case. Generally speaking, the burden of proof, in the sense of the duty of producing evidence, passes from party to party as the case progresses, while the burden of proof, meaning the obligation to establish the truth of ]the claim by a preponderance of the evidence, rests throughout upon the party asserting the affirmative of the issue, and unless he meets this obligation upon the whole case he fails.

It is obvious that, before accepting generalizations concerning the “burden of proof,” one must look to the underlying statutory and regulatory framework under which a particular proceeding arises. For example, in Agrico Chemical Co. v. State, 365 So.2d 759 (Fla. 1st DCA 1978), this court held, in a rule challenge proceeding (Section 120.54, Florida Statutes), that the “burden is upon one who attacks the proposed rule to show that the agency, that adopts the rule, will exceed its authority; ... .” It must be noted, however, that the allocation of the burden in the Agrico case proceeded from the court’s view that the rule-making function of an agency is “quasi-legislative action,” and its activities in that respect “must be considered with deference to that function.” (Agrico, supra, at 762)

DER’s Rule 17-4.07, Florida Administrative Code implements Section 403.-087 (and other provisions), Florida Statutes. That rule, the validity of which is not challenged here, provides that the applicant for a permit bears the burden to “affirmatively” provide DER with “reasonable assurances” that pollution standards will not be violated by the proposed facilities. Under the statutory and regulatory framework the applicant is thus the party asserting the “affirmative” of the issue, both before the Department in preliminary proceedings and before the hearing officer in formal proceedings. In accordance with the general rule, applicable in court proceedings, “the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.” Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

It is clear that when the hearing officer used the phrase “burden of proof” in his recommended order (as quoted above) he was referring to the ultimate burden of persuasion. The language immediately following the above quoted portion of the order specifically makes this point:

The issue in this proceeding is whether DER should issue the permit. Clearly DOT has the affirmative obligation of establishing its entitlement to the permit. The fact that DER has issued a notice of intent to issue permit may render DOT’s task in establishing its entitlement at a hearing somewhat easier. It does not, however, alleviate the responsibility.

We think the procedure followed here was correct. DOT was required to “go forward with the evidence” initially. See General Development Corporation v. Florida Land and Water Regulatory Commission, 368 So.2d 1323 (Fla. 1st DCA 1979), in which this court found no error in the hearing officer’s requirement that the developer present its case first (in an appeal under Section 380.07, Florida Statutes) since “that would facilitate an orderly presentation of evidence.” This procedure is not inconsistent, in our opinion, with the notion that the petitioning property owners, who requested the hearing, also bear a “burden of proof,” nor is a different order of proof required by Rule 17-1.59, Florida Administrative Code. This rule, entitled “Burden of Proof,” provides that in license and variance proceedings before the Department, “the person requesting a hearing, variance, license, or other relief, shall have the burden of proof to establish, by a preponderance of the evidence, entitlement to the requested license, variance, or other relief.” As a practical matter, where a notice of intent has been issued, we can conceive of no more orderly way for a formal hearing to be conducted than to have the applicant (who has the ultimate burden of persuasion) first present a “prima facie case.” The hearing officer is not required to commence hearing the petitioning objector’s evidence in such a proceeding with a blank record. We think it is essential, both for the benefit of the hearing officer and the petitioning objectors (to say nothing of the agency, and the appellate court) to have on record a basic foundation of evidence pertaining to the application so that the issues can be understood, and so that evidence directed to these issues by the petitioning objectors can be properly evaluated. At the very minimum, this preliminary showing should include the application, and the accompanying documentation and information relied upon by the agency as a basis for the issuance of its notiée of intent. To what extent it would be advisable or necessary for this preliminary presentation by the applicant to be further expanded would depend, to a large extent, on the nature of the objections raised by the petitioners requesting a hearing.

We caution that we are not here laying out a blueprint governing either the exact procedure to be followed or the form or manner in which evidence shall be presented in administrative hearings. As aptly pointed out by Judge Robert Smith in Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), although “all questions of fact as distinguished from policy are determinable under the Administrative Procedures Act by substantial competent evidence,” evidence “‘appropriate in form’ may differ from one proceeding to another depending on the ‘nature of the issues involved’” (citing Balino v. Department of Health and Rehabilitative Services, supra). Although the Bowling decision discusses the differentiation between evidence which “substantially” supports conventional forms of regulatory action and evidence which is required to “substantially” support a license revocation, we think common sense dictates that the principle of “differentiation” applies also both as to the form, and substantiality, of proof needed to support those aspects of a permit application that are uncontroverted, as opposed to those that are contested, in a Section 120.-57(1) proceeding.

Being somewhat more specific, as a general proposition a party should be able to anticipate that when agency employees or officials having special knowledge or expertise in the field accept data and information supplied by the applicant, the same data and information, when properly identified and authenticated as accurate and reliable by agency or other witnesses, will be readily accepted by the hearing officer, in the absence of evidence showing its inaccuracy or unreliability. We emphasize again, however, that once a formal hearing is requested, there is no “presumption of correctness” in the mere fact that in preliminary proceedings the Department has issued its “notice of intent” to issue the permit that would relieve the applicant of carrying the “ultimate burden of persuasion.” See General Development Corporation v. Florida Land and Water Regulatory Commission, supra; and O’Neil v. Pallot, 257 So.2d 59 (Fla. 1st DCA 1972).

Not every request for a formal Section 120.57(1) hearing may properly be granted, for it is clear that the petitioner must first demonstrate by appropriate pleading that there are disputed issues of fact requiring such a hearing. Blanchette v. School Board of Leon County, 378 So.2d 68 (Fla. 1st DCA 1979), United States Service Industries — Florida v. Department of Health and Rehabilitative Services, 383 So.2d 728 (Fla. 1st DCA 1980). We totally agree with the sentiments expressed by amicus curiae Agrico that no third party, “merely by filing a petition,” should be permitted to require the applicant to “completely prove anew” all items in a permit application down to the last detail. The petitioner must identify the areas of controversy and allege a factual basis for the contention that the facts relied upon by the applicant fall short of carrying the “reasonable assurances” burden cast upon the applicant. The “burden of proof” is upon the petitioner to go forward with evidence to prove the truth of the facts asserted in his petition. If the petitioner fails to present evidence, or fails to carry the burden of proof as to the controverted facts asserted — assuming that the applicant’s preliminary showing before the hearing officer warrants a finding of “reasonable assurances” — then the permit must be approved. In making this preliminary showing of “reasonable assurances” before the hearing officer, the applicant is required to provide credible and credited evidence of his entitlement to the permit. This having been done, the hearing officer would not be authorized to deny the permit unless contrary evidence of equivalent quality is presented by the opponent of the permit.

Our research discloses a similar approach to this problem by the federal courts. In Environmental Defense Fund Inc. v. Environmental Protection Agency, 179 U.S.App. D.C. 43, 548 F.2d 998 (1976), the contention was made, in a proceeding filed by a manufacturer of pesticides (applicant and registrant) and others for review of an order by the Environmental Protection Agency suspending registration of certain pesticides, that the “burden of proof” as to the safety of the pesticides rested upon the agency, rather than the manufacturer. The Federal Administrative Procedures Act, § 7(c), 5 U.S.C. § 556(d), provides, in part, that “Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof.” Judge Leventhal, writing for the court, rejected the manufacturer’s argument that this provision placed the burden of proof upon the agency as the proponent of the order in question, and decided that as to that particular case, the statute in question “otherwise provided” (5 U.S.C. § 556(d)), so as to clearly cast the burden of proof upon the manufacturer. In so holding, however, he examined decisions from other circuits and cited and relied upon the legislative history of Section 7(c) of the Federal APA. He further proceeded to fully explore the concepts “burden of proof,” “burden of coming forward with the evidence,” and “ultimate burden of persuasion,” and concluded (opinion page 1013, supplemental opinion on petition for rehearing);

As to the APA, our opinion holds that the “burden of proof” it casts upon the “proponent is the burden of coming forward with proof and not the ultimate burden of persuasion.

By application of the principles and authorities discussed above we determine that the hearing officer committed no error in his allocation of the burden of proof in these proceedings, and that his recommended order, approved by DER, properly addresses this issue. We find no merit in appellant’s contention that DER’s allocation of the burden of proof, as that phrase is used to refer to the “ultimate burden of persuasion,” to the applicant, represents a “change in policy.”

The order appealed from is AFFIRMED.

McCORD and WENTWORTH, JJ., concur.

      . Department of Administration (DOAH).

      . Administrative Procedures Act, Chapter 120, Florida Statutes.

      . Amici curiae filed briefs solely on the question of whether DOT or J.W.C. Company, Inc., and the other property owners had the burden of proof in the administrative proceedings below.

      . Rule 17-2.06, Florida Administrative Code.

      . Rule 17-4.07, Florida Administrative Code.

      . Rule 17-1.62, Florida Administrative Code.

      . Rule 17-1.62(2) makes reference to hearing under Section 120.57, Florida Statutes.

      . It is apparently accepted knowledge that concentrations of automobile pollutants other than carbon monoxide are not as susceptible to prediction using computer modeling techniques as is carbon monoxide. However, carbon monoxide is frequently utilized as a “controlling pollutant,” and it is considered reasonable, generally, to base a prediction of excessive concentrations of other pollutants on whether or not excessive carbon monoxide can be predicted.

      . The rules were rewritten, effective March 23, 1980.

      . See particularly, “(C) Post-Hearing Procedures,” Part II, Chapter 28, Florida Administrative Code, effective March 23, 1980. There was no comparable provision under the prior rules.

      . See McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), at page 586, stating that “further consideration” by the Department, of specific statutory criteria required to be established by applicants for banking authority, “is foreclosed by the absence of record evidence which might justify the Department in discarding the hearing officer’s recommended findings.”

      . Neither the prior rules, nor the amended model rules of procedure, Chapter 28, Florida Administrative Code, effective March 23, 1980, apply to agency investigations “preliminary to agency action.” New Rule 28^5.101 makes Chapter 28 applicable, specifically, “to all proceedings under Section 120.57, as well as those initiated under 120.60 or 120.54(16) which are required to be conducted in accordance with Section 120.57, F.S., to the extent that an agency has not adopted its own specific rules of procedure...” New Rule 28-5.110(1) provides, however, that the model rules do not apply to “agency investigations or to determinations of probable cause preliminary to agency action,” and subsection (3) of that rule provides that an investigation or determination of probable cause “is a non-adversary executive function to discover or procure evidence as part of the fact-finding function of an agency.” Compare General Development Corporation v. Florida Land and Water Adjudicatory Commission, 368 So.2d 1323 (Fla. 1st DCA 1979).

      .For example, in Manatee County v. Florida Public Employees Relations Commission, et al., 387 So.2d 446 (Fla. 1st DCA 1980), PERC remanded to the hearing officer for consideration of new evidence restricted to issues raised by a change in circumstances occurring subsequent to the formal hearing before the hearing officer (county took over utility, thus raising question of inclusion of utility employees in proposed bargaining unit). However, the validity of the remand order was not made an issue on appeal; and, moreover, a special case can be made for PERC’s remand authority because of PERC’s unique statutory responsibility and authority in connection with defining employee bargaining units, which is also reflected in PERC’s rules governing hearings in such proceedings. Viewed in this context, PERC’s remand procedure can be cited only as illustrating the exercise of such authority under “exceptional circumstances,” and not as evidence of a general rule allowing remand by virtue of “inherent authority” possessed by the agency.

      . See Public Bank of St. Cloud v. State, supra; Couch Construction Company v. Department of Transportation, supra.

      . Rule 17-4.07, Florida Administrative Code.

      . The APA’s hearing requirements are designed to give affected parties “an opportunity to change the agency’s mind.” Couch Construction Company v. Department of Transportation, supra, at page 176.

      . The hearing officer also found that, whether the burden of proof is placed upon DOT as the applicant, or upon the petitioners as the opponents of the notice of intent to issue permit, the permit should not be issued.

      . No contention is made here that the petition filed by the objecting property owners is deficient in any respect.

      . Portions of the legislative history relied upon by Judge Leventhal, although referring to a provision of the Federal APA as to which there is no Florida counterpart, are included here, because they can be of assistance in reaching a clearer understanding of these concepts. A pertinent paragraph of the Senate Committee provides:
      That the proponent of a rule or order has the burden of proof means not only that the party initiating the proceeding has the general burden of coming forward with a prima facie case but that other parties, who are proponents of some different result, also for that purpose have a burden to maintain. Similarly the requirement that no sanction be imposed or rule or order be issued except upon evidence of the kind specified means that the proponents of a denial of relief must sustain such denial by that kind of evidence. For example, creditable and credited evidence submitted by the applicant for a license may not be ignored except upon the requisite kind and quality of contrary evidence. No agency is authorized to stand mute and arbitrarily disbelieve creditable evidence. Except as applicants for a license or other privilege may be required to come forward with a prima facie showing, no agency is entitled to presume that the conduct of any person or status of any enterprise is unlawful or improper. (S.Rep.No.752, 79th Cong., 1st Sess. 22 (1945), reprinted in S.Doc. 248 at 208.)
      This view is confirmed by the House Report which provides:
      In other words, this Section means that every proponent of a rule or order or the denial thereof has the burden of coming forward with sufficient evidence therefor; and in determining applications for licenses or other relief any fact, conduct, or status so shown by creditable and credited evidence must be accepted as true except as the contrary has been shown or such evidence has been rebutted or impeached by duly credited evidence or by facts officially noticed and stated. (Emphasis added) (H.R.Rep.1980, 79th Cong., 2d Sess. 34 (1946), reprinted in S.Doc. 248 at 270).


author: PER CURIAM.

text:
    Joseph R. BARNETT, Appellant, v. EMR TELEMETRY and Travelers Insurance Company, Appellees.
    No. SS-396.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    Rehearing Denied May 1, 1981.
    Sheldon J. Gensler, Sarasota, for appellant.
    Douglas P. Lawless of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees.
   PER CURIAM.

The sole issue for our determination is whether claimant’s examination by Dr. Pa-dar on August 7, 1978 constituted remedial attention or remedial treatment as contemplated by Sections 440.13(3)(b) and 440.-19(l)(a), Florida Statutes (1971). The deputy commissioner found that it did not and concluded therefore that the claim for compensation benefits, filed April 2, 1979, should be dismissed with prejudice. We reverse.

Section 440.13(3)(b) provides:

All rights for remedial attention under this section shall be barred unless a claim therefor is filed with the division within two years after the time of injury, except that if payment of compensation has been made or remedial attention has been furnished by the employer without an award on account of such injury a claim may be filed within two years after the date of the last payment of compensation or within two years after the date of the last remedial attention furnished by the employer; ... [Emphasis supplied]

Section 440.19(l)(a) provides:

The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within two years after the time of injury, except that if payment of compensation has been made or remedial treatment has been furnished by the employer without an award on account of such injury a claim may be filed within two years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer. [Emphasis supplied]

Claimant was injured in an industrial accident January 22, 1972. Employer/carrier provided claimant medical treatment, voluntarily paid temporary total disability benefits, and voluntarily accepted and paid five percent permanent partial disability benefits, the last compensation being paid February 28, 1977. Around June, 1978, claimant’s condition worsened requiring him to cease work. Claimant was advised by a letter from the carrier’s representative dated July 19, 1978, that:

I have just received a call from our insured in connection with apparently the above captioned case.... Under the Workmen’s Compensation Laws, the statute has not run on your case. If your are having problems relating to the 1972 accident, you have the right to medical treatment. ... If you are in need of medical treatment relating to your 1972 accident, please call this writer. ...

Claimant thereafter contacted the carrier’s representative who informed him that he could see a physician of his choice and that the carrier would make an appointment with such physician. The carrier arranged an appointment for claimant to be seen by Dr. Padar on August 7,1978. By the carrier’s letter dated July 31, 1978, Dr. Padar was authorized “for evaluation and treatment if indicated.” At the August 7th visit, Dr. Padar examined claimant and reviewed past x-rays. Dr. Padar found no evidence of a disc rupture or nerve root compression, but did find osteoarthritis of the lumbar spine at L4-5 and L5-S1, which he opined was not related to any job-sustained injury. Dr. Padar prescribed no" medications for claimant and scheduled no further appointments.

In November 1978, claimant was seen by Dr. Wallace. Although explicitly not authorized by the employer/carrier, Dr. Wallace hospitalized claimant November 26, 1978 and performed a myelography which revealed a herniated intervertebral disc, previously undiagnosed. Surgery revealed a ruptured intervertebral disc at L3-L4, a herniation of the disc at L3-L4, plus a fracture of the L3 superior facet. Post-op-eratively, claimant was asymptomatic with no low back pain or sciatica.

Employer/carrier, relying upon Suddath Van Lines v. Williams, 8 F.C.R. 394 (1974), contends claimant’s August 7th visit was a “mere examination” insufficient to toll the statute of limitations. We disagree, finding the facts here distinguishable from those in Williams.

A distinction, has been drawn between “examination” and “treatment”; however, such distinction should not be artificially and unrealistically made. Daniel1 v. Florida Pulp & Paper Go., 1 F.C.R. 161 (1955), cert, denied 85 So.2d 758 (1955). To distinguish a “mere” examination from treatment, it is essential to examine not only the actual functions performed by the physician, but also the purpose of the physician’s examination. Suddath Van Lines v. Williams, supra; The Great Atlantic & Pacific Tea Co. v. Skeen, 9 F.C.R. 201 (1975), cert, denied 325 So.2d 11 (Fla.1975). Here, unlike Williams, the purpose of claimant’s visit with Dr. Padar was not solely and exclusively for evaluative processes. Rather, the clear purpose of the visit, as evidenced by the carrier’s letter, was for evaluation and treatment. Here, if claimant’s condition had been properly diagnosed, the carrier’s letter obviously served as a clear authorization for further remedial treatment. The fact that claimant’s condition was not properly diagnosed and that the doctor’s ministrations amounted to no more than a “no help” visit does not, in our view, mandate a determination that the medical attention was non-remedial. Cf., Food Fair Stores, Inc. v. Tokayer, 167 So.2d 563 (Fla. 1964); Daniell v. Florida Pulp & Paper Co., supra.

Viewing the totality of the circumstances here, we find that the August 7th visit constituted remedial attention and treatment sufficient to toll the statute of limitations. Accordingly, the deputy’s order dismissing the claim is reversed and the cause is remanded for further proceedings on the merits of the claim.

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