author: OTT, Judge. GRIMES, Acting Chief Judge,

text:
    Fulton THORNTON, Appellant, v. PAKTANK FLORIDA, INC., Appellee.
    Nos. 79-2174, 80-42.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1981.
    As Corrected Dec. 15, 1981.
    Rehearings Denied Jan. 29, 1982.
    Roger Vaughan, of Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa, and Joel D. Eaton of Podhurst, Orseek & Parks, Miami, for appellant.
    T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   OTT, Judge.

Appellant was injured while working on a coal barge appellee had contracted to clean. He sued for negligence, but the trial court directed a verdict in favor of appellee on the ground that appellee was his employer and therefore immune from liability for common law negligence. We reverse.

Appellant was a member of a crew hired by an independent contractor, Gale Porter Temporary Help, for the specific and sole purpose of performing appellee’s duties under its contract with the barge owner. The contract between appellee and Temporary Help expressly provided that the workers thus furnished to appellee would not be employees of appellee for any purpose. All the employment and tax records showed Temporary Help as the employer of the workers, and all wages were paid by Temporary Help, which billed appellee at a rate which included the wages, overhead and profit on each worker. The overhead portion of such rate included the premiums which Temporary Help paid for compensation insurance under the requirements of the Longshoremen’s and Harbor Workers’ Compensation Act. Appellee did not carry compensation insurance covering the crew.

Special work clothes for the crews were provided by Temporary Help, while appellee furnished all necessary tools and also provided the necessary supervision of the work being done. Appellee had no power to fire the workmen, but could send them, or any of them, off the job and back to Temporary Help’s office. In such event, employment of the “rejected” worker would be terminated because Temporary Help never hired anyone until a specific request for manpower was received, whereupon new employment forms were prepared, even for those workers who regularly filled Temporary Help’s contracts.

The trial court concluded that the undisputed facts established, as a matter of law, appellee’s immunity from common law negligence by virtue of the so-called “borrowed employee” doctrine. See, generally, Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969), and Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978), for extensive discussions of the various criteria for determining when a worker, regularly employed by one employer, can become a temporary employee of someone who merely “borrows” him for a specified period or job. The doctrine is predicated on common experience that, under modern business practices, an employee may be employed by more than one employer, even while doing the same work. Beaver v. Jacuzzi Brothers, Inc., 454 F.2d 284 (8th Cir. 1972).

The one thing that is clear from all the cases is that it is essential that the borrowed worker actually become the employee, even if only temporarily, of the borrower. If that never occurs, the doctrine never applies. Dugas v. Pelican Construction Co., Inc., 481 F.2d 773 (5th Cir. 1973), cert. denied, 414 U.S. 1093, 94 S.Ct. 723, 38 L.Ed.2d 550 (1973). That question usually arises from the opposite side of the coin, when an injured employee attempts to collect workmen’s compensation from a “temporary” employer. In section 48.00 of his text, Workmen’s Compensation Law, Larson states the qualifications for application of the doctrine: “When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if (a) the employee has made a contract of hire, expressly or impliedly, with the special employer, (b) the work being done is essentially that of the special employer, and (c) the special employer has the right to control the details of the work. When all three conditions are satisfied, both employers are liable for workmen’s compensation.”

The cases relied upon by appellee expressly recognize the principal element of the doctrine, and distinguish contrary results on the basis of the presence or absence of an express or implied contract of hire. Thus, in Maynard v. Kenova Chemical Co., 626 F.2d 359 (4th Cir. 1980), the court found temporary workers to be employees of the special employer, and distinguished its previous holding in a similar case, Kirby v. Union Carbide Corp., 373 F.2d 590 (4th Cir. 1967), noting that in Kirby a contract between the special employer and the regular employer specifically provided that the workers were to remain employees of the latter.

Our decision in Kirby was premised on the validity of the contractual arrangement between Dupont [regular employer] and Union Carbide.

626 F.2d at 361.

The facts at bench bear an additional similarity to an aspect of Kirby to which Maynard attached great significance. In Kirby, as here, the special employer had not assumed responsibility for payment of workmen’s compensation benefits, and Maynard noted that distinction from its own facts, where the special employer had carried workmen’s compensation insurance. That same factor seems to have influenced the result in yet another case relied upon by appellee, Huff v. Marine Tank Testing Corp., 631 F.2d 1140 (4th Cir. 1980), where the court pointed out that the special employer had covered the temporary employees with workmen’s compensation insurance, whereas the regular employer had not. Evidently this arrangement implied an understanding and agreement that the workers were employees of the special employer.

The one case directly in point is Dugas v. Pelican Construction Co., Inc., supra, where the contract between the special employer and the regular employer expressly provided, as does the one at bench, that the workers would not be employees of the special employer “for any purpose.” The Dugas court gave that provision paramount significance, and distinguished cases in which such a contract merely provided that the workers were to remain the employees of the regular employer.

In the instant case appellee’s president informed appellant’s attorney, upon initial contact regarding payment of workmen’s compensation benefits, of that contract provision and thereafter adamantly insisted, even in deposition, that appellee was not appellant’s employer. Only at trial did ap-pellee’s chief executive reverse himself and not only concede but insist that appellant indeed was an employee.

Notwithstanding that repudiation of a clause obviously designed to protect ap-pellee from workmen’s compensation liability, which was suddenly perceived as being not too onerous after all, the facts of this case simply do not support the conclusion that appellee ever actually became appellant’s employer, or that there was any contract of hire, whether express or implied, between them. We think the case is governed by the reasoning and law enunciated in Dugas.

Accordingly, the judgment is REVERSED and the case REMANDED for trial on the issues of negligence and damages. Obviously, the postjudgment order taxing costs against appellant must be, and is, also set aside.

RYDER, J., concurs.

GRIMES, A. C. J., dissents with opinion.

GRIMES, Acting Chief Judge,

dissenting.

In many borrowed servant cases, the real question is which employer actually controlled the employee’s work. However, practically all of the borrowed servant eases involving general employers in the business of furnishing temporary help hold that an employee who is covered by his general employer’s workmen’s compensation cannot claim damages against his special employer for injuries suffered while working on the temporary job. Huff v. Marine Tank Testing Corp., 631 F.2d 1140 (4th Cir. 1980); Maynard v. Kenova Chemical Co., 626 F.2d 359 (4th Cir. 1980); Beaver v. Jacuzzi Brothers, Inc., 454 F.2d 284 (8th Cir. 1972); St. Claire v. Minnesota Harbor Service, Inc., 211 F.Supp. 521 (D.Minn.1962); Martin v. Phillips Petroleum Co., 42 Cal.App.3d 916, 117 Cal.Rptr. 269 (1974); Highway Insurance Co. v. Sears Roebuck & Co., 92 Ill.App.2d 214, 235 N.E.2d 309 (1968); Renfroe v. Higgins Rack Coating & Manufacturing Co., 17 Mich.App. 259, 169 N.W.2d 326 (1969); Danek v. Meldrum Manufacturing & Engineering Co., 312 Minn. 404, 252 N.W.2d 255 (1977); Wright v. Habco, Inc., 419 S.W.2d 34 (Mo.1967); Chickachop v. Manpower, Inc., 84 N.J.Super. 129, 201 A.2d 90 (1964); Shipman v. Macco Corp., 74 N.M. 174, 392 P.2d 9 (1964); Daniels v. MacGregor Co., 2 Ohio St.2d 89, 206 N.E.2d 554 (1965); Meka v. Falk Corp., 102 Wis.2d 148, 306 N.W.2d 65 (1981). Probably the reason why the temporary help cases reach this result is that there is seldom any doubt that the special employer is controlling the details of the employment. Obviously, the company furnishing the temporary help is not engaged in the business of the customer to whom it has provided a temporary employee. Thus, a contract for hire with the special employer is implied as the result of the employee having chosen to undertake the temporary job. Maynard v. Kenova Chemical Co.; Wright v. Habco, Inc.

The fact that a special employer does not carry workmen’s compensation insurance on a temporary employee is essentially irrelevant. The special employer secures workmen’s compensation coverage on the employee by virtue of its temporary help contract with the general employer. The special employer has provided the funds to pay the workmen’s compensation insurance premium because the fee charged by the general employer is always set at an amount sufficient to include the cost of the premiums. In Hamilton v. Shell Oil Co., 233 So.2d 179 (Fla. 4th DCA), cert. denied, 237 So.2d 762 (Fla.1970), which is the only Florida case on the subject, the court could not have reached the result that it did had it not believed that when the special employer contracted for the general employer to furnish workmen’s compensation coverage, it had “secured” workmen’s compensation coverage on the temporary employee.

This case is close only because the temporary help agreement specified that no employee furnished by Gale Porter Temporary Help could be considered an employee of Paktank for any purpose. However, there are . no cases which hold that the characterization given to the employee in the temporary help contract is deemed controlling. On the other hand, in Danek v. Meldrum Manufacturing & Engineering Co., the work order which constituted the temporary help agreement specified that persons furnished by the general employer were the employees of the general employer and not the employees of the special employer. In holding that the special employer was nevertheless immune from a negligence suit by the injured employee, the court said:

The terms of the work order did not change the legal relationship of the parties since the nature of that relationship must be ascertained not from the label given to it by the parties themselves but from the consequences which the law attached to their arrangements and to their conduct.

312 Minn. at 412, 252 N.W.2d at 261. Likewise, in Martin v. Phillips Petroleum Co., the contract, under which the employee was furnished by Plant Maintenance, the general employer, was written so as to preclude the employee from being considered as a special employee of Phillips Petroleum Company for whom he was to work. Nevertheless, the trial court held that the employee was limited to the recovery of workmen’s compensation benefits on the premise that Phillips was his special employer. In affirming the judgment, the appeals court found that nothing in the nature of estoppel prevented Phillips from asserting the true employment relationship. The court said:

Even before considering the factual situation which the trial judge impliedly found to be incompatible with the written contract, we note that the labored effort to maintain independence of the two potential employers in itself gives evidence that the independence is fictitious. For example, how can it be believed that work done by laborers shall be for Plant Maintenance’s benefit, except of course for the fact that Plant Maintenance expects to be paid by Phillips? What other benefit does Plant Maintenance gain from work done at an oil refinery? And by brief reference to the facts as described below, what does an employee whose work calls for using a jack hammer have to do with the interest of a general supplier of labor? Further, the provision in the contract that the employees shall be deemed to be those of Plant Maintenance, notwithstanding any finding that the work is performed under the direction or supervision of Phillips, appears to be an attempt to control the status of the various parties despite a finding by a court or by the Workmen’s Compensation Appeals Board. The contract cannot affect the true relationship of the parties to it. Nor can it place an employee in a different position from that which he actually held.

42 Cal.App.3d at 919, 117 Cal.Rptr. at 271.

Thus, Dugas v. Pelican Construction Co., 481 F.2d 773 (5th Cir.), cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973), cited by the majority, is not the only case directly on point. Moreover, its prece-dential value is diminished by the fact that the contract provision in that case was only one of a number of factors the court considered in determining that a special employment relationship had not been established. Specifically, the Dugas court held that the general employer had not relinquished control over the employee and that the special employer did not have authoritative direction over the employee’s work. Furthermore, in the later case of Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978), the same court disapproved the prior emphasis that it had given to the contract between the employers in Dugas. In Gaudet, there were some conflicting provisions in the contract between the employers, one interpretation of which was that Exxon Corporation, for which the employee was working when he was injured, could not be considered to be his special employer. The court held that regardless of the interpretation given to the contract, the trial court had properly determined that Exxon was immune from suit because all other factors demonstrated that Exxon was the employee’s special employer.

The situation is the same in the instant case. It is the employment relationship which should be controlling, and not what the parties say it is. Certainly, if Gale Porter Temporary Help had reneged on its obligation to provide Thornton with workmen’s compensation insurance, Paktank could not have escaped liability for workmen’s compensation coverage simply because its contract with Porter stated that Thornton was not an employee of Paktank. Martin v. Phillips Petroleum Co.; 1C A. Larson, Workmen’s Compensation Law § 48.00 (1980). Thornton has received workmen’s compensation payments for the injuries he suffered when he was working under the direct supervision and control of Paktank. There is no reason why he should be in a better position than Paktank’s regular employees injured under the same circumstances.

I believe the court properly directed a verdict for Paktank.

      . The case of Kirby v. Union Carbide Corp., 373 F.2d 590 (4th Cir. 1967), relied upon by the majority, did not involve a general employer whose business was the furnishing of temporary employees to others.

      . Danek employed the same reasoning to refute an argument also made in the instant case that the special employer was bound by its own misinterpretation of the employment relationship. The court said:
      Plaintiff also maintains that Meldrum’s response to a letter from plaintiff’s counsel which stated that plaintiff “was an employee of Labor Pool” at the time of the accident should be deemed conclusive to establish the legal relationship of the parties. Again, this involves a determination of law and Meldrum is not bound by its own erroneous conclusion.
      312 Minn. at 413 n. 3, 252 N.W.2d at 261. See, also, Martin v. Phillips Petroleum Co.


source: Caselaw Access Project

author: SCHEB, Chief Judge.

license: Public Domain

text:
    Tom CHORAK and Marcia Chorak, his wife, Appellants, v. John NAUGHTON and John Naughton Ford, Inc., Appellees.
    No. 80-1709.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.
    As Clarified Feb. 5, 1982.

      Joel D. Eaton and Joel S. Perwin of Pod-hurst, Orseck & Parks, Miami, and Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa, for appellants.
    Ted R. Manry, III, and Stephen H. Sears of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee John Naughton.
    Kenneth L. Ryskamp of Goodwin, Rys-kamp, Welcher, Carrier & Donoff, Miami, for appellee John Naughton Ford, Inc.
   SCHEB, Chief Judge.

Appellants Tom Chorak and his wife Marcia challenge the award of a summary judgment to appellees John Naughton and John Naughton Ford, Inc., in appellants’ personal injury action. The trial court held that both appellees were immune from suit under the “exclusive remedy” provision of the Workers’ Compensation Act. We affirm as to appellee corporation, but we reverse as to Mr. Naughton.

Mr. Naughton owns one hundred percent of the corporate stock of John Naughton Ford, Inc. an automobile dealership. He serves as the corporation’s president and director, and is also the dealer, general manager, and one of the corporation’s salesmen. The pleadings and depositions before the court on the hearing on the motions for summary judgment disclose that in December 1977 Mr. Naughton initiated a contest entitled, “John Naughton Ford Managers will Bust Their Ass for You.” This contest permitted a salesman who sold a certain number of cars to paddle a company manager of his choice with a board two feet long and one and one-half inches thick. Likewise, a manager was permitted to paddle a salesman who failed to sell a minimum quota of vehicles. On December 30, Naughton bcame entitled to paddle one of his employees and elected to paddle Mr. Chorak. Several witnesses stated that during previous paddlings, those persons administering the paddle had feigned a heavy blow, but had stopped short and given only a token pat. However, two employees testified they were hit quite hard, and Naughton hit Cho-rak so hard that he broke the paddle in half. Several witnesses stated that they could see Chorak experienced extreme pain.

Mr. Chorak filed a claim for workers’ compensation. He claimed serious and permanent injuries to his head, neck, back, body, and extremities, injury to his central and peripheral nervous system, and other injuries not yet diagnosed. He noted that he had already required one operation, a laminectomy, involving the removal of a herniated disc. The case proceeded to adjudication, and on August 1, 1980, the Deputy Commissioner of the Division of Workers’ Compensation specifically found that Cho-rak had consented to being paddled after he witnessed several prior paddlings, and believed that his paddling would be of similar slight impact. The Commissioner concluded that Chorak’s injuries were sustained as a result of an accident in the scope of his employment, and determined that Chorak had become permanently disabled in forty percent of his body.

On August 1, 1979, Mr. Chorak filed suit in circuit court against appellees seeking compensatory damages for these same injuries. Mrs. Chorak joined as a plaintiff seeking derivative damages. Appellees moved for summary judgment on the ground that they were immune from suit under section 440.11, Florida Statutes (1977). The court granted their motions and entered summary judgment in their favor. This appeal ensued.

Section 440.11(1), Florida Statutes (1977) provides:

The liability of an employer prescribed in section 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and everyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury ....

This exclusive remedy provision applies to accidental injuries arising out of and in the course of employment. § 440.09(1), Fla. Stat. (1977). An accident is defined as “an unexpected or unusual event or result happening suddenly.” § 440.02(18), Fla.Stat. (1977).

The Choraks now contend that the blow causing Mr. Chorak’s injuries was not an “accident” within the meaning of the Act, but was an intentional tort committed by Mr. Naughton. Thus, they argue that the exclusive remedy is inapplicable to this case. Appellee John Naughton Ford, Inc., on the other hand, argues that Chorak cannot now assert a claim for damages because he previously claimed his injuries were the result of an accident and because he has accepted workers’ compensation benefits. It suggests that Chorak could have pursued his action at law to determine whether the injury was the result of an accident, or if, as he asserts, he pursued his two possible remedies simultaneously, he could have sought a stay of the administrative proceedings. Instead, they point out that appellant proceeded to an adjudication on the merits of his claim under the Workers’ Compensation Act.

The purpose of the exclusiveness of the .Workers’ Compensation Act is to limit the liability of the contributing employer to the compensation benefits secured. In return for accepting vicarious liability for all work-related injuries and for surrendering traditional defenses, the employer is allowed to treat compensation as a routine cost without exposure to tort litigation. Likewise, the employee relinquishes his tort remedies for a system of compensation sparing him the cost, delay, and uncertainty of litigation. Mullarkey v. Florida Feed Mills, Inc., 268 So.2d 363 (Fla.1972) appeal dismissed, 411 U.S. 944, 93 S.Ct. 1923, 36 L.Ed.2d 406 (1973). The mere filing of a compensation claim does not preclude an injured party from pursuing common law remedies. Williams v. Duggan, 153 So.2d 726 (Fla.1963). However, a plaintiff who asserts that his injury was the result of an accident and recovers benefits under the Act cannot later claim that his injury was not the result of an accident within the Act’s contemplation. Matthews v. G.S.P. Corp., 354 So.2d 1243 (Fla. 1st DCA 1978). In Matthews the court stated that to allow a subsequent claim after receipt of compensation benefits is contrary to the exclusiveness of remedy doctrine embodied in a workers’ compensation system. We agree with the rationale of Matthews, and hold that appellant’s receipt of benefits under the Act precludes appellants’ action against John Naughton Ford, Inc. Accordingly, appellee corporation was entitled to a judgment as a matter of law, and the trial court correctly granted its motion for summary final judgment.

The Choraks also contend that the trial court erred in granting summary judgment for Mr. Naughton. We agree with appellants that Mr. Chorak’s recovery of workers’ compensation benefits does not es-top him from proceeding against Mr. Naughton individually. Count I of appellants’ complaint alleged that Mr. Chorak’s injuries were caused by Mr. Naughton’s gross negligence. Count II states they resulted from his commission of the intentional tort of battery.

It is well settled that coemployees are subject to third-party actions for negligent acts done during the course of employment. The only exception to the coemployee’s liability for injuries caused by his negligence is for acts done in furtherance of the employer’s duty to provide employees a safe place to work. Zurich Insurance Co. v. Scofi, 366 So.2d 1193 (Fla. 2d DCA), cert. denied, 378 So.2d 348 (Fla.1979). For example, we recently held that a corporate officer becomes amenable to suit as a co-employee when he has committed an affirmative act of negligence beyond the scope of the nondelegable duty of the employer to provide his employees with a safe place to work. West v. Jessop, 339 So.2d 1136 (Fla. 2d DCA 1976). In West a corporate president wrenched an employee’s neck causing permanent injury while attempting to relieve her headache, and we held the president amenable to suit because he negligently injured her through an affirmative act.

Naughton. argues that West is distinguishable as there the affirmative act was clearly outside the scope of the president’s duty to keep the work place safe. In the present case, he argues that he should be cloaked with the employer’s immunity because the injury occurred during a corporate contest, and this directly related to the corporate president’s duty to maintain a safe work place. We think the evidence clearly demonstrates that Naughton’s action, f.e., administering a blow hard enough to cause severe injuries, was unrelated to his duty to maintain a safe work place. Moreover, the willful affirmative nature of his actions placed him sufficiently beyond his corporate capacity and subjected him to liability as a coemployee for his negligence.

In addition, we find there is sufficient evidence to present a question of fact as to whether Naughton committed the intentional tort of battery. To establish a battery, a plaintiff must suffer a harmful or offensive contact, and the tortfeasor must have intended to cause such contact. The intent may be established if the plaintiff demonstrates the tortfeasor acted with reckless disregard of the consequences of his acts. Spivey v. Battaglia, 258 So.2d 815 (Fla.1972). Here, the facts disclosed by the pleadings and depositions were sufficient to create an issue of material fact. Therefore, the court erred in granting Mr. Naughton’s motion for summary judgment.

Finally, we have not overlooked the Choraks’ argument that the trial court erred in appointing a physician of appellees’ choice to examine Mr. Chorak under the provisions of Florida Rule of Civil Procedure 1.360(a). We reject this point because we do not find that the court abused its discretion in appointment of the physician requested by appellees.

Accordingly, we affirm the summary judgment entered for John Naughton Ford, Inc., and the order requiring Mr. Chorak to submit to a physical examination, and reverse the summary judgment entered for Mr. Naughton. We remand for further proceedings consistent with this opinion.

BOARDMAN and OTT, JJ., concur.

      . While not applicable to the instant action which arose before it was adopted, we note-that the 1978 Amendment to section 440.11(1), effective July 1, 1979, supports our opinion reached on an analysis of the relevant case law. § 440.11(1) provides:
      [T]he same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunity shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury ....
      Thus, the exclusivity provision of the Act clearly precludes an employee who acts with willful and wanton disregard, or with gross negligence and whose actions cause injury to a fellow employee from claiming immunity for his actions.


author: PER CURIAM.

text:
    SHOEI SAFETY HELMET CORPORATION and Shoei Kako Company, Ltd., Appellants, v. Donald Elymus CONLEE, Appellee.
    No. 80-1234.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    On Rehearing Feb. 17, 1982.

      Joseph S. Kashi of Grimmett, Conrad, Scherer & James, Fort Lauderdale, for appellants.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a non-final order determining that appellants are subject to the jurisdiction of Florida courts. We affirm.

Appellant, Shoei Kako Company, Ltd., is a Japanese corporation which manufactures motorcycle helmets and accessories. Its wholly owned subsidiary, Shoei Safety Helmet Corporation, also an appellant, is a California corporation which promotes sales and collects marketing information.

Shoei Kako manufactured the motorcycle helmet involved here on September 30,1971 and sold it in the same year to Dixie International Corporation, an Ohio corporation, in Columbus, Ohio. On September 15,1977, Dixie International sold the helmet to 441 Cycle Shop in Fort Lauderdale. Sometime between September 15,1977 and September 9, 1978, appellee, Donald Elymus Conlee, purchased the helmet from 441 Cycle Shop. On the last mentioned date appellee, while wearing the helmet, was operating a motorcycle which collided with an automobile. Appellee alleged that the helmet failed to cushion sufficiently the resulting impact, resulting in severe head injury.

The issue, as posed by the parties, is whether the Florida courts acquired jurisdiction over appellants pursuant to Sections 48.181 or 48.193, Florida Statutes (1979).

Section 48.181(1) provides:

48.181 Service on nonresident engaging in business of state.— .
(1) The acceptance by any person or persons, individually, or associated together as a copartnership or any other form or type of association, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, constitutes an appointment by the persons and foreign corporations of the secretary of state of the state as their agent on whom all process in any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of the persons and foreign corporations that the process against them which is so served is of the same validity as if served personally on the persons or foreign corporations.

Embodied within the foregoing language are two requirements to acquire jurisdiction; namely, (1) that the nonresident was doing business in Florida and (2) that the cause of action arose out of such business.

At oral argument appellants conceded that they were doing business in Florida. They maintain, however, that the cause of action did not arise out of their business activity in Florida; and, instead, arose out of their activity in Ohio.

The principle of relating the injury to the activity within the jurisdiction is recited in International Shoe Co. v. Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Reference to the principle has been made by this court and others as connexity. As we see it, the case boils down to whether there must be con-nexity to the specific manufactured object involved in the cause of action — here the specific helmet worn by the injured appellee — or whether the connexity can be to the general manufacturing activity in which the nonresident is engaged — here all models of motorcycle helmets. We find the latter more persuasive. Appellants were engaged in the business of promoting and soliciting sales of motorcycle helmets in Florida when the retailer, 441 Cycle Shop, bought the helmet from Dixie International and sold it to appellee as well as when appellee was injured. We hold that this satisfies the jurisdictional requirements of Section 48.-181 and accordingly affirm the trial court’s order.

Based on our above holding we need not consider appellee’s contention that jurisdiction was also acquired pursuant to Section 48.193(1).

AFFIRMED.

LETTS, C. J., GLICKSTEIN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

ON REHEARING

PER CURIAM.

We grant appellants’ motion for clarification and rehearing and certify to the Supreme Court of Florida pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi) that the decision herein is in direct conflict with the decision of the Fifth District Court of Appeal in General Tire & Rubber Co. v. Hickory Springs Manufacturing Co., 388 So.2d 264 (Fla. 5th DCA 1980).

LETTS, C. J., GLICKSTEIN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . Service of process upon either appellant pursuant to Section 48.181 is not an issue.

      . In that case the Supreme Court said:

        [To] the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.

        Id. at 319, 66 S.Ct. at 160.

      . E.g., Youngblood v. Citrus Assoc. of the New York Cotton Exchange, Inc., 276 So.2d 505 (Fla. 4th DCA 1973); John Blue Co. v. Roper Pump Co., 324 So.2d 147 (Fla. 3d DCA 1976).

      . We recognize that by so holding we are in irreconcilable conflict with the decision in General Tire & Rubber Co. v. Hickory Springs Manufacturing Co., 388 So.2d 264 (Fla. 5th DCA 1980). See also American Baseball Cap, Inc. v. Duzinski, 359 So.2d 483 (Fla. 1st DCA 1978), cert. discharged, 366 So.2d 443 (Fla.1979). Nevertheless, we do not believe that Section 48.181 was intended to permit a manufacturer to promote and sell its products in Florida and be subject to the jurisdiction of Florida courts only when it sells directly to a Florida enterprise and be immune from jurisdiction merely because it sold the particular allegedly defective product to a foreign corporation who in turn sold it to a Florida retailer. Such a conclusion would logically require a prospective retail purchaser in Florida, e.g., appellee here, to trace the chain of pre-retail sales to preserve his right to judicial recourse.


author: OTT, Judge.

text:
    James T. DeROCHE and Ruth M. DeRoche, Appellants, v. Walter J. WINSKI and Patricia S. Winski, Appellees.
    No. 80-1959.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
    Rehearing Denied Jan. 28, 1982.

      William F. Brewton of Brewton & Council, P. A., Dade City, for appellants.
    Marc B. Cohen of Wendel & Chritton, Lakeland, for appellees.
   OTT, Judge.

Appellees brought this action to enjoin appellants from maintaining a fence barring access to the 15-foot driveway previously used by appellees for ingress into their adjacent property. The trial court entered judgment in favor of appellees, on a finding that they had acquired title to the strip of land in question by adverse possession. On this appeal appellants argue that the doctrine of adverse possession was not applicable to the facts of this case; appel-lees argue, with equal fervor, that it was. We agree with appellants, but affirm the judgment because it was correct for an unmentioned reason.

When the Zephyrhills Colony Company originally subdivided section 9 of township 26 south, range 21 east, in Pasco County, a 15-foot strip inside the perimeter of the entire section was reserved as a right of way. In 1948 one Benjamin Allen acquired title to tracts 112 and 113, lying in the easterly tier of tracts in section 9, with tract 113 lying southerly of tract 112. Allen operated a trailer park on portions of the two tracts and in 1954 began efforts to sell the southeasterly portion of tract 113. He erected posts to delineate the boundaries of the parcel he wanted to sell. As staked out, the parcel was 170 feet wide and 162.5 feet deep. However, he set the posts for the northeasterly and southeasterly comers of the parcel on the section line instead of on the actual tract line, which lay 15 feet west of the section line. Allen showed that parcel to various prospective purchasers and eventually sold it to one Smith in 1957.

At or about the time of the sale to Smith, Allen had his property surveyed by one Higginbotham. In making his survey, Hig-ginbotham made the same mistake Allen had made in marking the corners of the parcel he wished to sell. As a consequence, Higginbotham drove iron stakes on the section line to mark the northeasterly and southeasterly corners of the Smith parcel, and showed the north and south boundaries of the parcel to be 170 feet in length. The deed executed by Allen in favor of Smith described the parcel as “the south 162.5 feet of the east 170 feet of tract 113, .. . . ”

Smith erected a fence, a hedge and a garage along the line marked by Allen and Higginbotham as the west boundary of the parcel. Allen, and later his successors in interest, first Koch and later appellees, used a 15-foot strip running parallel to and just west of that line as a driveway for entry into the trailer park.

In 1978 Smith sold most of his parcel to appellants. Prior to purchasing, they had the property re-surveyed and discovered the error that had been made by Allen and Higginbotham. Nevertheless, they, proceeded to purchase the property and immediately moved their west boundary 15 feet west, in the process erecting a fence that barricaded appellees’ driveway. Appellees then brought this action.

Appellants are quite correct in their contention that those facts do not support the finding that appellees acquired title to their driveway by adverse possession. There are two methods of acquiring title by adverse possession: a claimant with color of title can qualify under section 95.-16, Florida Statutes, by continuous possession for a period of seven years; a claimant without color of title can qualify under section 95.18, Florida Statutes, by showing open, continuous, actual hostile possession, and payment of all taxes, for a period of seven years, with a return of said land for taxes during the first year of occupation and the enclosure or cultivation of the land for the seven-year period. Meyer v. Law, 287 So.2d 37 (Fla.1973). The instrument relied upon to show color of title must be recorded (§ 95.16, Fla.Stat.) and it must purport to convey the land in question by a legally sufficient description. Mitchell v. Moore, 152 Fla. 843, 13 So.2d 314 (1943); Armstrong Cork Co. v. Crook, 227 So.2d 64 (Fla. 1st DCA 1969).

Appellees could not qualify under either of the two methods for establishing adverse possession. They did not have paper title to the strip in question and, as a consequence, they had not paid taxes on it. The court below erred in finding that adverse possession had been established.

Appellees argue that they do in fact have paper title to the strip in question, but that argument is patently unsupportable. They also contend that even if they have no color of title, the judgment should be affirmed because appellants’ survey in 1978 attempted to relocate the boundary lines established by the original survey made by Hig-ginbotham in 1957. They rely upon cases holding that a second survey purporting to correct errors in an original survey is not competent evidence, and other cases holding that an original survey may not be ignored when property rights have been acquired in reliance thereon. Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956). Those cases confirm the sanctity of original surveys and they might have some bearing on the instant case if Higginbotham had made the original survey of this property. But he didn’t, and therefore those cases have no application here.

The judgment is correct, however, and cannot be set aside merely because it may have been reached through misunderstanding. This case is governed by the principle that when the common grantor of adjacent parcels of property has established a dividing line between them with the knowledge and consent of the grantees of the respective parcels, and the grantees go into possession and observe that boundary line by acquiescence and recognition for an extended period of time, that line becomes binding between those grantees and their successors in interest, and cannot be changed. Acosta v. Gingles, 70 Fla. 13, 69 So. 717 (1915). This doctrine is variously called “boundary by agreement,” “acquiescence” and “estoppel,” and those are still valid, legal theories available under present Florida law. Peters v. Straley, 306 So.2d 588 (Fla. 2d DCA 1975). Those doctrines have nothing to do with adverse possession. Watrous v. Morrison, 33 Fla. 261, 14 So. 805 (1894); Williams v. Johntry, 214 So.2d 62 (Fla. 1st DCA 1968). Successors to the original grantees are also bound. Shaw v. Williams, 50 So.2d 125 (Fla.1950).

The facts of this case meet all the requirements of that principle. Allen plainly marked the boundaries of the parcel he conveyed to Smith, appellants’ predecessor in interest. Allen retained the remainder of tract 112 until he sold it to Koch, appel-lees’ predecessor in interest, in 1960. The boundary line that he established between the two parcels was observed continuously until appellants entered the picture in 1978. When Smith improved and enclosed his parcel, he built his fence, hedge and garage precisely on the boundary line designated by Allen. That line cannot be changed now except by the agreement of the parties.

The judgment is AFFIRMED.

SCHEB, C. J., and HOBSON, J., concur.

      . To avoid misunderstanding, should the question arise in the future, we should explain that the situation on the east line of appellants’ property would not be governed by the principles that control this case. There, Allen did not own the adjacent parcel, which was a dedicated right of way. The boundary line he purported to establish there was not placed on property that he owned.


text:
    STATE of Florida, Appellant, v. Stephen GROFF, Appellee.
    No. 81-682.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
    Rehearing Denied Jan. 28, 1982.

      E. J. Salcines, State Atty., and David P. Rankin, Asst. State Atty., Tampa, and Jim Smith, Atty. Gen., Tallahassee and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Charles P. Schropp and Raymond T. Elli-gett, Jr., of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellee.
   PER CURIAM.

The State of Florida appeals an order granting appellee Dr. Stephen Groff’s motion to dismiss the second amended information. We affirm.

Dr. Groff is a psychiatrist. In that capacity, he treated one George Hoover but did not treat Hoover’s daughter. The state alleged in its information that Dr. Groff had reason to believe that George Hoover was abusing his daughter and that Dr. Groff did not report the abuse nor cause reports to be filed with the Department of Health and Rehabilitative Services.

Dr. Groff was charged pursuant to section 827.07(4), Florida Statutes (1975), which provides:

Any person, including, but not limited to, any physician, nurse, teacher, social worker, or employee of a public or private facility serving children, who has reason to believe that a child has been subject to abuse shall report or cause reports to be made to the department.

We are of the opinion that the phrase “any person” is qualified by the phrase “serving children.” Thus, the phrase “any person” includes all those who serve children and is not limited to physicians, nurses, teachers, social workers or employees of public or private facilities.

Dr. Groff was not treating George Hoover’s daughter and, in fact, the record shows he had never met the daughter. He does not, therefore, fall under the mandatory provision of section 827.07(4), Florida Statutes (1975), which requires the “serving of children.” The information against him was properly dismissed.

AFFIRMED.

HOBSON, A. C. J., and OTT and RYDER, JJ., concur.


author: COBB, Judge.

text:
    CITY OF WINTER PARK, Appellant, v. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, LOCAL UNION NO. 517; and Florida Public Employees Relations Commission, Appellees.
    No. 81-366.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.
    Rehearing Denied Jan. 26, 1982.

      Charles R. Fawsett of Fawsett, Smith, Mackinnon & Mathews, P.A., Orlando, for appellant.
    Joseph H. Williams of Troutman, Parrish & Williams, Winter Park, for appellee Laborers’ Intern. Union of North America, AFL-CIO, Local Union No. 517.
    Phillip P. Quaschnick, Staff Counsel, Tallahassee, for appellee Public Employees Relations Commission.
   COBB, Judge.

This appeal raises the issues of whether each refusal to bargain is a separate unfair labor practice or a single continuing unfair labor practice, and whether a public employer can refuse to bargain with a Public Employees Relations Commission (PERC) certified union based on a reasonable doubt that the union has majority status.

On August 27, 1975, the Laborers’ International Union of North America, Local No. 517 (Union) received certification from PERC to represent a union of blue collar employees of Winter Park. The Union and the City of Winter Park (City) attempted to reach agreement on a contract to cover the fiscal years 1976-1977 and 1977-1978. The parties were unable to agree upon several items, including the duration of the agreement. An impasse was declared and ultimately resolved by the City’s legislative body. The finalized contract was ratified by the city commission on December 3, 1976. However, the Union refused to ratify the agreement.

In June of 1977, the Union asked the City to begin bargaining for the 1977-1978 fiscal year on the contention that since the Union had not ratified the contract, it was only binding for one year. The City refused to bargain because it disagreed with the Union that the contract was good for only one year. The Union filed an unfair labor practice charge against the City and PERC found the City guilty of unfairly refusing to bargain. The City appealed and this court reversed upon a finding that a legislative body acting in an impasse situation could statutorily set a contract duration at up to three years. City of Winter Park v. Florida Public Employees Relations Commission, 383 So.2d 653 (Fla. 5th DCA 1980).

In July of 1979, the Union requested that the City begin bargaining with regard to the 1979-1980 fiscal year. The City refused to bargain on the ground that the City did not believe that the Union any longer represented a majority of the employees in the bargaining unit. The Union did not take any action on the City’s refusal.

In June of 1980, the Union requested that the City begin bargaining on the contract for the 1980-1981 fiscal year. The City responded by again refusing to bargain on the ground that the City believed that the Union no longer represented a majority of the employees in the bargaining unit. This time, the Union filed an unfair labor practice charge with PERC. In its answer to the charge, the City acknowledged that it had refused to bargain with the Union, but set forth as affirmative defenses that the City in good faith had a reasonable doubt as to whether the Union represented a majority of the employees in the bargaining unit and also that the Union was barred from raising this charge by a statute of limitations, since the Union had not filed any unfair labor practice charges in regard to the City’s 1979 refusal to bargain. The City also moved for an order allowing it to take depositions and to request production of documents that related to its affirmative defenses as to whether the Union represented a majority of the employees in the bargaining unit. PERC struck the affirmative defenses and the request for an order of discovery.

After the administrative hearing and the entry of the hearing officer’s recommended order, PERC found that the unfair labor practice charge was not barred by the statute of limitations, that the City had committed an unfair labor practice by refusing to bargain with the Union, and awarded the Union attorneys’ fees and costs.

In this appeal, the City first argues that if it committed any unfair labor practice in refusing to bargain because it believed that the Union did not represent a majority of the employees in the bargaining unit, that offense first occurred in July of 1979 and, therefore, the Union should be barred by section 447.503(6)(b), Florida Statutes (1979), from charging the City with unfairly refusing to bargain in June of 1980. On the other hand, the Union argues that this court should adopt PERC’s view that each refusal to bargain is a separate unfair labor practice. Northwest Florida Police Benevolent Ass’n. v. Panama City, 4 F.P.E.R. 4177 (1978).

The six-month statute of limitation contained in the Public Employees Relations Act (PERA) is based on the statute of limitation contained in the National Labor Relations Act (NLRA). 29 U.S.C. § 160. The NLRA’s limitation has been interpreted as not barring an action where the subsequent occurrences constitute an unfair labor practice in and of themselves, while the limitation does bar an action where the subsequent occurrences can only be deemed an unfair labor practice through reliance upon occurrences that happened prior to the six-month limitation. Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 823 (1960). With regard to whether each refusal to bargain represents an independent unfair labor practice or whether the series of refusals to bargain represent one unfair labor practice that begins with the first refusal, the federal circuits are split. See cases collected in NLRB v. Preston H. Haskell Co., 616 F.2d 136, 140, 141 (5th Cir. 1980).

This court adopts PERC’s interpretation of PERA that each refusal to bargain is an independent unfair labor practice and, therefore, the statute of limitation did not bar the charge brought in this case.

Second, the City argues that Florida should follow the private sector rule that absent unusual circumstances there is a presumption that a recognized union represents a majority of the employees for one year after recognition. However, after that time, an employer may refuse to bargain with a union if it in good faith believes that the union no longer represents a majority of the employees in the bargaining unit. Telautograph Corp., 199 N.L.R.B. 892, 81 L.R.R.M. 1337 (1972); Celanese Corp. of America, 95 N.L.R.B. 83, 28 L.R.R.M. 1362 (1952). On the other hand, the Union argues that the procedures for recognition of a union and for taking away that recognition are different in PERA than they are in the NLRA and, therefore, the private sector rule should not be adopted.

In PERA, it is PERC’s act of certification of the union that begins the duty to bargain, while under the NLRA it is the employer’s recognition of the union or the outcome of an election that starts the duty to bargain. In addition, PERA does not provide a procedure for an employer to initiate an election, while under the NLRA an employer may seek a representation election. Due to these differences, PERC refused to adopt the private sector rule that allows an employer to refuse to bargain if it in good faith believes the union no longer represents a majority of the unit employees. E.g., In re City of Daytona Beach, 4 F.P.E.R. 4082 (1978). PERC’s decision on this issue has been upheld by Florida’s First District Court of Appeal in the case of City of Ocala v. Marion County Police Benevolent Ass’n., 392 So.2d 26 (Fla. 1st DCA 1980). We concur.

This court has reviewed the other issues raised by the City in this appeal and finds them to be without merit.

AFFIRMED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


author: ORFINGER, Judge.

text:
    Isadore A. CAGAN, Appellant, v. BOARD OF REAL ESTATE OF the STATE of Florida and Department of Professional Regulation, State of Florida, Appellees.
    No. 81-1155.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 1981.
    Rehearing Denied Feb. 3, 1982.
    W. Thompson Thorn, III, Clearwater, for appellant.
    Salvatore A. Carpino, Tallahassee, for ap-pellee.
   ON MOTION TO DISMISS

ORFINGER, Judge.

Appellant’s license as a real estate salesman was suspended for one year and he appeals that order. Appellee, The Board of Real Estate, Department of Professional Regulation (Department), moves to dismiss the appeal as untimely. The Department contends that the notice of appeal is untimely because the order appealed from was “rendered” on August 6,1981 when it was filed by the Clerk of the Department of Professional Regulation, and the notice of appeal was filed on September 14, 1981, more than thirty days from rendition of the final order.

Appellant contends that the order was not final, although entitled “Final Order” because: (1) by its terms, it did not become effective until thirty days from the date of filing with the Clerk of the Department; and (2) on September 2, 1981, appellant filed objections to the order which appellant contends delayed rendition of the order for seven days from the date the objections were filed, so that the notice of appeal filed on September 14, 1981 was timely.

Proceedings involving licensing are governed by section 120.57, Florida Statutes (1979). Under that statute, except where hearings are before an agency head or a member of an agency head, hearings are conducted by a hearing officer who shall submit a recommended order which may be adopted by the agency as a final order. The agency must allow each party at least ten days to submit exceptions to the proposed order of the hearing officer. § 120.57(1)(b)(8), Fla.Stat. (1979). However, where a hearing is conducted by an agency head, the recommended order is an unnecessary step and the order is final when filed. Calfin v. State Dept. of Business Regulation, 391 So.2d 739 (Fla. 4th DCA 1980). In the instant case, the hearing was held and the final order entered by the Vice Chairman of the Board of Real Estate which is the appropriate agency “head.” Therefore, a recommended order was not required and the order became final as soon as filed unless appellant is correct that the order was not final until “effective.”

Appellant relies on Adams Packing Assn., Inc. v. Florida Department of Citrus, 352 So.2d 569 (Fla. 3d DCA 1977), as authority for the proposition that the order did not become final until it became “effective,” thirty days after it was filed. Adams, relying on Riley-Field Co. v. Askew, 336 So.2d 383 (Fla. 1st DCA 1970), held that an agency rule did not become “final” until it became “effective” twenty days after it was filed, so that a petition to review the agency action filed within thirty days of the effective date was timely. The Adams court, however, apparently did not consider the decision of the Supreme Court entered approximately one month earlier in Florida Administration Commission v. District Court of Appeal, First District, 351 So.2d 712 (Fla.1977), wherein Riley-Field was disapproved, the court holding that agency action is final in rule making procedures when the rule has been adopted and filed, notwithstanding the twenty-day delay in its becoming effective. We see no reason to apply a different rule here. Thus we hold that the signed, written order became final for purposes of appeal when it was filed with the Clerk of the Department, notwithstanding the thirty-day delay in its becoming effective.

Appellant’s contention that the submission of exceptions to the order delayed rendition is without merit. Even if section 120.57(l)(b)(4) permits the filing of exceptions to a final order, as opposed to a recommended order, section 120.57(1)(b)(8) requires the agency to allow at least ten days for such filing. This would require the filing within ten days unless the agency extended the time. There is nothing in the record to show that any additional time was granted, nor does appellant suggest that it was. Since the exceptions were filed twenty seven days after the rendition of the final order, even if they are authorized, the exceptions were not timely. Appellant’s position that the Board was required to answer his exceptions within seven days of filing cannot be sustained because that procedure applies only in the informal proceedings under section 120.57(2), Florida Statutes (1979), and the proceedings here were conducted as formal proceedings under subsection (1).

The motion to dismiss is granted.

Appeal DISMISSED.

COBB and SHARP, JJ., concur.

      . Fla.R.App.P. 9.020(g):
      Rendition (of an order): the filing of a signed, written order with the clerk of the lower tribunal. Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, to alter or amend, for judgment in accordance with pri- or motion for directed verdict, notwithstanding verdict, in arrest of judgment, or a challenge to the verdict, the order shall not be deemed rendered until disposition thereof.

      . Fla.R.App.P. 9.110(b).

      . § 120.60, Fla.Stat. (1979).

      . § 120.52(3), Fla.Stat. (1979).


author: GRIMES, Judge,

text:
    COMMERCIAL CARRIER CORPORATION, Appellant, v. S. J. G. CORPORATION, d/b/a Holiday Rent-A-Car, Douglas Kenney & Jack Strickland, Appellees.
    No. 81-6.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1981.
    Rehearing Denied Jan. 29, 1982.

      Michael S. Rywant of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellant.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellees.
    BOARDMAN, Acting Chief Judge.
   Commercial.Carrier Corporation, plaintiff in the trial court, appeals a final judgment awarding judgment on the pleadings in favor of appellee S.J.G. Corporation, one of the defendants. We affirm.

The allegations in appellant’s complaint, which we take to be true for the purposes of this appeal, are that defendant/appellee Douglas Kenney rented a car from S.J.G. Corporation and left it unattended with the keys in the ignition, and that defendant/ap-pellee Jack Strickland stole it and subsequently negligently collided with a truck owned by appellant.

Appellant seeks to hold S.J.G. Corporation liable for its damages under either of two theories.

The first theory is negligence per se, predicated on Section 316.1975, Florida Statutes (1979), which provides in pertinent part: “No person driving or in charge of any motor vehicle except a licensed delivery truck or other delivery vehicle while making deliveries, shall permit it to stand unattended without first stopping the engine, locking the ignition, and removing the key.” Because statutes such as this are deemed to impose a standard of strict liability and violation of such a statute is considered negligence per se, deJesus v. Seaboard Coast Line R. Co., 281 So.2d 198 (Fla.1973), violation of this statute by a car rental agency was held to give rise to a cause of action against the rental agency in Vining v. Avis Rent-a-Car Systems, Inc., 354 So.2d 54 (Fla.1977); however, we are not willing to extend the Vining doctrine.

In Vining, the rental agency was not only the owner of the vehicle, but the violator of the statute as well. Here, in contrast, it was Kenney, S.J.G. Corporation’s lessee, who committed the negligent act which constituted the statutory violation. We are not aware of any case, either in Florida or in any other state, and none has been cited to us by appellant, which has imposed liability on an automobile owner under these circumstances, and we see no justification for doing so here. While Kenney may well be liable to appellant by virtue of his alleged violation of section 316.1975, S.J.G. Corporation is not.

In Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976), our supreme court recognized the general rule that “though a person’s negligence is a cause in fact of another’s loss, he will not be liable if an act unforeseeable to him and independent of his negligence intervenes to also cause the loss.” Id. at 177. However, the court held that that foreseeability which is essential to create a duty in negligence may exist if a criminal act is sufficiently foreseeable that a reasonable man would realize that the criminal act in conjunction with the person’s negligence will result in a loss.

On the other hand, in Sykes v. Babijuice Corp., 63 So.2d 65 (Fla.1953), the corporate owner was held not liable for damages arising out of the use on the highway of one of its trucks by the night watchman, who had been expressly instructed not to drive the company’s trucks off the premises. The court noted that there was no evidence that the watchman had ever violated'these instructions before.

We find Nicholas and Sykes instructive. We believe it foreseeable to anyone old enough to obtain a driver’s license that his car will very likely be stolen if he leaves it standing unlocked and unattended with the keys in the ignition. We do not consider it reasonably foreseeable by S.J.G. Corporation that Kenney, its lessee, would be likely to leave the keys in the car. There is no “allegation that S.J.G. Corporation had knowledge that Kenney had done this before.

The alternative theory under which appellant seeks to hold S.J.G. Corporation liable is the dangerous instrumentality doctrine. This doctrine was adopted in Florida in the early case of Southern Cotton Oil v. Anderson, 80 Fla. 441, 86 So. 629 (Fla.1920), which held that an owner who entrusts a motor vehicle to another to operate on the public highways is liable for injury caused to others by negligent use of the vehicle by the person to whom the motor vehicle was entrusted. However, the court emphasized the obvious fact that automobiles are not dangerous per se, but are dangerous only while in operation. In Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947), the court explained that the key to the invocation of the dangerous instrumentality doctrine is that the owner of the automobile has authorized its use by another person.

The burden of proving the knowledge and consent of the owner is on the plaintiff, Slitkin v. Avis Rent A Car System, Inc., 382 So.2d 883 (Fla. 3d DCA 1980); Pearson v. St. Paul Fire & Marine Insurance Co., 187 So.2d 343 (Fla. 1st DCA 1966), and a species of conversion or theft will relieve an owner of responsibility for the use of an automobile under the dangerous instrumentality doctrine. Susco Car Rental System v. Leonard, 112 So.2d 832 (Fla.1959); Pearson, supra.

In Pearson, summary judgment in favor of the corporate owner of a company car was affirmed. The company car was furnished for the use of Austin Brown and his wife, who were the only authorized operators of the vehicle. Robert Polk, Brown’s brother-in-law, who was visiting the Browns, obtained the keys to the company car from their bedroom while they were asleep, and he used the car to drive to the airport, becoming involved in an accident on the way. Finding that Brown had not given Polk either express or implied consent to use the automobile, the court held that, as to St. Paul, Polk’s use of the car constituted a species of conversion.

We conclude that the dangerous instrumentality doctrine, by its terms, is inapplicable here, and we are not inclined to extend that doctrine to cover the circumstances here.

Because we conclude that S.J.G. Corporation is not liable to appellant under either the Vining doctrine or the dangerous instrumentality doctrine, the final judgment in favor of S.J.G. Corporation is AFFIRMED.

DANAHY, J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge,

dissenting.

Clearly the car owner, S.J.G., could be held liable for an accident caused by the negligence of its lessee, Douglas Kenney. Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947). Kenney was guilty of negligence per se for leaving the car unattended with the keys in the ignition and subject to liability for the damages to appellant’s truck upon proof of proximate cause and the thief’s negligence in causing the accident. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977). Therefore, I cannot see why S.J.G. is not responsible for this form of Kenney’s negligence. I am unimpressed with the suggestion that the dangerous instrumentality doctrine is inapplicable because Kenney’s negligence was not in connection with the operation of the car. His negligence was certainly incident to his use of the car.

I respectfully dissent.


text:
    Steven H. BRONSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-1351.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 1981.

      Vincent J. Patrucco, Florida Institutional Legal Services, Inc., Gainesville, for appellant.
    No appearance for appellee.
   .ON MOTION FOR REHEARING

COBB, Judge.

Rehearing of 407 So.2d 1128, is denied. See § 944.40, Fla.Stat. (1967) [emphasis added]; State v. Culver, 110 So.2d 674 (Fla.1959); Harris v. State, 217 So.2d 907 (Fla.2d DCA 1969).

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


text:
    Jimmy STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 81-616.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.
    Rehearing Denied Jan. 28, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Átty. Gen., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); accord, Drake v. State, 400 So.2d 1217 (Fla.1981); Crosby v. State, 237 So.2d 286 (Fla. 2d DCA 1970).

SCHEB, C. J., and RYDER and DAN-AHY, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF REVENUE, Appellant, v. Hubert ADKINSON, as Walton County Property Appraiser, and Walton County, Appellee.
    No. AF-480.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1982.
    Rehearing Denied Feb. 23, 1982.

      Jim Smith, Atty. Gen., E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for appellant/State of Florida.
    J. Terrell Williams, Tallahassee, for appellant/Dept. of Revenue.
    George Ralph Miller, DeFuniak Springs, for appellee.
   PER CURIAM.

The Department of Revenue appeals from a final order confirming the provisional taxes levied against the 1980 Walton County Interim Property Assessment Roll as the final ad valorem taxes in Walton County for the tax year 1980. We reverse.

The parties are in substantial agreement as to the facts. The Department of Revenue (hereinafter, Department or appellant) disapproved Walton County’s preliminary 1980 assessment roll on the grounds that the level of assessment reflected on the roll was substantially below just value. The Walton County Property Appraiser (hereinafter, appellee) did not appeal this disapproval. Rather, appellee filed an action against appellant in the Walton County Circuit Court. The complaint requested that the court grant an extension of time for preparation of a corrected 1980 assessment roll, and approve the levy and collection of 1980 provisional taxes based on the interim roll procedures set forth in Section 193.1145, Florida Statutes (1980 Supp.).

On November 26, 1980, the lower court entered an order requiring appellee to prepare a corrected 1980 roll and submit it for appellant’s approval on or before June 1, 1981. In addition, the court authorized Walton County taxing authorities to levy and collect provisional 1980 taxes based on the disapproved preliminary assessment roll. On June 1, 1981, appellee filed a petition in the circuit court seeking an order confirming the interim roll as final for 1980. Appellant’s response requested an order compelling appellee to prepare a corrected assessment roll for 1980 and submit it to the Department.

At the hearing, the evidence showed that neither the previous property appraiser nor the current property appraiser made any effort to comply with the court’s November 26, 1980 order. Instead, immediately upon taking office, the current Walton County property appraiser began work on the 1981 assessment roll. The trial court found that he did so in the mistaken belief that, should he complete an acceptable 1981 roll, the Department would not oppose certification of the interim roll as the final assessment roll for 1980.

Further evidence showed that the level of assessment of Walton County’s preliminary roll was approximately seventy-seven percent (77%), that 65 of the 67 county assessment rolls had been approved for the year 1980 and that none of these was at less than ninety percent (90%) just value. The only county other than Walton without an approved roll had appealed the Department’s disapproval. While the appellee’s evidence showed that preparation of a corrected 1980 assessment roll would require the expenditure of substantial amounts of time and money by Walton County officials, appellant’s evidence showed that over 5,000 Walton County property owners would be eligible for the $15,000 increased homestead exemption authorized by Article VII, § 6(d) of the Florida Constitution in the event that a final 1980 roll was approved by the Department and that approval of the preliminary roll as final would cause the State to pay an additional $219,000 to fund the public schools of Walton County.

The trial court weighed the cost of preparing a corrected 1980 roll against the benefits to be obtained therefrom and certified the disapproved interim roll as the final roll for 1980. In so doing, the court relied on that portion of Section 193.-1145(8)(d), Florida Statutes, which provides:

However, the court, upon a determination that the amount to be supplementally billed and refunded is insufficient to warrant a separate billing or that the length of time until the next regular issuance of ad valorem tax bills is similarly insufficient, may authorize the tax collector to withhold issuance of supplemental bills and refunds until issuance of the next year’s tax bills. At that time the amount due or the refund amount shall be added to or subtracted from the amount of current taxes due on each parcel, provided that the current tax and the prior year’s tax or refund shall be shown separately on the bill. Alternatively, at the option of the tax collector, separate bills and statements of refund may be issued. In addition, the court may find that the implementation and administration of a reconciliation between the interim and final rolls or that the preparation of a final roll is not in the best interest of the public. Upon so finding, the court may enter an order confirming taxes levied against interim assessments to be final for the year in question ; property appraisal adjustment board petitions may then be filed with respect to interim assessments, and delinquent provisional taxes shall then be subject to the provisions of Chapter 197.

In making its decision, the lower court weighed the cost of preparing a final roll against the financial gain to be obtained by the county (admittedly none). On this basis, the court determined that the “best interest of the public” would not be served by requiring the preparation of a corrected roll. In essence, the court decided that “in the best interest of the public” means “in the best interest of the taxing authorities of Walton County.” Such a construction is too parochial.

The Florida Constitution requires “just valuation” of all property subject to ad valorem taxation. “Just Valuation” is synonymous with “fair market value” or the amount that a purchaser willing but not obliged to buy would pay to a seller willing but not obliged to sell.

For over 100 years it has been the rule in Florida that property be assessed at its fair market value for ad valorem tax purposes. During that time, Florida’s legislative, executive, and judicial branches have all declared that a lesser standard cannot be tolerated. Yet, the standard has never been followed.

The objection to assessments of less than fair market value was perhaps most succinctly stated by the Florida Supreme Court:

[I]t appears that in eight counties assessments are made on the basis of 100 per cent, of valuation while the range is from that figure to 17.54 per cent, in a certain county. The eight counties deserve mention: Alachua, Baker, Bradford, Duval, Hendry, Orange, Palm Beach and Union. The rhetorical question emerges: How could it be said that an owner of property assessed at 17.54 per cent, of full cash value carries his share of the burden?

In an effort to come to grips with the existing impediments to fair market value assessments, the 1980 Legislature enacted tax reform legislation popularly known as the “truth in millage” or “TRIM” bill. We are concerned here with one of the numerous reforms contained in that legislation. Recognizing that a Department of Revenue disapproval of a county assessment roll or grant to a county of an extension of time to prepare its assessment roll could result in financial hardship to the county, the legislature enacted Section 193.1145, Florida Statutes (1980 Supp.). This section allows a county, under certain limited circumstances, to collect taxes based on its last approved roll if preparation of the current roll has been delayed, or based on its current roll where that roll has been disapproved. The statute provides that when an approved roll is available the two shall be reconciled. This is accomplished by recomputing the tax bills and adjusting the millage rate to insure the total taxes levied remain the same. Taxpayers who are under assessed receive a supplemental bill, those over assessed a refund.

The language which is the subject of the instant dispute appears in a subsection which deals with remedies a court may order where the amount to be supplementally billed and refunded is “insufficient to warrant a separate billing or that the length of time until the next regular issuance of ad valorem tax bills is similarly insufficient.” The subsection provides that a court may under such circumstances authorize the tax collector to withhold issuance of supplemental bills and refunds until issuance of the next year’s tax bills. As an alternative, it provides that, at the option of the tax collector, separate bills and statements of refund may be issued. Then, and without further explanation, the disputed language appears. It is clearly tied to the previous sentences grammatically by the phrase “in addition.” Accordingly, before the court may enter an order confirming taxes levied against the interim assessments to be final for the year in question, it must find that the amount to be supplementally billed and refunded is so insufficient that it would not be in the best interest of the taxpaying public to require preparation of a final roll, or to order reconciliation between the final and interim rolls, that is, the preparation or reconciliation would amount to a mere formality.

“In the best interest of the public,” as used here, means “in the best interest of the taxpayers of the State of Florida.” The best interest of the public is not served by requiring over 5,000 home owners in Walton County to bear an unfair tax burden, nor is it served by requiring the taxpayers of counties which assess at just value to pay the way of a county which assesses at 77%. The constitutional requirement that all property subject to ad valo-rem taxation be assessed at just value and the history of the TRIM bill permit no other conclusion.

REVERSED and REMANDED for proceedings not inconsistent with this opinion.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

      . Section 193.1145(6), (7), Florida Statutes (1980 Supp.) provides that the total amount of taxes collected by each taxing unit shall not be increased when the assessment roll is finally approved. Instead, reconciliation is accomplished by recomputing the millage rate of each taxing unit.

      . Article VII, Section 4, Florida Constitution.

      . District School Board of Lee County v. Askew, 278 So.2d 272 (Fla.1973).

      . Pajic, Weber and Francis, Truth or Consequences: Fla. Opts, for Truth in Millage in Response to the Proposition Thirteen Syndrome, 8 F.S.U.L.Rev. 593 (1980).

      . Burns v. Butscher, 187 So.2d 594 (Fla.1966).

      . 8 F.S.U.L.Rev. 593. This article contains an extensive discussion of the obstacles to just valuation in Florida. See also, Dickinson v. Geraci, 190 So.2d 368, 385 (Fla. 2nd DCA 1966), in which the court took judicial notice that in the past most tax assessors knew the people of their county looked favorably on low ratios of assessment and that this would redound favorably in the tax assessor’s election returns.

      .Section 193.1145, Florida Statutes.

      . See, Slay v. Department of Revenue, 317 So.2d 744 (Fla.1975), a pre-TRIM bill case in which Holmes County found itself in serious financial difficulty due to a disapproval of its assessment roll. The Supreme Court held that equitable relief was available to a county in the face of such a financial emergency, and suggested a remedy which is remarkably similar to the interim roll process set out in Section 193.-1145. The opinion made it clear that such equitable relief was temporary and did not vitiate the requirement of just value assessment. In fact, in his concurring opinion, Justice Sund-berg suggested that equitable relief would only be available to a county which had made a good faith effort to secure a reappraisal at the earliest practicable date.


author: HURLEY, Judge. SHARP, G. KENDALL, Associate Judge,

text:
    John ZERWECK, Appellant, v. STATE of Florida, COMMISSION ON ETHICS, Appellee.
    No. 80-1203.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 1982.
    Rehearing Denied Feb. 16, 1982.

      David R. Mackenzie, of Allsworth, Dou-mar, Schuler, Padula & Laystrom of Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Patricia R. Gleason, Asst. Atty. Gen. and Philip C. Claypool, Staff Atty., Commission on Ethics, Tallahassee, for appellee.
   HURLEY, Judge.

Appellant, a former commissioner and mayor of the City of Margate, challenges the applicability and constitutionality of Section 112.313(7)(a), Florida Statutes (Florida’s Code of Ethics for Public Officers and Employees). We hold that the Code governed appellant’s conduct as a public official, that it is not unconstitutionally vague, and that the Commission on Ethics finding of a code violation is supported by substantial, competent evidence. Accordingly, we affirm.

John Zerweck was elected to the Margate City Commission in 1974. He was reelected in 1976 and 1978. From March, 1977, through August, 1979, he served as mayor of Margate. In June of 1978, Mr. Zerweck accepted the position of development coordinator for DJM Properties, Inc., an industrial site developer engaged in the business of building and leasing warehouse facilities in the City of Margate. In this management-level position, Mr. Zerweck was responsible for the leasing of space, the control and direct maintenance of all warehouse properties, approval of bills, ordering of materials and equipment, coordination of construction schedules, hiring of subcontractors, obtaining building permits from the city, and requesting and coordinating city building department inspections of DJM warehouse properties. Between June, 1978, and January, 1980, forty-two items came before the Margate City Commission which affected, directly or indirectly, property owned by DJM Properties or David J. Mears, the controlling stockholder of DJM Properties, Inc. On each of these occasions Mr. Zerweck acknowledged his relationship with DJM Properties and either abstained from voting or voted and filed a voting conflict statement.

In November, 1979, a complaint was filed with the State Commission on Ethics charging Mr. Zerweck with a violation of Section 112.313(7)(a), Florida Statutes (1979). That statute provides in part:

No public officer ... shall have or hold any employment . . . with any business entity .. . which is subject to the regulation of ... an agency of which he is an officer ..., nor shall an officer ... have or hold any employment ... that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

After a hearing, the Commission on Ethics found that Mr. Zerweck’s “employment with DJM Properties, Inc., posed a frequently recurring conflict with public duties.” The Commission noted, however, that Mr. Zerweck had sought advice from the Margate city attorney as to possible conflicts of interest prior to accepting employment with DJM Properties and had sought an advisory opinion from the Commission on Ethics before any complaint was filed. The Commission further noted that Mr. Zerweck was no longer in office and, therefore, concluded that “nothing is served by either a determination of violation or imposition of any penalties.” This appeal ensued.

At the outset, we reject the state’s contention that Mr. Zerweck is not entitled to judicial review due to the Commission’s alleged failure to make a “formal determination” of violation and its decision not to impose.a penalty. Section 112.3241, Florida Statutes (1979), provides in part:

Any final action by the commission taken pursuant to this part shall be subject to review in a District Court of Appeal upon the petition of the party against whom an adverse opinion, finding, or recommendation is made.

It is incontrovertible that the final report of the Commission concluded that Mr. Zer-weck’s “employment with DJM Properties, Inc., posed a frequently recurring conflict with public duties.” This is an explicit finding that Mr. Zerweck violated the statute and, thus, his entitlement to judicial review is clear. It is of no consequence that the Commission, in the exercise of its discretion, declined to “formalize” its finding or to impose further penalties. Branding a public official as a law-violater is a penalty in itself. More importantly, the right to judicial review is not dependent on the imposition of a penalty. Rather, it turns upon the existence of an adverse opinion, finding, or recommendation. Once articulated, the Commission cannot shield its finding from judicial scrutiny by failing to “formalize” it.

Turning to the merits of the appeal, we note Mr. Zerweck’s initial suggestion that he is exempt from the strictures of Section 112.313(7)(a) by virtue of subsection (7)(a)(2). That subsection provides:

When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict.

To understand this claim of exemption, it is necessary to review the governmental structure of the City of Margate. A city manager is charged with the responsibility of performing the executive functions of government, while the city commission fulfills the legislative role. The commission, however, is also involved in the regulatory process. Moreover, it is critically important to note that the commission’s involvement in the regulatory process is not limited to the enactment of laws or ordinances. For example, the city’s charter empowers the commission to appoint the members of various regulatory boards, e.g., the Planning and Zoning Board, the Beautification Commission, the Board of Adjustment and the Civil Service Commission. The charter further indicates that the city commission shall be the ultimate arbiter of all appeals from these boards. Thus, the commission is required to act on a case-by-case basis to discharge this aspect of its regulatory power. Consequently, the Margate City Commission is not an exempt legislative body within the meaning of Section 112.313(7)(a)(2), Florida Statutes (1979).

Next, Mr. Zerweck argues that Section 112.313(7)(a) is too vague to pass constitutional muster. Specifically, he suggests that the term “conflict,” which is used in Section 112.313(7)(a) and which is defined in Section 112.312(6) is too imprecise to satisfy the notice requirements of due process. We do not agree.

The test to determine whether a statute is unconstitutionally vague is whether persons of common understanding and intelligence must necessarily guess at its meaning. State v. Rodriquez, 365 So.2d 157 (Fla.1978). Legislative enactments are presumed constitutional and doubts as to the validity of a statute are to be resolved in favor of a finding of constitutionality. Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976). Moreover, a less stringent standard as to vagueness is used in examining non-criminal statutes, though minimal constitutional standards for definiteness must still be met. D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977).

A primary objective of the Code of Ethics is that government officials avoid recurring situations in which there is a temptation to place personal gain, economic or otherwise, above the discharge of their fiduciary duty to the public. There is nothing new or startling about this concept. The avoidance of the appearance of impropriety is an ethical norm which has governed the conduct of attorneys and judges for decades. Certainly, there is nothing to prevent the Legislature from extending the application of this norm to all branches of government. Indeed, this is precisely what the Legislature intended as can be seen from Section 112.311(5), Florida Statutes (1979):

It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state, and no member of the Legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his duties in the public interest. To implement this policy and strengthen the faith and confidence of the people of the state in their government, there is enacted a code of ethics setting forth standards of conduct required of state, county, and city officers and employees, and of officers and employees of other political subdivisions of the state, in the performance of their official duties. It is the intent of the Legislature that this code shall serve not only as a guide for the official conduct of public servants in this state, but also as a basis for discipline of those who violate the provisions of this part.

Section 112.312(6), Florida Statutes (1979), defines “conflict” or “conflict of interest” as “a situation in which regard for a private interest tends to lead to disregard of a public duty or interest.” Looking first at the word “tend”, it is not an inherently ambiguous term. Webster’s Seventh New Collegiate Dictionary (1972) defines “tend” as “to move, direct, or develop one’s course in a particular direction; to exhibit an inclination or tendency.”

Turning next to the age-old notion of conflict, Justice Terrell made this observation in City of Coral Gables v. Coral Gables, Inc., 119 Fla. 30, 160 So. 476 (1935):

No principle of law is better settled than that the same person cannot act for himself and at the same time with respect to the same matter as the agent of another whose interests are conflicting. The two positions impose different obligations, and their union would at once raise a conflict between interest and duty and, constituted as humanity is, in the majority of cases duty would be overborne in the struggle. Id. at 479.

In the same vein, the United States Supreme Court in United States v. Mississippi Valley Generating Co., 364 U.S. 520, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961), upheld a federal conflict of interest statute and noted:

It is also significant, we think, that the statute does not specify as elements of the crime that there be actual corruption or that there be any actual loss suffered by the Government as a result of the defendant’s conflict of interest. This omission indicates that the statute establishes an objective standard of conduct, and that whenever a government agent fails to act in accordance with that standard, he is guilty of violating the statute, regardless of whether there is positive corruption. The statute is thus directed not only at dishonor, but also at conduct that tempts dishonor. This broad proscription embodies a recognition of the fact that an impairment of impartial judgment can occur in even the most well-meaning men when their personal economic interests are affected by the business they transact on behalf of the Government. To this extent, therefore, the statute is more concerned with what might have happened in a given situation than with what actually happened. It attempts to prevent honest government agents from succumbing to temptation by making it illegal for them to enter into relationships which are fraught with temptation.” (Emphasis supplied). 364 U.S. at 549-550, 81 S.Ct. at 309.

As with the federal statute referred to above, Section 112.313(7)(a), Florida Statutes (1979), establishes an objective standard which requires an examination of the nature and extent of the public officer’s duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which “tempts dishonor.” We do not believe that the statute could be more precise and still fulfill its broad purpose. Indeed, as has been noted, “to make a statute sufficiently certain to comply with constitutional requirement it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited.” Smith v. State, 237 So.2d 139, 141 (Fla.1970) (quoting People v. Smith, 36 Cal.App.Supp.2d 748, 92 P.2d 1039, 1042 (1939)). Avoiding conflicts of interest is a well understood and traditionally accepted ethical norm. The statute merely adopts this norm and proscribes, as precisely as possible, unethical conduct which can manifest itself in infinite forms.

We have carefully reviewed the record and conclude that the Commission’s determination that Mr. Zerweck’s employment with DJM Properties, Inc., posed a frequently recurring conflict of interest, is supported by substantial, competent evidence. Thus, we affirm the Commission’s finding and hold that the language of Section 112.313(7)(a), Florida Statutes (1979), is sufficiently definite to provide adequate notice of the conduct which it prohibits.

Accordingly, the order on appeal is AFFIRMED.

DELL, J., concurs.

SHARP, G. KENDALL, Associate Judge, concurs specially with opinion.

SHARP, G. KENDALL, Associate Judge,

concurring specially.

I concur with the majority opinion which affirms the finding of the Commission on Ethics that Mr. Zerweck’s employment with D.J.M. Properties, Inc. posed a frequently recurring conflict with public duties. This was the only fact the Commission found, and hence, the Commission took no action nor gave any recommendation.

Mr. Zerweek is entitled to review before this court from the conclusions and action taken by the Commission on Ethics.

The Commission noted that Mr. Zerweek sought an advisory opinion and concurred that this particular section of the Code of Ethics is “more amenable to the advisory opinion procedures.”

I believe the respondent is entitled to some advice.

When the City Commission voted on issues affecting D.J.M. Properties, Inc. did Zerweck’s abstentions on voting conflict statements “impede the full and faithful discharge of his public • duties?” Section 112.313(7)(a).

Would his employment by D.J.M. Properties, Inc. preclude him from again seeking public office?

Section 112.311(2) Florida Statutes states: Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve.. .. ”

I would remand the case back to the Commission requiring the advice they failed to give the respondent.


author: JOANOS, Judge.

text:
    Alvie Lee GRIFFIN, Appellant, v. PARRISH CONSTRUCTION & DOOR SERVICE and Kemper Insurance Company, Appellees.
    No. YY-490.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    Rehearing Denied Feb. 25, 1982.

      Ronald J. Langa and Herbert H. Hall, Jr. of Maher, Overchuck, Langa & Cate, Orlando, for appellant.
    Steven A. Rissman of Cooper & Rissman, Orlando, for appellees.
   JOANOS, Judge.

Claimant appeals from a workers’ compensation order in which he was denied permanent partial disability benefits in excess of the anatomical ratings assigned by the physicians. The deputy commissioner limited the award upon a finding that claimant had failed to test his employability or wage earning capacity on the open labor market.

Claimant Griffin testified that he would lose his union benefits if he accepted nonunion work. He said that he would not take a non-union job if it was available and at the time of the hearing, he had not sought work outside the union. He also testified to missing appointments with rehabilitation personnel, characterized the rehabilitation process as unhelpful because he was not going to work for minimum wage, and stated that he could not look for work since it was against union hiring rules.

Claimant argues on appeal that the requirement that he make a job search outside his union infringes upon his constitutionally and federally protected right to be a union member. He urges that the threshold requirement of an adequate open labor market search forces him to choose between receiving benefits under the act and retaining his union membership and, is, therefore, an intrusion into the federally pre-empted area of labor-management relationships. We disagree and affirm.

The Florida Supreme Court has made it clear that an award of compensation based upon the reduction of wage earning capacity requires the claimant to show that he has tested his employability in the open labor market after reaching maximum medical improvement. Exxon Co. v. Alexis, 370 So.2d 1128, 1132 (Fla.1978).

Claimant’s challenge based on federal pre-emption is not well-founded. First, the federal district court decision involving unemployment compensation upon which he relies heavily, Hawaiian Tel. Co. v. State of Hawaii, etc., 405 F.Supp. 275 (D.C.Haw.1975), was reversed on appeal. See Hawaiian Tel. Co. v. State of Hawaii, etc., 614 F.2d 1197 (9th Cir. 1980). Also see New York Telephone Co. v. New York Dept. of Labor, 440 U.S. 519, 99 S.Ct. 1328, 59 L.Ed.2d 553 (1979), wherein the U.S. Supreme Court refused to find that the National Labor Relations Act pre-empted the New York state unemployment compensation act despite the recognized impact on the federally protected bargaining process of New York’s requirement that the employer pay unemployment compensation to striking workers. By comparison, in the present case, the impact of the Florida Workers’ Compensation Act, as applied, upon the collective bargaining process is negligible, if not non-existent. Further, in Adams v. Auchter, 339 So.2d 623 (Fla.1976), the Florida Supreme Court held that unemployment compensation was not payable to a claimant union member who refused to accept a non-union job on the ground that acceptance would jeopardize his union rights. In the Adams case, the Florida Supreme Court affirmed this Court’s opinion, Auchter Co. v. Florida Department of Commerce, Industrial Relations Commission, 304 So.2d 487 (Fla. 1st DCA 1975). We note especially Judge McCord’s observation at page 492 of this Court’s opinion in that case, that any infringement of claimant’s rights resulted from union action, not state action. We believe that comment is equally applicable to this case although it involves workers’ compensation rather than unemployment compensation.

AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.