author: BOARDMAN, Judge.

text:
    Courtenay P. O’CONNELL and Joan H. O’Connell, husband and wife, Appellants, v. Terry DOCKENDORFF and Gladys Dockendorff, husband and wife, and Earl E. Morris and Rose Morris, husband and wife, Appellees.
    No. 81-1836.
    District Court of Appeal of Florida, Second District.
    April 23, 1982.
    Rehearing Denied June 14, 1982.
    Donald Wm. Giffin, St. Petersburg, for appellants.
    John P. Linney of Linney & Linney, St. Petersburg, for appellees.
   BOARDMAN, Judge.

Plaintiffs Courtenay P. and Joan H. O’Connell appeal a final judgment dismissing their complaint for foreclosure on certain real property against defendants/ap-pellees Terry and Gladys Dockendorff and Earl E. and Rose Morris. We reverse.

Appellants filed a complaint for mortgage foreclosure against appellees. Ultimately, after a bench trial, the trial court entered final judgment finding that the clause in the mortgage upon which appellants relied was an unenforceable due-on-sale clause and dismissing the complaint with prejudice. This appeal followed timely-

Appellants sold a parcel of real property to the Dockendorffs on July 13, 1979, and took back a purchase money mortgage which contained a clause providing:

The Mortgagees hereby agree that the Mortgagors may assign this Purchase Money Mortgage, but the rate of interest, at the time of assignment, shall be adjusted upward to correspond with the prevailing interest rate of banks, savings and loan associations, and other mortgage lenders in the community. The Mortgagors, by executing this agreement, hereby agree to the terms and conditions of this paragraph.

The Dockendorffs conveyed the real property to the Morrises on October 24, 1980, taking a second mortgage.

The interest rate on appellants’ mortgage note was not raised to the prevailing interest rate. Appellants made a demand for an increase in the interest rate, but appellees refused to comply.

The clause in question is not a due-on-sale clause. In First Federal Savings & Loan Association v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980), this court stated:

We have noted divergent lines of cases throughout the United States dealing with the issue of due-on-sale clause enforcement. The common thread running through the various theoretical approaches is that such clauses are considered restraints on the alienation of real property and are enforceable as reasonable restraints only if their enforcement is not inequitable and unjust under the circumstances. In other words, if the lender can demonstrate that his legitimate interests are threatened and the foreclosure is equitable under the circumstances, then the court may enforce the acceleration of the debt and subsequent foreclosure. The divergence in theories is predicated, at least in part, on what legitimate interests will suffice to justify an automatic enforcement of the acceleration clause.
One line of cases specifically holds that there is no inequity in conditioning the lender’s consent to transfer on the transferee’s agreeing to pay an increased interest rate. This is considered a legitimate interest of the lender and in line with prudent business practices.
. .. [T]he sole purpose set out by First Federal deals with the protection of its security. There is no mention anywhere in the mortgage instrument that rising interest rates will subvert the stated intent and serve to justify First Federal’s attempt to gain a commercial advantage.

385 So.2d at 158-159. (Footnote omitted.)

We held that the due-on-sale clause in Lockwood would not allow an acceleration of a mortgage note and the foreclosure of the mortgage. The clause now before this court, however, unlike the clause in Lockwood, simply raises the interest rate should the mortgagor assign his rights and benefits under the mortgage to a subsequent purchaser.

The state of Arizona seems to follow the reasoning of the Florida courts regarding acceleration of mortgage notes and foreclosure of mortgages. Lane v. Bisceglia, 15 Ariz.App. 269, 488 P.2d 474 (1971), states that the Arizona courts have not allowed an acceleration of the mortgage note where the mortgagee has only reserved to itself the power to approve or disapprove the transferee, the situation in Lockwood. However, the Lane case indicates that if the mortgagee has retained the power to increase the interest rate, then he may accelerate the balance of the mortgage note should the original mortgagor transfer the real property to another without an increase in the interest rate. The situation here is precisely that described in Lane.

Sui juris parties may establish the terms of an agreement without subsequent alteration by the courts. Century Federal Savings & Loan Association v. Madorsky, 353 So.2d 868 (Fla. 1st DCA), cert. denied, 359 So.2d 1217 (Fla.1978); Sapienza v. Bass, 144 So.2d 520 (Fla. 3d DCA 1962). The clause in question was bargained for and is so unambiguous as not to be misunderstood by the Dockendorffs. Since the parties clearly expressed an intention that the interest rate would be increased at the time of an assignment or assumption of the mortgage, appellants should be allowed the benefit of their bargain.

Accordingly, the final judgment dismissing appellants’ complaint is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

SCHEB, C. J., and SCHOONOVER, J., concur.


source: Caselaw Access Project

author: JOANOS, Judge. SHAW, Judge,

license: Public Domain

text:
    Nina R. GADDY, Appellant, v. William Malcolm GADDY, Appellee.
    No. AC-91.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    Rehearing Denied June 29, 1982.
    Mark M. Green and Jerry A. Funk of Funk & Green, Jacksonville, for appellant.
    John B. Miner of Crider & Helwig, Jacksonville, for appellee.
   JOANOS, Judge.

The parties were divorced in 1973 by a Tennessee decree. The decree, among other things, required William Malcolm Gaddy to pay $750.00 per month in alimony. In 1980, Nina R. Gaddy established the Tennessee decree in the circuit court for Duval County and that court found William to be delinquent in alimony payments in the amount of $6,250.00 and hospitalization insurance payments in the amount of $156.78. Appel-lee was ordered to pay $250.00 per month towards the alimony arrearage, and to reimburse Nina for the insurance payments.

William subsequently filed a motion for modification of the Tennessee decree, requesting a reduction in the amount of alimony and relief from the obligation of obtaining life insurance for the benefit of the appellant. Nina filed a reply denying the essential allegations of the motion and a motion for affirmative relief asking the court to find the appellee in contempt. At the conclusion of the hearing on motions, the court found William in contempt and ordered him to pay $5,800 toward back alimony, reimburse the appellant for hospitalization premiums, and establish the appellant as beneficiary on certain life insurance policies. Permanent alimony payments were reduced from $750.00 to $400.00 per month. Nina was awarded $250.00 as a “contribution” toward her attorney’s fees.

Nina has appealed from that order challenging the reduction in alimony and the failure to order the full payment of her attorney’s fees. We affirm the trial court on both points.

While the evidence was conflicting and susceptible to different interpretations, we have concluded that there was sufficient evidence to support the trial court’s order.

Under Section 61.14, Florida Statutes (1979), the trial judge is authorized to modify alimony obligations when the circumstances of the parties have changed so as to require the modification. In addition, whether or not an alimony award should be modified is within the broad discretion of the trial judge. Feldman v. Feldman, 317 So.2d 136, 137 (Fla. 3d DCA 1975). The trial judge’s findings come to us clothed in the presumption of correctness.

The evidence received below reflects that Nina was not employed at the time of the divorce. She was employed full time at the time of the hearing. While she argues that her employment was anticipated at the time of the divorce, the evidence was that she worked part-time for about four years after the divorce and then became fully employed. There was evidence that both parties have accumulated assets during the past few years. As to William, it is clear that his income has increased. However, there was also evidence of increased indebtedness on his part and an increase in living expenses. Appellant argues that the indebtedness and expenses were due in large part to his remarriage and voluntary assumption of an unwarranted life style. Perhaps that was a possible conclusion. However, the trial judge did not accept appellant’s position and we cannot say that he erred. The evidence was sufficient for the trial judge to determine, as he did; that the required change of circumstances had occurred. After considering the ability to pay of William and the needs of Nina, he could find that a reduction in the amount of alimony was required.

We likewise have determined that the trial judge’s order regarding attorney’s fees is amply supported by the evidence.

AFFIRMED.

BEN C. WILLIS, Associate Judge, concurs.

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

I find the ex-wife’s challenge to the reduction in alimony well taken. I find it particularly significant that the Tennessee final decree incorporated the parties’ agreement concerning alimony and division of property. When that agreement was entered, appellant was unemployed and appel-lee was earning $29,000.00 per year. Appellant is now employed as an assistant manager at Crown Crafts, earning a net income of $119.85 per week. Appellee’s income now is in excess of $48,000 per year, and as Vice President of Southeastern Specialties he has fringe benefits which include a new car every three years, paid vacations, health and life insurance, pensions and profit sharing, and the use of a boat. Appellee’s arguments against honoring his agreement are the wife’s employment and his current obligations. I am unimpressed. The employment was foreseeable, and the obligations were voluntarily assumed subsequent to dissolution of the marriage. Appellee has demonstrated neither an inability to honor his agreement nor a change of circumstances that was not present and contemplated when the Tennessee decree was entered. Withers v. Withers, 390 So.2d 453 (Fla. 2d DCA 1980). The only change in circumstances has been to the betterment of ap-pellee. There is nothing in the record to indicate that appellee has been a victim of misfortune or that he has suffered a decline in income or a substantial change in circumstances beyond his contemplation. To quote from Justice Terrell, “One who deliberately takes on himself the pleasure of supporting two wives, both of whom are shown to have been faithful, should not in Equity be permitted to welsh on his agreement.” Schiff v. Schiff, 54 So.2d 36 (Fla.1951). For the reasons stated, I would REVERSE the trial court’s reduction of alimony-


author: GRIMES, Judge.

text:
    Rickey HOLDREN, Appellant, v. STATE of Florida, Appellee.
    No. 81-908.
    District Court of Appeal of Florida, Second District.
    April 30, 1982.
    Rehearing Denied June 14, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

In this appeal from his conviction for escape, appellant asserts that the court erroneously refused to permit him to testify that he escaped in order to avoid being homosexually raped.

The state presented evidence that while appellant was an inmate at Largo Correctional Center, he fled from custody during a supervised visit to a shopping center. Four days later he was arrested in Texas for a traffic violation. When the state trooper pulled him over, he tried to change seats with another occupant of the vehicle in order to make it look as if he had not been driving. He told the trooper that he was headed for Amarillo to get a job.

Apparently prompted by defense counsel’s opening statement, the state moved to require appellant to make a proffer outside the hearing of the jury on his defense of duress and necessity. On proffer, appellant testified that he had left the facility to avoid the possibility of being raped by another inmate named Fred who was bigger than him. He said that on two previous occasions Fred had made sexual overtures toward him. When asked what he intended to do when he got out, he said that he intended to get a job in Texas and “hold it down as long as possible.” He conceded that he had not reported the incidents involving Fred to the authorities. He also admitted that just before he fled one of his supervisors arrested him for stealing some shoes while he was at the shopping center. The court ruled that appellant’s testimony was insufficient to be presented to the jury on the question of necessity to escape. Appellant chose not to testify on any other subject, and the jury subsequently convicted him.

Appellant contends that his testimony as it concerned the necessity for his escape was relevant to the issue of intent to escape and that the jury should have been permitted to pass on its credibility. While certain statements in some Florida opinions lend superficial credence to appellant’s position, we believe that a careful analysis of the law supports the court’s ruling which excluded the proffered testimony.

In Helton v. State, 311 So.2d 381 (Fla. 1st DCA 1975), the defendant endeavored to defend against a charge of escaping from a detention center on Christmas Eve by proffering testimony that the jailer had given vodka to inmates and that he was so intoxicated when he fled that he did not have the requisite intent to escape. The court ruled that “there are two elements to the crime of escape: The physical act of leaving, or not being in, custody coupled with the intent to avoid lawful confinement.” 311 So.2d at 384. The court observed that its conclusion was buttressed by those cases which have recognized the “ ‘narrow but time-honored defense of necessity available to a prisoner whose escape has been motivated by sufficiently perilous circumstances.’ ” Id. at 383. However, the court pointed out that just because a person may not have the requisite intent to escape at the moment he leaves confinement, he can still be convicted of escape if he continues to intentionally remain outside of lawful custody. Thus, the court affirmed the defendant’s conviction without passing on whether or not he was drunk when he left the detention center because he remained at large for a month following his escape.

Our court in Lewis v. State, 318 So.2d 529 (Fla. 2d DCA 1975), cert. denied, 334 So.2d 608 (Fla.1976), relied upon Helton to hold that the trial court should have permitted a defendant to present evidence that he had escaped to avoid the sexual advances of another inmate. The defendant had been apprehended on the roof of the jail, and he contended that he was merely seeking to reach the local circuit judge to report the matter since his detention officers refused to heed his pleas for protection. We ruled that the evidence was admissible insofar as it sought to establish the lack of intent to commit the crime of escape. Later, in Bavero v. State, 347 So.2d 781 (Fla. 1st DCA 1977), our sister court held that a defendant who was a lifelong asthmatic had a right to present testimony that he had escaped in order to get medical help and that when he was captured about ten hours later, he was attempting to bring his problems to the attention of federal authorities. The court observed that his testimony was relevant to the issue of whether he left confinement with intent to elude lawful authority.

Each of the foregoing decisions tended to blur the concepts of intent to escape and the defense of duress and necessity. However, there is actually a distinction between the two. This is well illustrated by the recent decision of the United States Supreme Court in United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). In that case the defendants contended that they escaped to avoid oppressive prison conditions. The court of appeals concluded that the trial court should have allowed the jury to consider evidence of the coercive conditions in determining whether the defendants had formed the requisite intent to escape. In reversing, the Supreme Court discussed the difference between the intent to escape and the defense of duress and necessity. The Court noted that the circuit court had erred in holding that an escapee did not act with the requisite intent if he escaped in order to avoid oppressive conditions in prison. The Court held, rather, that the prosecution sustains its burden of proof on intent when it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission and that if a defendant contends that circumstances within the prison compelled him to leave, he must raise these matters through the defense of duress or necessity. The Court went on to point out that before an escapee is entitled to present evidence to the jury about the conditions in prison which caused him to escape, “he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.” 444 U.S. at 415, 100 S.Ct. at 637, 62 L.Ed.2d at 594. Since under the facts of the cases before it the defendants had not surrendered or offered to surrender at their earliest opportunity, the Court held that the evidence directed to the defense of duress and necessity had properly been withheld from jury consideration.

We believe the First District Court of Appeal stated the proper rule concerning the nature of intent to escape and the distinction between intent and the defense of necessity or duress in Watford v. State, 353 So.2d 1263 (Fla. 1st DCA 1978), a case which was decided after both Helton and Bavero. In that case, the court said:

In summary, we declare the general rule to be that when the State has established its right to legal custody and the conscious and intentional act of defendant of leaving the established area of such custody, the offense of escape is prima facie established. In such circumstances, the only viable defense to such a charge that may be available is necessity involving, as to such defendant, reasonable grounds to believe that he is faced with real, imminent and present danger of death, great bodily harm, or such type of danger to his health, if he does not temporarily leave his place of confinement. See Annot., 69 A.L.R.3d 678 (1976).

353 So.2d at 1265. Moreover, we adopt the reasoning of the Supreme Court in United States v. Bailey that in order to present testimony concerning the danger which prompted him to leave, the escapee must proffer evidence of a bona fide attempt to surrender or return to custody as soon as he was no longer under the coercive force of the duress. Hence, we recede from Lewis v. State to the extent that we suggested that evidence concerning duress and necessity bears on the issue of intent. However, we note that the result in Lewis was correct because under its facts the court should have allowed the defendant to present his necessity defense to the jury. Our decision in Fouts v. State, 374 So.2d 22 (Fla.1979), was also correct because there the question of whether the defendant was suffering from drug intoxication at the time he left confinement properly went to the issue of whether he had the intent to leave the prison without permission and unlike Helton v. State, there was no showing that he continued to remain at large after he was no longer intoxicated.

Applying these principles to the instant case, there is no need for us to decide whether appellant’s references to homosexual advances constituted sufficient evidence of an imminent threat because appellant totally failed to show that he endeavored to return to custody. At the time he was apprehended in Texas, it was obvious that he had no intention to voluntarily give himself up to the authorities. Hence, the court properly refused to permit him to testify concerning his defense of duress and necessity.

AFFIRMED.

HOBSON, A. C. J„ and CAMPBELL, J., concur.


author: SCHOONOVER, Judge.

text:
    Michael PAHL, Appellant, v. STATE of Florida, Appellee.
    No. 80-814.
    District Court of Appeal of Florida, Second District.
    May 5, 1982.
    Rehearing Denied June 14, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Michael Pahl, has appealed from a judgment and sentence entered upon a jury verdict finding him guilty of two counts of manslaughter and one count of arson. We reverse.

The charges arose out of a fire which occurred at the appellant’s home and resulted in the deaths of Diogene Disarro and Sharon Lynn Delsack. The state relied substantially on circumstantial evidence to connect the appellant with the crime.

During the trial, prior to the appellant beginning to present testimony, the state moved in limine to prohibit evidence that Sharon Lynn Delsack, one of the victims, had intentionally set three fires shortly before the fire in question. The state’s motion was granted, and the appellant then proffered the testimony of three witnesses who had been with her shortly before her death and had observed her intentionally start three fires. The testimony was offered to show that she could have started the fire in question either accidentally or deliberately. The appellant contends this evidence was admissible especially in view of the fact that when Miss Delsack’s body was discovered, a wick, or the residue of a wick, from a hurricane lamp was found in her forearm.

We agree with the appellant’s contention that the trial court erred in refusing to allow him to introduce this evidence.

One accused of a crime may show his innocence by proof of the guilt of another. Lindsay v. State, 69 Fla. 641, 68 So. 932 (1915). The proffered evidence was clearly admissible in support of the defense that the fire was started by someone other than the appellant, and the failure to admit such testimony cannot, in the light of the entire record of this case, be considered harmless. Corley v. State, 335 So.2d 849 (Fla.2d DCA 1976).

If the jury had been allowed to consider that one of the victims had started three other fires within a short period of time before the incident in question, together with the evidence that a wick from a hurricane lamp was found on her body, it could have reasonably concluded that the victim, rather than the accused, had either accidentally or intentionally started the fire.

Where the state relies substantially on circumstantial evidence to connect an accused with a crime, and there is independent evidence connecting another person with that crime, the defendant may also by circumstantial evidence attempt to prove that someone else committed the act in question.

If the victim, Miss Delsack, had been on trial for the offense rather than the accused, the evidence would have been admissible to show that she intentionally, rather than accidentally, set the fire and would not have been excluded by the Williams Rule. Dodson v. State, 334 So.2d 305 (Fla. 1st DCA 1976).

In view of our holding on the admissibility of the proffered evidence, it is unnecessary for us to consider the many other points on appeal.

We accordingly reverse and remand for a new trial.

SCHEB, C. J., and DANAHY, J., concur.


text:
    Paul PATTON, Appellant, v. LINDO’S RENT-A-CAR, INC., and American Southern Insurance Company, Appellees.
    No. 81-1718.
    District Court of Appeal of Florida, Second District.
    May 7, 1982.
    Rehearing Denied June 14, 1982.

      Donald V. Bulleit of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., St. Petersburg, for appellant.
    Peter H. Dubbeld of Watson, Goldstein, Earle, Douglass & Dubbeld, P. A., St. Pe-tersburg, for appellees.
   SCHOONOVER, Judge.

This is an interlocutory appeal from a summary judgment on a cross-claim holding that the lessee of a motor vehicle was obligated to provide primary liability insurance coverage on a rented vehicle notwithstanding the lessor’s failure to comply with section 627.7263, Florida Statutes (1979). We reverse.

On December 16, 1979, the appellant, third-party defendant, Paul Patton, rented an automobile from the appellee, third-party plaintiff, Lindo’s, who was insured by appellee American Southern Insurance Company, hereinafter referred to as American Southern.

The appellant, a Canadian citizen, carried liability insurance on his personal automobile with Ontario Motorist’s Insurance Company, a Canadian corporation.

On December 18, 1979, the appellant was operating the leased vehicle when it collided with a vehicle owned and operated by Will Howard. Howard, a nominal appellee in this appeal, filed suit against Lindo’s and American Southern in August 1980. The appellees answered the complaint and filed a third-party complaint for indemnity against the appellant and his insurer alleging that the latter had primary coverage for the damages sought by Howard. The appellant answered the third-party complaint and affirmatively alleged that Lin-do’s rental agreement failed to comply with the requirements of section 627.7263, Florida Statutes (1979), and therefore, the appel-lees were required to provide primary coverage up to American Southern’s policy limits.

Section 627.7263, Florida Statutes (1979), provides as follows:

Rental and leasing driver’s insurance to be primary; exception.—
(1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the lessor of a motor vehicle for rent or lease shall be primary unless otherwise stated in bold type on the face of the rental or lease agreement. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by ss. 324.021(7) and 627.736.
(2) Each rental or lease agreement between the lessee and the lessor shall contain a provision on the face of the agreement, stated in bold type, informing the lessee of the provisions of subsection (1) and shall provide a space for the lessee’s insurance company’s name if the lessor’s insurance is not to be primary.

The rental agreement contained the following language:

17. The valid and collectible liability insurance or personal injury protection insurance providing coverage for the rental or leasing driver or any other person operating the motor vehicle with the permission or consent of the rental or leasing driver shall be primary. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by Florida Statutes SS. 324.021(7) and 627.7263.

The above-quoted portion of the rental agreement was no different in size or color from the rest of the agreement and was a quote from section 627.7263, Florida Statutes (1976).

The agreement also contained a paragraph requiring the appellant, as lessee, to indemnify Lindo’s against any loss, liability, et cetera arising out of or in connection with any possession or use of the vehicle. American Southern’s policy contained what is commonly known as an escape clause.

The trial court found the notice on the agreement inadequate to comply with section 627.7263, Florida Statutes (1979), but still entered a summary judgment finding that the parties had properly shifted the responsibility for primary coverage to the appellant and that Lindo’s insurance policy contained a valid escape clause. The summary judgment required the appellant to assume the primary defense of Howard’s claim and to indemnify Lindo’s under the terms of the rental agreement.

The sole question on this appeal is whether the parties to a motor vehicle lease agreement are free to contract between themselves as to which of them shall provide the primary liability insurance coverage without complying with the statute which makes the lessor primarily liable unless he follows a specific method of shifting that responsibility to the lessee.

We hold that section 627.7263, Florida Statutes (1979), provides the exclusive method of shifting primary liability coverage from the lessor to the lessee, and if the lessor fails to comply with the requirements of this section, he is primarily liable up to the financial responsibility requirements of the law regardless of any other provision contained in the rental agreement or policy.

The appellees’ reliance on the case of Racecon, Inc. v. Mead, 388 So.2d 266 (Fla. 5th DCA 1980), is misplaced. In that case, the court was construing the statute as it existed in 1976, and not the statute that was in effect at the time of the incident which gave rise to the instant litigation.

The statute became as much a part of the rental agreement as if it were expressly written into it and accordingly must be given effect by the parties. Grand Lodge, Knights of Pythias v. Moore, 120 Fla. 761, 163 So. 108 (1935).

Once the requirements of the statute are satisfied by requiring the lessor to be responsible up to the limits of the financial responsibility law, or to properly shift the burden, the parties are free to contract between themselves as to any additional responsibility. Insurance Company of North America v. Avis Rent-A-Car, 348 So.2d 1149 (Fla.1977). Accordingly, under the agreement in this case, the lessor’s insurance company is only primarily liable up to the requirements of the financial responsibility law.

We reverse and remand for proceedings consistent herewith.

SCHEB, C. J., and DANAHY, J., concur.


author: PER CURIAM.

text:
    In re FORFEITURE OF FOUR THOUSAND, FOUR HUNDRED EIGHTEEN AND 65/100 DOLLARS, Paul Bowman, Administrator of the Estate of Joseph A. Calovich, deceased, Appellant, v. STATE of Florida, Appellee. In re FORFEITURE OF FIVE THOUSAND, THREE HUNDRED THIRTY-EIGHT AND 89/100 DOLLARS, David G. Gower, Appellant, v. STATE of Florida, Appellee.
    Nos. AC-358, AC-359.
    District Court of Appeal of Florida, First District.
    May 10, 1982.

      J. Victor Africano, Live Oak, for appellants.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   ON MOTION TO SUBSTITUTE PARTIES

PER CURIAM.

These consolidated appeals are from the forfeiture of several thousand dollars pursuant to the Florida Contraband Forfeiture Act.

The order of the trial court directed that the money be forfeited “.. . to the Hamilton County Sheriff’s Department for the use and benefit of Hamilton County Sheriff’s Department, to be deposited in a special Law Enforcement Trust Fund to be established by the Board of County Commissioners of Hamilton County and shall be used for law enforcement purposes only, as prescribed in Chapter 943.44(3)(a) ...”

The State has filed a Notice of Real Parties in Interest and a Motion for Substitution of Parties asserting that the State is not the proper party appellee and that Hamilton County and/or the Hamilton County Sheriff’s Department should be substituted as appellee(s). Hamilton County asserts that the State is the proper party appellee.

The State argues that since the State was not a party to the forfeiture proceeding and since the monies were not forfeited to the State of Florida or a state agency, the State has no interest in this appeal. We cannot agree with the State’s assertions.

The State of Florida was a party to the forfeiture proceedings. The notice of forfeiture proceedings filed in each case states:

“YOU ARE HEREBY NOTIFIED that the State of Florida ... pursuant to Florida Statutes 943.41-943.44, intends to initiate forfeiture proceedings . . . . ”

The Petition for Rule to Show Cause, filed in each case in accordance with Section 943.44(1), begins “... [t]he State of Florida ... petitions this Court for a Rule to Show Cause .. . . ” The State initiated and then prosecuted the forfeiture proceedings; therefore, we find the State’s contention that it was not a party to the forfeiture proceedings to be baseless. Further, since the State was a party below, it is a party to this appeal. Rule 9.020(f)(2), Fla.R.App.P., defines “appellee” as “every party in the proceeding in the lower tribunal other than an appellant.”

We also find to be without merit the State’s contention that the State of Florida has no interest in this case because the property was not forfeited to the State or a state agency. This argument overlooks the purpose of the Florida Contraband Forfeiture Act. In Griffis v. State, 356 So.2d 297 (Fla.1978), the Supreme Court outlined the history of the Florida Uniform Contraband Transportation Act, now the Florida Contraband Forfeiture Act, and explained its purpose. The Court looked to the federal counterpart of the Florida act, 49 U.S.C., §§ 781, 782, to determine the purpose of the Florida act and cited to the congressional committee report that accompanied the 1950 amendment to the federal law:

Enforcement officers of the Government have found that one of the best ways to strike at commercialized crime is through the pocketbooks of the criminals who engage in it. Vessels, vehicles, and aircraft may be termed the operating tools of dope peddlers, and often represent major capital investments to criminals whose liquid assets, if any, are frequently not accessible to the Government. Seizure and forfeiture of these means of transportation provide an effective brake on traffic in narcotic drugs .... 1950 U.S. Code Congressional Service, pp. 2952, 2953-54, cited at 356 So.2d at 300.

The Court also cited to United States v. One 1972 Datsun, 378 F.Supp. 1200 (D.C.N.H.1974):

[A] primary goal of this forfeiture statute is to cripple illegal drug trafficking and narcotics activity ....
* * * * * *
[A] purpose of vehicle forfeiture in the enforcement of the narcotics laws is to prevent the flow of narcotics by depriving narcotics peddlers of the “operating tools” of their trade, thereby financially incapacitating the illegal narcotics activity-

The Supreme Court considered the purpose behind the forfeiture provisions of the Uniform Controlled Substances Act:

... Effective law enforcement demands that there be a means of confiscating the vehicles and instrumentalities used by drug traffickers in committing violations under this Act. The reasoning is to prevent their use in the commission of subsequent offenses involving transportation or concealment of controlled substances and to deprive the drug trafficker of needed mobility. 9 Uniform Laws Annotated § 505, p. 338, cited at 356 at 302.

Considering the purpose and function of the forfeiture statutes, it is difficult to understand the Attorney General’s assertion that the State has “no interest” in a forfeiture proceeding unless the seized items are forfeited to the State. The State’s interest is in ensuring that the operating tools of crime are removed from the hands of criminals.

For the above stated reasons, the State’s Motion for Substitution of Parties is denied. The State will have 20 days to serve its answer brief.

IT IS SO ORDERED.

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


author: COBB, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Richard K. CHAPMAN, Appellee.
    No. 81-1072.
    District Court of Appeal of Florida, Fifth District.
    May 12, 1982.
    Rehearing Denied June 11, 1982.

      James 0. Driscoll, P. A., of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appellant.
    Robert J. Felice of LaGrone & Felice, P. A., Orlando, for appellee.
   COBB, Judge.

On November 10, 1979, Chapman was injured while he was operating a Florida Highway Patrol vehicle owned by the state. Chapman made a demand upon State Farm for personal injury protection benefits. State Farm refused to. pay the benefits on the basis that Chapman was excluded from coverage at the time of the accident due to the terms of the policy.

Chapman filed a complaint for declaratory relief, which sought a judgment as to whether he was entitled to the personal injury protection coverage. State Farm filed an amended answer in which it denied coverage because the policy excluded from coverage anyone occupying a vehicle owned by any government. State Farm’s amended answer also denied coverage because any personal injury protection benefits due to Chapman must be reduced by workmen’s compensation benefits paid or payable to him.

State Farm moved for summary judgment. Chapman moved for judgment on the pleadings. The trial court denied State Farm’s motion for summary judgment and granted Chapman’s motion for judgment on the pleadings. The trial court then entered a declaratory judgment in which it found State Farm’s exclusion of a government-owned vehicle to be statutorily impermissible and that State Farm’s argument with regard to workmen’s compensation benefits only had a bearing on the amount of personal injury protection benefits to which Chapman might be entitled, rather than the issue of whether he had personal injury protection coverage. The trial court then rendered a declaratory judgment that the State Farm policy did provide personal injury protection coverage to Chapman.

Florida’s Automobile Reparations Reform Act requires the insurer of the owner of a motor vehicle to pay personal injury protection benefits for the accidental bodily injury sustained in this state by the owner while he is occupying a motor vehicle. § 627.736(4)(d)l, Fla.Stat. (1981). Any insurance policy purporting to provide security in accordance with Florida’s Automobile Reparations Reform Act is to be enforced as if it were in compliance with the act, irrespective of its actual terms. Andriakos v. Cavanaugh, 350 So.2d 561 (Fla.2d DCA 1977). If a government-owned vehicle is a “motor vehicle” within the scope of Florida’s Automobile Reparations Reform Act, then the State Farm policy exclusion that excluded insureds from coverage while they were in government vehicles was in violation of Florida’s Automobile Reparations Reform Act. The term “motor vehicle” is defined in the act in section 627.-732(1). The statutory definition does not exclude government vehicles.

The section of the act dealing with proof of security excludes government vehicles from all sections of the act. § 627.734(3), Fla.Stat. (1981). This statute was intended to exempt governmental bodies from having to obtain no-fault coverage on vehicles that they own and was not intended to take government vehicles out of the definition of “motor vehicles.” Therefore, Rule 4-27.01, Rules of the Department of Insurance, which defines motor vehicles, is in conflict with the statutory definition.

In a declaratory judgment action, a trial court may enter a judgment on the pleadings if the merits of the case can be determined as a matter of law from the pleadings. Trail Burger King, Inc. v. Burger King of Miami, Inc., 187 So.2d 55 (Fla.3d DCA 1966). In the case at hand, the trial court did not declare that Chapman was entitled to any specific amount of benefits, but rather the trial court only declared that Chapman was entitled to personal injury protection coverage. The coverage issue was a proper issue for the trial court to resolve with a declaratory judgment. Britt v. Fidelity & Casualty Co., 360 So.2d 116 (Fla.3d DCA 1978); Tavares v. Allstate Ins. Co., 342 So.2d 551 (Fla.3d DCA 1977).

The Florida Supreme Court recently has reaffirmed the validity of the Florida Automobile Reparations Reform Act. Chapman v. Dillon, 415 So.2d 12 (Fla.1982).

Accordingly, the judgment of the trial court is

AFFIRMED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    Zdenka SLOMOVIC, Appellant, v. Charles Hayden McLOON, Appellee.
    No. 81-1157.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Zdenka Slomovic, pro se.
   PER CURIAM.

Although designated as an appeal, we treat this case as a petition for writ of certiorari and deny same.

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


text:
    James W. ANDERSON, a/k/a Gordon Jones, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1700, 81-1894.
    District Court of Appeal of Florida, Second District.
    May 12, 1982.
    Rehearing Denied June 15, 1982.

      Jerry Hill, Public Defender, Bartow, and Gregory E. Like, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was charged with violating sections 817.61 (fraudulent use of a credit card) and 831.02 (uttering a forged instrument), Florida Statutes (1979). The court adjudged him insolvent in both cases and appointed the public defender to represent him. Appellant pled nolo contendere to both charges reserving the right to appeal the denial of his motion to dismiss and his motion for discharge. The court adjudicated appellant guilty on both charges and sentenced him to two concurrent three-year terms. In addition, the court, pursuant to section 27.56, Florida Statutes (1979), assessed court costs of $50 and attorney’s fees of $250 against appellant in each case.

We have examined each of the appellant’s contentions and find that only one merits discussion. Appellant relies upon Cox v. State, 334 So.2d 568 (Fla.1976), for the proposition that the court erred in assessing attorney’s fees and court costs against him after he had been declared insolvent. In Cox, our supreme court held that it was error to assess court costs against a defendant who had been adjudicated insolvent, because of the provisions of section 939.15, Florida Statutes (1975) which specified that court costs of insolvent defendants should be paid by the county. Clearly, however, Cox did not involve a motion for costs under section 27.56 because at that time section 27.56 did not contemplate the assessment of costs.

In 1977, subsequent to Cox, section 27.56 was amended to outline a procedure in which the court could order a defendant to reimburse the county for the reasonable value of attorney’s fees rendered by the public defender as well as costs expended on his behalf. Obviously, the statute contemplates the likelihood that such an order would be entered against one who has been declared indigent because the public defender would not have been appointed in the first place unless the defendant had been able to establish his indigency. We see no prohibition against the award of costs and fees in this case which was in the form of a judgment collectible in the same manner as any other civil judgment.

While we have rendered numerous opinions grounded upon Cox v. State, they are all silent with respect to the procedure by which the cost awards were obtained. We suspect that many of them resulted from automatic cost assessments included on the printed forms of judgment rather than from proceedings instituted pursuant to section 27.56. In any event, we hereby recede from these decisions to the extent that they may imply that costs cannot be recovered under section 27.56.

In addition, we note that the court allowed appellant credit for the time he served in jail as required by section 921.-161(1), Florida Statutes (1979). However, in case no. 81-1700 there is a discrepancy between the sentence and the commitment papers with respect to the amount of credit time to which appellant is entitled.

We remand case no. 81-1700 for correction of the discrepancy concerning credit time. Otherwise, we affirm the judgments and sentences.

SCHEB, C. J., and SCHOONOVER, J., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Walter L. TUCKER a/k/a Beau Tucker, Appellant, v. STATE of Florida, Appellee.
    No. 81-987.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Rehearing Denied June 30, 1982.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS, C. J., and BERANEK, J., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

The appellant claims that the trial court erred in denying his motion for severance and in refusing to have certain expert medical testimony read to the jury upon its request.

The Florida Supreme Court has held that the mere fact that one defendant may attempt to shift the blame for the crime to a co-defendant is insufficient to require a severance. Hawkins v. State, 199 So.2d 276 (Fla.1967) vacated on other grounds at 408 U.S. 941, 92 S.Ct. 2857, 33 L.Ed.2d 765 (1972). Also see State v. Talavera, 243 So.2d 595 (Fla.1971). I do not believe Crum v. State, 398 So.2d 810 (Fla.1981) has overruled that proposition.

On the other hand I agree with appellant that the trial court erred in failing to allow the jury to have the testimony of the two medical experts read to them. However, in view of the overwhelming evidence of appellant’s involvement in the crime for which he was convicted and the limited value that the medical testimony was to him I believe this error was harmless. Appellant was charged with first degree murder but only convicted of second degree murder while his co-defendant was convicted of first degree murder. It is apparent by its verdict that the jury has already given appellant the benefit of any doubt as to the extent of his participation in the murder.


text:
    Alex STEVENS, Appellant, v. LIBERTY MUTUAL INS. CO., Inman, Inc. and Lima Co., Appellees.
    No. 81-1282.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing Denied June 22, 1982.

      Walton, Lantaff, Schroeder & Carson and Anthony E. Ramos and George W. Chesrow, Miami, for appellant.
    Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Fowler, White, Burnett, Hurley, Banick & Strickroot and Greg M. Gaebe, Miami, for appellees.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

A motorist traveling upon the public highway is not within the class of persons sought to be protected by an ordinance regulating removal of trees and vegetation. See generally deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198, 201 (Fla.1973). In the absence of a violation of a statute, we adhere to the view that there is no common law duty on a landowner to maintain his property in a condition so that a motorist approaching a public highway intersection can see other approaching motorists. Evans v. Southern Holding Corp., 391 So.2d 231 (Fla. 3d DCA), pet. for review denied, 399 So.2d 1142 (Fla.1981). Accord Pedigo v. Smith, 395 So.2d 615 (Fla. 5th DCA 1981).

Affirmed.


text:
    UNIVERSITY OF FLORIDA and Division of Risk Management, Appellants, v. Mary R. OPEL, Appellee.
    No. AF-20.
    District Court of Appeal of Florida, First District.
    May 21, 1982.
    Jack A. Langdon of Jones & Langdon, Gainesville, for appellants.
    Robert 0. Stripling, Jr., of Avera & Stripling, Gainesville, for appellee.
   PER CURIAM.

This cause is before us on appeal by the employer/carrier from a workers’ compensation order awarding medical care, including but not limited to physical therapy, costs, attorney’s fees, and reimbursement for past medical care by Dr. Moore in the amount of $102.00. We reverse the award of the $102.00 bill, as Dr. Moore failed to submit timely medical reports as required by Florida Statutes, Section 440.13(1). See Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981). However, we affirm the order in all other respects, as competent substantial evidence supported the Deputy Commissioner’s finding that claimant’s injury arose out of and in the course of her employment.

ROBERT P. SMITH, Jr., C. J„ and McCORD and BOOTH, JJ., concur.


author: SHIVERS, Judge.

text:
    James PERCHETTI, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-150.
    District Court of Appeal of Florida, First District.
    May 21, 1982.
    Rehearing Denied July 2, 1982.
    Arthur E. Huttoe and John H. Lipinski, Miami, for appellant.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n, for appellee.
   SHIVERS, Judge.

Appellant seeks review of the Commission’s refusal to alter his Presumptive Parole Release Date (PPRD) of August 5, 1985. The record reveals the Commission, in part, aggravated Perchetti’s PPRD because he was arrested for possession of opiate. Since there is no statutory or rule authority permitting aggravation of a PPRD for a mere arrest, we reverse the Commission’s order refusing to change the PPRD to the extent the establishment of the PPRD was based on the arrest. The cause is remanded for setting of a PPRD consistent with this opinion.

REVERSED and REMANDED.

McCORD and MILLS, JJ., concur.


text:
    Louis GORZECK and Iris Gorzeck, Appellants, v. TROPIC SUN DEVELOPMENT, INC., Joseph Costantino, Sr., and Joseph Costantino, Jr., Appellees.
    No. 81-1981.
    District Court of Appeal of Florida, Fourth District.
    May 26, 1982.
    Rehearing Denied July 2, 1982.
    Richard P. Gumson, P. A., Hollywood, for appellants.
    Robert T. Gilligan, Dania, for appellees.
   PER CURIAM.

The appeal is dismissed. The order granting the appellee’s motion to dismiss is not final, nor reviewable by interlocutory appeal Atria v. Anton, 379 So.2d 462, 463 (Fla. 4th DCA 1980). This dismissal is without prejudice to review the entire matter upon entry of a final judgment.

DISMISSED.

LETTS, C. J., and DOWNEY and WALDEN, JJ., concur.


author: MILLS, Judge.

text:
    Willie LEMON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-164.
    District Court of Appeal of Florida, First District.
    May 28, 1982.
    Rehearing Denied July 2, 1982.
    Willie Lemon, pro se.
    Malcolm S. Greenfield, Gen. Counsel, Tallahassee, for appellee.
   MILLS, Judge.

Lemon appeals Commission action reviewing his presumptive parole release date. We affirm.

Lemon asserts that his PPRD was improperly aggravated for an expired sentence and that a prior conviction was used for both determining his salient factor score and aggravation. The record reveals that neither of these acts occurred.

McCORD, J., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.


text:
    AMERICAN AVIATION GROUND SERVICES, INC., Appellant, v. Steven SAWYER and Hollywood Aviation Association, Inc., Appellees.
    No. 81-130.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Rehearing Denied June 29, 1982.
    Palmer & Lazar, Miami, for appellant.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, Greenfield & Duval, North Miami, for appellees.

      Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

We reverse the partial summary judgment of liability entered against the buyer, American Aviation Ground Services, Inc., upon a finding that there were, at a minimum, triable issues of fact as to the intent of the parties at the time that the negotiations took place for the sale of the aircraft. Since the partial summary judgment of liability was prematurely entered, the money judgment entered by the lower court after a non-jury trial must also be reversed.

Reversed and remanded for further proceedings.


author: DOWNEY, Judge.

text:
    Deborah IRVING, individually, and as mother and next friend of Jennifer Johnson, Appellant, v. DOCTORS HOSPITAL OF LAKE WORTH, INC., Appellee.
    No. 81-118.
    District Court of Appeal of Florida, Fourth District.
    June 2, 1982.
    Rehearings Denied July 8, 1982.
    Paul A. Louis and Paul Siegel of Sinclair, Louis, Siegel, Heath, Nussbaum & Zavert-nik, P. A., Miami, for appellant.
    Robert T. Bergin, Jr., of Brennan, McAli-ley, Hayskar & McAliley, P. A., West Palm Beach, for appellee.
   DOWNEY, Judge.

This action involves the liability of a hospital for alleged negligent diagnosis and treatment by an emergency room physician that resulted in serious injury to appellant’s minor daughter.

The appellant, Deborah . Irving as mother and next friend of her daughter, Jennifer Johnson, sued Gilbert R. Panzer, M.D., Doctors Hospital of Lake Worth, Inc., and Florida Patients Compensation Fund to recover damages for the negligence of Dr. Panzer in failing to diagnose that Jennifer Johnson was suffering from meningitis when she was brought to the emergency room of Doctors Hospital for treatment. Prior to trial Irving settled with Panzer and the hospital’s primary insurer paid her $100,000. The Patients Compensation Fund was obliged to pay any damages for which the hospital was liable in excess of $100,000. The case against the hospital was tried by jury, and resulted in a finding of no liability because the jury agreed Panzer was not an employee of the hospital.

Irving contends the judgment should be reversed because the trial court erred 1) in failing to direct a verdict for the plaintiff because there was no dispute that Panzer was the hospital’s employee and that he was negligent; and 2) in failing to give appellant’s requested instructions to the jury on the exceptions to the independent contractor rule. From our study of the briefs and record we conclude no error is demonstrated by the first point because a jury question was presented. However, we conclude that reversible error was committed when the trial court instructed the jury regarding the non-liability of an independent contractor without including the inculpatory exceptions to that rule that had been requested by Irving.

The critical issue to be decided by the jury in this case was whether Panzer, as the emergency room physician, was an employee of Doctor’s Hospital, thus making the hospital vicariously liable for his negligence, or an independent contractor that shielded the hospital from vicarious liability. Evidence was adduced at length to show that Panzer operated as a professional association. Panzer worked only in the emergency room of Doctors Hospital, for 48 to 50 hours per week; he had no patients of his own, kept no records and sent no bills; he performed no follow up care on hospital patients he treated unless they had no regular physician. He was required to see all patients who came to the emergency room. The hospital furnished all support personnel for the emergency room, provided all supplies and medicines, managed the billing and receipts, and paid Panzer $35 per hour for his services. The hospital withheld no income tax or social security on payments to Panzer. The hospital’s emergency department had a policy and procedure manual and the medical and dental staff of the hospital had by-laws that controlled the emergency room. These by-laws contained detailed instructions on the manner in which emergency room care was to be administered, including mandatory procedures to be followed in specific situations. There was no sign in the emergency room or any other matter or thing that would put a person on notice that the emergency room doctor was not an employee of the hospital. Furthermore, Irving testified that, when she went to the emergency room, she thought Panzer was a hospital employee.

The hospital and the Fund contended Panzer was an independent contractor rather than an employee and, as a consequence, they were not liable for his alleged negligence. Accordingly, the trial court instructed the jury in accordance with Standard Jury Instruction 3.3b, on the vicarious liability of an employer for the negligence of an employee or agent committed within the scope of his employment. The standard instruction further advises the jury that the employer is not responsible for such negligence if the person employed is an independent contractor.

Irving’s Complaint alleged that Panzer was employed by the hospital. This allegation was denied by the answers of the hospital and the Fund. The evidence was such that the jury could have found that Panzer was an employee or that he was an independent contractor. Irving’s theory maintained that Panzer was an employee, but argued that even if he was an independent contractor the hospital remained liable under the several exceptions to the independent contractor rule. Thus, at the charge conference, Irving requested three instructions that would constitute exceptions to the general exculpatory effect of the independent contractor rule, all of which the court denied. If any of those charges were proper under the law and evidence, then a reversal is mandated. It is almost trite to restate the rule that each party is entitled to have the jury properly instructed on his theory of the case. City of Tamarac v. Garcher, 398 So.2d 889 (Fla. 4th DCA 1981).

Of the three instructions that Irving requested at least the first two should have been given.

The first instruction, designated in footnote 2 as [a], is an admixture of the agency doctrine of apparent authority and the doctrine of estoppel. The instruction as requested was lifted verbatim from Sapp v. City of Tallahassee, 348 So.2d 363 (Fla. 1st DCA 1977), a case involving questions of independent contractor and apparent authority. A legion of cases throughout the country espouses the doctrine of apparent authority and provides that an employer who holds one out as his employee is es-topped to deny the employee’s authority. One such case is Thomas v. Checker Cab Co., 66 Mich.App. 152, 238 N.W.2d 558, 560-561 (1975), wherein it was stated:

As a general rule, an employer is vicariously liable for the torts of his employee committed while that employee is acting within the scope of his employment, but is not similarly liable for the tortious actions of independent contractors. One exception to the independent contractor rule is found in the doctrine of “estop-pel”. The application of that doctrine to the area of vicarious liability is found in 1 Restatement Agency 2d, § 267, p. 578:
“One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of skill of the one appearing to be a servant or other agent as if he were such.”
Where one holds himself out as the employer of a certain person, and there is reliance, that apparent employer is es-topped from arguing that such person is an independent contractor. (Emphasis supplied).

This principle has been applied in the context of a hospital setting as to the status of the doctor and the vicarious liability of the hospital. Thus, in Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121, 1123-24 (1977), the court stated:

In B. P. Oil Corp. v. Mabe, 279 Md. 632, 643, 370 A.2d 554, 560 (1977), this Court endorsed § 267 of Restatement (Second) of Agency, which provides in part:
“One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.” (Emphasis supplied).
* * * * * *
In the instant case, all appearances suggest and all ordinary expectations would be that the Hospital emergency room, physically a part of the Hospital, was in fact an integral part of the institution. It is not to be expected, and nothing put Mr. Powell on notice, that the various procedures and departments of a complex, modern hospital like Holy Cross are in fact franchised out to various independent contractors. The situation seems to us substantially similar to that in Stanhope v. Los Angeles College of Chiropractic, 54 Cal.App.2d 141, 128 P.2d 705 (1942), where the court, holding that an apparent agency existed between a hospital and an independent radiologist, stated (128 P.2d at 708):
“... [The] appellant did nothing to put respondent on notice that the X-ray laboratory was not an integral part of appellant institution, and it cannot seriously be contended that respondent, when he was being carried from room to room ... should have inquired whether the individual doctors who examined him were employees ... or were independent contractors.”
We thus hold that Holy Cross Hospital represented to the decedent that the staff of the Holy Cross Hospital emergency room were its employees, thereby causing the decedent to rely on the skill of the emergency room staff, and that the Hospital is consequently liable to the decedent as if the emergency room staff were its employees. (Emphasis in original.)

Another excellent explication of the apparent authority rule within the hospital setting occurs in Arthur v. St. Peters Hospital, 169 N.J.Super. 575, 405 A.2d 443 (1979), where a plaintiff was examined in the emergency room of the defendant hospital and subsequently x-rayed in the radiology department. In subsequent litigation involving the alleged negligence of the emergency room and radiology doctors, the hospital relied on the absence of deductions from the doctors’ compensation to demonstrate that the doctors involved were independent contractors. With regard to the doctors’ apparent authority and its effect upon their status as independent contractors, the court said:

Since it has been assumed for purposes of this argument that the physicians here were independent contractors, the general rules outlined above make it clear that the hospital would normally not be responsible for their wrongdoing. How, then, does the doctrine of apparent authority affect that conclusion, if at all? Apparent authority, or what is sometimes referred to as the “holding out” theory, has its origins as part of the law of agency. It imposes liability, not as the result of the reality of a contractual relationship but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists. The concept is essentially one of estoppel and has been explained in this manner:
* * * [T]he principal is bound by the acts of his agent with the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. The question in every case * * * is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question; * * * [Hudson & C., Loan Assn., Inc. v. Horowytz, 116 N.J.L. 605, 608, 186 A. 437, 438 (Sup.Ct.1936)].
* * * * * *
Given the holding in Hill and despite the general rule dealing with independent contractors, there does not appear to be any rational basis for excluding the concept of apparent authority from the field of hospital liability. In those cases where it can be shown that a hospital, by its actions, has held out a particular physician as its agent and/or employee and that a patient has accepted treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the hospital will be liable for the physician’s negligence. (Emphasis supplied). Arthur, supra, at 445-446.

In Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), the court poignantly observed that the doctor involved could be regarded as having the status of an independent contractor vis-a-vis his medical partners in the sanitarium, yet in his relation to a plaintiff/patient the doctor would be deemed a sanitarium employee.

In the present case Irving took her child to the emergency room of Doctors Hospital for treatment. As far as she was concerned, all of the personnel furnished in the emergency room were hospital employees. The hospital held itself out as affording emergency treatment and the jury could well find that Irving was dealing with the hospital. Thus, in our judgment, the foregoing authorities clearly indicate that the evidence in this case would justify a jury verdict in Irving’s favor on the theory of apparent authority whether Panzer is an employee or an independent contractor. Failure to so instruct the jury deprived them of the court’s advice on an important aspect of Irving’s case. Indeed, that oversight might well account for the adverse verdict.

Turning now to Irving’s second requested instruction, set forth as [b] in the footnote 2 herein, once again we feel the instruction was appropriate and should have been given. The thrust of the instruction is that one may not escape his contractual liability by delegating performance under a contract to an independent contractor. The contracting party remains liable for the negligent performance of the contract whether it be performed for him by his employee or an independent contractor. This principle was followed in Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), wherein Mills, a general contractor, contracted with the owner of a hotel to do certain renovation and repairs to the hotel. Mills subcontracted the roofing work to Krauss, a roofing contractor who negligently performed the task. Mills sued the owner for the balance due on the contract and the owner counterclaimed against Mills for Krauss’s negligent work. Mills settled with the owner. When he was not paid, Krauss sued Mills who counterclaimed for indemnification for the amount he had paid the owner for Krauss’s improper work. Krauss contended Mills could not recover against him because Mills had not been liable to the owner since Mills had employed Krauss as an independent contractor to do the work. The trial court’s summary judgment in favor of Krauss was reversed on appeal, the court stating:

The appellees in their brief have cited a number of cases which recognize and deal with the general rule of non-liability of an employer for the negligence of an independent subcontractor. The appellants strongly urge upon us that the contractual relations existing between the appellants and the owner of the premises create an exception to the above general rule, and with this we agree.
In some circumstances duties may devolve upon an employer which he cannot delegate to another, and in such cases the employer is liable for breach or nonperformance of such duties even though he employs an independent contractor to do the work. Dealing with nonperformance of absolute duties of an employer and with reference to contractual obligations, the following is said in 27 Am.Jur., Independent Contractors, section 48, at page 526:
“Likewise, one who, by a specific agreement, undertakes to do some particular thing, or to do it in a certain manner, cannot by employing an independent contractor, avoid responsibility for an injury resulting from the nonperformance of any duty or duties which, under the express terms of the agreement or by implication of law, are assumed by the undertaker.”
******
The pleadings and facts involved in the present case show a contractual privity between the appellants and the owner of the premises; and we hold that the duty of a general contractor to use due care in repairing the premises of another, insofar as it is applicable to the owner of the premises, is a nondelegable duty which may not be committed to an independent contractor; and the latter will be deemed to be the employee of the general contractor, for whose failure to use due care in repairing said premises the general contractor will be held responsible. 114 So.2d at 819-820.

See also: Noack v. B. L. Waters, Inc., 410 So.2d 1375 (Fla. 5th DCA 1982); Restatement, Second, Torts, § 429. Granted that the contract involved in the Mills case was express and the contractual relation existing between a hospital and an emergency room patient is implied, the ultimate responsibility of the employer remains the same.

This exception to the principle of non-liability has been applied in the hospital emergency room setting. For example, in Mduba v. Benedictine Hospital, 52 A.D.2d 450, 384 N.Y.S.2d 527 (1976), the hospital was sued for wrongful death due to the negligence of an emergency room doctor. Predictably, the hospital contended that the emergency room doctor was not an employee but an independent contractor, which effectively shielded the hospital from liability for the doctor’s conduct. The contract between the hospital and the emergency room doctor expressly provided that the doctor was not an employee. Based thereon, the trial court dismissed the complaint. The Appellate Division reversed, holding that such a contractual provision was not determinative of the relationship of doctor to hospital vis-a-vis the plaintiff. The question, said the court, was one of control. The evidence showed the operation of the emergency room was controlled by rules and regulations promulgated by the hospital governing board. So the court concluded that, under the doctor’s contract with the hospital, he was not only bound to achieve a certain result, that is, direct and supervise the emergency room, but in addition he was controlled by the hospital as to the means and manner of achieving this result. Thus, the court held that the doctor was not an independent contractor. However, relevant to the point being made here, the court said:

Assuming, arguendo, that Dr. Bitash was an independent contractor, we reach the conclusion that the hospital would nevertheless be responsible for his negligence. This is not a situation where the decedent engaged Dr. Bitash in defendant’s hospital. The decedent entered the hospital for hospital treatment. The defendant hospital undertook to treat decedent for a charge and furnish the doctors and staff to render that treatment. Defendant having undertaken to treat decedent, which included both the necessary treatment and the furnishing of blood and other medicine needed in that treatment, was under a duty to do so effectively. Patients entering the hospital through the Emergency Room, could properly assume that the treating doctors and staff of the hospital were acting on behalf of the hospital. Such patients are not bound by secret limitations as are contained in a private contract between the hospital and the doctor. Defendant held itself out to the public offering and rendering hospital services (see Hannon v. Siegel-Cooper Co., 167 N.Y. 244, 60 N.E. 597; Santise v. Martins, Inc., 258 App.Div. 663, 664, 665, 17 N.Y.S.2d 741, 742, 743).
The Court of Appeals has held that a defendant who employs an independent contractor to perform services that the defendant has undertaken to perform, is liable for the negligence of the independent contractor. (Miles v. R & M Appliance Sales, 26 N.Y.2d 451, 311 N.Y.S.2d 491, 259 N.E.2d 913.) In so holding, the court adopted the applicable rule from the Restatement of Torts, which provides:
One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants (Restatement, 2d, Torts, § 429).
The rule is applicable if “the negligence of the contractor consists * * * in carelessness in the detail of rendering them” (Restatement, 2d, Torts, § 429, Comment b). 384 N.Y.S.2d at 529.

In Jenkins v. Charleston General Hospital & Training School, 90 W.Va. 230, 110 S.E. 560 (1922), the defendant hospital was under contract to render medical care and treatment to fuel company employees. Plaintiff, an employee, broke his arm and sought treatment at the defendant hospital. The radiologist negligently treated the plaintiff and litigation ensued. The hospital contended that it was not liable because the radiologist was an independent contractor. The court rejected that argument, stating:

[T]he defense of injury by an independent contractor cannot be maintained. The radiologist was employed and paid by the defendant to perform work in discharge of its own contract and undertaking to diagnose and treat the injury. Farming out work to be done under a contract never relieves from the obligation of the contract. A man cannot avoid his contract by devolving performance thereof upon a stranger. 110 S.E. at 562.

See also: Arthur v. St. Peters Hospital, 169 N.J.Super. 575, 405 A.2d 443 (1979); Vaughan v. Memorial Hospital, 100 W.Va. 290, 130 S.E. 481, 482 (1925); Giusti v. C. H. Weston Co., 165 Or. 525, 108 P.2d 1010, 1013 (1941); Treptau v. Behrens Spa, Inc., 247 Wis. 438, 20 N.W.2d 108, 114 (1945); Schagrin v. Wilmington Medical Center, Inc., 304 A.2d 61 (Del.Sup.1973).

In the present case, it must be remembered that after the trial court instructed the jury on the responsibility of an employer for the acts of his employee, the court added that “... a person is not responsible for the negligence of an independent contractor. ...” Therefore, if the jury in this case concluded that Panzer was an independent contractor, pursuant to the court’s instructions, it would necessarily not even reach the question of negligence. On the other hand, if the trial court had instructed the jury on these exceptions to the independent contractor rule, the jury might well have found the hospital liable regardless of Panza’s employment status.

With reference to the denial of appellant’s instruction (c) of footnote 2, we view it as merely amplifying, by means of specific references to the facts of the case, the abstract principle of law contained in instruction (b) of footnote 2, discussed above. Thus, to the extent that requested instruction (c) was not otherwise objectionable as worded, it was proper.

The hospital contends that the foregoing instructions, which Irving requested, were properly denied because they pertain to issues that were not pleaded. However, no occasion arose for Irving to plead exceptions to the independent contractor rule because the hospital did not plead that it was not liable because Panzer was an independent contractor. Instead, the hospital simply denied Panzer was an employee of the hospital. We hold that, under these circumstances, if the hospital was entitled to have the jury instructed on the non-liability of an independent contractor, Irving was entitled to have the jury apprised of the exceptions to that rule in accordance with Irving’s requested instructions.

For the foregoing reasons, we reverse the judgment appealed from and remand the cause to the trial court for a new trial.

REVERSED AND REMANDED, with directions.

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

      . As given, the instruction read
      The first issue for your determination on the claim of Debra Irving against Doctors Hospital of Lake Worth on account of the alleged negligence of Dr. Gilbert R. Panzer is whether Dr. Panzer was an employee of Doctors Hospital and was acting within the scope of his employment at the time and place of the incident complained of. An employee is a person who is employed to act for another and whose actions are controlled by his employer or are subject to his employer’s right of control. An employer is responsible for the negligence of his employee if such negligence incurs while the employee is performing services which he was employed to perform or while the employee is acting at least in part because of a desire to serve his employer and is doing something that is reasonably incidental to his employment or if something the doing of which was reasonably foreseeable and reasonably to be expected of persons similarly employed.
      You are instructed that a person is not responsible for the negligence of an independent contractor or of the agents or employees of an independent contractor. An independent contractor is a person who is engaged by another to perform specific work according to his own methods and whose methods of performing the work are not controlled by the person engaging him and are not subject to that person’s right of control.

      . [a] In addition, control and domination need not be actual but may be binding upon principal or employer if apparent. That is if the principal or employer has held the agent or employee out to the public as being possessed of the requisite authority, and a third person is aware of his authority and has relied on it to his detriment, then the principal or employer is estopped from denying the agency relationship.
      [b] [0]ne who undertakes by contract to do for another a given thing cannot excuse himself to the other for a faulty performance, or a failure to perform, by showing that he has engaged another to perform in his place, and that the fault or failure is that of another or independent contractor.
      [c] Even if you were to find that Dr. Panzer was an independent contractor, the hospital would nevertheless be responsible for any negligence on his part if Deborah Irving brought her daughter to the hospital for hospital treatment and the Defendant hospital undertook to treat Jennifer for a charge and to furnish doctors and staff to render that treatment. “Defendant having undertaking [sic] to treat [Jennifer], which included both the necessary treatment and the furnishing of ... medicine [prescriptions] needed in that treatment, was under a duty to do so effectively. Patients entering the hospital through the Emergency Room, could properly assume that the treating doctors and staff of the hospital were acting on behalf of the hospital. Such patients are not bound by secret limitations as are contained in a private contract between the hospital and the doctor.”

      . As worded, portions of the requested instruction appear to be an impermissible comment on the evidence.


author: HERSEY, Judge.

text:
    Frank MIGLIORE and Anthony Picarelli, Appellants, v. The CITY OF LAUDERHILL, etc., Appellees.
    No. 81-1491.
    District Court of Appeal of Florida, Fourth District.
    June 2, 1982.
    Rehearing Denied July 1, 1982.

      Charles T. Whitelock of Feinstein & Whitelock, Fort Lauderdale, for appellants.
    Anthony J. Titone of Titone & Roarke, P. A., Lauderhill, for appellees.
   HERSEY, Judge.

Appellants, upon being dismissed from the police department of the City of Laud-erhill, filed petitions for writs of mandamus and in the alternative for injunctive relief.

Some familiarity with the facts which occasioned appellants’ dismissals is necessary to a resolution of the issues which are presented for our consideration by this appeal.

A convenience store clerk filed written complaints against each of the police officers. After appropriate written notice that an internal investigation had been instituted, appellants, with their attorneys, attended an interview at which they were offered immunity from criminal prosecution in exchange for their testimony concerning the complaints. Each invoked the Fifth Amendment and remained silent.

Subsequently, appellants received written notice to appear at separate times at the office of Internal Affairs. Each attended such a meeting and each was directed by the Chief of Police to submit to a polygraph examination. Each appellant initially indicated a willingness to cooperate but upon being denied the opportunity to confer with an attorney, refused to submit to a polygraph- test.

Appellants were then dismissed from the police department and advised of their rights to apply for a hearing before the City’s Civil Service Board. Neither appellant applied for a hearing. Rather, appellants sought to have a complaint review board empaneled pursuant to Section 112.-532(2), Florida Statutes (1981). Their requests were denied.

The vehicle chosen by appellants to obtain relief (reinstatement and back pay) from the orders of dismissal and to attempt to compel the empanelling of a complaint review board is mandamus. It has long been established that mandamus lies to compel the performance of a specific imperative ministerial duty. It is not an appropriate vehicle for review of a merely erroneous decision nor is it proper to mandate the doing (or undoing) of a discretionary act. Broward County v. Coral Ridge Properties, Inc., 408 So.2d 625 (Fla. 4th DCA 1981). Therefore, of the relief requested by appellants in the trial court, mandamus could apply, if at all, only to obtaining a hearing before the complaint review board.

Section 112.532(2), Florida Statutes (1981), provides:

(2) COMPLAINT REVIEW BOARDS. —A complaint review board shall be composed of three members: One member selected by the chief administrator of the agency; one member selected by the aggrieved officer; and a third member to be selected by the other two members. Agencies having more than 100 law enforcement officers shall utilize a five-member board with two members being selected by the administrator, two members being selected by the aggrieved officer, and a fifth member being selected by the other four members. The board members shall be law enforcement officers selected from any state, county, or municipal agency within the county.

However, neither the statute nor any other applicable law explicates the function of the board and there is nothing to indicate that a policeman has a right to have his dismissal reviewed by the board. In fact, the only statutory provision containing a possible explanation of the duties of the complaint review board is Section 112.533, which provides: “Receipt and processing of complaints. — Every agency employing law enforcement officers shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such employing agency from any person.”

The significant language of that section for our present purposes is contained in the final phrase “complaints received by such employing agency .. .. ” We interpret the statute as providing a law enforcement officer with a means of vindicating his actions and his reputation against unjust and unjustifiable claims made against him by persons outside the agency which employs him. We differ in that respect with the First District Court of Appeal which has construed the statute as establishing machinery for providing a forum with due process restraints in which a law enforcement officer may test the validity of his termination from service. West v. State, Department of Criminal Law Enforcement, 371 So.2d 107 (Fla. 1st DCA 1978). Our interpretation is strengthened by the fact that the statute does not itself expressly provide even those minimal due process constraints which would be required if continuation of employment, entitlement to back pay and related rights were to be placed at issue, and thus at jeopardy, by such a hearing. The First District engraft-ed due process prerequisites on the statute; we decline to do so.

Further, the fact that the board is required to be composed of law enforcement personnel belies the kind of impartiality and lack of bias that are ordinarily requisites of a panel established to determine substantive rights between the body politic (standing in the shoes of the taxpayer) and one of its own whose right to continue to represent and therefor to financially benefit from that body politic has been challenged. We do not mean to suggest that a complaint review board so constituted would necessarily act in a biased manner; only that it gives the impression of impropriety, which the legislature would obviously have avoided at all costs.

Finally, Subsection 112.532(4), Florida Statutes, mandates that the law enforcement officer faced with dismissal or certain other personnel actions shall receive notice together with the reasons for action to be taken against him. It would have been a simple matter, had the legislature intended that a complaint review board be available to the officer under such circumstances, to make reference to Subsection 112.532(2), Florida Statutes, in that regard. The lack of such a reference is but one additional factor that inclines us to the view that Sections 112.533 and 112.532(2) are to be utilized for disposition of complaints made by outside persons and are not intended to provide a forum for any issue other than whether a particular complaint has a basis in fact.

Under our interpretation of the purpose of Section 112.532 et seq., appellants would have been entitled to a hearing on the basis of the original written complaint against them. It is important to note, however, that appellants were discharged not on the basis of that complaint but on the basis of their refusal to obey the order of a superior officer. We are of the view that a complaint review board is not a forum available to appellants to test the validity of their discharge under those circumstances.

Even if we accepted the contrary view that a complaint review board is the appropriate forum in which appellants’ rights should have been determined here we would be required to affirm the trial court’s action for several other reasons.

The City of Lauderhill has disbanded its police department. Police protection is provided through the Sheriff’s Department by contract between the city and the county. Reinstatement has therefore been rendered impossible by subsequent events. While a hearing might still be available to vindicate the officers’ reputations, under appropriate circumstances, their remedy is damages and back pay but not reinstatement. Neither mandamus nor injunctive relief is available to require the performance of a futile act. State ex rel. Walker v. Best, 121 Fla. 304, 163 So. 696 (1935); Smith v. Davis, 22 Fla. 405 (1806). The proposition that requiring a hearing by a complaint review board at this late date would be a futile act is reinforced by our view, taken in an earlier case, that such a board may only recommend a course of action. Its decision is “not adjudicatory but advisory only.” City of Hallandale v. Inglima, 346 So.2d 84, 86 (Fla. 4th DCA 1977).

Appellants sought as an alternative to mandamus, injunctive relief, in reliance on Section 112.534. This section operates only to immediately restrain violation of the rights of police officers by compelling performance of the duties imposed by Sections 112.531 to 112.533. Thus, where an officer under investigation is being interrogated without benefit of counsel, the agency may be restrained from violating his right to counsel; if an officer is dismissed without notice, the agency can be compelled to provide the proper notice; and, if an officer is refused review by the complaint review board, under appropriate circumstances, the agency can be compelled to grant such review. We do not view this section as creating a right to injunctive relief in the form of reinstatement after discharge.

Appellants’ claims for reinstatement with back pay should have been brought before the appropriate administrative board. Here, a discharged, suspended or demoted employee of the city may appeal to the Civil Service Board for a hearing within fifteen calendar days from the time he was served with notice of the action to be taken. The Board, after an evidentiary hearing, may order reinstatement and back pay. The decision of the Board may be appealed by filing a petition for writ of certiorari with the circuit court. This is, of course, where the doctrine of exhaustion of administrative remedies comes into play. Appellants, having failed to avail themselves of the appropriate administrative remedy, cannot now obtain reinstatement or recover back pay. See Brooks v. School Board of Brevard County, 382 So.2d 422 (Fla. 5th DCA 1980).

Because our conclusions are dispositive of this appeal, we do not address appellants’ additional points. We affirm the final judgment denying appellants’ alternative petitions for mandamus or injunctive relief.

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


text:
    The TRIBUNE COMPANY, Petitioner, v. Honorable John A. RUDD, Circuit Judge of the Second Judicial Circuit, in and for Leon County, Florida, the Florida Commission On Ethics, and Ambrose Garner, Respondents.
    No. AL-84.
    District Court of Appeal of Florida, First District.
    June 2, 1982.

      Preston Moore, Marilyn J. Holifield, and Steven L. Brannock of Holland & Knight, Tampa, for petitioner.
    Jim Smith, Atty. Gen., Patricia R. Gleason, Asst. Atty. Gen., and Philip C. Clay-pool, Staff Atty., Tallahassee, for The Florida Com’n on Ethics.
    W. Reynolds Allen of Hogg, Allen, Ryce, Norton & Blue, P. A., Marvin E. Barkin of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, P. A., Tampa, for respondent Garner.
   MILLS, Judge.

The Tribune Company petitions for a writ of certiorari to review an order of Judge Rudd closing an injunction hearing to the press and public and preventing access to the pleadings and the record of that hearing.

This case arises from an investigation of Ambrose Garner by The Florida Commission on Ethics. The day before a scheduled hearing by the Commission, Garner sought an injunction against the Commission. A hearing on the injunction was set for 2:00 p. m. At approximately 10:00 a. m., Judge Rudd informed The Tribune’s reporter that the press would not be allowed in the hearing. At 1:55 p. m., a delay was requested by The Tribune and refused. Review in this court was sought which resulted in an order directing a hearing on closure in accordance with State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1977). Judge Rudd was informed of our decision, but only after the hearing had been completed. The Tribune renewed its petition seeking access to the file in the circuit court and a transcript of the hearing, as well as vacating any order entered at that hearing.

The last relief sought is beyond our jurisdiction in this proceeding. The press is permitted to challenge the closure of a hearing but this does not make it a party to the hearing nor allow it to seek review of the merits of the action taken at the hearing.

It is, of course, pointless to require further proceedings on the issue of access to the hearing itself. The pleadings and record are still sealed, however. A post-closure hearing is in order to determine the propriety of continued closure of these records. Gadsden County Times, Inc. v. Willis, 377 So.2d 817 (Fla. 1st DCA 1979). This hearing should inquire into the necessity of closure, availability of less restrictive alternatives, and whether closure achieves the desired objectives. Any order resulting from this proceeding may then be reviewed here, with a record sufficient for that purpose. Gadsden County Times, supra.

Judge Rudd did in fact enter an order explaining his reasons for closing the hearing. The merits of this order are not before us now.

The petition is granted and the respondent judge is directed to conduct proceedings in accordance with this opinion.

SHIVERS and WIGGINTON, JJ„ concur.


text:
    Dr. Ambrose GARNER, Appellant, v. The FLORIDA COMMISSION ON ETHICS, Appellee.
    No. AL-198.
    District Court of Appeal of Florida, First District.
    June 2, 1982.

      Trenam, Simmons, Kemker, Scharf, Bar-kin, Frye & O’Neill, P. A., and W. Reynolds Allen for Hogg, Allen, Ryce, Norton & Blue, P. A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Patricia R. Gleason, Asst. Atty. Gen., and Philip C. Clay-pool, Staff Atty., Tallahassee, for appellee.
   MILLS, Judge.

Gamer appeals the trial court’s denial of his motion for a preliminary injunction seeking to terminate proceedings before The Florida Commission on Ethics on two complaints against him and to enjoin the Commission from disclosing any of the materials connected with the proceedings. We affirm.

Two complaints were filed against Garner, President of Hillsborough Community College, alleging he misused his public position, contrary to Section 112.313(6), Florida Statutes (1981), by sexually harassing two female college employees. An additional allegation of the complaints charged that the acts of sexual harassment violated Section 112.313(2)(b), Florida Statutes (1981), which prohibits the solicitation or acceptance of gifts by public officers or employees.

After considering the complaints at an executive session, the Commission directed its staff to conduct an investigation of the charges. Following the investigation and submission of reports of investigation to the Commission, Gamer was advised that the Commission was going to hold a “hearing to determine manner of disposition of complaint” (probable cause hearing) pursuant to Florida Administrative Code Rule 34-5.-06.

Gamer filed a motion seeking to dismiss the complaints, arguing the conduct alleged was not within the Commission’s jurisdiction. Upon being informed the Commission would rule on his jurisdictional motions immediately before the scheduled probable cause hearing and then decide whether to proceed on the complaints, Gamer filed the injunction action in the Leon County Circuit Court.

The trial court refused to enjoin the Commission’s proceedings but did enter a stay enjoining the Commission from disclosing any material connected with the proceedings until Gamer’s appeal of his ruling could be resolved.

The trial court did not err in refusing to terminate the Commission’s proceedings.

First, the conduct alleged in the complaints, misuse of public position to sexually harass and to attempt to obtain sexual favors from subordinate employees, falls within the jurisdiction of the Commission. Section 112.313(6), Florida Statutes, prevents a public official or employee from using his or her official position to secure a special benefit, privilege, or exemption for himself or others. See Bruner v. Commission on Ethics, 384 So.2d 1339 (Fla. 1st DCA 1980), which notes the Commission has previously proceeded on complaints alleging sexual harassment. Garner seeks to transform these complaints into charges of sexual discrimination which would be within the jurisdiction of the Florida Human Relations Commission Act, Section 23.161, et seq. The complaints, however, allege sexual harassment, not sexual discrimination.

We find no merit in Garner’s contention that Section 112.313(6), Florida Statutes (1981), is unconstitutionally vague. See Tenney v. Commission on Ethics, 395 So.2d 1244 (Fla. 2nd DCA 1981).

Likewise, his argument that Title VII of the Civil Rights Act, 42 U.S.C., Section 2000e, et seq., may preempt the Commission’s jurisdiction is without merit. New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980).

There was no error in the manner in which the Commission conducted its investigations before deciding to hold a probable cause hearing. As noted in Tenney, there is no requirement that Garner be afforded a full-blown adversary type proceeding before a determination of probable cause. “[The statute] requires the Commission inform the public official of the complaint, and it mandates that the Commission undertake an investigation before deciding the question of probable cause.” Tenney, supra. The court in Tenney likened this investigation to that of a state attorney in preparing to file an information or a grand jury in determining whether to return an indictment. The Commission complied with its rules, the statutes, and the constitution in conducting its investigation.

Garner’s argument that the disclosure of information in the Commission files after the probable cause hearing regardless of the Commission’s finding, pursuant to Section 112.324(2), Florida Statutes (1981), violates his right to privacy is also without merit. The Florida Supreme Court held in a similar challenge to public disclosure that individual disclosural privacy rights did not outweigh the public’s right to see such reports. Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So.2d 633 (Fla.1980).

Although the Fifth Circuit Court of Appeal has determined there is a federal constitutional right of disclosural privacy, a balancing standard rather than the compelling state interest standard is used to measure the challenged action. Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981). In this case, we hold that the public’s right to see the Commission’s files outweighs Garner’s dis-closural privacy rights. The Legislature, by way of Section 112.324(2), Florida Statutes, and the people of Florida, through Article II, Section 8(f) of the Constitution, have mandated that the Commission’s reports on complaints be made public.

Garner’s last argument is that he has been denied equal protection because Section 112.324(3), Florida Statutes (1981), requires that complaints and investigatory materials concerning legislators and impeachable officers be kept confidential when no probable cause is found, but complaints and investigatory materials concerning lesser public officials like himself are disclosed regardless of the finding by the Commission. We are not persuaded by this argument.

The constitution controls over a statute when the two are in conflict. Gray v. Moss, 115 Fla. 701, 156 So. 262 (1934). Article II, Section 8(f) and (h) require that the Commission make public reports on all complaints. We are confident that the Commission will perform its duties as mandated by the constitution. Garner has not been denied equal protection. The protections and procedures provided by the Florida Constitution and statutes have been provided Garner.

The trial court’s order denying Garner’s petition for a preliminary injunction is affirmed.

SHIVERS and WIGGINTON, JJ., concur.