author: BOYD, Justice.

text:
    Richard VAGNER, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. 56201.
    Supreme Court of Florida.
    May 7, 1981.

      Murray M. Wadsworth and William H. Davis of Wadsworth & Davis, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for respondent.
   BOYD, Justice.

This cause is before the Court on petition of a state prisoner for writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(6), Fla.Const.

Petitioner Richard Vagner was convicted of aggravated assault, aggravated battery, and two counts of kidnapping. He was sentenced to four three-year prison terms, to be served concurrently. Vagner sought a writ of habeas corpus from the United States District Court for the Middle District of Florida, claiming that his privately retained attorney rendered ineffective legal assistance at trial. The court granted respondent’s motion to dismiss for failure to exhaust state remedies, reasoning that, “No recent decisions of the Florida Supreme Court ... indicate that that Court would be unwilling to reconsider the question of ineffective assistance of privately retained counsel in light of the recently established federal law on the question.” Vagner v. Wainwright, 473 F.Supp. 436, 439 (M.D.Fla. 1979).

Petitioner took an appeal of that decision to the Fifth Circuit Court of Appeals. Meanwhile, he filed the instant petition in this Court. We initially denied the petition on February 26, 1979. While our decision was pending on rehearing, the United States Court of Appeals remanded the federal cause to the district court for consideration of the merits. Vagner v. Wainwright, 597 F.2d 770 (5th Cir. 1979) (unpublished opinion).

On July 16, 1979, this Court appointed counsel for petitioner and set the case for oral argument on the merits of the petition on rehearing. In accordance with our decision to reconsider the merits of Vagner’s claim, the Fifth Circuit withdrew its prior order and affirmed the federal district court’s dismissal for failure to exhaust state remedies. Vagner v. Wainwright, 599 F.2d 1053 (5th Cir. 1979) (unpublished opinion).

Petitioner asserts that his lawyer at trial rendered inadequate representation. In support of this argument he points to a number of specific instances of inaction on the part of the lawyer. Petitioner was represented by privately retained counsel of his own selection. Before we reach the question of whether petitioner was denied the effective assistance of counsel and, if so, decide what relief he is entitled to, we must dispose of a preliminary question: whether the ineffectiveness or incompetence of privately retained counsel constitutes a basis for challenging a conviction in the courts of Florida.

The respondent agrees with petitioner that we should answer this threshold question in the affirmative. Respondent, in its efforts to have the federal habeas corpus action dismissed for failure to exhaust state remedies, argued that this Court would be willing to consider ineffectiveness of retained counsel as a ground for collateral attack on the judgment of conviction. In accordance with its position taken there, the respondent moved for rehearing of this cause and urges that we recede from Cappetta v. Wainwright, 203 So.2d 609 (Fla. 1967). In Cappetta, the Court said, “It has been held . .. that one may not contest the competency of privately retained counsel.” Id. at 610.

This statement from Cappetta has been the basis for numerous decisions of the district courts of appeal declining to consider the issue of competence of retained counsel in appeals from denials of post-conviction relief. Farmer v. State, 366 So.2d 1271 (Fla. 4th DCA), cert. denied, 378 So.2d 344 (Fla.1979); O’Quinn v. State, 364 So.2d 775 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979); Crespo v. State, 339 So.2d 697 (Fla. 3d DCA 1976); Staples v. State, 298 So.2d 545 (Fla. 2d DCA 1974); State v. Pinto, 273 So.2d 408 (Fla. 3d DCA), cert. dismissed, 283 So.2d 367 (Fla.1973); Humphries v. State, 232 So.2d 23 (Fla. 1st DCA), cert. denied, 237 So.2d 752 (Fla.1970); Belsky v. State, 231 So.2d 256 (Fla. 3d DCA 1970); Brown v. State, 223 So.2d 337 (Fla. 3d DCA), cert. denied, 229 So.2d 866 (Fla. 1969), cert. denied, 397 U.S. 969, 90 S.Ct. 1009, 25 L.Ed.2d 262 (1970); Byrd v. State, 220 So.2d 14 (Fla. 3d DCA 1969); Frizzell v. State, 213 So.2d 293 (Fla. 2d DCA 1968); Ford v. State, 210 So.2d 33 (Fla. 2d DCA 1968). The rule has also been applied when the issue of incompetence of retained counsel was raised on appeal of the judgment of conviction. Dickenson v. State, 261 So.2d 561 (Fla. 3d DCA 1972). The Court in Cappetta did not discuss the rationale for the rule there embraced; the holding derives from a number of pre-Cappetta decisions. Williams v. State, 177 So.2d 736 (Fla. 1st DCA 1965); Coyner v. State, 177 So.2d 715 (Fla. 3d DCA 1965); Todd v. State, 176 So.2d 344 (Fla. 2d DCA 1965); Amaral v. State, 171 So.2d 549 (Fla. 3d DCA 1965); Simpson v. State, 164 So.2d 224 (Fla. 3d DCA 1964); Everett v. State, 161 So.2d 714 (Fla. 3d DCA 1964).

In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the United States Supreme Court held that in a state prosecution involving the possibility of imposition of a penalty of death, the due process clause of the fourteenth amendment requires the provision of effective, as opposed to merely formal, representation by legal counsel. In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the Court held that the sixth amendment provides the accused in federal prosecutions a right to the effective assistance of counsel. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Court held that the sixth amendment right to counsel was incorporated into the due process clause and would apply to the states in all felony prosecutions. In Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969), the Court said, “Once it is decided that a particular Bill of Rights guarantee 'is ‘fundamental to the American scheme of justice,’ ... the same constitutional standards apply against both the State and Federal Governments.”

Thus it is clear that the accused in a state prosecution is entitled to the effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In light of this established constitutional principle, the Cappetta doctrine cannot now be viewed as stating that there is no such right. Its continuing vitality as a source of authority for the denial of consideration of claims of ineffectiveness of retained counsel must rest upon some other ground.

One asserted ground for the rule is that “the defendant by retaining his own counsel has waived any right to attack the competency of his counsel as a ground for post-conviction relief.” State v. Garmise, 382 So.2d 769, 771 (Fla. 3d DCA 1980), overruled, Blatch v. State, 389 So.2d 669 (Fla. 3d DCA 1980). This waiver rationale, however, breaks down when analyzed in light of the fact that persons accused of crime usually are not in a position to evaluate in advance the skills of lawyers available for their selection and retention. See United States v. Marshall, 488 F.2d 1169 (9th Cir. 1973). Furthermore, the United States Supreme Court has held that a waiver of a fundamental right in the context of a criminal prosecution must be knowing and intelligent, judged by a strict standard. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1972). Judged by such a strict standard, it cannot be said that one who retains counsel of his own choosing has waived the right to effective assistance of counsel by doing so.

Other decisions applying the Cappetta doctrine suggest a different rationale for the rule. When retained counsel is incompetent and thereby delivers ineffective advocacy, so the argument goes, there is no court ruling or decision, no state statute or procedural rule that can be said to have resulted in the denial of the right. There is no state complicity in the circumstances resulting in the denial. Where counsel is court-appointed and paid by the state, on the other hand, there is state involvement in any incompetence later exhibited.

This “state action” rationale was utilized by the United States Court of Appeals, Fifth Circuit, in Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975). There the court fashioned a dichotomous test distinguishing retained from appointed counsel and distinguishing two standards of competence depending on whether the sixth amendment or the due process clause is said to have been violated. On the authority of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), we reject any “state action” rationale for distinguishing claims of ineffectiveness of retained counsel from those relating to appointed counsel.

In Cuyler v. Sullivan, a state prisoner sought habeas corpus relief in federal district court on the ground that his sixth amendment rights were violated because his retained trial counsel had represented conflicting interests. In the course of deciding whether a state trial judge must inquire into the propriety of multiple representation in the absence of an objection and whether the mere possibility of a conflict of interest constitutes deprivation of the right to counsel, the Court considered the state’s contention that the performance of retained defense counsel cannot provide the basis for relief because it does not involve state action.

“A state prisoner,” the Court said, “can win a federal writ of habeas corpus only upon a showing that the state participated in the denial of a fundamental right protected by the Fourteenth Amendment.” Id. 100 S.Ct. at 1715. The sixth amendment right to counsel is fundamental, but the prisoner’s assertions of conflict of interest did not “allege that state officials knew or should have known that his lawyers had a conflict of interest. Thus, we must decide whether the failure of retained counsel to provide adequate representation can render a trial so fundamentally unfair as to violate the Fourteenth Amendment.” Id. at 1715.

In answering this question, the Court discussed its past decisions which recognize that “a state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. . .. When a State obtains a criminal conviction through such a trial it is the State that unconstitutionally deprives the defendant of his liberty.” Id. at 1715 (citations omitted). The sixth amendment right to counsel is abridged not only by failing to provide counsel to those who can afford none, but also by, for example, “court procedures that restrict a lawyer’s tactical decision to put the defendant on the stand.. .. ” Id. at 1716. “Thus, the Sixth Amendment does more than require the States to appoint counsel for indigent defendants. The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance.” Id. at 1716.

Based on this analysis, the Court concluded:

A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. We may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused. But experience teaches that, in some cases, retained counsel will not provide adequate representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. Since the State’s conduct of a criminal trial itself implicates the State in the defendant s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.

Id. at 1716 (footnotes omitted).

We hold, therefore, that claims of denial of the effective assistance of counsel based on inadequacy or incompetence of retained counsel are cognizable as grounds for challenging convictions on appeal and collaterally, to the same extent as are such claims pertaining to appointed counsel. We hold further that the same standard for evaluating such claims shall apply to eases of retained counsel as apply to cases of appointed counsel.

That standard, as this Court has said, “is not ‘sham and mockery,’ but whether counsel was reasonably likely to render and did render reasonably effective counsel based on the totality of the circumstances.” Meeks v. State, 382 So.2d 673 (Fla.1980). This verbal expression of the standard has long been utilized by the Fifth Circuit Court of Appeals. E. g., Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974); Brown v. Beto, 377 F.2d 950 (5th Cir. 1967); McKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961).

In Knight v. State, 394 So.2d 997 (Fla. 1981), we set forth the four basic principles or standards which are to be used to determine whether a government-appointed attorney has provided reasonably effective assistance of counsel to his client. These standards were established and fully explained in United States v. DeCoster (DeCoster III), 199 App.D.C. 359, 624 F.2d 196 (D.C.Cir.1979) (en banc). These principles and standards now also apply to privately retained counsel and should be used to determine whether privately retained attorneys have provided reasonably effective counsel.

Accordingly, we discharge the writ without prejudice to petitioner’s right to file a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

It is so ordered.

ADKINS, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., concurs in result only.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Steven GABAL, Appellee.
    No. 58109.
    Supreme Court of Florida.
    May 7, 1981.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellant.
    Geoffrey C. Fleck of Weiner, Robbins, Tunkey & Ross, Miami, for appellee.
   PER CURIAM.

This cause is before us on direct appeal from an order of the trial court granting appellee’s motion to dismiss and holding section 893.135, Florida Statutes (1979), unconstitutional. Art. V, § 3(b)(1), Florida Constitution (1972).

The State asserts that the trial court’s order in this case differs in no material respect from the trial court’s order which we reversed in State v. Benitez, 395 So.2d 514 (Fla.1981). Appellee, in his response to the State’s brief, states:

1. By the decision in State v. Benitez, 395 So.2d 514 (Fla.1981), this Court has decided the constitutional issues presented by this case. The Appellee, therefore, will file no brief.

Accordingly, the order of the Circuit Court of the Eleventh Judicial Circuit granting appellee’s motion to dismiss and declaring section 893.135, Florida Statutes (1979), unconstitutional is reversed, and the cause is remanded for further proceedings not inconsistent with State v. Benitez.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Billy D. SHANNON, Respondent.
    No. 59247.
    Supreme Court of Florida.
    May 7, 1981.
    John F. Harkness, Jr., Executive Director, and John A. Boggs, Asst. Staff Counsel, Tallahassee, David G. McGunegle, Bar Counsel and Branch Staff Counsel, Orlando, and Charles Tindell, Chairman, Seventh Judicial Circuit Grievance Committee “C”, Daytona Beach, for complainant.
    Billy D. Shannon, in pro. per.
   PER CURIAM.

This attorney-discipline case is before the Court on the complaint of The Florida Bar, the report of a referee, and respondent’s petition for review. Fla.Bar Integr. Rule, art. XI, Rule 11.09; Art. V, § 15, Fla.Const.

The Bar’s complaint alleged various facts and accused respondent Billy D. Shannon of violating the Code of Professional Responsibility, Disciplinary Rules 6-101(A)(3), 7-101(A)(1), 7-101(A)(2), and 7-101(A)(3). The referee made findings of fact and recommended that respondent be found guilty of violating these four disciplinary rules.

Respondent represented Mr. and Mrs. Roland E. Barabe in connection with their purchase of a home. Respondent gave them a title opinion and was paid a fee. Subsequently, Mr. and Mrs. Barabe wished to refinance their home in order to raise funds with which to pay some medical bills. The lender initially agreed to increase the mortgage loan but later withdrew the commitment due to a title defect. Mr. Shannon admits that he mistakenly overlooked the defect when advising the Barabes in connection with the purchase of their home.

The defect had to do with the lack of two attesting witnesses on the deed from previous owners who had conveyed the property to the Barabes’ seller. Mr. Shannon agreed to have the defect cleared at his own expense. He first attempted to have the previous owners, who lived in California, execute a corrected deed. He thought this approach would solve the problem, and some time elapsed before he learned that the previous owners would not sign the corrected deed. Mr. Shannon then advised Mr. Barabe that he would have to institute a quiet title action and Mr. Barabe directed that he do so. Due to multiple professional and family problems, however, Mr. Shannon delayed filing the action and the Barabes sought other counsel.

By the time the title defect was cleared, by way of the filing of a quiet title action by the Barabes’ new lawyer, interest rates and closing costs had increased so that for the same expanded mortgage loan, Mr. and Mrs. Barabe would have had to commit themselves to a larger monthly payment. The larger payment was beyond their budget, so that in order to pay their medical bills they had to sell the house and seek more affordable living accommodations.

Based on these facts, we approve the recommended findings of the referee that Mr. Shannon neglected a legal matter entrusted to him, DR 6-101(A)(3); intentionally failed to seek the lawful objectives of his client through reasonably available means, DR 7-101(A)(l); failed to carry out a contract of employment with a client for professional services, DR 7-101(A)(2); and prejudiced or damaged his client during the course of the professional relationship, DR 7-101(A)(3).

This is a case of neglect without any wrongful intent or motive. Respondent has no record of past professional misconduct.

Based on the professional failure demonstrated by the facts of this case, we conclude that respondent Billy D. Shannon should be publicly reprimanded. The public reprimand will be administered by the publications of this opinion.

We also assess the costs of this proceeding against the respondent in the amount of $326.36.

It is so ordered.

BOYD, Acting C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author: DANAHY, Judge.

text:
    Dennis NALES, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Cecil Cronan, Appellees.
    No. 79-1542.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.
    As Modified on Denial of Rehearing May 27, 1981.
    David B. Webster, Tampa, for appellant.
    George A. McKendree, Miller, McKendree & Somers, Tampa, for appellees.
   DANAHY, Judge.

No Florida court has previously addressed the question confronting us in this case, nor have we found, after extensive research, any decision from another jurisdiction or other authority suggesting an answer. The question is whether a person injured in an automobile accident may recover punitive damages even though he is subject to Florida’s no-fault law and does not cross the no-fault “threshold” specified in that law for recovery of compensatory damages for pain and suffering and other noneconomic losses. We answer that question in the affirmative.

Plaintiff/appellant (Nales) was injured when a pickup truck driven by defendant/appellee Cecil Cronan (Cronan) crashed into the rear of Nales’ automobile, which had stopped at a traffic light. Evidence indicated that Cronan was intoxicated at the time of the accident. Both vehicles were covered vehicles for purposes of Florida’s no-fault law.

Nales asserted that he suffered a permanent injury, which would meet one of the threshold requirements under no-fault. He brought this suit for punitive as well as compensatory damages. Over Nales’ objection, the trial judge instructed the jury that it must find that Nales suffered a permanent injury in order to award him compensatory damages or punitive damages. The jury returned a verdict for Cronan and Na-les appeals. We reverse.

Nales constructs his argument on the initial premise that punitive damages are recoverable in automobile accident cases, and specifically may be awarded where voluntary intoxication is involved. That is indeed the general rule. Ingram v. Pettit, 340 So.2d 922 (Fla.1976); Note, Punitive Damages and Their Possible Application in Automobile Accident Litigation, 46 Va.L.Rev. 1036, 1047 (1960); Annot., 62 A.L.R.2d 813 (1958). Nales advances the additional propositions that there is nothing in the no-fault law of Florida which limits a plaintiff’s right to punitive damages; that nothing in Ingram v. Pettit, supra, connects punitive damages to the statutory concept of no-fault; and that an award of compensatory damages is not required to support an award of punitive damages. Nales urges us to agree with his conclusion from these premises that punitive damages are recoverable in an automobile accident case notwithstanding that the plaintiff is subject to Florida’s no-fault law and does not meet the statutory threshold criteria. With some added reasoning of our own, we are compelled to agree with that conclusion.

The exemption from tort liability provided in our no-fault law extends to damages for pain and suffering, mental anguish, and inconvenience, in those cases where the plaintiff fails to meet the statutory threshold. Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974). Nales is certainly correct that the law contains no reference to punitive damages in describing the no-fault parameters. It has never contained any such reference except by the addition in 1977 of subsection (4), providing that in an action brought against an automobile liability insurer for damages in excess of its policy limits, no claim for punitive damages shall be allowed. That amendment certainly indicates legislative awareness of the doctrine of punitive damages. The legislature must also be presumed to be aware that punitive damages have been specifically recoverable in Florida in automobile accident cases for a number of years. E. g., Jacksonville Frosted Foods, Inc. v. Haigler, 224 So.2d 437 (Fla. 1st DCA 1969). In any event, the Florida no-fault law is a statutory limitation on an injured party’s common law right of action in tort and, as such, it must be strictly construed to conform the statute as nearly as possible to the common law, and as so as not to displace the common law any further than is clearly necessary. Snowden v. Sprouse, 375 So.2d 901 (Fla. 1st DCA 1979).

The doctrine of punitive damages is a doctrine of common law. Florida East Coast Railway v. McRoberts, 111 Fla. 278, 149 So. 631 (1933); Note, supra, 46 Va.L. Rev. 1036 (1960). In the McRoberts case, our supreme court described punitive damages as follows:

Punitive damages are damages over and above such sum as will compensate a person for his actual loss. And the law permits their imposition, in proper cases, at the discretion of the jury, not because the party injured is entitled under the law to recover punitive damages as a matter of right, but as punishment to the wrongdoer, for the purpose of deterring him and others committing similar violations of the law from such wrongdoing in the future. Therefore exemplary damages are, as it has been said, allowed by the law, not as a matter of compensation to the injured party, but because of the quality of the wrong done by the tort-feasor, from which the injured party suf fers. (Citation omitted; emphasis added.)

Id. at 280, 149 So. at 632.

The thrust of Cronan’s argument is that an award of punitive damages must be supported by an underlying award of compensatory damages and, therefore, if a plaintiff is not entitled to compensatory damages because of his failure to meet the no-fault threshold, he cannot recover punitive damages. We think our supreme court disposed of his argument in Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1976). In that case the court held that the establishment of liability for a breach of duty will support an otherwise valid punitive damages award even in the absence of financial loss for which compensatory damages would be appropriate. Amplifying that statement, the court said that a punitive damages award need only bear some relationship to the fact of the injury or invasion of legal right and the cause thereof. The First District Court of Appeal recently relied on the Lassitter case in affirming an award of punitive damages for wrongful conversion where there was no award of compensatory damages. Eglin Federal Credit Union v. Curfman, 386 So.2d 860 (Fla. 1st DCA 1980). The court said:

Appellant contends that the failure of the jury to assess any monetary sum for compensatory damages precludes the award of punitive damages. We disagree. The special verdict form returned by the jury contained its express finding that “Eglin Federal Credit Union committed conversion of Joseph E. Curfman’s property.” We are of the opinion that this finding satisfies the requirements of Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977)

Our supreme court has made it clear that the subject matter jurisdiction of the trial court does not hinge on a determination that the plaintiff crossed the no-fault threshold. In this case, therefore, there was subject matter jurisdiction for an award of punitive damages notwithstanding Nales’ failure to meet the statutory threshold requirements. Calhoun v. New Hampshire Insurance Co., 354 So.2d 882 (Fla.1978).

We agree with the decision of our sister court in the Curfman case and hold that where a plaintiff in an automobile accident case is denied recovery of compensatory damages because of the factfinder’s determination that the plaintiff did not cross the no-fault threshold, an award of punitive damages is nevertheless allowable if otherwise appropriate. We are aware of our statement in Flood v. Ware, 363 So.2d 1101 (Fla.2d DCA 1978), that a jury may not order a defendant to pay punitive damages if it does not find him liable for either compensatory or nominal damages. Where a jury specifically finds that the plaintiff suffered an injury as the result of an automobile accident and denies an award of compensatory damages only because of the defendant’s tort immunity under no-fault, we believe the requirement expressed in the Flood case has been met.

REVERSED AND REMANDED for a new trial on the issue of punitive damages.

HOBSON, Acting C. J., and CAMPBELL, J., concur.

      . § 627.730-741, Fla.Stat. (1979) (more correctly styled the “Florida Automobile Reparations Reform Act”).

      . § 627.737(2), Fla.Stat. (1979).

      . § 627.737(2)(b), Fla.Stat. (1979).

      . Ch. 77-468, § 35, Laws of Fla.


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

text:
    In re 36' UNIFLITE, the “PIONEER I”, REGISTRATION NO. FL 7894 AH. Max GARCIA, Owner of the “Pioneer I”, Appellant, v. STATE of Florida and PONCE INLET POLICE DEPARTMENT, Appellees.
    No. 80-88.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.
    Rehearing Denied May 6, 1981.

      Arthur M. Garel of Ezzo, Garel & Saylor, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellees.
   FRANK D. UPCHURCH, Jr., J.

This is an appeal from an order of forfeiture of a boat. We reverse.

The issue is whether an owner of a boat that is used for illegal trafficking of drugs should have his boat forfeited even though he had no knowledge of the illegal activities, which were conducted without his consent and to which he was not privy. The forfeiture act is found in sections 943.41-943.44, Florida Statutes (1979), and we are most concerned with a portion of section 943.43 which appellant urges allows him to avoid forfeiture of his boat. We have underlined the “exception” portion of the statute to point out the legal issue in this case: Forfeiture of vessel, motor vehicle, or aircraft; exceptions. — Any vessel, motor vehicle, or aircraft which has been or is being used in violation of any provision of s. 943.42 or in, upon, or by means of which, any violation of said section has taken or is taking place shall be seized and may be forfeited. No vessel, motor vehicle, or aircraft used by any person as a common carrier in the transaction of business as a common carrier nor any other vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss. 943.41-943.44. unless the owner or person legally in charge of such vessel, motor vehicle, or aircraft was at the time of the alleged illegal act a consenting party or privy thereto. No vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss. 943.41-943.44 by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, motor vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of this state or any political subdivision thereof, any other state, or the United States.

The stipulated facts are that appellant left his boat with a broker to either sell or rent it. At the time of the seizure the boat was rented to Gustavo Flores who had rented it ostensibly for a trip to the Bahamas and had apparently allowed another party to operate it. The boat was rented in Miami and seized in Ponce Inlet. The boat was seized laden with more than one hundred pounds of marijuana. The parties have agreed the boat was being used for illegal drug trafficking when it was seized. Appellant urged that he was an innocent party to the whole affair and his boat should not be taken from him. He was apparently in Spain at the time his agent, the broker, rented the boat to Flores and did not have any knowledge to whom or for what purpose the boat was rented. There is no evidence in the record that the appellant was involved in the particular illegal activities for which the boat was seized, although the state was understandably curious as to how a person whose only acknowledged income was $150.00 per week could afford such a vessel and his trips abroad. But all concede that for the purposes of this case, he stands as an innocent owner of the boat.

The Florida Uniform Contraband Transportation Act, sections 943.41-943.44, Florida Statutes (1979), was substantially patterned after similar federal legislation. Griffis v. State, 356 So.2d 297 (Fla.1978). The federal courts have held that the fact that the owner of the property was without knowledge of the illegal use and did not in any way consent to or approve of such use would not prevent confiscation. United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897 (8th Cir.1977); United States v. One 1967 Cadillac Coupe ElDorado, 415 F.2d 647 (9th Cir.1969). The federal courts have even held that the holder of a security interest in a vehicle used for transportation of marijuana was not entitled to remission of the forfeiture because the holder of the security interest was innocent. General Finance Corp. of Fla. South v. United States, 333 F.2d 681 (5th Cir.1964). See also United States v. One (1) 1950 Burger Yacht, Fla. Reg. #FL5163BE, 395 F.Supp. 802 (S.D.Fla.1975).

The Florida Act, however, contains a material difference from the federal law. Section 943.44(1), Florida Statutes (1979), provides in part: “[T]he provisions of this section shall not apply to innocent parties or destroy any valid lien....” This language does not appear in the federal law. We conclude that the Florida Legislature by adding this language intended to exclude the harsh results of the federal law. The forfeiture provision is penal in nature and should be strictly construed. United States v. Campos-Serrano, 404 U. S. 293, 92 S.Ct. 471, 39 L.Ed.2d 457 (1971). See also McCaskill v. Union Naval Stores Co., 59 Fla. 571, 52 So. 961 (1910). This intent is emphasized by a clarification of section 943.43, Florida Statutes (Supp.1980), when it was amended in the 1980 session of the Legislature to clearly exempt property of an innocent owner from confiscation but to place the burden on such owner to establish that he was, in fact, unaware of the illegal use.

Both the Second and Third District Courts of Appeal have held that the forfeiture provision does not apply to property of innocent owners or lienholders. See Metropolitan Dade County v. Garcia, 375 So.2d 45 (Fla.3d DCA 1979); In re 1975 Grand Prix, Fla. Tag No. 1W-354912, Vin. No. 2K57S5A150910, 374 So.2d 1119 (Fla.2d DCA 1979).

In Griffis, the Florida Supreme Court, noted that the targets of vehicle forfeitures intended by the legislature are the “narcotics peddler” and “drug trafficker.” Penalizing an owner or his agent may possibly induce the owner to use greater care in transferring possession of his property; however, the forfeiture, under the federal law, is imposed on the owner who uses great care as well as he who naively or carelessly entrusts his car. To impose liability on the innocent in an attempt to control the guilty would damage legitimate business, and we seriously doubt that it could be justified by any appreciable reduction in illegal narcotic traffic.

The order of forfeiture is reversed and this cause is remanded for entry of an order releasing said vessel to appellant.

DAUKSCH, C.J., and SHARP, J., concur.

      . 49 U.S.C. § 782 (1979). Seizure and forfeiture. Any vessel, vehicle, or aircraft which has been or is being used in violation of any provision of section 781 of this title, or in, upon, or by means of which any violation of said section has taken or is taking place, shall be seized and forfeited: Provided, That no vessel, vehicle, or aircraft used by any person as a common carrier in the transaction of business as such common carrier shall be forfeited under the provisions of this chapter unless it shall appear that (1) in the case of a railway car or engine, the owner, or (2) in the case of any other such vessel, vehicle, or aircraft, the owner or the master of such vessel or the owner or conductor, driver, pilot, or other person in charge of such vehicle or aircraft was at the time of alleged illegal act a consenting party or privy thereto: Provided further. That no vessel, vehicle, or aircraft shall be forfeited under the provisions of this chapter by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States, or of any State.

      . Section 943.44(1) provides in full:
      The State Attorney within whose jurisdiction the vessel, motor vehicle, or aircraft has been seized because of its use or attempted use in violation of any provisions of law dealing with contraband as herein defined may proceed against the vessel, motor vehicle, or aircraft by rule to show cause in the circuit court within the jurisdiction in which the offense occurred and may have such vessel, motor vehicle, or aircraft forfeited to the use of, or to be sold by, the law enforcement agency making the seizure, upon producing due proof that the vessel, motor vehicle, or aircraft was being used in violation of the provisions of said law. However, the provisions of this section shall not apply to innocent parties or destroy any valid lien or retain title contract on vessels, motor vehicles, or aircraft as defined by existing registration law, and the notation of a lien upon the face of the certificate of title shall be deemed prima facie valid. The seizing agency may release said vessel, motor vehicle, or aircraft to the innocent party or lienholder upon the filing of a sworn affidavit by said innocent party or lienholder that he had no knowledge of the alleged violation causing such seizure and upon then producing a valid certificate of title.

      . No property shall be forfeited under the provisions of sections 943.41-943.44, if the owner of such property establishes that he neither knew nor should have known after a reasonable inquiry that such property was being employed or likely to be employed in criminal activity. § 943.43(2), Fla.Stat. (Supp.1980).


author: MOORE, Judge.

text:
    STATE of Florida, Appellant, v. Joel Leonard SCHWARTZ, Appellee.
    No. 80-942.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Rehearing Denied June 10, 1981.

      Michael J. Satz, State Atty., Seventeenth Judicial Circuit, and Paul H. Zacks, Asst. State Atty., Fort Lauderdale, for appellant.
    Alan H. Schreiber, Public Defender, Seventeenth Judicial Circuit and Gary Kollin, Asst. Public Defender, Fort Lauderdale, for appellee.
   MOORE, Judge.

We reverse an order suppressing physical evidence.

Undercover Officer Gibbons and a confidential informant entered the defendant’s home at the latter’s invitation to arrange a purchase of illegal drugs. After setting the terms, Gibbons and the informant went to Gibbons’ automobile to get the money for the purchase. The door to the residence was left ajar. Utilizing a pre-arranged signal, Gibbons and two other officers returned to the residence to arrest the defendant and a co-defendant, whereupon the defendant attempted to stop their entry. The defendants were arrested and the contraband was seized.

The trial court found that this conduct violated the Florida “knock and announce” statute, Section 901.19(1), Florida Statutes (1979), which provides:

901.19 Right of officer to break into building

(1) If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

As Judge Anstead noted in his concurring opinion in Lawrence v. State, 388 So.2d 1250 (Fla. 4th DCA 1980), this Court has had substantial difficulty reconciling several previous decisions which we have rendered involving similar factual situations. See, Hansen v. State, 372 So.2d 1003 (Fla. 4th DCA 1979); State v. Roman, 309 So.2d 12 (Fla. 4th DCA 1975); State v. Yenke, 288 So.2d 531 (Fla. 4th DCA 1974), cert. denied, 295 So.2d 303 (Fla.1974); and State v. Collier, 270 So.2d 451 (Fla. 4th DCA 1972). We find that the knock and announce statute does not apply in this case because Gibbons had an implied invitation to return to the residence. See, Lawrence v. State, supra, 388 So.2d at 1252. To the extent that the above cases hold to the contrary, we recede from them.

This holding is consistent with the purpose of the knock and announce rule:

[T]he knock and announce rule was designed to safeguard the integrity and privacy of one’s home as well as to promote the safety of all concerned in situations where a police officer must “break open” some part of a dwelling in order to effectuate an arrest or serve a warrant. State v. Manning, 396 So.2d 219 (Fla. 4th DCA 1981).

See also, Benefield v. State, 160 So.2d 706 (Fla.1964); Koptyra v. State, 172 So.2d 628 (Fla. 2nd DCA 1965).

Thus, Fourth Amendment privacy considerations are relevant in construing the knock and announce statute. Accordingly we adopt the well reasoned, concurring opinion by Judge Anstead in Lawrence, supra.

I agree completely with Judge Downey’s opinion. This court has had substantial difficulty reconciling several previous decisions we have rendered involving similar factual situations. See Hansen v. State, 372 So.2d 1003 (Fla. 4th DCA 1979). In my view once the defendants admitted the undercover police officers to their premises and proceeded to openly engage in criminal conduct in the officers’ presence they could not thereafter claim any violation of their reasonable expectation of privacy under the Fourth Amendment if one of the officers left and returned, alone or with other officers, and effected their arrest. Under such circumstances the defendants have waived any privacy claim by disclosing the contraband and engaging in criminal conduct in the presence of the officers, who could have effected the arrest of the defendants inside the premises at any time. The fact that one officer left and returned on a ruse may have benefited the officers by allowing them the added protection of other armed officers to assist in the arrest, but such conduct did not constitute an additional intrusion into the defendants’ premises since such intrusion had already been lawfully accomplished by the undercover officers. . I think the officers’ conduct in this case was eminently reasonable and would recede from any implication to the contrary contained in Hansen v. State, supra, and the cases cited therein. Also see Koptyra v. State, 172 So.2d 628 (Fla. 2nd DCA 1965). Lawrence, supra, [388 So.2d] at 1253.

An officer who enters a defendant’s premises lawfully and who temporarily leaves the premises solely for the purpose of obtaining the funds to consummate a transaction has an implied invitation to return without the necessity of knocking and announcing his identity and purpose. The fact that he enlists the aid of other officers does no injustice to the statute or the constitution. It neither adds to, nor detracts from, the reasonableness of the reentry.

Furthermore, the occupants were expecting the return of the police officer with the money for the transaction. Thus, there could be no danger of violence to the police or the occupants from an unexpected intrusion.

Moreover, we have considered Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) and find it distinguishable. The United States Supreme Court held that the Fourth Amendment prohibits police from entering a suspect’s home without a warrant and without consent to effect an arrest of the suspect. The implied invitation here distinguishes this case from Pay-ton.

The order of suppression, therefore, is reversed.

REVERSED.

LETTS, C. J., and ANSTEAD, J., concur.


text:
    FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Idalberto ORTEGA, Appellee.
    No. 80-885.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Demos, Carter & Dougherty and James F. Dougherty, II, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Charles Lipcon, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Kokay v. South Carolina Insurance Co., 380 So.2d 489 (Fla.3d DCA 1980).


author: DOWNEY, Judge. ANSTEAD, Judge,

text:
    STATE of Florida DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Alan ZIMMER, Appellee.
    No. 79-1708.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Rehearing Granted as to Certification of Question May 21, 1981.
    Enoch J. Whitney, Gen. Counsel, and Michael J. Alderman, Asst. Gen. Counsel, Tallahassee, for appellant.
    Howard L. Greitzer, Lyons & Sanders, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

This is an appeal from an order of the Career Service Commission of the State of Florida reversing an order of the Florida Department of Highway Safety and Motor Vehicles that dismissed appellee, Alan Zim-mer, from the Florida Highway Patrol. Upon consideration of the briefs and record furnished this court, we conclude that the order of the Career Service Commission should be reversed.

Zimmer was an officer in the Florida Highway Patrol, having achieved permanent status with that agency. The issue involved in this case arose out of a personnel investigation ordered by the Director of the Division of Florida Highway Patrol, Colonel J. E. Beach, when it was discovered that money and property belonging to an accident victim was missing from the evidence locker in the Fort Lauderdale Highway Patrol station. During the course of the investigation all employees of the station were interviewed, including Zimmer. The interviews disclosed some discrepancies in Zimmer’s story regarding his having won some money at the race track. Thus, two persons were asked to submit to a polygraph examination; one person submitted. However, Zimmer refused to submit unless he was officially charged with a crime, although he had been ordered by the Chief Investigator and by Colonel Beach to submit to the examination. Zimmer was thereupon notified by Colonel Beach that he was dismissed from the agency for failure to obey an order of a superior officer, willful violation of rules and regulations, and refusal to voluntarily cooperate in an official investigation. Zimmer appealed his dismissal to the Career Service Commission, which, in due course, reversed the agency action and ordered Zimmer reinstated. The Commission relied heavily upon a 1975 Opinion of the Attorney General of Florida (AGO 075-94), which advised, essentially, that, because there is no express statute or rule authorizing the agency to dismiss a career service employee for refusal to undergo a polygraph examination, the agency lacks such authority.

In this court Zimmer argues in his brief that:

In the absence of statute or valid implementing rule specifically authorizing dismissal of a Career Service employee, such employee may not be discharged for failing to answer questions or allegations or refusing to submit to a polygraph examination. (Emphasis supplied.)

That argument, of course, finds support in the Attorney General’s Opinion cited above. However, we find the argument unacceptable.

Upon becoming a Florida Highway Patrol Officer Zimmer took an oath to render strict obedience to his superiors in the Patrol and to observe and abide by all the orders and regulations prescribed by his superiors for the government and administration of the Patrol. Chapter 321, Florida Statutes (1977), creates the Florida Highway Patrol as a branch of the Department of Highway Safety and Motor Vehicles and authorizes that department to promulgate rules and regulations by which its personnel shall be examined, employed, trained, and discharged. Florida Administrative Code Rule 15-1.03 provides that the Chief Investigator is responsible for supervising activities of the employees and assigned investigations. Responsibility for personnel investigation is also assigned to regional commanders.

With regard to the rights of a Career Service Employee Section 110.061(1), Florida Statutes (1977), provides that “Any employee who has permanent status in the Career Service may only be dismissed for cause by the agency or officer by whom he is employed.” Section 110.061(2)(a) requires the Department of Administration to establish rules and procedures for the suspension, reduction in pay, transfer, layoff, demotion, and dismissal of employees in the Career Service. Pursuant to this scheme, Florida Administrative Code Rule 22A-7.10(7)(b) permits an agency head to dismiss a Career Service employee for “just cause,” which term includes, but is not limited to, negligence, inefficiency, or inability to perform assigned duties, repeated substandard performance of assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drunkenness, or conviction of any crime involving moral turpitude.

If Zimmer’s position is correct, he was not even required to answer any questions relating to the investigation because he is a Career Service employee and there is no statute or rule which expressly requires him to do so. That is Zimmer’s position in his brief and the Attorney General’s in Attorney General Opinion 075-94. In the case at bar, Zimmer did answer questions during his two interviews, but he refused to submit to the polygraph examination.

In our judgment Zimmer’s contention should be rejected by this court. We find incredible the suggestion that a patrol officer is not required to answer questions directed to him during a personnel investigation in the face of the oath taken by patrol officers and the authority contained in Chapter 321. Implicit in the statute providing for the creation of the patrol agency and the promulgation of rules and regulations by which personnel are to be investigated and discharged is a delegation of authority to appoint agency officers to interview and interrogate the agency’s personnel in the course of agency investigations. It follows that requiring such personnel to undergo a polygraph examination during the course of agency investigations is also authorized.

This issue is one of first impression in Florida but not in the nation. Other courts have held that a police officer may be required to submit to a polygraph examination under appropriate conditions. Those cases generally hold that there is no constitutional problem involved in requiring a public employee to submit to a polygraph examination so long as the employee is not coerced into waiving his constitutional right against self incrimination. In this case the appellee was advised the results of the examination were to be used only for the purpose of the interdepartmental investigation. Furthermore, (absent a stipulation to the contrary) polygraph results are not admissible in evidence in Florida. Kaminski v. State, 63 So.2d 389 (Fla.1953).

In the most recent decisions from the Supreme Court of the United States concerning this issue, Uniformed Sanitation Men Association, Inc. v. Commissioner of Sanitation of the City of New York, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), and Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the Court recognized the right of an appointing authority to discharge public employees for refusal to account for their performances of their public trust after proper proceedings which do not involve an attempt to coerce a relinquishment of constitutional rights.

In Grabinger v. Conlisk, 320 F.Supp. 1213 (N.D.Ill.1970), the court ruled:

It is not the law that a public employer, in the course of a disciplinary hearing into an employee’s conduct, may not require an employee to disclose information reasonably related to his fitness for continued employment. The net of Garrity [385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562], Broderick [392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082] and Uniformed Sanitation Men [392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089] is that if a public employee refuses to testify as to a matter concerning which his employer is entitled to inquire, he may be discharged for insubordination, but if he does testify his answers may not be used against him in a subsequent criminal proceeding. The plaintiffs, therefore, were not compelled to waive their constitutional right against self-incrimination as a condition to their continued public employment. 320 F.Supp. at 1217-1218.

The court concluded that;

... the mere requirement of submission by a police officer to a polygraph examination during the course of a preliminary investigation concerning complaints about the officer’s official conduct does not violate his guarantee to procedural due process. 320 F.Supp. at 1221.

In Gardner v. Broderick, 392 U.S. 273, 277-278, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968), the Court stated:

It is argued that although a lawyer [alluding to Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574] could not constitutionally be confronted with Hob-son’s choice between self-incrimination and forfeiting his means of livelihood, the same principle should not protect a policeman. Unlike a lawyer, he is directly, immediately, and entirely responsible to the city or State which is his employer. He owes his entire loyalty to it. He has no other ‘client’ or principal. He is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer. Unlike the lawyer who is directly responsible to his client, the policeman is either responsible to the State or to no one.
We agree that these factors differentiate the situations. If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. State of New Jersey, . . . [385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562], the privilege against self-incrimination would not have been a bar to his dismissal. (Footnotes omitted.)

We see a decided distinction between the foregoing cases that involve public employees and eases such as Swope v. Florida Indus. Comm., Unemp. Comp. Bd. of Rev., 159 So.2d 653 (Fla. 3rd DCA 1964), that involve the discharge of private employees for refusal to take a polygraph examination without the necessity to submit to such examination being known conditions of their employment. The personal integrity of the employees of a private employer has little, if any, direct impact on the members of the public; however, the personal integrity of public employees has enormous impact on the public and is of serious concern to the public; it is that public concern that impels us to reverse.

Accordingly, under the circumstances of this case the order to submit to the polygraph examination was reasonable and Zimmer was guilty of insubordination when he refused to comply with it. This refusal justified his dismissal for just cause. Thus, we reverse the order of the Career Service Commission and remand the cause with directions that the Commission reinstate the final agency order of dismissal.

REVERSED AND REMANDED, with directions.

HERSEY, J., concurs.

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

The majority has held that there is no difference between requiring an employee to undergo reasonable questioning during an internal investigation and submitting to a lie detector test. I cannot agree.

It is undisputed that Zimmer cooperated fully in answering all questions submitted to him in the course of several interviews. It was only because he balked at taking a lie detector test that he was discharged. Accordingly, the only issue before us is whether a police officer may be discharged from employment for refusing to submit to a lie detector test.

As noted in the majority opinion, there are numerous jurisdictions which have upheld a public employer’s right to discharge policemen for refusing to submit to lie detector tests. Most of these decisions rely on the unique status of law enforcement officers as justifying a requirement that lie detector tests be taken so as to secure the public trust reposed in them. These decisions tend to discount as irrelevant any consideration of the unreliability of such tests.

However, other courts have refused to uphold the right of a public employer to discharge employees who refuse to take such tests. These decisions rest, in large part, on the recognition that lie detector tests have not been demonstrated to be reliable.

The Florida Supreme Court has emphatically refused to recognize the reliability of lie detector test results and there is no evidence of the test’s reliability in the record before this court. Assuming then that such tests are unreliable, I believe that an order requiring a public employee to submit to the test is an unreasonable order. In concluding so, I find it difficult to ignore not only the unreliability of the best but also the potential use of the test results.

The majority does not discuss what use may be made of the results of the lie detector tests although apparently conceding that such results cannot be used in court. In this regard, I find persuasive the views expressed by Justice Uhlenhopp in a concurring opinion set forth in In re Discharge of Fairbanks, 287 N.W.2d 579 (Iowa 1980):

Since the results of polygraph tests cannot be used in court over objection, presumably civil service employers will not use the results as grounds for discharging employees and thus force employees to appeal to the courts. Hence we have the unanswered question, what use will be made of test results? If the polygraph operator says the employee failed the test, will the “failure” be noted on the employee’s record and constitute an obstacle to advancement or to employment elsewhere? In any event, will word circulate through the department that the employee “failed the test”? Will the failure constitute a longtime black mark against the employee — notwithstanding the unde-monstrated reliability of polygraph testing?
I would thus base the reversal on the same ground on which we refuse to admit polygraph-test results into evidence over objection: undemonstrated reliability. This obviates consideration of Fourth and Fifth Amendment implications. See Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908, 916 (1966) (“Some tests seemingly directed to obtain ‘physical evidence,’ for example, lie detector tests measuring changes in bodily function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment.”); Hermann, Privacy, The Prospective Employee, and Employment Testing: The Need to Restrict Polygraph and Personality Testing, 47 Wash.L.Rev. 73, 135 (1971).

At 583.

The majority holds that the authority to compel questioning is implicit in the statutes authorizing supervision of the patrol officers and that the authority to compel lie detector tests naturally follows. Again I cannot agree. It is true that the United States Supreme Court has indicated that public employees may be subjected to questioning directly and narrowly limited to a pending investigation of their official duties. However, there is a substantial quantitative and qualitative difference between such limited questioning and the administration of a lie detector test. The scope of questioning during a lie detector test can be virtually unlimited. More importantly, however, the answers extracted are determined to be true or false based upon the involuntary physiological responses of the employee and the personal evaluation of the interviewer rather than upon the comparison of such answers with other credible evidence. As noted, supra, Florida and virtually every other jurisdiction have rejected the use of lie detector test results on the grounds of undemonstrated reliability. The majority’s holding that these tests are nothing more than an extension of the employer’s right to ask relevant questions does not square with these decisions. In essence the majority has implicitly determined, without any empirical evidence and notwithstanding the authorities to the contrary, that the test is a reliable investigatory tool and the results thereof may be properly utilized to resolve issues of employee conduct.

The majority decision also creates the anomalous situation whereby the refusal of a public employee to take a lie detector test constitutes employee misconduct while that same refusal by a private employee does not constitute misconduct. In Swope v. Florida Industrial Commission Unemployment Compensation Board of Review, 159 So.2d 653 (Fla. 3d DCA 1963), it was held that the refusal of a private employee to take a lie detector test did not constitute misconduct connected with work so as to disqualify such employee from unemployment compensation:

Byron’s could impose the rule and could discharge an employee who would not take the lie detector test. However, violation of an employer’s rule which leads to discharge will not disqualify one for benefits unless it appears that the action which prompted the discharge amounted to misconduct within the meaning of the Act. Here the petitioner’s discharge was not based on misconduct as defined. See Spaulding v. Florida Industrial Commission, Fla.App.1963, 154 So.2d 334. In the only case brought to our attention dealing with whether an employee’s refusal to take a lie detector test constitutes good cause for dismissal, it was held by the Pennsylvania Supreme Court that the refusal of a civil service employee to take a polygraph test was not just cause for his dismissal. See Stape v. Civil Service Comm. of City of Philadelphia, 404 Pa. 354, 172 A.2d 161.
In the instant case petitioners had not been singled out and accused of any acts of dishonesty. As to them the test was a fishing expedition. It has been disclosed that a tenth of the population are unfit subjects for polygraph tests, and that such tests tend to inaccuracies in from something less than ten up to twenty-five per centum of cases. See People v. Davis, 343 Mich. 348, 72 N.W.2d 269. Thus an innocent employee taking such a test could be risking loss of job and reputation at odds similar to those in Russian roulette. A different case would be made out for such refusal by one who entered the employment after the rule for lie detector tests was in effect and with knowledge that it was a condition of employment or continued employment; that is not the case, and we express no opinion thereon. Id. at 654

Unlike a private employee subject to discharge for virtually any reason, Zimmer, by virtue of his permanent status in the Career Service, could be discharged only for misconduct. The Swope court held that the refusal to take a lie detector test did not constitute employee misconduct. As in Swope it is also important to note that this case does not involve an employee’s prior consent to taking such a test as a condition of employment.

Finally, I believe the decision this court renders today, by granting public employers carte blanche authority to force employees to submit to unlimited questioning during a lie detector test, will inevitably conflict with the employee’s constitutional right of privacy now specifically recognized in Article I, Section 23 of the Florida Constitution, as well as the employee’s federal and state constitutional right not to be forced to bear witness against himself. I do not believe public employees should be granted any special rights and I certainly believe any violations of the public trust should be vigorously prosecuted. At the same time, however, I do not believe public employees should be treated as second-class citizens who are deemed to have waived their rights automatically upon becoming employed by the government.

      . See: Eshelman v. Blubaum, 114 Ariz. 376, 560 P.2d 1283 (1977); Fichera v. State Personnel Board, 217 Cal.App.2d 613, 32 Cal.Rptr. 159 (1963); Coursey v. Board of Fire and Police Commissioners, 90 Ill.App.2d 31, 234 N.E.2d 339 (1967); Roux v. New Orleans Police Department, 223 So.2d 905 (La.App.1969); Dolan v. Kelly, 76 Misc.2d 151, 348 N.Y.S.2d 478 (1973); Talent v. City of Abilene, 499 S.W.2d 724 (Tex.Civ.App.1973), rev. 508 S.W.2d 592 (Tex.1974); Seattle Police Officers Guild v. City of Seattle, 80 Wash.2d 307, 494 P.2d 485 (1972); Grabinger v. Conlisk, 320 F.Supp. 1213 (N.D.Ill.1970).

      . See Molino v. Board of Public Safety of City of Torrington, 154 Conn. 368, 225 A.2d 805 (1966); In re Discharge of Fairbanks, 287 N.W.2d 579 (Iowa 1980); State v. Civil Service Commission of City of Philadelphia, 404 Pa. 354, 172 A.2d 161 (1961). In Pennsylvania there is now statutory authority for the administration of lie detector tests to law enforcement personnel as a condition of continued or initial employment. See McMullin Appeal, 41 Pa.Cmwlth. 474, 401 A.2d 572 (1979).

      . See Kaminski v. State, 63 So.2d 339 (Fla. 1952); also see Codie v. State, 313 So.2d 754 (Fla.1975), and Young v. State, 387 So.2d 512 (Fla. 1st DCA 1980).

      . In fact, lie detector test examiners employed by the government are not even required to meet the minimum standards for licensing of examiners set by the state legislature. Section 493.562, Florida Statutes (1979). In any case, there is no evidence of the test’s reliability or the examiner’s qualifications in the record.

      . Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968).

      . For example, see the description of the test set out in the dissenting opinion of Justice Rosellini in Seattle Police Officers Guild v. City of Seattle, 80 Wash.2d 307, 494 P.2d 485 (1972).

      . For a discussion of some of the potential privacy problems involved see Fraternal Order of Police, etc. v. Freeman, 372 So.2d 945 (Fla. 3d DCA 1979) and Byron, Harless, Schaffer, Reid and Associates, Inc. v. State ex rel. Shellenberg, 360 So.2d 83 (Fla. 1st DCA 1978).


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

text:
    Larry KING, Appellant, v. STATE of Florida, Appellee.
    No. 80-887.
    District Court of Appeal of Florida, Fifth District.
    May 6, 1981.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Thomas R. Mott, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant challenges an enhanced penalty which was imposed after his conviction for assault on a law enforcement officer. The trial court found appellant to be an “habitual misdemeanant” based upon prior convictions for robbery and manslaughter.

Section 775.084(l)(b) permits an enhanced penalty only when the defendant has been convicted twice previously of the same crime. Hysmith v. State, 374 So.2d 1103 (Fla. 1st DCA 1979). Neither of the previous convictions were for the same crime.

Defendant’s sentence is vacated and this cause is remanded for resentencing.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Section 775.084(l)(b) provides in part:
      ‘Habitual misdemeanant’ means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
      1. The defendant has at least twice previously been convicted of the same crime committed at different times after the defendant’s 18th birthday;


author: HURLEY, Judge.

text:
    LUMBERMENS MUTUAL INSURANCE COMPANY, Appellant, v. AMERICAN ARBITRATION ASSOCIATION and Ernestine Price, Appellee.
    No. 78-1958.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.

      Charles T. Kessler, Pyszka, Kessler & Adams, Fort Lauderdale, for appellant.
    Patrick N. Chidnese, Fort Lauderdale, for appellee-Ernestine Price.
   HURLEY, Judge.

Appellant questions a provision in a final judgment requiring it to pay its insured’s attorney’s fees. We find that appellant did not wrongfully withhold payment of proceeds under the policy and, therefore, we reverse.

On December 3, 1976, appellee Ernestine Price was involved in a four-vehicle automobile accident. Following the accident, Ms. Price sought arbitration before the American Arbitration Association. Named as respondents were Government Employees Insurance Company, her insurer, and Lumbermens Mutual Insurance Company, the insurer of the vehicle she was driving.

Subsequent to the filing of the arbitration action, but prior to the hearing, Lum-bermens filed a Complaint for Declaratory Relief and Injunction to Stay the Proceedings Pending Before the American Arbitration Association to determine whether Ms. Price was entitled to stack her own uninsured motorist coverage (GEICO) with that of the owner of the vehicle (Lumbermens). The trial court granted summary judgment in favor of Ms. Price and we affirmed in Lumbermens Mutual Insurance Co. v. Price, 372 So.2d 517 (Fla. 4th DCA 1979).

The arbitration process resulted in an award which held that Ms. Price’s claim had a true value in excess of $50,000. Lumber-mens then filed a petition for modification in the circuit court pursuant to Chapter 682 Florida Statutes. The purpose of this petition was to establish that Lumbermens was liable for no more than its policy limit. Ms. Price responded by filing a motion to dismiss and a counterclaim for attorney’s fees. At the hearing on the motion to dismiss, counsel for the parties agreed that Ms. Price was not entitled to receive any amount in excess of $15,000 from Lumber-mens. This agreement was reduced to judicial order on June 8, 1978, and since there were no substantive issues remaining, the trial court entered an order on July 17, 1978, granting Ernestine Price’s motions for dismissal and for attorney’s fees. Subsequently, a final judgment was entered which included an award of $850 for attorney’s fees.

The sole authority for the trial court to assess attorney’s fees against an insurer exists in Section 627.428(1), Florida Statutes (1979), which provides:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

This statute must be strictly construed, Travelers Indemnity Company v. Chisholm, 384 So.2d 1360 (Fla. 2d DCA 1980), and has been interpreted as “authorizing the recovery of attorney’s fees from the insurer only when the insurer has wrongfully withheld payment of the proceeds of the policy.” Equitable Life Assurance Society v. Nichols, 84 So.2d 500, 502 (Fla.1956) (involving the predecessor statute to F.S. § 627.481); see also New York Life Insurance Co. v. Shuster, 373 So.2d 916 (Fla.1979).

In the case at bar, there is no allegation that the insurer denied coverage. On the contrary, Lumbermens merely availed itself of the procedures set forth in Section 682.14, Florida Statutes (1979), in order to avoid liability for that portion of the arbitration award ($35,000), which exceeded the $15,000 policy limit. Moreover, the final judgment dismissing the insurer’s petition for modification was based on agreement of the parties that the insurer was liable for the policy limit of $15,000 and, therefore, it was not a judgment “against an insurer and in favor of an insured” which would justify the imposition of attorney’s fees. Cf. Waters v. State Farm Mutual Automobile Insurance Company, 393 So.2d 1203 (Fla. 2d DCA 1981) (settlement offer in amount at least equal to the sum claimant is found entitled to precludes award of attorney’s fees under statute).

The portion of the judgment awarding attorney’s fees to appellee is reversed.

MOORE and BERANEK, JJ., concur.


text:
    PALM BEACH LEISUREVILLE COMMUNITY ASSOCIATION, INC., Appellant, v. Pauline T. RAINES et al., Appellees.
    No. 78-2670.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Rehearing Denied June 12, 1981.

      Mark B. Schorr and Alan S. Becker of Becker, Poliakoff, Sachs & Streitfield, Fort Lauderdale, for appellant/cross appellee.
    Edna L. Caruso, Wood, Cobb, Murphy & Craig, West Palm Beach, and Gunster, Yoakley, Criser & Stewart, Palm Beach, for appellees/cross appellants.
   MOORE, Judge.

The appellant, defendant at trial, appeals an order which awarded attorneys fees to the appellees.

The appellant, Palm Beach Leisureville Community Association, Inc., (Association) is a maintenance management entity for an adult community made up of 1803 improved lots with single family homes and 502 condominium apartments, located in 21 separate condominium buildings. Each condominium building has a separate condominium association formed under individual declarations of condominium. The appellees are the representatives of the class of condominium unit owners who reside in the 21 condominium buildings.

In 1972, the appellees filed a class action on behalf of the condominium unit owners against the Association and 8 single family lot owners as class representatives of all the single family lot owners. The plaintiff class contended that the Association had improperly assessed the condominium unit owners for maintenance costs. Specifically, the plaintiff class contended that they were not responsible for a pro rata share of the cost of exterior building maintenance, lawn maintenance and sprinkler system maintenance and repair throughout the entire community. Rather they contended that they were only liable for the cost of such maintenance as it related to their own condominium buildings and surrounding grounds.

The trial court ruled that the condominium unit owners were being properly assessed. This Court reversed, however, agreeing with the contentions set forth by the plaintiff class. The case was remanded to the trial court for the purpose of determining the amount of the improper assessments. Raines v. Palm Beach Leisureville Community Association, 317 So.2d 814 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 1183 (Fla.1976).

Upon remand, a special master found the condominium unit owners were overas-sessed in the amount of $303,762.40. The trial court subsequently adopted the special master’s findings in this regard and entered a final judgment for this amount against the Association and the single family lot owners. A hearing was later held on the plaintiff class’ claim for attorneys fees. The trial court eventually entered an award of attorneys fees in the amount of $180,000 and this order is the sole subject of this appeal.

The trial court awarded the plaintiff’s attorneys fees on the authority of Section 718.303(1), Florida Statutes (1979), which states:

718.303 Obligations of owners.—
(1) Each unit owner and each association shall be governed by, and shall comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws. Actions for damages or for injunc-tive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against:
(a) The association.
(b) A unit owner.
(c) Directors designated by the developer, for actions taken by them prior to the time control of the association is assumed by unit owners other than the developer.
(d) Any director who willfully and knowingly fails to comply with these provisions.
The prevailing party is entitled to recover reasonable attorney’s fees. This relief does not exclude other remedies provided by law.

In other words, the trial court found that the plaintiffs, who were dwellers of condominium units, had prevailed in a suit against a “condominium association” within the meaning of Section 718.303(1). Appellant contends that the trial court erroneously construed the meaning of “association” as used in Section 718.303, and consequently, the trial court entered an award of attorneys fees that was not authorized by statute. We agree and reverse the order awarding attorneys fees.

Through the Association’s articles of incorporation and a series of declarations of restrictions applicable to both the single family lot owners and the condominium unit owners, the Association has extremely broad powers and duties. It has the power to fix and collect maintenance assessments that pay for such services as a community wide sprinkler system, lawn maintenance, and building and road repair. The Association maintains and pays the taxes and insurance on all of the leased recreational facilities and common areas, and it has the power to approve or disapprove the planting of trees and shrubbery. It has the primary responsibility of insuring visual uniformity throughout the community and maintaining all of the exterior areas of the homes and condominium units. Significantly, it also has the power to approve or disapprove of all transfers of title.

The plaintiffs insist that the investment of these powers and duties in the Association bring it within the definition of “association” as used in Chapter 718, Florida Statutes (1979). Section 718.103(2), Florida Statutes (1979) defines association as “the corporate entity responsible for the operation of a condominium.” Thus, the plaintiffs contend that since the Association was primarily responsible for the maintenance, repair, and regulation of virtually all of the property in the Leisureville development, it necessarily follows that the Association was an “association” within the meaning of Section 718.303(1). However, Section 718.-103(9), Florida Statutes (1979) defines “condominium” as:

(9) “Condominium” means that form of ownership of real property which is created pursuant to the provisions of this chapter and which is comprised of units that may be owned by one or more persons, and there is, appurtenant to each unit, an undivided share in common elements.

We note that neither the improved lot owners nor the condominium building unit owners belong to an entity that was “created pursuant to the provisions of this chapter,” i. e., Chapter 718 or its predecessor. At the time the Association was formed in 1969, Chapter 718 was not in existence. The pertinent condominium law at that time was found in Chapter 711, Florida Statutes (1969). Section 711.08 of that statute provided that a condominium could be created by filing a “declaration of condominium” in the county where the condominium is located. In regard to the Association, the only document that was ever filed was the articles of incorporation which established the purpose of the Association as a maintenance management entity. The articles were filed with the office of the Secretary of State, not in Palm Beach County. No declaration of condominium was filed to specify the powers of the Association thereunder. Although the condominium unit owners were organized into 21 separate condominium associations, the 1803 improved lot owners were never “condomi-niumized” as such. Aside from the declarations of restrictions which gave the Association the above-mentioned powers and duties, the improved lot owners held deeds to their property which were free of condominium-type restrictions. Simply stated, the improved lot owners were not subject to condominium ownership, and therefore the association was not “responsible for the operation of a condominium”, at least as concerned those owners.

A condominium association derives its powers, duties and responsibilities from Chapter 718, Florida Statutes, and the declaration of condominium and by-laws. Chapter 718 expressly sets forth what powers, duties and responsibilities a condominium association must have and exercise, and allows others which are not inconsistent with the Chapter. In contrast, the appellant Association derives its powers from its articles of incorporation and the series of declarations of restrictions governing the single family improved lots and the condominium units. It is organized for the purpose of performing certain functions for the benefit of a planned community. It is not responsible for the operation of any of the 21 condominiums. With respect to the condominium buildings, its responsibility is limited to the exterior maintenance, and unlike a condominium association, it does not have the irrevocable right of access to each unit for repair or protection of the common elements, § 718.111(5); it does not have the power to lease the common elements, or to maintain or make repairs to the common elements beyond the exterior surfaces of the buildings, § 718.111(6); it does not have the power to purchase units in any condominium and hold, convey, lease or mortgage them, § 718.111(8); it is not required to maintain any insurance to protect the common elements of any of the condominiums, § 718.111(9); and it does not have the power to purchase the recreation lease to which all residents of the project are bound. § 718.111(12). All of these powers and duties are exercised by the condominium associations, not the appellant.

We are persuaded by the very language contained in the declarations of restrictions. Paragraph 9 of the declaration of restrictions pertaining to the condominium apartment unit states:

DEVELOPER shall cause the LOT to be made subject to the condominium form of ownership as provided by Chapter 711, Florida Statutes, said condominium to consist of one two-story apartment building containing twenty-four (24) APARTMENTS. The condominium is to be constructed and maintained under the Palm Beach Leisureville plan of community-wide maintenance applicable throughout the PROJECT AREA. (Emphasis added).

The declarations of restrictions applicable to the improved lot owners do not express a similar intent to subject the improved lots to a condominium form of ownership. Thus, although the declarations of restrictions apply equally to the apartment unit owners and the improved lot owners, only the former group was subject to formalized declarations of condominium. Under such circumstances, it would be absurd and patently unfair to require the improved lot owners to pay a pro rata share of the attorneys fees, which were assessed under the authority of a condominium statute, when those owners did not contemplate participation in the condominium way of life when they purchased their homes. We therefore hold that the improved lot owners did not take title to their property as “condominium” unit owners, and thus, the appellant Association was not an “association” within the meaning of Section 718.103(2) and Section 718.303(1). The only condominium associations existent in this case were the 21 individual condominium associations which had the primary responsibility of operating the 21 individual condominium buildings in Leisureville. These associations were never made parties to the instant litigation.

Attorneys fees statutes are in derogation of the common law and must be strictly construed. Great American Indemnity Corp. v. Williams, 85 So.2d 619 (Fla.1956); Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34 (Fla.1975). Since we find that appellant is not an “association” within the meaning of Chapter 718, Florida Statutes (1977), we must also find that they are not liable for attorneys fees. If an entity such as appellant is to be responsible for such fees, it is a matter for legislative determination. The order awarding attorneys fees to the plaintiff class is reversed.

Appellant raises other arguments to defeat the award of attorneys fees which we do not feel necessary to discuss at this time. Appellees (condominium unit owners) also cross-appeal the inadequacy of the amount of attorneys fees awarded by the trial court. Since we have held that the appellant is not obligated for any attorneys fees, we need not address this issue.

REVERSED

DOWNEY and ANSTEAD, JJ., concur.