author: SUNDBERG, Chief Justice.

text:
    The STATE of Florida, and the Taxpayers, Property Owners and Citizens of Volusia County, Florida, Including nonresidents owning property or subject to taxation therein, Appellants, v. VOLUSIA COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a Public Body Corporate and Politic of Volusia County, Florida, Appellees.
    No. 60603.
    Supreme Court of Florida.
    July 9, 1981.

      Stephen L. Boyles, State’s Atty. and Jeffrey L. Dees, Asst. State’s Atty., Daytona Beach, for appellants.
    William D. King of Mahoney, Hadlow & Adams, Jacksonville, and David A. Monaco of Cobb & Cole, Daytona Beach, for appel-lees.
    James J. Cooney, Miami, Roy S. Goldfinger, Cleveland, Ohio, and J. Michael Nifong of Squire, Sanders & Dempsey, Miami, for Florida Chamber of Commerce, Inc. d/b/a Florida Chamber of Commerce, amicus curiae.
   SUNDBERG, Chief Justice.

We have for review an order of the Circuit Court for Volusia County validating Industrial Development Revenue Bonds for the purchase of and additional construction to an existing nursing home health care facility. We have jurisdiction. Art. V, § 3(bX2), Fla.Const.

The Florida Industrial Development Financing Act, chapter 159, part II, Florida Statutes, authorizes duly created authorities to issue tax-exempt bonds to finance the cost of various types of projects enumerated in the Act. During the 1980 session of the Florida Legislature, chapter 159 was amended, and the definition of the term “project” contained in the Act was expanded to include investor-owned, for-profit health care facilities (hereinafter 1980 amendment).

In March 1981, the Volusia County Industrial Development Authority (“Authority”) adopted a resolution providing for the issuance of revenue bonds in an amount not to exceed $4,300,000.00. These bonds were to finance the cost of acquiring an existing 163-bed nursing home facility and the construction and equiping of a 30-bed addition (“Project”). A complaint was filed by the Authority seeking an order of validation for the proposed bonds. The State filed an answer to the complaint; a hearing was held and a final judgment of validation was rendered on April 21, 1981. The terms of the proposed transaction are as follows: the Authority is to purchase the nursing home and sell it to Golden Age Health Care, Ltd., a private, for-profit Florida limited partnership. Golden Age will pay all costs in excess of the proceeds of the bonds and will operate and maintain the Project at its own expense. After the purchase and completion of the 30-bed addition, the nursing home will continue to be privately owned and operated, in business for profit. The Authority will have no control over the operation or policies of the facility nor will the home be a public facility. The bonds will not constitute a debt, liability or obligation of Volusia County, the State of Florida or any political subdivision of the State of Florida and do not contain a pledge of the faith and credit or taxing power of Volusia County, the State, or any of its subdivisions. No holder of the bonds will have any right to compel the exercise of the taxing power of Volusia County, the State or any political subdivision thereof. As security for the repayment of the bonds, the Authority will grant to the Atlantic First National Bank of Daytona Beach and its corporate successors as Trustee, a first mortgage lien on, and security interest in, the facility. Golden Age guarantees to the bank prompt full payment of the principal, premium and interest on the bonds.

' Appellants present six issues on appeal, three of which we feel deserve discussion: (1) the Project violates article VII, section 10 of the Florida Constitution, (2) the 1980 amendment embraces more than one subject and fails to briefly express the subject in the title, and (3) the proposed mortgage on the Project is unconstitutional.

Appellants’ primary argument is that the proposed Project and the 1980 amendment violate article VII, section 10 of the Florida Constitution in that they authorize public bond financing for a private, for-profit nursing home. This issue has been decided adversely to appellants in State v. Leon County, Florida, No. 60,716, 400 So.2d 949 (Fla. June 25, 1981), where we allowed the issuance of revenue bonds to finance a for-profit nursing home facility. We held that article VII, section 10 of our Constitution did not prevent this type of financing because such facilities serve a paramount public purpose and provide only incidental benefits to a private corporation.

Nor do we accept appellants’ contention that the 1980 amendment embraces more than one subject. This Court has held that the one-subject requirement is not violated so long as all of the provisions appear to be “incidentally related and properly connected to primary subjects expressed in the title and naturally germane thereto.” Rianhard v. Port of Palm Beach District, 186 So.2d 503, 506 (Fla.1966). “The subject of a law is that which is expressed in the title .. . and it may be as broad as the legislature chooses provided the matters included in the law have a natural and logical connection.” State v. Lee, 356 So.2d 276 (Fla.1978). The subject of the statute in this case is industrial development financing. It is obvious that such a subject may include many diverse areas, and is not necessarily limited to a traditional concept of “industry.” We hold that the areas included in the 1980 amendment are logically related and it does not violate the single subject rule.

Appellants’ attack on the sufficiency of the statute’s title is equally without merit. The test for the adequacy of a title is “whether the title is so worded as not to mislead a person of average intelligence as to the scope of the enactment.” Williams v. State, 370 So.2d 1143, 1144 (Fla.1979). We hold that the title to the 1980 amendment is adequate to put an ordinary person on notice regarding the contents.

We now turn to appellants’ argument, based on Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971), that the proposed mortgage lien on the nursing home as security for the bonds is unconstitutional because it involves a pledge of public credit. We disagree. Nohrr did not allow a mortgage to be used to secure bonds because the use of such financing where a public institution could become the lessee of a project could result in an indirect pledge of credit. The reasoning behind Nohrr was that public agencies should not be forced to raise taxes in order to bail themselves out in the event of a foreclosure. Such is not the case in the situation before us. The Project involves a private institution and the public will not suffer if foreclosure occurs. The language in State v. Putnam County Development Authority, 249 So.2d 6 (Fla.1971), is applicable to such a situation:

[I]t is apparent from the Act, [chapter 159, Florida Industrial Development Financing-Act], and from the purpose of the Act, that the direct beneficiary of any project financed under this Act is a private institution or individual. In the event of a threatened foreclosure, then, the only party threatened with a loss would be the private party who was the beneficiary of the project. Therefore it follows that neither the State nor the County would feel compelled, directly or indirectly, to levy taxes or appropriate funds to prevent the foreclosure. The public would stand to lose no more in this foreclosure proceeding than it would in any other foreclosure proceeding which involved a local business or industry.

249 So.2d at 12. In the present case, as in Putnam County, a private enterprise is involved and each bond contains a statement that it does not constitute a debt of the local agency and that neither the faith and credit nor the taxing power of the State or its subdivisions is pledged. Thus, article VII, section 10 is not violated and we refuse to hold the mortgage provision unconstitutional.

The order of the lower court is affirmed. It is so ordered.

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

      .Chapter 80-287, codified as section 159.-27(16), Florida Statutes (Supp.1980), included “health-care facility” within the definition of “project” as follows:
      (16) “Health-care facility” means property operated in the private sector, other than by not-for-profit organizations, used for or useful in connection with the diagnosis, treatment, therapy, rehabilitation, or care of or for sick, ill, injured, infirm, impaired, disabled or handicapped persons, without discrimination among such persons due to race, religion, or national origin, or for the prevention, detection, and control of disease, including, without limitation thereto, hospital, clinic, emergency, out-patient, intermediate care, including but not limited to facilities for the elderly such as adult congregate living facilities, day care and share a home facilities', nursing home, ....

      . We have carefully considered appellants’ other arguments and find them to be without merit.

      . Article VII, section 10, Florida Constitution reads in pertinent part:
      Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person; ....

      . Article III, section 6 of our Florida Constitution reads in pertinent part: “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.”


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Mervyn Harold CROSS, Petitioner, v. Honorable George N. DIAMANTIS, Circuit Court Judge of the Ninth Judicial Circuit, Osceola County, Florida, Respondent.
    No. 80-1122.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 1980.
    Raymond E. Cramer, St. Cloud, for petitioner.
    No appearance for respondent.
   COBB, Judge.

The petitioner Cross seeks to prohibit the trial court from conducting a sentencing hearing scheduled pursuant to a notice to the trial court from the Department of Health and Rehabilitative Services (HRS) that the Department “has exhausted all appropriate treatment” for Cross, previously committed to it in 1975 as a mentally disordered sex offender. See Cross v. State, 378 So.2d 114 (Fla. 5th DCA 1980). The crux of the petition is that Cross is entitled to further treatment by HRS and that the staff decision to discontinue treatment was the result of threats and intimidation by the Unit Director of the treatment center.

The matters raised by the petition can be evidenced to the trial judge at the sentencing hearing. If he finds that the notice dated July 14, 1980, from HRS was induced or procured by fraud, he has the authority to re-commit Cross to HRS for completion of his treatment. See § 917.011, Fla.Stat. (1979). Indeed, the trial court has already taken evidence in this regard on September 11,1980, and continued the matter for further hearing on September 26, 1980. This is not a matter to be determined initially by this Court through the vehicle of prohibition. English v. McCrary, 348 So.2d 293 (Fla.1977).

The petition for writ of prohibition is denied.

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


author: PER CURIAM.

text:
    Edward BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 80-269.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.
    Rehearing Denied Aug. 12, 1981.
    Richard L. Jorandby, Public Defender, and Rendell Brown of Brown & Green, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted and sentenced for the crime of indecent assault upon a minor child. We are compelled to reverse and remand for a new trial on the authority of Tascano v. State, 393 So.2d 540 (Fla. 1980).

REVERSED and REMANDED.

ANSTEAD, MOORE and GLICKSTEIN, JJ., concur.


author: SHARP, Judge. ORFINGER, Judge,

text:
    TOWN OF INDIALANTIC et al., Appellants, v. Clifford A. McNULTY, Appellee.
    No. 79-1765/T4-714.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    Rehearing Denied May 21, 1981.

      William C. Potter of Nabors, Potter, McClelland, Griffith & Jones, P. A., Melbourne, for appellants.
    Joseph S. Gillin, Jr., of Storms, Krasny, Normile, Dettmer & Gillin, P. A., Melbourne, for appellee.
   SHARP, Judge.

The Town of Indialantic in Brevard County and individual members of the Town Council appeal from a judgment of the circuit court holding that the town’s zoning ordinance, section 28-96(15), is invalid and unconstitutional as applied to the appellee’s (McNulty’s) ocean-front lots, and “land similarly situated.” The ordinance provides:

All buildings must be set back not less than 25 feet from the bluff line or not less than 50 feet from the mean high water line along the Atlantic Ocean, whichever is greater.

We reverse because the circuit court erroneously placed on the appellants the burden of showing why McNulty should not be relieved from the zoning restriction, and because McNulty failed to present sufficient evidence to show the ordinance was unconstitutional on its face, or as applied to his property.

McNulty acquired his four ocean-front lots in 1963. In 1978 McNulty sought a building permit to build a residence on two of his four lots. The lots run 122 feet west from the high water line of the ocean to Wavecrest Avenue. The bluff line or dune line crosses McNulty’s lots running north and south, approximately 20 feet seaward of Wavecrest Avenue. Under the town’s residential zoning ordinances, McNulty’s proposed residence had to be set back 25 feet from the street, and 25 feet landward from the bluff-line, leaving McNulty with no possible way to construct anything on his lots and comply with the zoning ordinances.

Because of his inability to comply with the zoning ordinances, McNulty applied to the Town’s Board of Adjustment to obtain a variance. Section 28 — 102 of the Town’s zoning code provides that variances may be granted “in the case of exceptionally irregular narrow or shallow lots or unusual topographical conditions, whereby such application would result in unusual difficulties or unnecessary hardship not caused by the applicant himself that would deprive the owner of the reasonable use of the land or building involved.” The Board could grant a variance if it determined the use would “not seriously impair the use of adjacent property in the same district” and that the variance was “made necessary by the unique character of the property and is not caused in any way by the owner.” The property owner seeking the variance was also required to show “the variance requested is the minimum variance that will accomplish the purpose intended.” The Board denied McNulty’s request for a variance but no record was made of those proceedings. He then appealed to the highest zoning authority, the Town Council.

The Town Council held a de novo hearing. McNulty was the sole witness. He presented to the Town Council (apparently) the same arguments and reasons why he should be given a variance which he had presented to the Board. The only documentary evidence consisted of a drawing of his proposed residence, sketched on an old survey of the property.

McNulty’s drawing was a rough sketch showing only the outlines of the proposed structure. It showed that the whole structure, including the garage, would be built seaward of the bluff line, and that the major living areas would be seaward of the toe or bottom of the slope. McNulty took the position before the Council that he did not have to submit any engineering or architectural data or drawings concerning how the residence would be built, the topography of the beach in that area and the history of storms, the pattern of erosion of that beach area, or how or whether the building would affect the bluffs or any natural vegetation. He stated that he relied solely on his assurances the house would be put “on pilings” and that he would not damage or injure the dunes.

Members of the Town Council expressed concern that the drawing did not show where the pilings would go, whether they would be “seaworthy” to stand against a storm tide, and how plumbing and utilities to service the residence would be handled. One member said:

This is the first time we’ve been asked for variance on this. I, myself, am not satisfied that I have enough information to make a decision on. I have no, no design, no site plan, no nothing. I don’t know where your pilings are going to go. I don’t have the vaguest idea. I can’t make a decision.

The Town Council unanimously upheld the Board’s denial of the variance, and McNulty obtained a writ of certiorari from the circuit court which is the subject of this appeal.

I. IS THE ORDINANCE INVALID ON ITS FACE?

Because the circuit court struck down the ordinance as being unconstitutional and unenforceable not only as to McNulty’s property, but also as to “land similarly situated,” we initially must consider whether on its face, the ordinance is invalid. When a zoning ordinance is challenged on this basis, courts presume, unless shown otherwise, that the ordinance is valid, and if it is reasonably related to public welfare, health and safety, in a manner characterized by the appellate courts as “fairly debatable,” it will be upheld. Further, the burden of showing that the zoning ordinance is invalid is on the challenger — not the zoning authority. The rationale for these rules and limitations on judicial review of zoning decisions stems from the doctrine of “separation of powers.” The courts should not become “super” zoning review boards. Zoning decisions are primarily “legislative” in nature and such decisions should be made by zoning authorities responsible to their constituents.

McNulty failed to present any serious challenge to the constitutionality of the ordinance on its face. The ordinance appears not discriminatory, since it applies to all properties fronting the ocean in the Town of Indialantic, and it can hardly be questioned that its purpose is reasonably related to a valid exercise of the “police power.” Members of the Town Council expressed their concern for “problems” they were experiencing with their coast, and the great harm that could result to the Town if building was freely permitted on or seaward of the dune line. Even McNulty acknowledged that the preservation of the dunes was a valid concern of the Town.

Through sad experience Florida has learned the importance of the barrier sand dunes which face its “high energy” beaches.

Sand beaches and dunes comprise a very small and unstable part of Florida’s coastal zone. Forming a narrow band along the shores of the Atlantic Ocean and the Gulf of Mexico, they offer some of the state’s most attractive and most hazardous locations for real estate development. Without adequate controls on construction and excavation, oceanfront development could destroy not only man-made structures but also beaches and dunes.

Maloney and O’Donnell, Drawing the Line at the Oceanfront, 30 Fla.L.Rev. 383, 389 (1978). Various local communities, like In-dialantic, have adopted similar set back ordinances to protect the dunes, bluffs and natural vegetation of their beaches, and Chapter 161, Florida Statutes (1979), the “Beach and Shore Preservation Act,” has as one of its stated purposes the protection and preservation of the “beach dune system.” Section 161.053(1) provides:

The Legislature finds and declares that the beaches of the state, by their nature, are subject to frequent and severe fluctuations and represent one of Florida’s most valuable natural resources and that it is in the public interest to preserve and protect them from imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, and endanger adjacent property and the beach-dune system. In furtherance of these findings, it is the intent of the Legislature to provide that the department, acting through the division, shall establish coastal construction control lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean and the Gulf of Mexico. Such lines shall be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge or other predictable weather conditions, and so as to define the area within which special structural design consideration is required to insure protection of the beach-dune system, any proposed structure, and adjacent properties, rather than to define a seaward limit for upland structures.

The “construction line” drawn pursuant to this State law was west or landward of the setback line of the Town as applied to McNulty’s land. In any event, the State law contemplated that cities and counties could establish stricter setback lines than those set by the State.

There can no longer be any question that the “police power” may be exercised to protect and preserve the environment. Florida’s Constitution expressly provides:

It shall be the policy of the State to conserve and protect its natural resources and scenic beauty. Adequate provisions shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise.

Art. II, § 7, Fla.Const. Other jurisdictions have reached a similar conclusion, without the benefit of an express constitutional provision. The wetlands and coastal areas are places of critical concern because of their important role in protecting the inland regions against flooding and storm danger. The ordinance in this case passes constitutional muster because it was not shown to be in any way arbitrary or discriminatory, or more severe or strict than necessary to achieve a valid police power purpose.

II. IS THE ORDINANCE INVALID AS APPLIED TO McNULTY’S PROPERTY?

In Florida, it is well established that an ordinance may be declared invalid as to particular property because the ordinance affects or limits the reasonable use of the land so drastically as to result in a situation tantamount to “inverse condemnation.” This “rule” was first stated in Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642, 645 (1941):

On the other hand, if the application of the zoning ordinance has the effect of completely depriving the owner of the beneficial use of his property by precluding all uses or the only use, to which it is reasonably adapted, an attack upon the validity of the regulation as applied to the particular property, will be sustained .... And such an ordinance as the one here under consideration must not infringe the constitutional guaranties of the national or state constitutions by invading personal or property rights unnecessarily or unreasonably. (Citation omitted).

The limitation on use of an owner’s property must constitute more than the prohibition of “the highest and best” use; and the burden of proving the effect of the ordinance on the land, and its reasonable use, is on the challenger of the ordinance. This is often stated in the form of a “presumption” or limitation of scope of judicial review: so long as there is some reason for the zoning body’s action so as to make it “fairly debatable,” the zoning decision should stand. If the challenger of the ordinance fails to make a prima facie showing, the zoning body or municipality need not prove the constitutionality of the ordinance. Lambros, Inc. v. Town of Ocean Ridge, 392 So.2d 993 (Fla. 4th DCA 1981)

In this case McNulty established only that he was forbidden by the ordinance from building on his oceanfront land. That is not sufficient to make a prima facie showing. Lambros, Inc. Like the state statute, the Town’s ordinance could be waived or varied to permit construction of a building through application for a variance. Granting of the variance, like the state permit, necessarily involves consideration of a complex set of facts relating to the particular property such as the type and method of construction, topography of the beach, storm and erosion histories, and methods of handling utility and sewer services to the structure. McNulty’s hand-drawn sketch on an old survey and his assurances he would build the house on pilings was insufficient, and for that reason alone, the denial of his application for a variance should be sustained.

We recognize that in a close case it is difficult to determine when a regulation or limitation becomes a “taking” and therefore unconstitutional as applied to a particular property. A certain amount of balancing or weighing of the harm, intended to be prevented for the public good against the property owner’s rights is involved. In this case, the harm intended to be prevented is substantial. In such a case, the property owner has a heavier burden to show his intended use of his property will not likely cause the dangers or harm intended to be prevented by the ordinance, to occur.

Further, because the constitutional issue involved in these cases is whether or not the property owner is being substantially deprived of the use of his property, he should also show that it would be reasonably possible for him to use his property in the manner he intended. A “taking” cannot be said to have occurred if it was not feasible to build a residence in the place forbidden by the ordinance. Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980). McNulty failed to make any such showing, although he may be able to do so in the future.

Accordingly, the lower court’s judgment is reversed.

REVERSED.

COBB, J., concurs.

ORFINGER, J., concurs specially with opinion.

ORFINGER, Judge,

concurring:

I concur in the excellent opinion written by Judge Sharp. Additionally, it is worth noting that while, as appellee suggests, it might not be practical to go to the expense of complete and detailed engineering drawings when it is not certain that either the Board of Adjustment or the Town Council will consider granting a variance (a point we need not and do not decide here), it appears clear that these authorities have a right to require the presentation of sufficient documentation or other evidence as will initially satisfy them that the applicant has a viable plan. The effect on the community of a request to invade the dune line is sufficiently serious to require more than a “back of the envelope” type of presentation.

      .Although we previously ordered that appellants’ Notice of Appeal was to be considered as a Petition for Writ of Certiorari, in retrospect we believe this case was a proper appeal before this court, and we treat it accordingly. Because a sufficient record and briefs were included in the file, this procedural error does not adversely affect the substantial rights of the parties. See Fla.R.App.P. 9.040(d).

      . Indialantic, Fla., Code § 28-102(1) (1962).

      . Indialantic, Fla., Code § 28-102(2)(b) (1962).

      . Indialantic, Fla., Code § 28-102(2)(c) (1962).

      . Indialantic, Fla., Code § 28-102(4)(c) (1962).

      . City of Miami v. Romer, 58 So.2d 849 (Fla.1952); City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307 (1942).

      . Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642 (1941).

      . City of Miami Beach v. First Trust Co., 45 So.2d 681 (Fla.1949); Broward County v. Capeletti Bros., Inc., 375 So.2d 313 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 755 (Fla. 1980); Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975); Turnpike Realty Co., Inc. v. Town of Dedham, 362 Mass. 221, 284 N.E.2d 891 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689 (1973); 12 Fla.Jur.2d Counties § 181 (1979).

      . City of Miami v. Romer, 58 So.2d 849 (Fla.1952); Broward County v. Capeletti Bros., Inc., 375 So.2d 313 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 755 (Fla.1980); Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975). 5 E. Yokley, Zoning Law and Practice, § 28-8 (4th ed. 1980). But see Zabel v. Pinellas County Water and Navigation Control Auth., 171 So.2d 376 (Fla.1965); Lawley v. Town of Golfview, 174 So.2d 767 (Fla. 2d DCA 1965), disapproved in, City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla.1968).

      . See Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978).

      . Broward County v. Capeletti Bros., Inc., 375 So.2d 313 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 755 (Fla.1980); Mayor and Alderman v. Annapolis Waterfront Co., 284 Md. 383, 396 A.2d 1080 (1979).

      . “The ‘high energy beach’ is a shore fronting the open ocean and dominated by sand and dunal features.” Maloney and O’Donnell, Drawing the Line at the Oceanfront, 30 Fla.L. Rev. 383, 385 n.19 (1978).

      . Section 161.141, Florida Statutes (1979) also makes a finding:
      Beach erosion being a serious menace to the economy and general welfare of the people of this state and having advanced to emergency proportions, it is hereby declared to be in the public interest that the Legislature make provision for publicly financed beach nourishment and restoration and erosion control projects ....

      . §§ 161.052(2)(b), 161.053(4), Fla.Stat. (1979). See § 163.3177(6)(d), (f) and (g), Fla.Stat. (1979).

      . City of Miami Beach v. First Trust Co., 45 So.2d 681 (Fla.1949); S.A. Healy Co. v. Town of Highland Beach, 355 So.2d 813 (Fla. 4th DCA 1978); Albrecht v. Department of Environmental Regulation, 353 So.2d 883 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1210 (Fla.1978); Moviematic Indus. Corp. v. Board of County Comm’rs., 349 So.2d 667 (Fla. 3d DCA 1977); 5 E. Yokley, Zoning Law and Practice § 39-2 (4th ed. 1980).

      . See Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970); Adams v. North Carolina Department of Natural and Economic Resources, 295 N.C. 686, 249 S.E.2d 402 (1978); Sibson v. State, 115 N.H. 124, 336 A.2d 239 (1975); Spiegle v. Borough of Beach Haven, 116 N.J.Super. 148, 281 A.2d 377 (1971); Spiegle v. Borough of Beach Haven, 46 N.J. 479, 218 A.2d 129 (1966); Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972).

      . See State and Local Wetlands Regulation: The Problem of Taking Without Just Compensation, 58 U.Va.L.Rev. 876 (1972).

      . Lambros, Inc. v. Town of Ocean Ridge, 392 So.2d 993 (Fla. 4th DCA 1981); City of Miami v. Zorovich, 195 So.2d 31 (Fla. 3d DCA), cert. denied, 201 So.2d 554 (Fla.1967); 23 Fla.Jur. Municipal Corp. § 136 (1959).

      . City of Miami v. Romer, 58 So.2d 849 (Fla.1952); City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307 (1942); Mailman Development Corp. v. City of Hollywood, 286 So.2d 614 (Fla. 4th DCA 1973).

      . Moviematic Indus. Corp. v. Board of County Comm’rs., 349 So.2d 667 (Fla. 3d DCA 1977).

      . City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla.1968); Burritt v. Harris, 172 So.2d 820 (Fla.1965); City of Miami v. Romer, 58 So.2d 849 (Fla.1952); City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307 (1942); Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642 (1941); Broward County v. Capeletti Bros., Inc., 375 So.2d 313 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 755 (Fla.1980); Moviematic Indus. Corp. v. Board of County Comm’rs., 349 So.2d 667 (Fla. 3d DCA 1977); Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975); William Murray Builders, Inc. v. City of Jacksonville, 254 So.2d 364 (Fla. 1st DCA 1971); Union Trust Co. v. Lucas, 125 So.2d 582 (Fla. 2d DCA 1960).

      . Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So.2d 1082 (Fla.1978); City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla.1968); City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953); Hoffman v. Brevard County Bd. of Comm’rs., 390 So.2d 445 (Fla. 5th DCA 1980); Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980); Dade County v. Beauchamp, 348 So.2d 53 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 512 (Fla.1978); Rural New Town,

        Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975).

      . Compare Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975).

      . The state statute requires a land owner to apply for a permit to construct beyond the “dune line”. § 161.052(2), Fla.Stat. (1979).

      . Indialantic, Fla., Code § 28-102 (1962).

      . City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307 (1942); Duval Productions, Inc. v. City of Tampa, 307 So.2d 493 (Fla. 2d DCA), cert. denied, 317 So.2d 78 (Fla.1975).

      . See City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953); § 161.052(2), Fla.Stat. (1979); Fla.Admin.Code Rule 16B-25.05 — .09; Maloney and O’Donnell, Drawing the Line at the Oceanfront, 30 Fla.L.Rev. 383, 388, 392 (1978).

      . DeCarlo v. Town of West Miami, 49 So.2d 596 (Fla.1950); Union Trust v. Lucas, 125 So.2d 582 (Fla. 2d DCA 1960); Adams v. North Carolina Dept. of Natural and Economic Resources, 295 N.C. 686, 249 S.E.2d 402 (1978).

      . Turnpike Realty Co., Inc. v. Town of Dedham, 362 Mass. 221, 284 N.E.2d 891 (1972); Sibson v. State, 115 N.H. 124, 336 A.2d 239 (1975); Spiegie v. Borough of Beach Haven, 46 N.J. 479, 218 A.2d 129 (1966). State and Local Wetlands Regulation: The Problem of Taking Without Just Compensation, 58 U.Va.L.Rev. 876 (1972).

      . See Town of Bay Harbor Islands v. Schlapik, 57 So.2d 855 (Fla. 1952); City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307 (1942).

      . Section 161.052(7), Fla.Stat. (1979), declares new construction beyond the dune line without a permit to be a “public nuisance” and summarily removable without compensation.

      . See Sturdy Homes, Inc. v. Township of Redford, 30 Mich.App. 53, 186 N.W.2d 43 (1971).

      . Maloney and O’Donnell, Drawing the Line at the Oceanfront, 30 Fla.L.Rev. 383, 401, 402 (1978). See Broward County v. Capeletti Bros., Inc., 375 So.2d 313 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 755 (Fla. 1980); Spiegie v. Borough of Beach Haven, 116 N.J.Super. 148, 281 A.2d 377 (1971); Spiegie v. Borough of Beach Haven, 46 N.J. 479, 218 A.2d 129 (1966); Just v. Marinette County, 56 Wis.2d 7, 201 N.W. 761 (1972).


text:
    Sharon Testy STOKES, Appellant, v. Stephen A. BARNES, etc., et al., Appellees.
    No. 80-726.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.
    Rehearing Denied Aug. 17, 1981.
    Walter R. Stedeford, Jacksonville, for appellant.
    D. Culver Smith, III, of Adams, Coogler, Watson & Smith, P. A., West Palm Beach, for appellees.
    Larry Klein and Bonnie Lee Daniels, West Palm Beach, for amicus curiae, Children’s Home Society of Florida.
   PER CURIAM.

The appellant sought a declaration of rights and appellees counterclaimed for affirmative relief. The trial court denied relief to the appellant, sealed the court files and granted additional injunctive relief to the appellees.

We conclude that the appellant lacked standing to bring this action and therefore, the decision of the court below denying the affirmative relief sought by appellant and sealing the court files is affirmed.

With respect to the injunction entered on the counterclaim, the appellant has conceded that such issue is not yet ripe for determination. We conclude that this issue is moot, without prejudice to the right of the appellant to raise the constitutional issues relating to the injunction at the trial level at such time as the child in question reaches the age of 18 years or is otherwise emancipated.

AFFIRMED.

ANSTEAD and HERSEY, JJ., and STONE, BARRY J., Associate Judge, concur.


author: SCHEB, Chief Judge.

text:
    BERT SMITH OLDSMOBILE, INC., Appellant, v. Willie B. FRANKLIN, Appellee.
    No. 80-616.
    District Court of Appeal of Florida, Second District.
    May 27, 1981.
    Rehearing Denied July 27, 1981.
    William C. Frye, Michael C. Addison and Anne Y. Swing of Trenan, Simmons, Kem-ker, Scharf, Barkin, Frye & O’Neill, Tampa, for appellant.
    Ernest P. Jenkins of Jenkins, Fischer & Brook and Jeré M. Fishback, St. Peters-burg, for appellee.
   SCHEB, Chief Judge.

Bert Smith Oldsmobile, Inc., challenges a judgment entered on a jury verdict awarding Willie B. Franklin damages for breach of implied warranties in the sale of a used car. We affirm.

On May 11, 1978, Franklin signed a retail order to purchase a 1976 Oldsmobile 98 from Bert Smith. The order included an express warranty for thirty days or one thousand miles. It also contained three provisions on the back relating to implied warranties. On May 16 Franklin signed a security agreement-retail installment contract and picked up the car. A local financial institution acquired the security agreement.

According to Franklin, a Bert Smith salesman represented to her that Bert Smith would make needed repairs to the car. Additionally, Franklin stated that when she asked whether the vehicle had ever been in an accident, the salesman assured her that it had been a Bert Smith rental car and had never been involved in an accident. In fact, Bert Smith had purchased the car from a wholesaler that had acquired it when its former owner traded it. The former owner testified that the car had been involved in two accidents. Although the salesman denied making the alleged misrepresentations, the jury apparently accepted Franklin’s testimony.

Within four days of picking up the car, Franklin began experiencing problems with it and returned to Bert Smith for repairs on numerous occasions. Bert Smith’s records indicated that Franklin had come in several times and that it had performed needed repairs and services on the car. Franklin contended, however, that the car was never properly repaired.

She stopped making payments on the retail installment contract, and the bank which held the security agreement filed suit against her. She, in turn brought a third-party complaint against Bert Smith seeking, in addition to other relief, compensatory and punitive damages for alleged violations of the Florida Deceptive and Unfair Trade Practices Act, section 501.201 et seq., Florida Statutes (1979).

The trial court denied Bert Smith’s motion to dismiss the third-party complaint, and at trial denied its motion for a directed verdict. The jury returned a verdict in favor of the bank which held Franklin’s security agreement but awarded Franklin $7,000 in compensatory and $14,000 in punitive damages on her third-party complaint against Bert Smith. Bert Smith appeals the denials of its motions to dismiss and for a directed verdict.

We find that only Bert Smith’s arguments on implied warranties merit discussion. It argues that Franklin’s third-party complaint did not properly allege a breach of implied warranties of fitness or merchantability and that even if it did, no implied warranties accompanied the car since its retail order incorporated an effective disclaimer.

First, we note that implied warranties of merchantability and fitness accompanied the sale of the used car to Franklin. §§ 672.314-.315, Fla.Stat. (1979); Knipp v. Weinbaum, 351 So.2d 1081 (Fla.3d DC A 1977). We conclude that Franklin’s complaint did allege a breach of these implied warranties.

Franklin properly filed her complaint under section 501.211(2) of the Deceptive and Unfair Trade Practices Act since her purchase of the automobile constituted a “consumer transaction” under section 501.203(1) of the Act. She alleged that Bert Smith had violated various rules proposed by the Florida Department of Legal Affairs and approved by the Governor and Cabinet including rule 2-19.05(7), which states, “It shall be an unfair or deceptive act or practice for a motor vehicle dealer to . .. [f]ail to honor his expressed warranty agreement or any warranties implied by law ...” (emphasis added).

The Deceptive and Unfair Trade Practices Act provides for the promulgation of rules by the Department and the Governor and Cabinet “prohibit[ing] with specificity acts or practices that violate this [Act].” § 501.205, id. It also provides that violation of a rule is a violation of the Act and subjects the violator to civil liability. §§ 501.203(5), .211(2), id. Consequently, Franklin properly alleged a breach of implied warranties. This result is consistent with the policy of the Act, frequently referred to as Florida’s “Little F.T.C.” Act, which was enacted “[t]o protect consumers from suppliers who commit deceptive and unfair trade practices” and which must be liberally construed. § 501.202, id.

Second, assuming that Franklin alleged a breach of implied warranties, Bert Smith argues that it effectively disclaimed any implied warranties in its retail order. The Uniform Commercial Code provides that to exclude an implied warranty of merchantability, a writing must be conspicuous and must mention merchantability. To exclude an implied warranty of fitness, the exclusion must be in writing and conspicuous. U.C.C. § 2-316; § 672.316, Fla.Stat. (1979). Thus, even if the retail order contained disclaimers, they had to be conspicuous to be effective.

Bert Smith contends that the trial court erred in allowing the jury to determine whether the alleged disclaimers were conspicuous. We agree. Section 671.-201(10) states that, “Whether a term or clause is conspicuous or not is for decision by the court.” Nevertheless, Bert Smith did not object when the trial court instructed the jury on the question. Consequently, it waived any objection to the error. J. A. Cantor Associates, Inc. v. Blume, 106 So.2d 603 (Fla.3d DCA 1958). Accord, Sharpe v. Herman A. Thomas, Inc., 294 So.2d 14 (Fla.3d DCA 1974).

Even if Bert Smith had objected, however, the court’s error would have been harmless since the alleged disclaimers were ineffective. The retail order contained three provisions on its back discussing implied warranties. These, Bert Smith contends, effectively disclaimed any implied warranties. We reject the first of these provisions, paragraph 9, as a disclaimer because it referred only to new vehicles. The second of these purported disclaimers, paragraph 10, did apply to the sale of used vehicles. It was inconspicuous, however, having been printed in the same size and style of type and included among the myriad other provisions on the back of the retail order form. See Rehurek v. Chrysler Credit Corp., 262 So.2d 452 (Fla.2d DCA 1972); Orange Motors of Coral Gables, Inc. v. Dade County Dairies, Inc., 258 So.2d 319 (Fla.3d DCA 1972).

Finally, Bert Smith relies on paragraph 13 of the retail order which stated, “Any implied warranty of fitness or merchantability created herein, in fact or in law, shall be so limited as to the duration of the expressed limited warranty stated herein.” While this paragraph was in bold type and all-capitals and was the last provision on the back of the contract, it was not a disclaimer. Rather, it limited any implied warranty to the duration of the express warranty prominently displayed on the face of the retail order. Further, the breach of implied warranties occurred within the limitation period.

There was substantial competent evidence of breach of warranties to support the jury’s award of compensatory damages and sufficient evidence of fraud to sustain the award of punitive damages.

Franklin received an award of $2,500 as attorney’s fees for the services of her attorneys at trial under section 501.2105, Florida Statutes (1979), which provides for attorney’s fees for the prevailing party “[i]n any civil litigation resulting from a consumer transaction involving a violation of [the Florida Deceptive and Unfair Trade Practices Act] . . .. ” We also grant her motion for a reasonable fee for her counsel’s services on this appeal under section 501.2105. We direct the trial court to determine and award Franklin a reasonable fee.

Affirmed and remanded.

BOARDMAN and DANAHY, JJ., concur.

      . The court granted Bert Smith’s motion for a directed verdict on one count of Franklin’s complaint seeking rescission of contract. The jury returned a verdict in favor of Bert Smith on another count seeking damages for alleged violations of the Federal Truth-In-Lending Act, 15 United States Code, sections 1601, 1640 (Supp.1979).

      . Paragraph 9 provided:
      Any warranties on the products sold hereby are those made by the manufacturer. The seller, hereby, expressly disclaims all warranties, either express or implied, including any implied warranty of merchantability or fitness for a particular purpose, and neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of said products.

      . Paragraph 10 provided:
      Any used motor vehicle sold to Purchaser by Dealer under this Order is sold at the time of delivery by Dealer without any guarantee or warranty, expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose, as to its condition or the condition of any part thereof except as may be otherwise specifically provided in writing on the face of this Order or in a separate writing furnished to Purchaser by Dealer.


text:
    Freddie Lewis LEE, Appellant, v. STATE of Florida, Appellee.
    No. UU-227.
    District Court of Appeal of Florida, First District.
    June 1, 1981.
    Rehearing Denied Aug. 3, 1981.
    Michael Allen, Public Defender and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky and David P. Gauldin, Asst. Attys. Gen., for appellee.
   PER CURIAM.

This cause is before us on appeal from a judgment of guilty of attempted robbery with a firearm entered on a jury verdict, and from a sentence imposed of three to forty years in prison. Appellant correctly urges that, under Florida Statutes, Sections 812.13(2)(a) and 777.04(4)(b) (1979), attempted robbery with a firearm is a second degree felony for which the maximum penalty is fifteen years in prison. Florida Statutes, Section 775.082(3)(c) (1979). The enhanced penalty statute, Florida Statutes, Section 775.087 (1979), does not apply when the use of a firearm is an essential element of the offense. Crook v. State, 385 So.2d 1136, 1138 (Fla. 1st DCA 1980). Other contentions raised on appeal are without merit.

Accordingly, the sentence is VACATED and the cause REMANDED for resentenc-ing in accordance herewith.

McCORD, BOOTH and SHIVERS, JJ., concur.


text:
    Howard BABB, Jr., Public Defender, Fifth Judicial Circuit, Petitioner, v. Honorable W. F. EDWARDS, Circuit Judge, Citrus County, Respondent.
    No. 81-301.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Rehearing Denied July 2, 1981.
    Howard Babb, Jr., Public Defender, Ta-vares, in pro. per.
    No appearance for respondent.
   PER CURIAM.

In each of two unrelated cases, the public defender certified to the trial court that his representation of the defendant conflicted with his representation of another defendant for whom he previously had been appointed by the court and requested the court to appoint private counsel unaffiliated with the public defender’s office. In each case, the trial court held no conflict would arise, so long as the defendants were represented by assistant public defenders from separate counties within the circuit who would work independently of one another. The public defender seeks review of these orders by a petition for writ of prohibition, alleging that, where one assistant public defender is unable to represent a defendant, all other assistant public defenders within that circuit should be similarly disqualified.

Disciplinary Rule 5-105(D) of the Florida Bar’s Code of Professional Responsibility provides that, where a lawyer is unable to represent a client whose interests conflict with those of another client, “no partner or associate of his or his firm may accept or continue such employment.” In Turner v. State, 340 So.2d 132 (Fla.2d DCA 1976), the Second District decided that the public defender’s office within a given circuit was a “firm” within the meaning of this prohibition, and held that separate attorneys within a particular public defender’s office could not represent antagonistic codefendants. Turner relied on Allen v. District Court, 184 Colo. 202, 519 P.2d 351 (1974), which focused upon the exchange of information among members of the office in ruling that assistant public defenders were members of a “fjrm.” Turner has been followed by the Third District in this regard in Roberts v. State, 345 So.2d 837 (Fla.3d DCA 1977).

While we agree that attorneys employed by a public defender who are required to “practice their profession side by side, literally and figuratively” are members of a “firm” for purposes of the rule, we believe that, where the practice of each attorney is so separated from the other’s that the interchange of confidential information can be avoided or where it is possible to create such a separation, there need be no relationship between them analogous to that of a law firm and there would be no inherent ethical bar to their representation of antagonistic interests. This possibility was not considered by the Turner court or by the other courts relying on, or citing to, Turner. For example, the issue in Adams v. State, 380 So.2d 421 (Fla.1980), was the propriety of the appointment of the Public Defender of the Nineteenth Judicial Circuit in a case wherein the issue was the competency of prior representation by that same public defender (or his designee). This is altogether different from the issue herein presented. In none of the Florida cases cited above — Turner, Roberts, or Adams — was any consideration given to the question we address in this opinion: Whether or not two adverse defendants may be represented by assistant public defenders in the same circuit whose offices and facilities are sufficiently insulated from each other so as to assure that confidential information is not inadvertently exchanged.

Here, the trial judge specifically addressed the question of separation and found that, since the two appointed assistant public defenders maintained separate offices in separate counties, no danger of information transfer between the two was shown. Under these facts, the only relation between the two attorneys was that both were employed by the public defender of the circuit, which fact alone would not ethically bar them from representing adverse interests. The trial judge was therefore correct in ruling that the appointment was not barred by considerations of ethics.

We must then consider the effect of the language in section 27.53(3), Florida Statutes (Supp.1980), upon this problem. That section reads:

If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff because of conflict of interest, it shall be his duty to certify such fact to the court, and the court shall appoint one or more members of The Florida Bar, who are in no way affiliated with the public defender, to represent those accused. [Emphasis added].

We believe the above language should be construed to require the public defender (or assistant public defender representing a particular defendant) to do more .than merely ascertain that there is hostility or adversity between defendants represented by his office before filing a motion to withdraw; it is also his duty to ascertain, as a condition precedent to the filing of that motion, that counseling of such defendants by different members of the staff cannot be done “without conflict of interest,” as provided by the statute. If attorneys employed by the same public defender are not equated, for purposes of considering conflicts of interest, with private attorneys associated in the same law firm, then the factors discussed above relating to the protection of confidential information by separation of offices, facilities and personnel must be weighed by the public defender in the filing of a motion to withdraw. And such factors must be weighed by the trial court in its determination as to whether or not such motion should be granted.

To the extent that the Turner and Roberts decisions failed to include this consideration, we are in disagreement with them and certify conflict. In the instant case, it is clear that the motion to withdraw, relying on the rationale of Turner, did not comprehend the factors set out in this opinion. Therefore, it was properly denied by the trial judge. We believe it appropriate to observe that a trial judge, when confronted with a public defender’s motion to withdraw because of conflict, is severely circumscribed in his inquiry and must judiciously avoid any invasion of the privileged area of attorney/client communications. That restraint, however, is not required in regard to the court’s inquiry into the availability of separation of facilities in the public defender’s office or offices within the circuit to determine if separate attorneys of that office may represent antagonistic interests without prejudice to the defendants involved. As a practical matter, this latitude granted to public defenders and to trial judges is in the best interests of defendants, who, in many instances, will be represented more ably by an experienced assistant public defender than by an obliging but indifferent private attorney lacking experience in criminal law or unable to sacrifice sufficient time from the demands of his civil practice.

Moreover, the prohibition of representation required by Turner and Roberts, which we believe unnecessarily requires resort to the appointment of private counsel, is at variance with the basic purpose of the public defender’s office — that is, to provide effective legal representation to indigents at minimum cost to the public. See § 27.51, Fla.Stat. (1979).

Accordingly, the petition for writ of prohibition is denied. Pursuant to Rules of Appellate Procedure 9.030(a)(2)(A)(v) and (vi), we certify that this decision passes upon a question of great public importance and that said decision is in direct conflict with decisions of other district courts of appeal, as hereinbefore noted.

DENIED.

COBB, SHARP and COWART, JJ., concur.

      . § 27.53(3), Fla.Stat. (Supp.1980).

      .Other courts considering the question have relied upon this interchange of information. See, e. g., Borden v. Borden, 277 A.2d 89 (D.C.App.1971); 5 F.S.U.L.Rev. 492 (1977). See also Fla. Bar Professional Ethics Commission, Op. 67-38 (1967).

      . Borden, 277 A.2d at 91.

      . See also Fla. Bar Professional Ethics Commission, Op. 67-38 (1967).

      . Fla. Bar Code Prof.Resp. DR 5-107(B).

      . Obviously, each member of a private law firm has a pecuniary interest, direct or indirect, in the successful representation of each client in that firm. That is not true of assistant public defenders.

      . Illustrative of this problem is a resolution recently enacted by the judges of the Seventh Judicial Circuit of Florida, which reads:
      WHEREAS, there exists in the Seventh Judicial Circuit, as well as the entire State of Florida, a severe problem in regard to funding of counsel to represent indigent defendants in Public Defender conflict cases; and WHEREAS, the Judges of the Seventh Judicial Circuit of Florida have determined that the Public Defender’s office routinely files a certificate of conflict where more than one defendant, charged with the same crime, is indigent; the judge then has to appoint counsel at the expense of the county to represent said defendant(s), which causes a severe economic drain on the Fine and Forfeiture funds of the counties; and
      WHEREAS, the Judges of the Seventh Judicial Circuit are convinced that the mere fact that the Public Defender’s office represents a defendant would not necessarily cause knowledge of confidential communications to one assistant public defender to be vicariously imputed to all other assistant public defenders in the same circuit; and are further convinced that any interpretation of the law such as this would defeat the very purpose of the Florida Public Defender Law; and
      WHEREAS, the Judges of the Seventh Judicial Circuit of Florida are further convinced that the Supreme Court of Florida should adopt a rule addressing this problem and providing a solution therefor;
      NOW, THEREFORE, BE IT RESOLVED by the Circuit Judges of the Seventh Judicial Circuit of Florida, this 6th day of January, 1981, that the Supreme Court of Florida be and that honorable body is hereby requested to adopt such necessary rules changes as may be proper to require that, upon certification of conflict by an assistant public defender in indigency cases, another assistant public defender be assigned to handle such case, unless an ethical conflict is alleged and established that would, in and of itself, impute knowledge to all other assistant public defenders and result in a miscarriage of justice to the defendant.


author: HERSEY, Judge. ANSTEAD, Judge,

text:
    CITY OF FORT PIERCE, Florida, a municipal corporation, Mayor Buell Brown, John D. Browning, Havert Fenn, Grover Leslie, Jack Long and William R. Moore, Director of Fort Pierce Building and Zoning Department, Appellants/Cross-Appellees, v. Arthur DAVIS and Calvin Smith, Appellees/Cross-Appellants.
    No. 80-336.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Rehearing Denied Aug. 6, 1981.

      John T. Brennan and James T. Walker of Brennan, McAliley, Hayskar, McAliley & Deckert, P.A., Fort Pierce, for appellants/cross-appellees.
    J. Michael Brennan of Brennan & Mus-chott, Fort Pierce, for appellees/cross-appellants.
   HERSEY, Judge.

The final judgment from which this appeal is taken determined that appellant, The City of Fort Pierce, should be equitably estopped from changing the zoning applicable to appellees’ property.

There are really only two fundamental issues presented by the record and the briefs: the adequacy of notice and the applicability of equitable estoppel. We hold that notice was inadequate and that equitable estoppel was inappropriately applied against the city.

Appellees purchased a parcel of land zoned for commercial use but located in an area of the city which was primarily residential. A building permit was issued authorizing the renovation of a building located on the parcel. The major product line was to be beer and wine and the renovated building was to have a quick-service drive-through window.

The owners of adjacent, residential property petitioned the City Commission to rezone the parcel from commercial to residential, expressing concern that ready access to beer and wine might compromise the integrity of a large park and recreational area in the neighborhood and undermine the morals of the youth utilizing the park.

It is necessary to an understanding of the notice issue to briefly review' the sequence of material events which followed the initial issuance of the building permit and receipt of the petition by the City Commission.

The building director of the city was instructed not to verify the zoning for purposes of appellees obtaining a beverage license.
The cities’ planning board held meetings and recommended that the zoning be changed.
Appellees were advised of the proposal to change the zoning.
Appellees expended $3000 to $4000 to renovate the property (there is some evidence that part of these expenditures occurred before appellees had notice of the proposed change).
Notice of a public hearing scheduled for March 19, 1979, to adopt the proposed ordinance changing the zoning was advertised on March 9, 1979.
The hearing was rescheduled for May 7, 1979 and appellees’ attorney was advised of this change by letter dated March 19, 1979.
The hearing was again rescheduled, this time for April 2, 1979 — counsel for appel-lee was advised of this by letter dated March 25, 1979 and public notice was published on March 26, 1979.

First reading of the proposed zoning ordinance took place on April 2, 1979, at which time appellees’ counsel objected to the notice as inadequate, citing as prejudice, insufficient time to prepare and verify a petition containing signatures of persons who favored a convenience store in the neighborhood. The second and final reading of the ordinance occurred on April 16, 1979. At that hearing appellees’ counsel argued the merits of the zoning question but did not reiterate his objection to the notice.

We first address the question of whether timely notice was given. The applicable provision is contained in Section 166.-041(3)(c)(l), Florida Statutes (1979):

In cases in which the proposed rezoning involves less than 5 percent of the total land area of the municipality, the governing body shall direct the clerk of the governing body to notify by mail each real party owner whose land the municipality will rezone by enactment of the ordinance and whose address is known by reference to the latest ad valorem tax records. The notice shall state the substance of the proposed ordinance as it affects that property owner and shall set a time and place for one or more public hearings on such ordinance. Such notice shall be given at least 30 days prior to the date set for the public hearing, and a copy of such notice shall be kept available for public inspection during the regular business hours of the office of the clerk of the governing body. The governing body shall hold a public hearing on the proposed ordinance and may, upon the conclusion of the hearing, immediately adopt the ordinance.

While a contestant may waive or be estopped from asserting a defect in notice as invalidating an ordinance, in the absence of waiver or estoppel the notice requirement is mandatory and jurisdictional. Malley v. Clay County Zoning Commission, 225 So.2d 555 (Fla. 1st DCA 1969). Appellee timely and specifically objected to the notice as being insufficient and showed prejudice in being unable to prepare, verify and file a counter-petition. On that basis we find the ordinance passed by the City of Fort Pierce invalid.

We must go further, however, and consider whether the city may be equitably estopped, as found by the trial court, since such á finding would preclude the city from publishing a proper notice and reenacting the ordinance in question.

Before doing so we address a facet of the final judgment material to this issue and not previously discussed. The judgment contains a provision permanently enjoining the city from enforcing residential zoning on appellees’ property. This portion of the judgment is erroneous. We reverse that aspect of the final judgment as being in excess of the jurisdiction of the circuit court.

The trial court held that the city should be equitably estopped from changing the zoning on appellees’ parcel from commercial to residential.

A local governmental unit may be estopped from exercising its zoning power where three conditions are met. The property owner (1) has relied in good faith upon (2) some act or omission of government, and (3) has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to permit the destruction of the right which he acquired. Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976).

Before purchasing the parcel appel-lees determined that it was zoned commercial. In reliance on that state of the zoning the acquisition was consummated. However, the mere existence of a present right to a particular use of land, derived from a less restrictive zoning ordinance is not a sufficient “act” of government upon which to base equitable estoppel. Pasco County v. Tampa Development Corp., 364 So.2d 850 (Fla. 2d DCA 1978).

The evidence indicates that, apart from the costs of acquisition, most of which were incurred after appellees had notice of the city’s intent to change the zoning, ap-pellees’ investment for renovations was in the neighborhood of $4000. Under the circumstances of this case such an expenditure is not “such extensive obligations and expenses that it would be highly inequitable and unjust” to permit the city to change the zoning. There simply is no support in the record to lend credence to the contrary conclusion which would be a necessary predicate for the trial court’s holding. Thus, since we now determine that one of the three conditions enumerated in Hollywood Beach Hotel v. City of Hollywood, supra, is missing, we need not look for reliance on an act or omission of government. We therefore reverse this aspect of the final judgment as well.

We find no merit in the cross-appeal.

It will obviously be necessary for the trial court to revisit the question of awarding costs in view of our opinion.

In summary, we hold that the zoning ordinance is void for failure to give the notice required by the applicable statute; however, we also hold that the principle of equitable estoppel has no application to the facts of this case. Appellant, the City of Fort Pierce, is free to readvertise and to hold a public hearing to readopt the ordinance in question if it so chooses. We have reversed that part of the final judgment enjoining the city from doing so or from enforcing residential zoning on appellees’ parcel. We also reverse the award of costs and affirm the refusal to award attorneys’ fees under Section 57.041, Florida Statutes (1979).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

LETTS, C. J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I believe there is substantial competent evidence in the record supporting the trial court’s determination on the issue of equitable estoppel. Accordingly, I would affirm that portion of the final judgment.


author: ORFINGER, Judge. COWART, Judge

text:
    HEGEMAN-HARRIS COMPANY, INC. and Fidelity and Deposit Company of Maryland, Appellants, v. ALL STATE PIPE SUPPLY COMPANY, INC., Appellee.
    No. 80-622.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    Rehearing Denied July 20, 1981.
    George Maxwell, III, of Rossetter, Maxwell & Silvernail, Melbourne, for appellants.
    Peter B. Heebner of Van Wert, Heebner & Kennedy, Daytona Beach, for appellee.
   ORFINGER, Judge.

The judgment of the trial court finding that appellee, as a materialman, was enti-tied to recover $6,626.59 from the contractor’s surety under the payment bond posted by the contractor, is affirmed.

Because the action was one brought against the contractor and its surety under the bond, we must reverse that part of the judgment awarding appellee an attorney’s fee of $5,000, because the fee exceeds 12'/2% of the judgment. See Allied General Contractors, et al, v. Superior Asphalt Co., 397 So.2d 727 (Fla. 5th DCA 1981). We note Judge Cowart’s concern for the constitutionality of the statute because of the apparent unequal treatment of persons in substantially the same position, but as was the case in Allied General, no constitutional questions were raised in the' trial court or on this appeal, so none are considered.

The judgment is affirmed except as to the award of attorney’s fees, which is vacated, and the cause is remanded to the trial court with directions to reconsider the allowance of attorney fees to appellee in conformity with section 627.756(2), Florida Statutes (1977).

AFFIRMED in part, REVERSED in part, and REMANDED.

SHARP, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge

dissenting:

As a matter of construing the statutes themselves, I agree with Judge Cobb’s reasoning in Allied General Contractors v. Superior Asphalt Co., 397 So.2d 727 (Fla. 5th DCA 1981). However, I do not agree with the result because I believe the application of section 627.756, Florida Statutes (1979), to a mechanics’ lienor’s action on a payment bond is a violation of the lienor’s right to equal protection of the law.

A landowner may exempt his property from all mechanics’ liens, except that of the contractor, by requiring the contractor to furnish a payment bond. § 713.02(6), Fla. Stat. (1979). When no payment bond has been furnished, a lienor who prosecutes his lien, against the improved land is authorized to collect “a reasonable fee” without limitation. § 713.29, Fla.Stat. (1979). The majority holds that a lien claimant who is forced to proceed against a payment bond, rather than the land, cannot recover reasonable attorney’s fees in excess of 12.5 percent of the recovery under the bond because this limitation is contained in section 627.756, Florida Statutes (1979), a statute in the insurance code relating to surety insurance contracts. Under the majority’s application of this statute, two lienors with identical claims against different owners recover different amounts for attorney’s fees, depending solely on the arbitrary circumstance of whether or not the owner has required his contractor to furnish a payment bond.

The concept of equal protection of the laws embodied in the fourteenth amendment to the United States Constitution and section 2 of article I of the Florida Constitution condemns legislation which classifies persons for disparate treatment, where the classification is arbitrary or where there is no difference in the classes having a substantial relation to the purpose of the legislation. State v. Andersen, 208 So.2d 814 (Fla.1968), appeal dismissed 393 U.S. 22, 89 S.Ct. 49, 21 L.Ed.2d 18 (1968); Hunter v. Flowers, 43 So.2d 435 (Fla.1949).

Essentially the entire mechanics’ lien law is for the benefit of lienors and is to afford the lienor adequate assurance of being fully compensated for his labor, services and material. The section for attorney’s fees, section 713.29, is primarily calculated to prevent any diminution of the claimant’s full compensation. Foxbilt Electric, Inc. v. Belefant, 280 So.2d 28 (Fla. 4th DCA 1973); Emery v. International Glass & Mfg., Inc., 249 So.2d 496 (Fla. 2d DCA 1971). The lienor on a job on which the contractor has furnished a payment bond needs, and should be entitled to, full payment for his labor and material undiminished by necessary reasonable attorney’s fees just as much as his brother lienor who furnished services and material to an unbonded job.

Equal protection demands that the rights of all persons must rest upon the same rule under similar circumstances, Insurance Co. of Texas v. Rainey, 86 So.2d 447 (Fla.1956); Rodriguez v. Jones, 64 So.2d 278 (Fla.1953), and legislation allowing a particular class of litigants recovery of attorney’s fees is valid only where it affords similar treatment to all members of the class. Sarasota County v. Barg, 302 So.2d 737 (Fla.1974); Hunter, 43 So.2d at 437-438. See Missouri, Kansas & Texas R. Co. of Texas v. Cade, 233 U.S. 642, 34 S.Ct. 678, 58 L.Ed. 1135 (1914); Union Terminal Co. v. Turner Construction Co., 247 F. 727 (5th Cir. 1918); Annot., 73 ALR3d 515 (1976).

Here, although the state may constitutionally single out mechanics’ lien claimants as a class for purposes of allowing them recovery of attorney’s fees, it may not constitutionally further subdivide the class of lienors based on the criterion of whether an individual owner has required his contractor to secure a payment bond, as this is a circumstance bearing no relation to the purposes of the statute authorizing reasonable attorney’s fees in mechanics’ lien cases. To avoid this constitutional problem I would hold section 627.756 inapplicable and would read section 713.29, Fla.Stat. (1979), applicable to lienors on bonded and unbonded jobs alike.

      . § 713.23, Fla.Stat. (1977).

      . § 627.756(2), Fla.Stat. (1977).


text:
    STATE of Florida, Appellant, v. James Thomas CHIVERS, Appellee.
    No. 80-985.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    Rehearing Denied July 16, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellant.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellee.
   COBB, Judge.

The defendant below, James Chivers, was charged with two counts of sexual battery upon the female victim. The state appeals the trial court’s granting of a motion to suppress four items of tangible evidence taken from defendant’s pick-up truck, where one of the alleged batteries occurred. The facts adduced at the hearing on the motion revealed the following sequence of events:

Richard Griffis, deputy sheriff, testified that on May 4, 1980, he was covering the south beach area of New Smyrna Beach when he was dispatched to investigate a report of a sexual battery. Upon responding to the call, the officer talked with the female victim, who told him that she had been sexually assaulted once in a truck and twice on the beach. She gave the officer a description of her assailant as a white male wearing white jeans and she described the truck as a white truck. She told the officer that she had taken the keys to the truck and thrown them into some bushes, and that the truck was still parked at the site of the assault. The officer took the victim to the National Seashore Park, where they found a white pick-up truck which the victim immediately identified. The officer walked over to the truck, where he observed that the driver’s side window was down and the vent window on the passenger side was broken out, and saw a wallet lying on the front seat. The door of the truck was unlocked and the officer opened the door, removed the wallet, and found a driver’s license in the wallet. The name on the driver’s license was James Chivers, and the officer broadcast the name over the radio. The defendant was picked up by a Corporal Mellon further north along the beach and returned to the scene while the victim was still there. At that point, the defendant was given the driver’s license and the wallet was returned to the truck. The victim was then transported to the hospital and the defendant was taken to the police station.

Kenneth Edwards, investigator for the sheriff’s department, testified that on May 4, 1980, he was dispatched to the National Seashore Park where he met with other officers already at the scene of a white GMC pick-up truck. At that time, the defendant had already been put in custody and the victim taken to the hospital. The officer took photographs, checked the surrounding area for other possible evidence, and entered the unlocked pick-up truck and removed certain articles from the vehicle that he thought might be involved in the case. The items that he collected were a button found on the floorboard, a white towel, and a brown wallet on the front seat. After he had completed his investigation, the truck was towed away by a wrecker. At the time that the officer made his search of the truck, he did not have the defendant’s permission and he did not have a warrant. At the time of the search, the truck was parked approximately two feet from the side of a dirt roadway facing the beach. It was parked in a designated parking area by a walkway to the beach.

The defendant successfully argued to the trial court at the suppression hearing that this was not an inventory search, since it was not made pursuant to a legal seizure of a vehicle, but was a search for evidence of crime. Moreover, argued the defendant, there was no consent and no exigency to support the warrantless search by Edwards. At the time of that search, the defendant was in custody, the vehicle was immobilized because the keys had been thrown away by the victim, and there was ample opportunity to obtain a search warrant rather than conducting a warrantless search. In other words, argued the defense, no exception to the warrant requirement existed: not exigency, inventory, consent, or search incident to lawful arrest. The case primarily relied upon by the defendant before the trial court was Coolidge v. New Hampshire, 403 U.S. 433, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The trial court suppressed as evidence the button, the towel, the wallet, and the driver’s license.

At the outset of our consideration, we agree with the defendant that the searches of the truck which produced the evidence in question cannot be sustained as inventory searches. The police officers were deliberately seeking evidence of the crime of sexual battery; they were not generally inspecting the truck and making an inventory of the contents as a consequence of impoundment in order to preserve the property or insulate themselves or other custodians from liability for its theft or destruction. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Fields v. State, 369 So.2d 603 (Fla. 1st DCA 1978); Urquhart v. State, 261 So.2d 535 (Fla. 2d DCA 1971), cert. denied, 266 So.2d 349 (Fla. 1972). It is also clear that there was no consent by the defendant to any search of the vehicle and the search was not incident to his arrest. The question, then, is whether or not any exigent circumstances justified a warrantless search and the resultant seizure of the suppressed items found in the truck.

We believe the trial court improperly applied the rationale of Coolidge to the instant factual situation. Coolidge, a widely-quoted and often misquoted case, stands for the proposition that for purposes of the Carroll doctrine, exigent circumstances do not exist if the police have had adequate time and probable cause prior to the search to procure a warrant. In that case, the evidence against Coolidge had accumulated over a two-and-a-half-week period, and a warrant to search his automobile, which was regularly parked at his home, easily could have been obtained. In fact, a defective warrant signed not by a neutral magistrate but by the state attorney general was obtained. Thus, the state had to justify a warrantless search. The state thereupon argued that the valid arrest of Coolidge created an exigent circumstance, because he was then alerted and could have had his car removed from the home by someone else. The court rejected this argument on the basis that the police cannot create the exigency that serves as an exception to Fourth Amendment requirements by their own pri- or unreasonable action in failing to procure a valid warrant when probable cause to do so existed.

In the Carroll case, the U.S. Supreme Court established the doctrine that the police may make a warrantless search of a mobile vehicle if (1) there is probable cause to believe it contains evidence of a crime, and (2) it is likely that due to exigent circumstances the vehicle will be unavailable by the time a warrant is obtained. That doctrine was amplified by the subsequent case of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), which involved the warrantless search of an automobile after it had been seized and removed from curbside to a police station. It was held that if the car could lawfully be searched at the time it was stopped under the exigency doctrine of Carroll, it could also be taken to the station house and lawfully searched there. The court in Chambers reasoned that there is no qualitative difference, in constitutional terms, between a search and a seizure of a car. Said the court in Chambers:

Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search either course is reasonable under the Fourth Amendment.

In the instant case, the evidence is clear that Deputy Griffis, when he first came upon the truck with the victim, had probable cause to believe that it contained evidence of a crime and that there were exigent circumstances at that time justifying the necessity for him to search the vehicle: The identity and whereabouts of the assailant were unknown; there was the distinct possibility that a second set of keys was available to the assailant and that he would return with them (or with a tow truck); and the vehicle could have contained evidence of the crime, subject to disposition by the assailant upon his return to the truck, or even a weapon accessible to him at that time. The fact that Griffis limited his lawful initial search to discovery of the wallet and the driver’s license, and deferred further search of the truck until the arrival of Officer Edwards (analogous to the later search at the station in Chambers) did not render the search by Edwards under more favorable circumstances constitutionally unreasonable.

The trial court erred in focusing on the exigency (reasonableness) of the search by Edwards rather than that by Griffis, and thereby applying Coolidge rather than Carroll and Chambers. The difference between these landmark cases is clarified by the following language from Coolidge:

Since Carroll would not have justified a warrantless search of the Pontiac at the time Coolidge was arrested, the later search at the station house was plainly illegal, at least so far as the automobile exception is concerned ... It is true that the actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable, any “exigent circumstances” had passed, and, for all the record shows, there was a magistrate easily available. Nonetheless, the analogy to this case is misleading. The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified. [Emphasis in original.]

Coolidge v. New Hampshire, 91 S.Ct. at 2036.

The initial intrusion without a warrant by Griffis in the instant case was justified, unlike the initial intrusion in Coolidge. Therefore, under the “continuing exigency” doctrine of Chambers, the motion to suppress should have been denied. The order of the trial court is quashed and this cause remanded for further proceedings consistent herewith.

QUASHED and REMANDED.

SHARP and COWART, JJ., concur.

      . Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

      . Later, in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the Supreme Court drew such a distinction, with dubious logic, in regard to such items as suitcases and footlockers on the basis that the expectation of privacy relating to those is greater than that relating to a motor vehicle.


text:
    Andrew JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-2530.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Rehearing Denied Aug. 19, 1981.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and Peter Birch, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The defendant’s conviction and sentence are affirmed. However, we hereby strike that portion of the sentence requiring the defendant to serve a mandatory minimum of three years’ imprisonment pursuant to Section 775.087(2), Florida Statutes (1979).

AFFIRMED.

DOWNEY and MOORE, JJ., and BARRETT, ROSEMARY, Associate Judge, concur.


text:
    Norman E. WEATHERSBEE, Appellant, v. STATE of Florida, Appellee.
    No. 80-863.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Richard L. Jorandby, Public Defender, and John R. Cullom, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Clark v. State, 363 So.2d 331 (Fla.1978).

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


text:
    MICHIGAN MUTUAL INSURANCE COMPANY, Appellant, v. Kerrie Carpenter FERRELL and James H. Garbarino, Jr., Appellees.
    No. 80-1176.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    Rehearing Denied Aug. 13, 1981.
    Mark R. Boyd and Dennis O. Shillen of Walsh, Theissen & Boyd, P. A., Fort Laud-erdale, for appellant.
    Roger L. Brown of Bird, Carpenter, Brown & Schweighardt, P. A., Fort Lauder-dale, for appellee Ferrell.
   PER CURIAM.

Upon review of the record we are unable to find substantial competent evidence to support the trial court’s finding that the appellee’s contract of insurance with the appellant had not been cancelled. See R. A. Piloto, Inc. v. Allstate Insurance Company, 397 So.2d 1029 (Fla. 3d DCA 1981).

Accordingly, the final judgment is reversed with directions that judgment be entered for appellant.

ANSTEAD, HERSEY and HURLEY, JJ., concur.


text:
    E. T. MOFFITT CORPORATION, Appellant, v. The ACADEMY OF MARINE SCIENCE, INC., James Bush and Sid Green, Appellees.
    No. 80-1267.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    Rehearing Denied Aug. 6, 1981.
    Craig R. Wilson of Ruffolo & Wilson, West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellee Sid Green.
   PER CURIAM.

The evidence is in conflict but supports the trial court’s decision. Accordingly, we affirm. In doing so we note the absence of assistance to this court on the part of appel-lees, The Academy of Marine Science, Inc. and James Bush, neither having filed a brief herein.

AFFIRMED.

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


text:
    John Lindsey TWEED and Jacob Wertz Nease, Jr., as co-personal representatives of the Estate of Carol Nease Tweed, deceased, Appellants, v. Clyde Gilbert TWEED, Appellee.
    No. 80-1107.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.
    Rehearing Denied July 23, 1981.

      Edgar M. Dunn, Jr., of Dunn, Smith & Withers, Daytona Beach, for appellants.
    Berrien Becks, Jr., of Becks, Becks & Wickersham, Daytona Beach, for appellee.
   PER CURIAM.

In this appeal from the final judgment dissolving the marriage of the parties, the personal representatives of the deceased wife’s estate question the correctness of the property division between the parties. We affirm in part and reverse in part.

The husband is a very successful neurosurgeon. The parties were married while the husband was a surgical resident, and during the eighteen-year marriage, the husband’s income rose dramatically, while the wife remained at home caring for the household, the children of the parties and children of each party by former marriages. The jointly owned marital residence, valued at several hundred thousand dollars, was constructed by using, in part, a bank loan obtained by the parties jointly, but against which the wife had pledged stock which she had brought into the marriage and which remained titled in her name. At time of trial, the balance of this loan was approximately $84,000.

When the wife filed the dissolution action, she was suffering from a terminal illness and at the trial she testified from a wheelchair, in obviously failing condition. At the wife’s request, and after finding the marriage irretrievably broken, the trial judge entered a partial final judgment dissolving the marriage and retaining jurisdiction over all other matters. The wife died four days later. The final judgment denied the wife’s claim for alimony, lump sum or otherwise, denied her claim of special equity in the husband’s portion of the marital residence, held that the bank obligation to which the wife’s stock had been pledged should be paid jointly by the husband and the wife’s estate and denied the wife’s request that the husband be ordered to substitute other collateral for her stock. The judgment also denied the wife’s demand that the husband be required to repay to the wife’s parents the sum of $37,000 advanced by them towards the acquisition .of the marital residence.

Except with respect to the ruling on the bank loan, we cannot say that the trial court abused its discretion in denying the claim for special equity in the marital residence or in denying distribution to the wife of the husband’s interest in the residence as an equitable division of the property of the parties. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

We hold, however, that because both parties agree that the husband had promised at the time the bank loan was negotiated that he would be solely responsible for paying it off (his was the only significant income of the family), it would be inequitable to permit him to disavow that agreement after the wife’s death. The trial court should have required the husband to assume complete responsibility for the loan and to release the wife’s stock as collateral, either by paying off or renegotiating the loan or by substituting other collateral in its place.

We further note that the wife’s representatives take the position that the final judgment gives the husband exclusive possession of the marital residence during the minority of the children, but the judgment does not say so and the husband agrees he was not awarded such possession. Additionally; the husband’s brief does not dispute the wife’s entitlement to partition of the marital residence as prayed for in her petition. Under the circumstances here, the prayer for partition should have been granted. Condrey v. Condrey, 92 So.2d 423 (Fla.1957).

The final judgment is reversed insofar as it requires the wife’s estate to be equally obligated with the husband for the repayment of the bank loan and rejects the request to release the wife’s stock, and insofar as it refused the request for partition of the marital residence. In all other respects it is affirmed. The cause is remanded to the trial court for further proceedings consistent herewith.

AFFIRMED in part, REVERSED in part and REMANDED.

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


author: COWART, Judge.

text:
    Judith Turner FINE, Appellant, v. Teresa E. FINE, Appellee.
    No. 81-149.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.
    Rehearing Denied July 21, 1981.

      Hale R. Stancil, P. A., Ocala, for appellant.
    E. G. Musleh, P. A., Ocala, for appellee.
   ON MOTION TO RECONSIDER MOTION TO DISMISS

COWART, Judge.

Teresa Fine obtained a judgment for child support arrearages against her ex-husband, Robert Fine. The judgment was recorded and became a lien against real property, which Robert and his second wife, Judith, held as tenants by the entirety, subsequent to Robert’s and Judith’s execution of a contract by which they agreed to sell the property to third parties. To facilitate closing of the sale, a portion of the proceeds sufficient to satisfy the judgment was placed in escrow with the buyers’ attorney.

Teresa became aware of the existence of this fund and attempted to obtain execution of her judgment against the fund by filing a “petition for writ of attachment” in the original divorce action. This petition sought a court order requiring the buyers’ attorney to pay the money to Teresa. Robert’s wife, Judith, filed an answer to the petition and contested issuance of the order. The court rejected Judith’s arguments and issued the requested order. Judith appeals this order, and Teresa moves to dismiss the appeal, contending that Judith has no standing to appeal because she was not a party to the action below.

Judith contends that she became a party to the action, an action between Teresa and Robert for dissolution of marriage, by “subjecting herself to the jurisdiction of the court.” The jurisdiction of the court can be exercised only within the scope of the pleadings in the action and, since these pleadings did not state a claim as against Judith, she cannot make herself a party to the action by merely appearing and defending on Robert’s behalf.

Judith also contends that she has standing to appeal the order because it affects her property rights in the fund. This is not so because we have determined that the order is ineffective to adjudicate title to the escrow fund.

Attachment is available to enforce a creditor’s rights only against “the goods and chattels, lands and tenements of his debtor,” language which does not include a fund of money. § 76.01, Fla.Stat. (1979). It further requires allegations that there is some danger that the property will be soon unavailable for levy of execution, or that the debtor is or will be unavailable; no such allegations were made here. See §§ 76.04, 76.05, Fla.Stat. (1979).

Teresa may enforce her judgment against the fund if she properly proceeds to obtain a writ of garnishment under chapter 77, Florida Statutes. In such event Judith will be able to assert her rights to the fund by becoming a party to the garnishment action under § 77.16, Florida Statutes (1979).

Since we have determined that the attachment order can give Teresa no rights against the escrow fund, and since Judith’s rights to the fund are not therefore affected by the order, her appeal is hereby dismissed.

ORFINGER and COBB, JJ., concur.