author: SCHEB, Chief Judge.

text:
    SOUTHEASTERN DEVELOPMENT AND UTILITY COMPANY, INC., Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF SARASOTA COUNTY, Florida, and Hawkshead Homeowners Association, Inc., Respondents.
    No. 80-957.
    District Court of Appeal of Florida, Second District.
    April 29, 1981.
    Rehearing Denied June 1, 1981.

      M. Joseph Lieb, Jr., Syprett, Meshad, Res-nick & Lieb, Sarasota, for petitioner.
    Daniel Joy of Johnson & Joy, Sarasota, for respondent Hawkshead Homeowners Ass’n, Inc.
   SCHEB, Chief Judge.

Southeastern Development and Utility Company, Inc., challenges the trial court’s order setting aside a rate increase which the Board of County Commissioners of Sarasota County had granted it.

Southeastern is a privately owned water and sewer company in Sarasota County holding a franchise which was granted by the Board and which is subject to county ordinances. Section 6(g) of ordinance 72-64 provides:

The board shall fix and determine a rate which allows for reimbursement of operating costs and a fair and reasonable net return on the original cost of a system to the person first dedicating it to public service, which shall not include contributions in aid of construction [CIAC] or customer contributions.

Section 2(c) of the ordinance empowers the Board to “[r]equire every public utility to charge a fair and reasonable sum as an operating expense annually for depreciation and to credit the sum so charged to a depreciation reserve which shall be charged with retirement of depreciable property from service.”

Southeastern filed for a rate increase under section 6(g). It sought to include depreciation of CIAC property as an operating expense. After rate consultants for both Southeastern and the Board made presentations at a public hearing, the Board on November 6, 1979, adopted a resolution granting Southeastern a substantial portion of the rate increase it had requested and allowing it to recover depreciation on CIAC property as an operating expense.

Hawkshead Homeowners Association, Inc., composed of approximately 400 of

Southeastern’s utility customers, petitioned the circuit court for review of the Board’s resolution. After considering the record before the Board and briefs of counsel, the court on May 12, 1980, quashed the Board’s rate order. In doing so the court concluded:

A review of the record herein fails to reveal sufficient competent, substantial evidence to support the finding of the Board in granting the application of Southeastern Development and Utilities Company, Inc. to amend and increase its rate structure.
The record fails to disclose evidence that would support the amounts claimed and billed as “connection charges;” claimed reserves for depreciation, deterioration and/or replacement of equipment were fictitious, no such reserves having been established and although on one hand the utility company maintained its complete independence of the subdivision developer by claiming depreciation for articles given to it at no cost by the developer, the utility also claimed an allowance for unsold and undeveloped lots in the subdivision that were, are and remain the property and concern of the developer, claiming the utility plant must have excess capacity to serve future customers and the costs of such should be borne by present utility customers. The record accordingly suggests that the rate base herein may have been improperly inflated.

Shortly after that, the Board modified its resolution to comply with the court’s order by eliminating the connection fees and the allowance for depreciation on CIAC property. The Board then announced that it did not intend to appeal, and the court granted Southeastern’s motion to intervene. Southeastern then filed this appeal which we treat as a petition for a writ of certiorari. Fla.R.App.P. 9.040(c). See Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980).

We must determine if the trial court departed from the essential requirements of law in quashing the Board’s resolution. Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976); Hardin v. City of North Miami Beach, 364 So.2d 843 (Fla. 3d DCA 1978). As we read the trial court’s order, the court reached three conclusions. First, it determined that there was no evidence supporting the amounts claimed as connection charges. Second, the court concluded that since Southeastern had not established a reserve for accumulated depreciation on CIAC property, it could not collect that expense. Finally, it determined that the utility claimed an allowance for unsold and undeveloped lots in the subdivision that were the property of the developer.

We first address the collection of a depreciation expense on CIAC property. Hawkshead argued before the trial court that since Southeastern had no cost basis in its CIAC property, the Board was not authorized under section 6(g) to allow it to collect the replacement cost of that property as an operating expense. While section 6(g) does preclude CIAC property from being included as part of the utility’s rate base for calculating a fair return on its property, it does not bar the utility from including its depreciation of CIAC property as an operating expense. Further, section 2(c) empowers the Board to permit inclusion of depreciation as an operating expense and does not distinguish between CIAC property and property purchased by the utility. Thus, we conclude that the ordinance authorizes the Board to allow depreciation on CIAC property as an operating expense. This is a logical interpretation because a depreciation allowance is necessary to accumulate a fund for replacement of not only the portion of the plant provided by the utility but also the portion contributed in aid of construction. Both the Board’s consultant and Southeastern’s consultant testified that if the Board did not allow Southeastern to include depreciation on CIAC property as an operating expense, it would have to allow it to be recovered in some other way. Finally, the supreme court has sanctioned including depreciation on CIAC property as an operating expense for utilities for this purpose. Westwood Lake, Inc. v. Dade County, 264 So.2d 7 (Fla.1972). See State v. Hawkins, 364 So.2d 723 (Fla.1978).

Section 2(c), however, requires the utility “to credit the sum so charged to a depreciation reserve.. . . ” The trial court concluded, apparently on the basis of this language, that since Southeastern had not established a reserve account for the depreciation expense on CIAC property, it was not entitled to collect the expense. Rather than quashing the Board’s resolution, however, the court should have ordered the establishment of this reserve as a condition to collecting the depreciation. If this fund is not available to replace CIAC equipment as it wears out, Southeastern will have to return to the Board for replacement funding. As the supreme court stated in West-wood Lake:

[T]o disregard arbitrarily that part of a utility’s equipment because it was “contributed” and to allow no recognition of its replacement ignores reality; it would only mean a raise in rates later on when it became necessary to replace it. A depreciation loss factor may be proper if necessary to prevent a resulting unfair rate, because its purpose is to save against loss and this must be anticipated.

264 So.2d at 11.

The trial court also concluded that the utility had improperly claimed an allowance for lots owned by the developer. We find no evidence supporting this conclusion, however. As a third ground for quashing the Board’s resolution, the court determined that “the record fails to disclose evidence which would support the amounts claimed and billed as ‘connection charges.’ ” The amounts of the connection charges, however, were not an issue at the Board’s hearing, only how the charges should be treated in determining a reasonable rate of return to the utility on its investment. Further, the fees had been authorized in the past, and there was no change in them. Thus, it was not incumbent upon Southeastern to produce evidence supporting the amounts charged at the hearing, and the court erred in ruling that Southeastern was not entitled to collect the connection charges since it had not introduced any supporting evidence.

In summary the Board properly permitted Southeastern to collect connection charges and to charge a depreciation expense on CIAC property. Further, there is no evidence supporting the trial court’s statement that the utility claimed an allowance for lots owned by the developer. Consequently, the trial court departed from the essential requirements of law in setting aside the rate increase which the Board had granted to Southeastern.

We grant certiorari, quash the circuit court’s order, and remand for further proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. ERVIN, Judge,

license: Public Domain

text:
    D.K.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. TT-150.
    District Court of Appeal of Florida, First District.
    April 30, 1981.
    Rehearing Denied June 9, 1981.
    Michael J. Minerva, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant, a juvenile, appeals his conviction of possession of less than 20 grams of marijuana, arguing there was insufficient evidence to support a conclusion that he constructively possessed the marijuana. We agree and reverse.

The evidence at trial showed appellant and his co-defendant were arrested in front of a high school. The arresting officer testified that he observed the two boys sitting on top of a wall near the school office. He detected a strong odor of marijuana as he approached them. After he placed them in the patrol car, he noticed a partially smoked marijuana cigarette (roach) on the wall where the boys had been sitting.

When the officer looked behind the wall, he found a quantity of marijuana cigarettes. The officer testified that he informed appellant of his rights and that appellant understood those rights. However, he made no effort to have appellant sign a waiver of rights form, since he did not feel the crime was as serious as robbery, rape, or burglary. Over objection, the officer was permitted to testify that appellant stated he had smoked some marijuana.

Appellant’s co-defendant testified the marijuana was his and not appellant’s. He stated he had purchased the marijuana approximately one hour before the arrest and appellant was not with him at the time of purchase. Although the arresting officer testified that appellant indicated that the marijuana “was both of theirs,” the record shows that the officer based this conclusion on the fact that both defendants admitted smoking marijuana; such a conclusion is unwarranted in these circumstances. We also note that the officer’s arrest report indicates that appellant denied ownership of the marijuana.

The state attempted proof of constructive possession by the fact that a quantity of marijuana was found near where appellant was sitting, that a marijuana cigarette, which was not introduced into evidence, was found near where the boys were sitting, and that appellant stated he had smoked some marijuana. These facts, the state contends, showed appellant’s knowledge of the presence of the marijuana and his ability to control it.

We are not so persuaded and conclude the conviction should be reversed for insufficiency of proof of constructive possession. While constructive possession may be shown by circumstantial evidence, such evidence must be consistent with appellant’s guilt and inconsistent with his innocence. Taylor v. State, 319 So.2d 114 (Fla.2d DC A 1975). Mere proximity to the marijuana under the circumstances here is not enough to show appellant could exercise the requisite dominion. In Taylor, a defendant was a visitor in an apartment where drugs were found. Taylor’s close proximity permitted an inference that he could exercise dominion over the drugs, but constructive possession was negated by the fact that other persons present could also exercise such control, so that the evidence was not necessarily inconsistent with defendant’s innocence.

In Harvey v. State, 390 So.2d 484 (Fla. 4th DCA 1980), a conviction for constructive possession was reversed where the circumstantial evidence of the strong odor of marijuana onboard a boat was insufficient to establish knowledge and ability to control the contraband by the defendant, a co-occupant of the boat. The opinion refers to “the circumstantial evidence presented here which although perhaps consistent with appellant’s guilty knowledge, was not inconsistent with his claim of innocence. Such circumstantial evidence is insufficient to sustain a conviction.” Harvey, supra.

In the present case the marijuana was found in a public place, behind a wall at a school, in spacial proximity equally near both boys, and appellant’s co-defendant testified that it was his marijuana. The only other evidence tending to show constructive possession was appellant’s statement that he had smoked some marijuana, and the reference to a “roach” which the officer found near where the boys were sitting. However, this evidence is not inconsistent with appellant’s innocence as to the possession charge.

Although the evidence may be consistent with appellant’s guilt, it is not inconsistent with his claim of innocence. Harvey, supra. We therefore find it is insufficient to sustain the conviction based on constructive possession in this case, and the judgment is accordingly reversed.

SHAW and WENTWORTH, JJ., concur.

ERVIN, J., dissenting with opinion.

ERVIN, Judge,

dissenting.

The arresting officer’s testimony reveals that in August, 1979, at 10:00 p. m., the officer saw two juveniles sitting next to each other on a wall on school grounds, and upon approaching them, he smelled the odor of marijuana. After placing both of them inside the patrol car he noticed a small marijuana cigarette where the two had been sitting. Found behind the wall were a large number of marijuana cigarettes. Following questioning, appellant admitted smoking the “roach” and that the marijuana cigarettes belonged to him and his companion.

The rule recognized in Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967) is that when the state seeks to convict one who is in joint possession of drugs, it must present evidence showing the defendant’s knowledge of the drugs’ presence on the premises and the ability of the defendant to maintain control over them. In my judgment, the delinquency adjudication was amply supported by evidence of both factors. One of the means of establishing knowledge is “by actual incriminating statements... . ” Markman v. State, 210 So.2d 486, 487 (Fla.3d DCA 1968). Although the companion testified at the delinquency hearing that the marijuana was his, this testimony was refuted by that of the interrogating officer, who, as observed, stated that appellant advised him the marijuana belonged to both him and his friend. The trier of fact was privileged to reject one witness’s testimony in favor of another’s. This statement, together with other evidence revealing appellant’s close proximity to the drugs, requires that the adjudication be affirmed.


author: PER CURIAM.

text:
    GILMAN PAPER COMPANY, Appellant, v. Dolphus B. NEWMAN, et ux., and Bennett F. Jackson, Jr., et ux., Appellees.
    No. VV-101.
    District Court of Appeal of Florida, First District.
    April 30, 1981.
    Rehearing Denied June 9, 1981.
    Fred H. Kent, Jr. and Charles Guy Bond, of Kent, Watts, Durden, Kent & Mickler, Jacksonville, for appellant.

      Alan C. Jensen, of Moss & Jensen, Jacksonville, for appellees.
   PER CURIAM.

Gilman Paper Company (Gilman) appeals, urging that the trial court erred in admitting into evidence the Department of Transportation’s (DOT) right-of-way map and in relying on this map as competent evidence of the location of a disputed corner monument. Although we find no error in the trial court’s admission of the map, we must conclude that it was not competent evidence of the location of the corner.

Gilman filed suit for declaratory judgment against appellees alleging their property was encroaching onto its land and requesting the court to determine the correct boundary between the lands of each party. The issue turned on the location of the common corner of Sections 11, 12, 13, 14, T4S, R23E, Clay County, Florida.

At the beginning of the trial, the parties stipulated that various surveys and maps would be admitted into evidence, including the DOT map. Since appellant stipulated to the admission of this document, any problems regarding hearsay and authenticity were cured. However, this stipulation did not affect the relevance of the map or its probative value.

In attempting to locate an unknown corner, whether it is existent , obliterated, or lost, it is necessary to fix its location as closely as possible to that established in the original government survey. See Akin v. Godwin, 49 So.2d 604 (Fla.1950). Parish v. Spence, 149 So.2d 58 (Fla. 1st DCA 1963), Barba Inv. Co. v. Walker, 350 So.2d 509 (Fla. 1st DCA 1977) and Lawson v. Murray, 365 So.2d 744 (Fla. 1st DCA 1978).

From the record, we cannot determine as a matter of law whether the corner was existent, obliterated or lost. However, that fact is not essential to our determination for, in any event, the corner must be located with reference to the original government survey of 1830. While the DOT map may be the best evidence of this corner and may be the closest to the original government survey, as found by the trial court, there is absolutely nothing in the record supporting this conclusion. The map was introduced by appellees and no testimony was offered indicating the purpose for which the map was prepared, whether it followed the original field notes or if it even purports to fix the location of the disputed corner. As in Barba, there is no competent evidence that appellees made any attempt to locate the corner by reliance on the original government field notes. A resurvey not based upon the original survey is inconclusive in determining boundaries and should yield to a resurvey based upon known monuments and boundaries of the original survey. 12 Am.Jur.2d, Boundaries, Section 62.

The declaratory judgment, in addition to determining the boundaries, also made a determination in respect to the right-of-way of certain platted roads in Clay County. No error is assigned to this part of the judgment and it being severable, that portion is affirmed. In all other respects, the judgment is reversed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for a new trial on the determination of boundaries.

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

      . “An existent corner is one whose position can be identified by verifying the evidence of the monument or its accessories, by reference to the description in the field notes, or located by an acceptable supplemental survey record, some physical evidence, or testimony.” United States Dept, of Interior, Bureau of Land Management, Manual of Instructions for the Survey of Public Lands of the United States (1973). ¶ 5-5, p. 130.

      . “An obliterated corner is one at whose point there are no remaining traces of the monument or its accessories, but whose location has been perpetuated, or the point for which may be recovered beyond reasonable doubt by the acts and testimony of the interested land owners, competent surveyors, other qualified local authorities, or witnesses, or by some acceptable record evidence.” Id. ¶ 5-9, p. 130.

      .“A lost corner is a point of a survey whose position cannot be determined, beyond reasonable doubt, either from traces of the original marks or from acceptable evidence or testimony that bears upon the original position, and whose location can be restored only by reference to one or more interdependent comers.” Id. ¶ 5-20, p.133.


text:
    William D. LEISER, Appellant, v. STATE of Florida, Appellee.
    No. WW-170.
    District Court of Appeal of Florida, First District.
    April 30, 1981.
    Rehearing Denied June 2, 1981.
    Lacy Mahon, Jr. of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The order denying appellant’s motion for post-conviction relief filed pursuant to Fla. R.Crim.P. 3.850 is affirmed. However, the case is remanded for correction of the judgment and sentence to reflect the specific crime for which appellant was convicted. Williams v. State, 360 So.2d 61 (Fla.2d DCA 1978); Griffen v. State, 384 So.2d 324 (Fla.2d DCA 1980). Appellant need not be present for this purpose.

McCORD, ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.


author: DOWNEY, Judge, ANSTEAD, Judge,

text:
    CITY OF TAMARAC, a Municipal Corporation, Appellant, v. Thomas John GARCHAR and Karen Garchar, his wife, Appellees.
    Nos. 77-97, 77-98.
    District Court of Appeal of Florida, Fourth District.
    May 1, 1981.
    Rehearing Denied June 11, 1981.

      Sam Daniels of Daniels & Hicks, Miami, Druck, Grimmett, Scherer & James and Nancy Hoffmann, Fort Lauderdale, for appellant.
    Rex Conrad of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.

      . Judge Moore did not participate in this decision and former Judge Cross is no longer a member of the Bench.

   ON PETITION FOR REHEARING

EN BANC.

The petition for rehearing is hereby granted and the following opinion issued En Banc.

This is an appeal by the defendant, City of Tamarac, from final judgments in favor of the plaintiffs, Thomas Garchar and Karen Garchar, in a personal injury action. Mr. Garchar was severely injured when his automobile struck a large boulder located on a median strip dividing a roadway. The suit was brought against defendants, Bro-ward County, Leadership Housing Corporation, and the City of Tamarac. It was generally alleged that the County had negligently designed and constructed the road and that the City had negligently failed to remove the boulder and had improperly maintained the road and median strip. Leadership Housing Corporation (Leadership) was alleged to have negligently placed the boulder in the median strip knowing it to be dangerous.

On August 5,1974, Mr. Garchar was driving his car on University Drive within the municipal limits of the City of Tamarac. The vehicle left the roadway and struck a large coral rock which was located at the beginning of the center median strip. Mr. Garchar sustained severe spinal cord injuries and at the time of trial was a quadriplegic. The accident occurred a few blocks from Mr. Garchar’s residence and he was familiar with the highway. The coral boulder was located within six feet of the edge of the paved surface of the road and was one of several such boulders placed on the median strip by Leadership, a developer, as part of a project to beautify the median strips. The beautification project was pursuant to a city plan and agreement. The roadway was initially constructed by Bro-ward County during the period of 1970-1972.

At trial a settlement was reached between the Garchars, Broward County and Leadership. The settlement amounted to $1,150,000 and was allocated $400,000 to Mr. Garchar’s claim and $750,000 to Mrs. Garc-har’s claim for loss of consortium. This settlement left the City of Tamarac and its insurance carriers as the only remaining defendants.

The jury found the City of Tamarac 70% negligent and Mr. Garchar 30% negligent. The jury further found Mr. Garchar’s damages to be $6,000,000 and Mrs. Garchar’s damages to be $750,000. The jury’s verdict applied the 30% comparative negligence finding and reduced Mr. Garchar’s award to $4,200,000 and his wife’s award to $525,000. In post-trial proceedings the judgment for Mrs. Garchar was ordered satisfied because the $750,000 settlement allocation between her and the settling defendants exceeded her adjusted verdict of $525,000 by some $225,000. The trial court denied a request by the City to set-off the $225,000 excess against Mr. Garchar’s award. Mr. Gar-char’s award of $4,200,000 amounted to $3,800,000 after it was reduced by a $400,-000 set-off based on his settlement.

One of the insurance carriers of the City of Tamarac paid $300,000, leaving a balance due of $3,500,000. The City filed post-trial motions for remittitur, for new trial, and renewed its motion for directed verdict. All of these post-trial motions were denied and the City appeals the final judgments entered in favor of Mr. and Mrs. Garchar, respectively.

The appellant City raises the following five points:

I. Whether the City of Tamarac owed Mr. Garchar a duty to provide a crashworthy median strip?
II.Whether the trial court committed reversible error in denying the City’s requested jury instructions regarding alleged statutory violations by the plaintiff?
III. Whether the trial court correctly held inadmissible a statement by Mr. Garchar made in the hospital emergency room before the investigating police officer?
IV. Whether the $6,000,000 verdict is excessive?
V.Whether the trial court correctly held that $225,000 of the sums paid by the settling defendants could not be applied to reduce Mr. Gar-char’s judgment?

We conclude that reversible error has been demonstrated and remand for a new trial on liability. In view of this remand, it is necessary for us to consider and rule upon all issues presented.

I.

As to Point I, we agree with appellant that there is no duty required of a public authority to provide a crashworthy median strip; however, this is simply not the issue presented in this case. The plaintiffs’ theory of liability against the City was not that the City had failed to provide a crashwor-thy median strip. Instead, plaintiffs allege that the City had assumed the care and control of the median strip and roadway and that the boulder placed at the head of the median strip constituted an intentionally placed hazard or trap. They further alleged that: (1) the road had been improperly designed, built and maintained so that vehicular traffic was channelled or led into the median strip; (2) the City knew this and therefore, together with the developer, (Leadership), was responsible for the boulder being placed in a position so that ears would either hit the boulder or (if they saw it) avoid the boulder and also avoid the median strip; (3) the boulder was meant to be a barrier rather than a step in beautification; (4) the City officials knew the boulder was dangerous because they knew its purpose; and (5) the danger had even been discussed at public City meetings.

We find ample evidence supporting the plaintiffs’ theory of liability as enunciated above. The roadway where the accident happened was a divided highway with a grass median strip in the middle. Although wide enough for two lanes plus a turn lane, there were in fact no traffic or turn lanes marked. The boulder was located at the head of the median strip where an approaching turn lane abruptly ended. There was no road at this break in the median and no need for that turn lane which was unmarked. The roadway was initially built by the County and the area later annexed into the City. From the time of annexation the City exercised control over the roadway and the median strips. The City placed street lights in the area and installed stop signs. The City roped off and barricaded certain areas of the median strips to keep traffic off. The boulder was placed there for the same purpose. A City ordinance controlled the creation of breaks in the median strip and required a City permit for the creation of a break. A City ordinance also prohibited parking or driving on the medians. The City Director of Public Safety assumed responsibility for safety evaluation of the medians and under his direction City employees removed and trimmed bushes and trees in the median which were felt to constitute hazards to traffic. The City mowed and maintained the medians and entered into a contract with the developer Leadership for beautification of the medians. A City “beautification” committee supervised the beautification project which included safety considerations.

After the landscaping was completed, the City refused to accept certain portions and a dispute occurred between the City and the developer concerning areas where vehicular encroachment had damaged grass and shrubbery on the medians. At the site of the accident, cars routinely ran off the edge of the road onto the median preventing grass from growing along a narrow strip. Because of its dispute with the developer, the City refused to resume maintenance of this particular area. To expedite City approval and take-over of maintenance, the developer placed large boulders where the damaged grass indicated motorists often strayed. The City beautification committee was aware of the boulders and reported to the City Manager and City Council that they were dangerous to motorists. The City’s consulting engineer recognized the hazard to vehicular safety and reported such to the City Manager. At trial the Director of Public Safety testified he was aware that the boulders were placed at the ends of the medians where there were no lane markings on the road. The dispute between City and developer continued and for several months preceding the accident, neither the City nor the developer was caring for the accident site. The boulder remained in its hazardous position at the head of the abruptly widened median.

There was evidence that the road had been improperly designed and maintained. The misdesign had the effect of channelling vehicular traffic onto the median strip. In view of the road configuration, cars continually ran over the median strip damaging the grass. To protect the grass the boulder was installed. As we indicated earlier, there was clear evidence from which the jury could have found that the City knew and appreciated the extent of the danger. Indeed, this was arguably the intentional creation of a dangerous condition rather than a mere negligent act.

It is clear that governmental entities may have a duty to exercise reasonable care to maintain travelled portions of highways in a safe condition. Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975). Appellant relies upon City of Tallahassee v. Coles, 148 Fla. 606, 4 So.2d 874 (1941); City of Miami Beach v. Quinn, 149 Fla. 326, 5 So.2d 593 (1942); City of Fort Lauderdale v. Duchine, 70 So.2d 897 (Fla. 1954), and other similar cases holding that a City owes no duty to provide pedestrians with reasonably safe parkways and roadways. Appellant reasons that if a median strip need not be made safe to walk upon, then it surely need not be made safe to drive upon. This leads to appellant’s first point on appeal asserting the non-existence of any duty to provide crashworthy areas adjacent to roadways. Such cases are simply not applicable where, as here, the City knew that due to misdesign and improper maintenance, cars were being channelled into driving over the median.

Various Florida cases have imposed liability on governmental entities for hazardous conditions adjacent to paved roadways. In Town of Palm Beach v. Hovey, 115 Fla. 644, 155 So. 808 (1934), a deep hole was located several feet beyond the dead-end termination of a street. A plaintiff was injured because of this condition and the Supreme Court stated at page 810:

Whether a place in or near a street where an injury occurred required a guard or barrier for the protection of travellers and whether a municipal corporation was guilty of negligence in constructing such a barrier are ordinarily questions for a jury in an action against the municipality for injury resulting from a defect in a street.

Other roadside hazards have included a canal adjacent to a T-intersection, a substantial dropoff from the paved surface to the unpaved portion adjacent to that surface, and a large pit two or three feet away from the paved portion of the roadway. See City of Hialeah v. Revels, 123 So.2d 400 (Fla. 3d DCA 1960); State of Florida, Department of Transportation v. Manning, 288 So.2d 289 (Fla. 2d DCA 1974); Brinson v. City of Mulberry, 104 Fla. 248, 139 So. 792 (1932). Clearly, a general duty on the part of a municipality does exist with respect to roadside hazards. Trumpe v. City of Coral Springs, 326 So.2d 192 (Fla. 4th DCA 1976), cert. denied, 336 So.2d 599 (Fla.1976).

Appellant also argues that the street in question had actually been constructed by the County and relies upon Nobles v. City of Jacksonville, 265 So.2d 550 (Fla. 1st DCA 1972); cert. denied, 272 So.2d 158 (Fla. 1973), and 316 So.2d 565 (Fla. 1st DCA 1975), contending it had no duty whatsoever concerning the roadway. Notwithstanding the technical duties and distinctions between county roads and city streets, it is clear that here the City assumed a duty to care for the area in question and had done so for a substantial period of time before the accident. Even if the City’s actions were voluntary, they were, nonetheless, sufficient to entail responsibility. To briefly recapitulate, the City contracted with the developer to beautify the medians. The boulder was intentionally placed in the dangerous position it occupied at the time of the accident in furtherance of the beautification plan. The boulder was not itself a beautification item but was a barrier to protect grass.

Under all of the circumstances outlined above, we hold the trial court did not err in denying the City’s motion for directed verdict on the liability issue. A jury question was presented on numerous factual matters and the appellant’s crashworthy argument under this point is simply not applicable. The jury could and did find the City negligent in allowing the known dangerous condition to exist.

II.

In Point II appellant complains that the trial court erred in failing to instruct on: (1) Section 316.028, Florida Statutes (1973), regarding driving while intoxicated; (2) Section 316.090, Florida Statutes (1973), regarding driving on divided highways; and (3) Section 316.030, Florida Statutes (1973), regarding careless driving. Each of these statutes related to the issue of the plaintiffs’ comparative negligence which the jury found to be 30%. The City points out that for each 1% of negligence, the amount payable under the $6,000,000 verdict would be reduced by some $60,000. We conclude that the trial court did not err in rejecting the requested charges on driving on divided highways and careless driving. We also conclude there was adequate evidence to necessitate a charge on driving while intoxicated and that denial of the city’s requested charge on the statute was error requiring a new trial. A substantial amount of lay and expert testimony regarding intoxication was presented by both sides. Mr. Garchar had been attending a business meeting and spent several hours at a hospitality suite cocktail party. He admitted to having several drinks and his erratic driving prior to the accident showed clear signs of his impairment due to drinking or fatigue.

Appellee does not argue on appeal that the charge on intoxication should not have been given. Indeed, appellee argued in favor of such a charge before the Circuit Court. Appellee takes the position, however, that counsel for the City withdrew his request for the charge on driving while intoxicated and thus waived his right to assert the absence of such a charge on appeal. We do not construe the record as a withdrawal or waiver of the instruction on driving while intoxicated. This view is buttressed by the stipulation of counsel at the conclusion of the charge conference which had the effect of preserving all objections to all requested instructions which were not given.

Notwithstanding the evidence of intoxication, the trial court denied the City’s request to instruct on Section 316.028 as follows:

816.028 Driving while under the influence of alcoholic beverages, model glue, or controlled substances.—
(1) It is unlawful and punishable as provided in subsection (2) for any person who is under the influence of alcoholic beverages, model glue, or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired, to drive or to be in the actual physical control of any vehicle within this state. . ..

The court also refused to give the standard jury instruction dealing with the negligence to be inferred from a statutory violation. The jury was therefore given no instructions whatsoever on either the statute or the effect of its violation. We find this failure to instruct to have been particularly prejudicial. The average man is probably aware that driving an automobile under the influence of alcohol to the extent his normal faculties are impaired is prohibited by law. The jury here was left to speculate about the effect of this law on their deliberations.

In denying the charge on the intoxication statute, the trial court expressly found there was no direct evidence of intoxication. In so ruling the court erred. A charge on the requested statute should have been given.

This court’s decision in Williams v. Groover, 244 So.2d 474 (Fla. 4th DCA 1970) is on point. There we stated as follows:

This was a negligence suit where the trial court refused, upon request, to charge the jury as concerns F.S.1967, section 186.0177, F.S.A., which is entitled “Driving while under the influence of liquor or drug.” The record reveals substantial competent evidence of a large consumption of alcoholic beverages by the operator of the motorcycle, the plaintiff, Groover, just prior to the collision in question. When the inferences arising from such consumption are coupled with the evidence of his conduct just before, during and after the collision, a jury question was presented and it was error for the trial court to refuse to charge on the mentioned statute. We reverse on authority of Selzer v. Grine, Fla.1955, 79 So.2d 688, wherein it was stated,
“Whether or not a person is under the influence of intoxicating liquor to the extent that his or her normal faculties are impaired is a question of fact and should be determined by the jury when there is substantial evidence submitted on that question.” (244 So.2d at 474-475).

All parties are entitled to adequate jury instructions upon their theory of the case when the evidence viewed in a favorable light substantially supports the theory even though it may be substantially controverted by evidence of the opposing party. Menard v. O’Malley, 327 So.2d 905 (Fla. 3d DCA 1976). The appellant was entitled to have the jury instructed in accordance with the law and the failure of the trial court to do so in accordance with the City’s requested instruction was error requiring a new trial.

III.

Under this point, appellant contends the trial court erred in excluding a statement made by the plaintiff shortly after the accident. This statement was made at the hospital and was overheard by the officer who investigated the accident, but it was not addressed to the officer nor made in response to any question, rather it was volunteered by Mr. Garchar to the physician attending him in the emergency room. At the time the conversation took place, relative to an earlier traffic infraction committed by the Plaintiff for which he was not detained or arrested, the officer had concluded his investigation of the accident in question, “had nothing more to gain” and was just “standing there as an ... interested bystander watching the emergency room procedures.” We conclude that the trial court erred in relying upon Section 316.066, Florida Statutes (1973), formerly Section 317.171 in excluding this evidence. The factual setting under which the statement was made was not such as to bring the evidence within the confidential protection of information taken by the investigating officer for the purposes of making his accident report. State v. Mitchell, 245 So.2d 618 (Fla.1971), and Hoffman v. Jackson’s Minit Markets, Inc., 327 So.2d 48 (Fla. 4th DCA 1976). We do not rule on the admissibility of this evidence based upon other objections which might be made.

IV.

As to this point, appellant contends the $6,000,000 verdict was excessive and that the trial court erred in failing to set it aside. Strong arguments exist on the question of whether $6,000,000 is excessive under the facts herein. Much has been written regarding the review of verdict amounts, but few definitive rules have been enunciated by the courts. See Bould v. Touchette, 349 So.2d 1181 (Fla.1977), and School Board of Palm Beach County, Inc. v. Taylor, 365 So.2d 1044 (Fla. 4th DCA 1978). Here, plaintiff’s injuries are catastrophic and his capacity to enjoy anything approaching a normal life has been totally destroyed.

Six million dollars for an injury to an individual who remains alive and mentally competent represents the high point injury verdicts to date. Neither appellant nor ap-pellee has directed us to any similar case where $6,000,000 has been sustained. Nevertheless we decline to hold the verdict excessive. The plaintiff was 24 at the time of the accident, married, intent on starting a family, attractive, athletic and an IBM salesman, earning in excess of $25,000 per annum, on the way up the corporate ladder. Following the accident his condition is best described by quoting from his attorney’s brief as follows:

It is impossible to describe the totality of the devastation to plaintiff by his injuries. After some eight months in the hospital with surgical procedures and endless hours of physical and occupational therapy, he has been left a permanent C5-6 quadriplegic. He is unable to walk or even sit upright and has only the most limited use of his upper extremities. He has no bowel or bladder control and is sexually impotent. He cannot even perspire below the neck.
He is on continual medication, and prophylactic care is necessary to guard against respiratory or urinary tract infection and breakdown of skin tissue. He is unable to provide himself with the most elementary of daily care, such as bathing, shaving and other grooming, and cannot be left alone for any extended period of time. The future will be the same.
As would be expected, psychological testing and expert testimony in this cause demonstrated that these physical injuries have not been without their emotional toll. TOM lives in fear that his wife will abandon him and is degraded by his need for her assistance in the most intimate of bodily care. The two live a daily delicate emotional balance.
There were either introduced into evidence or described by various therapists and physicians who testified in this case a depressing array of mechanical paraphernalia that plaintiff must utilize in some grotesque approach at daily living, ranging from mechanical and pneumatic hand splints to catheters and diapers.

Under the circumstances we decline to find the amount excessive and this reversal is limited to a new trial on the issue of liability only.

V.

Under this last point appellant contends the court erred by denying a set-off of $225,000, which represents the excess of Mrs. Garchar’s settlement over the jury’s adjusted verdict for her. Appellant contends that this $225,000 amount should constitute a set-off against Mr. Garehar’s judgment. Appellant attacks the $750,000 allocated to Mrs. Garchar in the settlement between her and the other defendants. Under the circumstances of this case, we conclude the trial court did not err in denying the set-off against Mr. Garchar’s judgment. See Devlin v. McMannis, 231 So.2d 194 (Fla. 1970). If, on retrial, Mrs. Garchar receives a judgment in an amount below $750,000, because of reallocation of comparative negligence the difference shall not constitute a set-off against any award to her husband.

Based on the above, the final judgments below are reversed and the ease remanded for a new trial on liability.

REVERSED AND REMANDED.

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

DOWNEY, J., concurs specially with opinion.

ANSTEAD, J., concurs in part and dissents in part with opinion.

DOWNEY, Judge,

concurring specially:

I have concurred in the decision to reverse the judgment appealed from for the reasons stated in the en banc per curiam decision.

However, I differ somewhat on the disposition of appellant’s Point II, having to do with the trial court’s refusal to give certain other instructions requested by appellant. Specifically, since this case must once again be tried on the issue of liability, I believe the trial court erred in refusing to give appellant’s requested instruction on Section 316.090, Florida Statutes, having to do with driving on divided highways. Of course, if on retrial the court instructs the jury on Sections 316.028 and 316.090, then the court should also grant appellant’s requested Standard Instructions 4.9 and 4.11, dealing with the effect of a statutory violation.

ANSTEAD, Judge,

concurring in part and dissenting in part:

I differ with the majority opinion only on two points. I do not believe the trial court erred in excluding the statement allegedly made by Mr. Garchar to a physician in the emergency room and I believe the trial court did err in refusing to give instructions on the statutes regarding careless driving and driving on divided highways. As to the latter I rely on the reasoning set out in the majority opinion as to the trial court’s error in failing to instruct on the statute involving driving while intoxicated.

The record fully supports the trial court’s ruling excluding Garchar’s statement. The majority has ruled in essence that it was uncontradicted that the statement was volunteered to the physician attending Gar-char and that the investigating police officer had concluded his investigation. Hence it is concluded that Section 316.066, Florida Statutes (1973) does not apply to protect the statement. I cannot agree with this view of the facts or law.

Garchar was taken to the emergency room immediately after the accident. His injuries are detailed in the majority opinion. While he was being treated by a physician in the emergency room a City of Tamarac police officer, dressed in civilian clothing, came in and questioned Garchar. As to the statement in issue on appeal the officer testified at one point:

He [Garchar] told me he had left and headed home, and he told me that he had been stopped by a Hollywood police officer for driving the wrong way down a highway, en route to his home, and the officer warned him and let him go.
Were you able to confirm this? [Question by attorney]
Well, confirm it, no. I do recall a subsequent conversation with the Doctor was in the emergency room, commenting something to the effect that it is too bad the officer didn’t stop him and arrest him; it would have been the best favor he ever gave him, or something to that effect. We commented on this. I think Mr. Garchar agreed in some way with “Well, yes, that would have been a good thing, and here I am now.” In his comments to me, other than that part, he didn’t recall the accident. (Emphasis supplied)

It is true that the officer stated that in his opinion Garchar made the remark about wishing he had been detained by the police officer to the physician. But it is equally true that the statement was made by Gar-char in one continuous episode after the officer had initiated a discussion about the events of the night and while the officer remained at Garchar’s bedside. The officer never announced to Garchar or anyone else that the investigation had terminated. In fact, he conceded that it had not. It is true that the officer “felt” that his official questioning had ceased and that Garchar’s statement had nothing to do with the officer’s investigation, but I do not believe the trial court can be faulted for failing to draw such a fine line. This court has previously held that it is not enough for a police officer to subjectively determine, without informing the interviewee, that his accident investigation has ended. Elder v. Robert J. Ackerman, Inc., 362 So.2d 999 (Fla. 4th DCA 1978).

It is also important to note that no attempt was made to offer the testimony of the physician about the statement. Only the testimony of the Tamarac police officer was offered and that testimony was, at best, ambiguous, and, at worst, totally contradictory.

I do not contend that there is no conflict in the record on this issue. Rather, I simply believe that there is evidentiary support for the trial court’s determination that the statement attributed to Garchar was elicited during the course of the police officer’s investigation of the accident.

      . The jury verdict was in the form of special interrogatories whereby the jury determined the percentages of negligence, the total damages, and the reductions based on those percentages.

      . The improper design related to the crown or slant of the road surface; the absence of lane markings; the tendency to steer or guide by the edge of the median strip which was narrow and then after the break suddenly widened causing traffic to generally stray onto the strip. There was also evidence of lighting deficiencies and other obscuring effects. A photographic exhibit is included as an appendix to this opinion.

      . Although we do not base this decision on the alleged duty regarding crashworthy medians, it is clear that liability against governmental bodies for roadside hazards is a widely recognized area of law. See Annot., 52 A.L.R.2d 1403, Public Liability for Motor Vehicular Accidents as Affected by Condition of Road (1957).

      . Immediately prior to the accident Mr. Gar-char strayed from the proper portion of the highway and found himself in a barricaded construction area. There was also evidence that he had been stopped by a police officer shortly before the accident.

      . At the conclusion of the charge conference, counsel for the City requested that they be allowed to “put our objections of record.” When the City’s counsel began listing specific objections, plaintiffs’ counsel suggested an agreement that objections by all parties to any requested instruction which had not been given be preserved. The trial court elicited an agreement of all counsel that no one had waived any requested instruction and counsel for the City specifically stated that the requested instructions which had been denied were objected to.

      . We find it unnecessary to decide the issue of the request by plaintiffs’ counsel that the jury be instructed on the presumptions of intoxication provided in Section 322.262, Florida Statutes (1973). There was extensive argument on this request by plaintiff and strenuous objection by counsel for Leadership Housing Corp., a party not present in the case when submitted to the jury. The trial court disposed of all questions by simply ruling that intoxication was not a factual issue in the case. In doing so the trial judge never ruled on whether the jury should be informed of the statutory presumptions.

      . In Hooks v. Washington Sheraton Corp., 578 F.2d 313 (D.C.Cir. 1978), a jury awarded $6,000,000 to an 18-year old quadriplegic. The trial court required a remittitur to $4.5 million and the Court of Appeals affirmed $4.5 million as not excessive. In Rodriguez v. McDonnell Douglas Corp., 87 Cal.App.3d 626, 151 Cal. Rptr. 399 (1979), the court held an award of $4.2 million to a 22-year old workman rendered triplegic not excessive. The Rodriguez case is enlightening and specifically rejects the theory of comparing verdicts in different cases to determine excessiveness. While doing so, the Rodriguez opinion cites to Niles v. City of San Rafael, 42 Cal.App.3d 230, 116 Cal.Rptr. 733 (1974), wherein an award of slightly in excess of $4 million to an 11-year old quadriplegic was held not excessive. The Nevada Supreme Court in General Electric Company v. Bush, 88 Nev. 360, 498 P.2d 366 (1972), held a $3,000,000 verdict not excessive where the award was to a severely injured and totally paralyzed individual described as being among the class of the living dead. A Florida decision Talcott v. Holl, 224 So.2d 420 (Fla. 3d DCA 1969), affirmed an award of $1.5 million to a severely injured individual.


author: McCORD, Judge.

text:
    PHOTO ELECTRONICS CORPORATION and Insurance Company of North America, Appellants, v. Richard J. GLICK, Appellee.
    No. TT-408.
    District Court of Appeal of Florida, First District.
    May 4, 1981.
    Rehearing Denied June 9, 1981.
    James N. McConnaughhay, of McCon-naughhay & Roland, Tallahassee, for appellants.
    L. Barry Keyfetz, of Keyfetz & Poses, Miami, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from a workers’ compensation order awarding benefits to appellee. We reverse.

On October 7, 1978, appellee injured his right wrist, head, neck and back in a work-related accident. He was hospitalized and later treated on an out-patient basis with employer/carrier paying all medical bills and temporary total disability benefits. Employer/carrier accepted an 18% permanent partial disability rating based upon the May 8, 1979, opinion of appellee’s treating physician, Dr. Averbuch.

Dr. Averbuch testified that, in arriving at the 18% rating, he first consulted the American Academy of Orthopedic Surgeons’ Table to determine the anatomical impairment, and then he evaluated how that anatomical impairment would affect this particular patient’s lifestyle. He stated:

... I weigh not only the objective anatomic considerations but I weigh into the complaint that the patient has and over the period of treatment what we have established I weigh what the patient can and cannot do and how it changed his life as a result of his injury, [sic]

In June 1979, Dr. Averbuch changed the rating to 30% permanent partial disability. He testified that appellee’s condition had not improved or worsened at the time of the change but that he changed the rating because he learned that the injuries “had significantly interfered with his life more than I had appreciated in May, that it limited it a lot more than I appreciated.” He noted that in June he realized how much appellee’s injuries had restricted one of ap-pellee’s favorite pastimes,, guitar playing. Thereupon, appellee filed this claim for 30% permanent partial disability. The deputy commissioner accepted Dr. Averbuch’s 30% rating and awarded benefits accordingly.

A Dr. Scott examined appellee and gave him a 25% permanent partial impairment rating. Dr. Turke, an orthopedic surgeon, examined appellee and gave him an overall disability rating of 50%, which is a higher rating than that for which appellee claimed. At the hearing, appellee made an oral motion to amend his claim to allow for a higher than 30% permanent disability rating. The deputy commissioner indicated that he would grant the motion, but he did not ever actually rule on it.

Appellants assert that the deputy commissioner erred in accepting the testimony of Dr. Averbuch as to his opinion of disability. Appellants contend that Dr. Av-erbuch testified beyond his competence, because a doctor is qualified to testify only as to physical impairment whereas any determination of disability is to be made by the deputy commissioner. The deputy commissioner specifically found no diminution of wage-earning capacity and merely accepted Dr. Averbuch’s determination of 30% permanent partial disability. We agree that the deputy commissioner erred in accepting and relying upon the testimony of Dr. Av-erbuch as to disability. The doctor is qualified to testify only as to anatomic or functional impairment within his medical expertise. The deputy commissioner must consider that testimony, and he alone must translate it, along with evidence of loss of wage-earning capacity, if any, into a disability rating. Dr. Averbuch testified beyond his competence as a medical expert. Compare Agrico Chemical Co. v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980). Therefore, we reverse the 30% permanent partial disability award and remand for a redetermi-nation of permanent partial disability not based upon Dr. Averbuch’s testimony.

Appellants assert that the deputy commissioner erred in considering Dr. Turke’s testimony in regard to the permanent disability rating since appellee’s claim was for only 30% permanent partial disability benefits and the expense of Dr. Turke’s testimony should not have been awarded as a cost. We disagree. Dr. Turke’s testimony was relevant to more than merely increased disability beyond 30% and, therefore, was properly admitted, even though, pursuant to the claim, the deputy commissioner is limited to a permanent partial disability finding of no greater than 30%.

The parties stipulated that employer/carrier finally accepted Dr. Scott’s 25% permanent partial impairment rating. However, the parties did not stipulate as to the timeliness of the acceptance. Although from the record it appears that employer/carrier did not accept the 25% rating until the date of the hearing, the record is unclear on that point. We reverse and remand for a determination of when the employer/carrier accepted the 25% rating.

Appellants argue that the $1,500 attorney’s fee awarded to appellee was unjustified in the absence of proof that the employer/carrier did not timely accept the proper disability rating. Appellants further challenge the attorney’s fee award on the basis that the deputy commissioner did not state specifically the basis upon which the fees were awarded, as required by Lee Engineering and Construction Company v. Fellows, 209 So.2d 454 (Fla.1968). We reverse and remand for reconsideration of the attorney’s fee and direct the deputy commissioner to give a more specific statement of the Lee Engineering criteria he considered in determining the new award.

We have considered appellee’s point on cross-appeal and find it to be without merit.

Affirmed in part, reversed in part, and remanded for reconsideration as directed.

SHIVERS and JOANOS, JJ., concur.


author: ERVIN, Judge. WENTWORTH, Judge,

text:
    Ethel LAKE, Appellant, v. IRWIN YACHT & MARINE CORP., and Underwriters Adjusting Co., Appellees.
    No. TT-478.
    District Court of Appeal of Florida, First District.
    May 4, 1981.
    Rehearing Denied June 2, 1981.
    Julian M. Piper of Goldner, Reams, Mar-ger, Davis, Piper & Kiernan, St. Petersburg, for appellant.
    Kurt Preston Hampt of Jacobs, Robbins & Gaynor, St. Petersburg, for appellees.
   ERVIN, Judge.

Ethel Lake, the claimant below, appeals a workers’ compensation order which denied her benefits under either an exposure or occupational disease theory for a chronic bronchitis condition that she had allegedly incurred by inhaling toxic fumes during the course of her employment. In rejecting claimant’s occupational disease theory, the deputy commissioner observed that the claimant had failed to meet the requirements established by Norman v. Morrison Food Services, 245 So.2d 234 (Fla.1971), and Harris v. Josephs of Greater Miami, Inc., 122 So.2d 561 (Fla.1960). As to the exposure theory, he relied upon Host International, Inc. v. Forms, IRC Order 2-3595 (November 15, 1978), and concluded that there was insufficient evidence in the record to establish that claimant’s excessive exposure was the direct cause of her injury, and that the exposure subjected the claimant to more than the hazards confronting people generally. He also concluded that there was insufficient evidence both as to the length and nature of the exposure. Although we differ with the deputy commissioner’s application of the law in rejecting the claimant’s occupational disease theory, we concur with his ultimate conclusion on that point. However, we hold that the claimant has adequately proven an industrial exposure theory of recovery in accordance with the recently announced standards in Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980). Therefore, we reverse as to that theory.

The claimant was employed by Irwin Yacht and Marine Corporation, one of the appellees herein, beginning in 1967. She had never experienced any difficulty in breathing prior to this employment. During the course of her employment with Irwin Yacht, she performed a variety of tasks associated with building yachts, including cutting fiberglass and cleaning boats. Her employment duties caused her to be exposed to fumes from teak oil and acetone, as well as fiberglass dust. During July and August of 1977, she began having difficulty breathing, and then sought medical treatment. She was referred to Dr. Rosenburg, a specialist in internal medicine. He suggested that claimant refrain from working in the boat building business. The claimant complied with the doctor’s instructions, but she continued to have lung-related problems such as heaviness of the chest and coughing up blood, which required her commitment to a hospital. During her hospitalization, Dr. Garby, a thoracic surgeon, performed a bronchoscopic examination on the claimant and took tissue samples as well as sputum cultures upon which medical tests were performed. In summary, these tests only .established that claimant was suffering from bronchitis. They did not establish the cause of the bronchitis.

Dr. Garby testified that there was no known medical test which would positively identify chemically induced bronchitis. Dr. Rosenburg testified that a challenge test could identify whether a specific chemical was the cause of bronchitis, but apparently felt that such a test was not advisable. Even in the absence of such a test, it was Dr. Garby’s opinion, based upon claimant’s history, that claimant’s chemical exposure was the most likely cause of her bronchitis. Dr. Rosenburg, relying on claimant’s history, and the fact that claimant had completely recovered from her condition after permanently leaving the employ of Irwin Yacht, gave comparable testimony, additionally stating that the acetone chemicals and the use of fiberglass with paint chemicals are not commonly found in the environment but are more likely found with shipbuilders. Another physician, Dr. McDonell, testified that the chemicals the claimant was exposed to would have caused irritation to almost anyone at the concentrations at which she was exposed.

Significantly, there was no medical evidence that claimant’s exposure to chemicals was not causally related to her bronchitis. The record did indicate that a staph bacteria was isolated in a sputum culture taken from the claimant. However, the medical testimony in the record clearly indicated that a bacterial infection was not the cause of claimant’s bronchitis.

There is a great deal of overlap between the exposure and occupational disease theories in the instant case. Yet, as the holding in this case indicates, there are important distinctions between the two. As to exposure, in Festa v. Teleflex, supra, we established a three pronged test: (1) The claimant must have had a prolonged exposure; (2) a causal relationship must be established between the exposure and the injury or aggravation; and (3) claimant must establish that he or she has been subject to a hazard greater than that to which the general public is exposed. We have also recently announced in Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981), a four-factor test that must be proven by the claimant before he or she can recover for an occupational disease:

(1) the disease must be actually caused by employment conditions that are characteristic of and peculiar to a particular occupation;
(2) the disease must be actually contracted during employment in the particular occupation;
(3) the occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be substantially higher in the occupation than in usual occupations; and
(4) if the disease is an ordinary disease of life, the incidence of such a disease must be substantially higher in the particular occupation than in the general public.

(See p. 1119).

Both tests share a common element of causation. Because of this commonality, Norman v. Morrison Food Services, infra, and Harris v. Josephs of Greater Miami, Inc., infra, are instructive as to either theory of recovery.

In Norman v. Morrison Food Services, 245 So.2d 234, 236 (Fla.1971), the court quoted with approval the following language in Harris v. Josephs of Greater Miami, 122 So.2d 561, 562 (Fla.1960):

In cases involving diseases or physical defects of an employee as distinguished from external occurrence to an employee such as an automobile accident claimant must prove a causal connection other than by merely showing that it is logical that the injury arose out of claimant’s employment or that by a “preponderance of probabilities” it appears that it arose out of such employment. There must be some clear evidence rather than speculation or conjecture establishing a causal connection between a claimant’s injury and her employment, (emphasis in original)

Both Harris and Norman involved claims for contact dermatitis due to an exposure to chemicals at work. In each case the claims were denied because a causal connection had not been established. In Harris, medical patch tests were conducted which determined that claimant’s injuries were not work-related but were attributable to another cause. One physician, without conducting any tests and without knowledge as to any particular dye or chemical the plaintiff had been exposed, opined that the disease possibly or probably was caused by dyes or some other substance in her work. In Norman, the medical reports introduced into evidence were all unfavorable to the claimant’s contention that her condition was work-related. There, however, the court allowed the claimant a second chance on remand to produce further evidence to establish that her contact dermatitis resulted from chemicals used in her employment. The evidence required of plaintiff was the identification of the chemicals to which she was exposed as well as exposure.

Both Harris and Norman are distinguishable from the instant case, however. Here the medical tests conducted — unlike those in Harris and Norman —did not reveal that the claimant’s condition was either caused or not caused by the conditions of her employment. Nevertheless, both Dr. Gar by and Dr. Rosenburg testified that claimant’s illness was probably caused by her exposure to chemicals at work. The appellee contends that a medical opinion based solely on claimant’s history is not enough to establish a causal connection between her work exposure and illness. The medical testimony here, however, substantially differs from that in Harris which referred to the seminal case of Arkin Construction Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957), for the following proposition:

It is elementary that the conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value.

In Harris, the doctor did not have any knowledge as to the type of dyes or chemicals that the claimant was exposed to. Here, in contrast, Dr. Rosenburg was aware that the claimant was exposed to acetone and teak finish as well as fiberglass dust. The claimant also testified at the hearing as to these facts. Dr. Rosenburg also partially based his opinion on claimant’s favorable response to his recommended therapy that the claimant stay away from boat cleaning. Dr. Garby based his opinion on claimant’s history and medical studies which have shown that exposure to fiberglass dust can cause bronchitis. Both doctors’ opinions were based on a reasonable medical probability. The deputy commissioner offered no reason why he rejected their testimony. Cf. Cohen-Ager, Inc. v. Pierce, IRC Order 2-3173 (June 2, 1977). The Harris court made it clear that a medical opinion based upon reasonable medical certainty is sufficient to establish a causal connection.

We adopt the reasoning in Platz v. North Electric Company, IRC Order 4-3165 (May 23, 1977), cert. den., 358 So.2d 132 (Fla.1978), which did not interpret Norman as requiring a specific chemical test to establish causation. In Platz, a physician testified that there was no objective test that could specifically establish which, if any, of the chemicals the claimant was exposed to were the exact cause of claimant’s illness. The IRC panel, nevertheless, concluded that the doctor’s conclusion, in reply to a hypothetical question involving the details of the claimant’s exposure and the doctor’s own independent research, were reached by competent, subjective and deductive diagnosis, and were sufficient to establish a causal relationship. And so we also conclude here.

The claimant has also proven the remaining elements in the exposure test. She established the prolonged nature of her exposure through her own testimony and through the testimony of Dr. McDonell. Dr. Rosenburg gave unrefuted testimony that acetone chemicals and the use of fiberglass with paint chemicals are not commonly found in the environment but are more likely to be found with shipbuilders. Through this evidence, the claimant has established that she has been subjected to a hazard greater than that which the general public is normally exposed.

She has not, however, satisfied the remainder of the occupational disease test by merely establishing a greater degree of exposure, vis-a-vis the public at large. See Broward Industrial Plating, Inc. v. Weiby, supra (at p. 1119). She must also demonstrate her “occupation presents a particular hazard of the disease occurring so as to distinguish [her] occupation from usual occupations, or that the incidence of the disease is substantially higher in [her] occupation than in usual occupations.” Id. at p. 1119. Here, the claimant presented no such evidence.

Nevertheless, because the claimant has established her exposure theory of recovery, the order denying her claim is reversed and it is remanded for further proceedings consistent with this opinion.

SHAW, J., concurs.

WENTWORTH, J., concurring specially.

WENTWORTH, Judge,

concurring specially:

I concur in the majority opinion insofar as it concludes that claimant has established the compensability of her bronchitis by an “exposure” theory of recovery. However, since claimant has prevailed on the exposure theory, it is not necessary to address (and I would not determine) the question of sufficiency of evidence for an “occupational disease” theory of recovery in this case.

      . A challenge test involves an intentional exposure of a patient to a specific chemical. The patient is then observed for symptoms of an illness that the chemical is expected to produce.

      . The Norman court also seems to suggest that a chemical test may have been determinative in identifying the chemicals.


author: ERVIN, Judge.

text:
    JALPO, INC. & Chubb Pacific Indemnity Company, Appellants/Cross-Appellees, v. Mamie J. HATCHETT, Widow, Appellee/Cross-Appellant.
    No. UU-288.
    District Court of Appeal of Florida, First District.
    May 4, 1981.
    Rehearing Denied June 12, 1981.
    Richard H. Gaunt, Jr., West Palm Beach, for appellant/cross-appellees.
    Richard A. Kupfer of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellee/cross-appel-lant.
   ERVIN, Judge.

In this workers’ compensation action the employer/carrier has raised five issues on appeal, all of which we consider unavailing. However, we agree with claimant Hatch-ett’s contention on cross-appeal that the deputy commissioner erroneously apportioned death benefits awarded to her as compensation for her husband’s fatal heart attack.

There was ample evidence for the deputy to find that the deceased’s heart attack was causally connected with his pre-existing epileptic condition which had been aggravated by an industrial accident on June 16, 1978. Moreover, there was medical evidence suggesting multiple contributing causes to claimant’s death, the most important of which was arteriosclerosis. Thus, the deputy found that “a combination of the Claimant’s aggravated pre-existing seizure condition and his non-work related hypertensive cardio-vascular problem, as shown in the autopsy findings, together equally contributed to the claimant’s death on June 30, 1979.” On that basis the deputy apportioned 50% of the death benefits to the cardiovascular disease.

However, as the claimant correctly points out, there was no medical or other evidence indicating a percentage breakdown for each of the suggested possible causes of death. No apportionment may be made without evidence as to a percentage of disability caused by the natural progression of the pre-existing condition. Russell House Movers, Inc. v. Nolin, 210 So.2d 859 (Fla.1968);. Cover v. T G & Y. Store No. 1331, no. SS-342 (Fla. 1st DCA, January 20, 1981) [1981 FLW 261]. Likewise, we feel that in the death benefit context that apportionment is not proper unless there is evidence as to the percentage that the preexisting condition contributed to death.

Affirmed in part and reversed in part and remanded for the deputy to amend his order to award the entire amount of death benefits without apportionment.

BOOTH and JOANOS, JJ., concur.


text:
    SHANDS TEACHING HOSPITAL & CLINICS OF the UNIVERSITY OF FLORIDA, For and on Behalf of the Board of Regents of the State of Florida, Appellants, v. COUNCIL OF the CITY OF JACKSONVILLE, Appellee.
    No. VV-403.
    District Court of Appeal of Florida, First District.
    May 4, 1981.
    Rehearing Denied June 2, 1981.
    Thomas S. Biggs, Jr., Joseph B. Cramer, Robert J. Denson, and Marie Hartman, Gainesville, for appellants.
    Dawson A. McQuaig, William Lee Allen, an(j Thomas D. MacNamara, Jacksonville, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

Linda Sue Austin was hospitalized at Shands Teaching Hospital with a diagnosis of a brain tumor in danger of causing herniation. She was a resident of the City of Jacksonville and had previously been treated on an outpatient basis at Shands. On the particular day she was hospitalized, the attending physician determined her condition required immediate emergency hospitalization. Because she was an indigent, Shands, pursuant to Section 154.306, Florida Statutes, submitted the hospital bill for her treatment to the City of Jacksonville. The City refused to pay the bill and the matter was referred to a hearing officer, who conducted a hearing pursuant to Section 154.-312, Florida Statutes. The hearing officer held that Jacksonville was not required to pay the bill for the reason that Austin, even though an indigent resident of Jacksonville, should have been treated in Jacksonville because its hospital was also a regional referral hospital under the statute, and the rule required that “no county shall be required to pay for services at a regional referral hospital when such services are available in a local hospital in the county where the indigent resides.” The statute makes an exception to this rule where the patient is treated for any emergency medical condition which will deteriorate from failure to provide such treatment when the attending physician determines the condition to be of an emergency nature. The effect of the hearing officer’s order was that Austin should have returned to Jacksonville for treatment since there was a regional referral hospital in Jacksonville.

We disagree with the hearing officer’s recommended order and with the City of Jacksonville’s formal adoption of the order. The attending physician found that Austin was suffering from a brain tumor and needed immediate treatment then and there. Since Shands Teaching Hospital was also a regional referral hospital, and since Austin was a resident of the State of Florida and of the county being requested to pay, and she was a certified indigent by the county wherein she resided, and since the emergency medical treatment was diagnosed and was rendered in a regional referral hospital, even though not in the county in which she resides, and the condition would deteriorate from failure to provide such treatment, the criteria of the statute was met and the City of Jacksonville should pay Shands Teaching Hospital the total sum of the medical bill.

REVERSED AND REMANDED with directions for proceedings consistent with this opinion.

SHIVERS and WENTWORTH, JJ., concur.


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

text:
    Robert Reid KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. VV-474.
    District Court of Appeal of Florida, First District.
    May 4, 1981.
    Rehearing Denied June 9, 1981.

      Robert W. Elrod, Jacksonville, for appel-. lant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

On Knight’s appeal we identify constitutional standards for a warrantless police search into suitcases, boxes, and other closed containers found during a more superficial inventory of property' within a seized automobile. A general inventory of automobile contents is justified by showing that the police had a caretaking responsibility for those contents, derived from their legitimate impoundment of an automobile upon arresting its driver. But a more intrusive warrantless search within closed containers, for no more weighty cause than to list their contents, may invade a constitutionally protected area of privacy and so be prohibited. In Knight’s case the police made that more intrusive inventory search into a latched vinyl case found between the front bucket seats, which by location, design, and surroundings announced its contents as music tape recordings like the ones then playing on the automobile tape deck and scattered around the case. We hold Knight had no expectation of privacy in the contents of such a self-identifying container, and we sustain as reasonable the search and consequent seizure of the cocaine found in the case.

Knight appeals from his conviction for trafficking in cocaine after pleading no contest and reserving an appeal from the trial court’s denial of his motion to suppress. In the early morning hours, Officer Titra lawfully arrested Knight for driving his Corvette while intoxicated and placed him in the rear compartment of his patrol car. To ready the Corvette for towing out of the traffic lane it occupied, Officer Titra entered the car and began to fill out a standard automobile inventory card, normal procedure for the Orange Park Police Department. This “vehicle storage report” required the officer to check off any items of value left in a vehicle, such as spare tire, radio, and tape deck. The form also called for listing the number of tapes left in the car. The purpose of making the inventory search at that time, the officer said, was to prepare a list for the tow truck driver assuming responsibility for items in the report.

When Officer Titra entered the Corvette, one tape was playing in the tape deck and several others lay on the floorboard. He counted those and then opened what he took to be a storage case for tapes sitting between the bucket seats, in order to count the additional tapes it contained. This latched but unlocked triangular-shaped case, measuring 18Vh inches long, 7 inches deep and from to 1xh inches wide, contained no additional tapes, but did contain baggies of cocaine and other contraband.

As a preliminary matter, we note there is no contention that exigent circumstances— such as probable cause to believe the ear or the case contained explosives, weapons or other dangerous materials — justified the warrantless search of the Corvette or the contents of the case. The validity of the search depends on some other analysis.

We disagree with appellant’s first contention that the police had no legitimate caretaking responsibility requiring a general inspection and inventory of the property found in the car, including the tapes case itself. Warrantless automobile inventory searches are authorized if they meet federal and state constitutional requirements of reasonableness. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Urquhart v. State, 261 So.2d 535 (Fla. 2d DCA 1971), cert. den., 266 So.2d 349 (Fla.1972); Godbee v. State, 224 So.2d 441 (Fla. 2d DCA 1969). Generally speaking, an inventory search is justified as a reasonable consequence of impoundment when

under routine police procedure it is essential when impounding a car to inventory it and its contents for preservation thereof as well as to insulate the police and garage owner from responsibility in the event of theft or destruction. (Citation omitted) Fields v. State, 369 So.2d 603, 605 (Fla. 1st DCA 1978).

See also Altman v. State, 335 So.2d 626 (Fla. 2d DCA 1977); Jones v. State, 345 So.2d 809 (Fla. 4th DCA 1977). Here a reasonable need for impoundment was shown. The Corvette was parked in a traffic lane of a six-lane highway; the driver was under arrest for driving while intoxicated; it was yet dark, and the car posed a hazard or nuisance to traffic, especially to trucks making early morning deliveries. Cf. G. B. v. State, 339 So.2d 696 (Fla. 2d DCA 1976). No one else, such as a sober passenger, was present and able to move the car. Cf. Jones, supra; Session v. State, 353 So.2d 854 (Fla. 4th DCA 1977); Altman, supra. On conflicting evidence the trial court evidently found Knight made no request or there was no opportunity for someone else to assume responsibility for the Corvette; and though the police did not ask Knight if he preferred some arrangement other than the police-ordered towing, that is not required. Compare State v. Dearden, 347 So.2d 462 (Fla. 2d DCA 1977) with Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976).

Given that reasonable basis to impound the Corvette, Orange Park police procedures also reasonably required a pre-towing inventory of its contents, to protect Knight’s property from loss and the police and towing company from claims of loss. Opperman, supra. Thus were Knight’s music tapes properly inventoried; they represented a not inconsiderable investment and were readily subject to theft or loss.

The legitimate police interest in accounting for Knight’s music tapes, whether in plain sight or within the tapes case, belies Knight’s contention that the search within was pretextual. Cf. Chuze, supra; Benton v. State, 329 So.2d 385 (Fla. 1st DCA 1976). The real issue here is whether that reasonable police interest in inventorying the contents of the tapes case was overcome by a constitutionally superior privacy right in Knight. Guided by United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and interpretative decisions, we find that Knight had no countervailing privacy right in the contents of the tapes case, precisely because all outward appearances suggested, and the police reasonably assumed, that the case contained only music tapes, items in which Knight had no constitutionally recognized expectation of privacy-

Chadwick and Sanders held that the “automobile exception” to the warrant requirement, justified by the inherent mobility of cars, does not permit warrantless searches of car-carried luggage after the police have it firmly in their control. Chadwick invalidated a warrantless search of a locked footlocker taken from an automobile, holding that the owner has a greater expectation of privacy in the contents of luggage than in property visible inside a car:

Luggage contents [unlike autos] are not open to public view...; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person’s expectations of privacy in personal luggage are substantially greater than in an automobile. 433 U.S. at 13, 97 S.Ct. at 2484, 53 L.Ed.2d at 549.

Sanders extended the Constitution’s protection to an unlocked suitcase removed from the trunk of a taxi. The Court again emphasized that one is likely to place private possessions in a suitcase as a “repository for personal items when one wishes to transport them” by car. In order to search “personal luggage” found inside an automobile without warrant, the Court held, police must find some exception to the warrant requirement other than the “mobile automobile” exception.

Neither Chadwick nor Sanders involved an inventory or police caretaking search. It therefore may be suggested that the priority there given to a neutral magistrate’s determination of probable cause is no impediment to inventory searches, which are not justified on the basis of probable cause in the usual sense. See Delatte v. State, 384 So.2d 245, 246-47 (Fla. 1st DCA 1980). But the constitutional norm is that a neutral magistrate, not the police, should if possible decide when a search should be conducted; and the extent of one’s privacy interest in the contents of closed luggage presumably does not vary depending on the purpose of the proposed search. See Note, What’s Reasonable about an Inventory Search? 39 La.L.Rev. 995 (1979). For that reason, apparently, some courts have concluded that the Chadwick-Sanders privacy concern must be dealt with in justifying inventory or other police caretaking searches. We too consider it necessary to evaluate Knight’s privacy interests in the tape case in determining the reasonableness of the inventory search within the case.

In Sanders, the Court found protected expectations of privacy in “personal luggage” or “repositor[ies] for personal items when one wishes to transport them” but did not identify what containers other than a suitcase are “personal luggage.” The Court conceded there would be “difficulties” in determining which “parcels” taken from an automobile require warrant prior to search, but said none would be required in the following instances:

Not all containers and packages found by the police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to “plain view,” thereby obviating the need for a warrant. 442 U.S. at 764 n. 13, 99 S.Ct. at 2593 n. 13, 61 L.Ed.2d at 245 n. 13.

Thus guided by the general principle that one can have no reasonable expectation of privacy in the contents of a container designed so that it announces that its contents are impersonal, something other than clothes, medications or business papers, courts have endeavored to apply the Chadwick-Sanders search limitations on a case-by-case basis. Unaided by any additional guidance from the Supreme Court that some desire, the lower courts have concluded that the Sanders warrant requirement applies to containers that are like the luggage we encounter at airport baggage claims: brown leather tote bag, overnight bag, suitcase, leather or vinyl satchel, briefcase, portfolio, knapsack, and, for the traveling student, backpack. In other instances, the courts have protected the contents of containers, such as purses and shaving kits, that while not “luggage,” are widely known to contain highly personal items. Not deserving of Sanders protection are transparent or flimsy containers that occasionally are used to transport personal items, but are not commonly so used. The District of Columbia Court of Appeals over dissent, and other courts, for instance, have concluded that paper bags are not personal luggage. Nor are flimsy containers like department store boxes or paper cups. However, if the owner objectively signals his clear expectation of privacy in these impersonal or flimsy containers, greater protection of his rights may be required.

Inevitably, some cases involve containers that are neither luggage in the conventional sense of the word nor flimsily constructed receptacles like paper bags. Here, the courts may permit search if the container announces that its likely contents are not personal possessions in which one would have a reasonable privacy interest. Thus in the recent case of United States v. Markland, 635 F.2d 174 (2d Cir. 1980), the Second Circuit upheld the warrantless search of a zippered thermal bag with “Schlitz” markings on it because the police officer had every reason to believe the bag contained the beer and sandwiches such a container is customarily used to store.

We find this reasoning persuasive. Just as the officer in Markiand expected to find beer and sandwiches in which the car owner had no privacy interest, Officer Titra assumed the brown vinyl case he encountered in Knight’s ear contained musical tapes: with one tape playing on as he conducted his inventory, he found several tapes lying loose on the floor and a case of proper size and shape to hold them, positioned between the bucket seats where it would be easily accessible to a driver changing his selection in the tape deck. Officer Titra reasonably might have expected such a case to contain loose change, maps, parking stubs and other impersonal litter found in a “car caddy” or glove compartment, but he certainly had no reason to believe it contained clothes, medications or other highly private possessions. Nor did Knight take any steps signalling any heightened privacy expectations in this container. We hold that Officer Titra, acting on a legitimate caretaking responsibility, conducted a constitutionally reasonable search of a container that announced its contents as music tapes in which privacy rights are minimal.

Knight’s second point on appeal, challenging the constitutionality of Section 893.135, Florida Statutes (1979), is foreclosed by the Supreme Court’s recent decision upholding the constitutionality of this drug-trafficking statute under similar attack. State v. Benitez, 395 So.2d 514 (Fla.1981). See also Stehling v. State, 391 So.2d 287 (Fla. 1st DCA 1980).

AFFIRMED.

THOMPSON, J., and WOODIE A. LILES, (Retired) Associate Judge, concur.

      . The Fourth Amendment to the U. S. Constitution, held applicable to the States through the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), provides:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation; and particularly describing the place to be searched, and the persons or things to be seized.
      Article I, Section 12 of the Florida Constitution provides:
      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures .. . shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized . . . and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.

      . Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). For a recent general summary of current law applicable to automobile searches, see Schrader, The Warrantless Vehicle Stop and Search, 41 Ala. Lawyer 365 (1980).

      . The Court stated:
      In sum, we hold that the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree it applies to such luggage in other locations. Thus, insofar as the police are entitled to search such luggage without a warrant, their actions must be justified under some exception to the warrant requirement other than that applicable to automobiles stopped on the highway. Where — as in the present case — the police, without endangering themselves or risking loss of the evidence, lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay search thereof until after judicial approval has been obtained. 442 U.S. at 766, 99 S.Ct. at 2594, 61 L.Ed.2d at 246.

      . Deiatte, which upheld the warrantless search of a travel bag, is distinguishable from the case at hand. Deiatte upheld the “protective” search of a travel bag prior to storage in the jail where the defendant would be allowed access to it. In such a case, the government has a strong interest in protecting the police and others from the danger that the bag contained weapons or explosives. No similar considerations affect this case.

      . E. g., Cobb v. State, 378 So.2d 82 (Fla. 3d DCA 1979), cert. den., 388 So.2d 1111 (Fla. 1980); United States v. Markland, 635 F.2d 174 (2d Cir. 1980); United States v. Bloomfield, 594 F.2d 1200 (8th Cir. 1979); United States v. Neumann, 585 F.2d 355 (8th Cir. 1978); State v. Pace, 171 N.J.Super. 240, 408 A.2d 808 (1979), cert. den., 84 N.J. 384, 420 A.2d 314 (N.J.1980). See also W. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 7.4 at 86 (Supp.1981), where the author recognizes that there is authority for the proposition that containers other than luggage may be opened during an inventory search.

      . Warrantless searches of containers meeting this description were upheld in United States v. Gaultney, 581 F.2d 1137 (5th Cir. 1978), cert. den., 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 259 (red Scrabble box taped shut); Wyss v. State, 262 Ark. 502, 558 S.W.2d 141 (1977) (tool box).

      . The dissenters in Sanders contended:
      The Court today goes farther down the Chadwick road, . . . and, while purporting to clarify the confusion occasioned by Chadwick, creates .. . only greater difficulties for law-enforcement officers, for prosecutors, for those suspected of criminal activity, and, of course, for the courts themselves. Still hanging in limbo, and probably soon to be litigated are the briefcase, the wallet, the package, the paper bag, and every other kind of container.
      [S]uppose the arresting officer opens the car’s trunk and find that it contains an array of containers — an orange crate, a lunch bucket, an attache case, a duffelbag’ a cardboard box, a backpack, a totebag and a paper bag. Which of these may be searched immediately, and which are so “personal” that they must be impounded for future search only pursuant to warrant? The problems of distinguishing between ... “personal luggage” and other “containers and packages” . . . will be legion. The lines that will be drawn will not make much sense in terms of the policies of the Fourth and Fourteenth Amendments, 442 U.S. at 768, 772, 99 S.Ct. at 2595, 2597, 61 L.Ed.2d at 248, 250.
      See also Comment, 55 Wash.L.Rev. 871, 881-83 (1980) (“If the Court anticipates some gradation of the privacy interest in various containers and packages, then specific guidelines for determining the level of the privacy interest and the corresponding content of the fourth amendment are in order.”); Comment, 11 Seton Hall L.Rev. 121, 134-35 (1980) (“The most troubling aspect of the Sanders decision is the recognition that different types of containers, depending on their nature, will be accorded inconsistent levels of fourth amendment protection .... The determinative factor will, in most cases, be a judge’s subjective opinion that a certain type of container can support a reasonable expectation of privacy.”)

      . United States v. Benson, 631 F.2d 1336 (8th Cir. 1980).

      . State v. Southwell, 369 So.2d 371 (Fla. 1st DCA 1979).

      . Haugland v. State, 374 So.2d 1026 (Fla. 3d DCA 1979), cert. den., 390 So.2d 360 (Fla.1980).

      . Liles v. State, 375 So.2d 1094 (Fla. 1st DCA 1979), cert. den., 383 So.2d 1203 (Fla.1980).

      . E. g., United States v. Calandrella, 605 F.2d 236, (6th Cir. 1979), cert. den., 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979); Cobb v. State, 378 So.2d 82 (Fla. 3d DCA 1979); Webb v. State, 373 So.2d 400 (Fla. 1st DCA 1979), cert. den., 383 So.2d 1204 (Fla. 1980) (by implication).

      . United States v. Miller, 608 F.2d 1089 (5th Cir. 1979), cert. den., 447 U.S. 926, 100 S.Ct. 3020, 65 L.Ed.2d 1119 (1980).

      . United States v. Bloomfield, 594 F.2d 1200 (8th Cir. 1979).

      . United States v. Meier, 602 F.2d 253 (10th Cir. 1979).

      . Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979).

      . Moore v. State, — Ark. —, 594 S.W.2d 245 (1980); cf. Cooper v. Commonwealth, - Ky. -, 577 S.W.2d 34 (1979) (electric razor case is not personal luggage).

      . United States v. Ross, 27 Cr.L.Rptr. 2169 (D.C.Cir.1980).

      . In his concurring and dissenting opinion, Judge Bazelon suggests that the majority’s conclusion that there can be no expectation of privacy in a brown paper bag is attributable to “acute ethnocentric myopia.” In some subcultures, he argues, paper bags are often used to carry intimate personal belongings. United States v. Ross, 27 Cr.L.Rptr. 2169, 2171 (D.C. Cir.1980).

      . E. g., United States v. Mackey, 626 F.2d 684 (9th Cir. 1980); United States v. Jimenez, 626 F.2d 39 (7th Cir. 1980); Webb, supra n. 12.

      . United States v. Neumann, 585 F.2d 355 (8th Cir. 1978).

      . People v. Diaz, 101 Cal.App.3d 440, 161 Cal. ’Rptr. 645, 26 Cr.L.Rptr. 2510 (1980) (opaque-lidded cup from fast food restaurant).

      . United States v. Dien, 609 F.2d 1038 (2d Cir. 1979), aff’d on reh., 615 F.2d 10 (1980) (invalid warrantless search of cartons that had been taped shut and placed behind plywood barrier in van with windows painted over).


text:
    Norman A. JACKSON, Executive Director of the Florida Commission on Human Relations, Petitioner, v. Gerald T. WILI, and Department of Health and Rehabilitative Services, Office of Vocational Rehabilitation, Respondents.
    No. ZZ-201.
    District Court of Appeal of Florida, First District.
    May 4, 1981.
    Aurelio Durana, Asst. Gen. Counsel, Commission on Human Relations, Tallahassee, for petitioner Norman A. Jackson.
    Laurence I. Goodrich, Tampa, for respondent Wili.
    Amelia M. Park, Dist. VI Legal Counsel, Dept, of Health and Rehabilitative Services, Tampa, for respondent Dept, of Health and Rehabilitative Services.
   PER CURIAM.

The executive director of the Commission on Human Relations urges by petition for review of nonfinal administrative action that the DOAH hearing officer, to whom the Commission assigned this matter for hearing, committed error for which there can be no adequate remedy after final agency action, Fla.R.App.P. 9.100, by declining the executive director named party status in the proceeding. Fla.Admin. Code R. 9D-8.13(1). The Rule in terms permits such intervention by the executive director, and we agree that affording him party status is an appropriate way of assuring participation by the Commission in the proceeding before the hearing officer. The Commission itself is not shown to have formal standing or participatory rights before the hearing officer, and no reason appears why intervention by the executive director should not be permitted.

It is so ORDERED.

McCORD, ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.