author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Barnabe I. PERERA, Alegandro Barreiro, Jose B. Rojas, Juan Borrego, Luis A. Garcia, Arthuro P. Guarez, Luis R. Ortiz, Nilo A. Hernandez, Miguel Peralta, Armando Quiroz, Jose O. Villanueva, Hipolito L. Visona, Armando A. Gonzalez, Appellees.
    No. 81-1498.
    District Court of Appeal of Florida, Second District.
    March 3, 1982.
    Rehearing Denied April 16, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki and James S. Purdy, Asst. Attys. Gen., Tampa, for appellant.
    Raymond E. LaPorte, and William B. Plowman, Tampa, for appellees.
   GRIMES, Judge.

The state seeks reversal of an order granting appellees’ motion to suppress physical evidence. The question which the case presents is whether the stop of three vehicles allegedly involved in a marijuana smuggling operation and the arrests which resulted from that stop were legal.

The state filed an information which charged all appellees with trafficking in cannabis in excess of ten thousand pounds and possession of cannabis in excess of one hundred pounds with intent to deliver. In addition, it charged appellees Perera and Rojas with illegally possessing various weapons. Appellees filed a pretrial motion to suppress the marijuana and the weapons.

The Hillsborough County Sheriff’s Department had received a tip from a confidential informant to be on the lookout for three vehicles carrying a shipment of marijuana on U.S. Highway 41 during the early morning hours of January 9, 1981. Hence, a number of county deputies and agents of the Florida Department of Law Enforcement were on hand when the three vehicles were spotted near Ruskin. Apparently because the state wished to protect the identity of the confidential informant, the court limited the evidence at the hearing to events which transpired while the vehicles were on Highway 41. The state made no effort pursuant to the principles of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), to establish probable cause through the veracity of the informer’s tip. Therefore, while the motivations of the several law enforcement officers may have been influenced by what they had heard from the confidential informant, the propriety of their actions was tested at the motion to suppress by only what they observed on the highway that night.

Sergeant Robert DeLuna testified that at approximately 3:00 a. m., he saw a large tractor-trailer, a van and a car travelling in a southerly direction on Highway 41 on the north edge of Ruskin. The traffic was light with only one or two other vehicles about. DeLuna was monitoring two citizens band radios in his car. As he observed the three vehicles, he overheard a clear C.B. transmission in Spanish, a language that he understood, which stated, “You are apparently so loaded down with marijuana; you are going so slow. If we need to, we will have to get out and push you.”

Sergeant DeLuna further testified that it looked to him as if the three vehicles were travelling together in the same lane in a caravan-type procedure which he had known smugglers to use to protect their load. The Ruskin area had a speed limit of thirty-five miles an hour, but the vehicles were travelling only twenty to twenty-five miles an hour. DeLuna observed C.B. antennas on the van and the tractor-trailer. He advised his men in other cars along the highway of what he had heard and seen and told them to keep the vehicles under surveillance. Even after the vehicles left Ruskin, they continued to travel together at the same slow rate of speed. Thereafter, as DeLuna was kept apprised of the progress of the vehicles, he testified that he heard someone on a police frequency say that what appeared to be residue had been observed on the rail deck lid of the tractor-trailer. He was also informed that Latin males were in the car. He knew that side roads into the area through which the three vehicles were travelling led from sites which were frequently used for off-loading and other smuggling activities because of their isolated nature. DeLuna finally ordered the vehicles to be stopped but said he did not order anything else to be done at this point. The vehicles were stopped by the law enforcement officers in a lonely area about four miles south of Ruskin.

Several other officers made similar observations with respect to the three vehicles. Detective Tipton said he could tell that they were travelling in a caravan because as they approached a traffic light in Ruskin which was about to change, the lead vehicle slowed down in order to catch the red light rather than pass through and leave the trailing vehicles stopped at the light. Tip-ton observed two of the occupants of the automobile through binoculars and determined that they were Latin males. He confirmed the fact that he passed this information on to DeLuna. Tipton said he also heard a radio communication prior to the time the stop was made which stated that marijuana residue was on the rear bed of the tractor-trailer. However, none of the officers at the hearing said that they had actually seen marijuana residue on the back of the tractor-trailer until after it was stopped, and each of them denied having been the originator of this communication. Some of the officers said that when they stopped the vehicles, they intended to arrest the occupants.

After the vehicles were stopped, the officers approached them with guns drawn. In each case, the officers discovered incriminating evidence before effecting a formal arrest. Detective Tipton could see marijuana residue on the clothing of all of the occupants of the car and noted that the clothing of the two men in the rear seat was wet from the knees down. He also saw the butt of a weapon on the floor. Detective Luis was first to approach the van, and he asked the driver to step out and show him some identification. When the man opened the van door, Luis could smell a strong odor of marijuana. He then discovered eight occupants of the van who had pieces of marijuana on their clothing. Sergeant John Whel-chel said he saw marijuana on the back ledge of the tractor-trailer as he approached it on foot. He could also smell a strong odor of marijuana surrounding the vehicle.

The pertinent portion of the order of suppression read as follows:

1. That the Defendants’ Motion to Suppress Evidence is hereby GRANTED.
2. That the Defendants were illegally stopped and illegally arrested.
3. That all evidence seized from the Defendants and from the three vehicles was seized without a lawful arrest, a valid Search Warrant or other lawful authority.
4. That the actions of the Police authorities constituted an illegal arrest, not merely a temporary stop and detention. The actions of the Police authorities, from the moment the stop order was given by Sgt. De Luna, is [sic] indistinguishable from a traditional arrest. The testimony of the witnesses corroborates this conclusion. The three vehicles were forcibly stopped by numerous Police vehicles, both marked and unmarked. The stop was effected by the use of sirens and flashing blue and red lights. The Defendants were ordered from their vehicles at gunpoint. Numerous officers approached the Defendants’ vehicles with shotguns, rifles, automatic weapons, and revolvers in full view and ready for use. Many of the Defendants were immediately placed face down beside the road with their hands handcuffed behind their back. Further, the officers at all times demonstrated an intention to arrest the Defendants from the moment the order to stop was given. The Defendants were never free to leave the scene and had they attempted to do so they would have been physically restrained. The State’s contention that the stop of the vehicles was a temporary detention is specifically rejected.
5. That the illegal arrest was not based on a valid arrest warrant or probable cause. The fact that three vehicles were proceeding South on U.S. Highway 41 through the downtown area of Ruskin, Florida in close proximity to each other and further that the vehicles slowed their speed as they approached a traffic light at U.S. 41 and State Road 674 and further, that upon leaving the stop light the vehicles remained relatively close to each other and proceeded below the speed limit does not constitute probable cause to arrest the occupants of the vehicles or justify the actions of the Police authorities in this case. Further, the testimony regarding the CB radio transmission allegedly overheard by Sgt. De Luna cannot be attributed to these vehicles and to conclude otherwise would be to engage in speculation and guesswork and is therefore rejected. Also, the proported [sic] sighting of marijuana residue, prior to the stop, on the back ledge of the tractor trailer truck has not been established by the evidence and is accordingly rejected by this Court. Those witnesses that observed the alleged residue testified that they observed it after the tractor trailer was stopped by the Police authorities. Further, the testimony that a couple of the occupants of the vehicle were of a Latin appearance is not unusual in the Tampa area and therefore has no consequence.
6. That even assuming arguendo that the stop was for the purpose of a temporary detention (which the Court finds to be contrary to the evidence) the Court further finds that the illegal stop and illegal arrest was based on bare suspicion and not reasonable suspicion and accordingly cannot justify the arrest, search and seizure.

From our study of the record and the applicable law, we believe that the evidence supports the court’s factual findings, but we must reject the conclusions drawn from those findings.

In order to effect a temporary stop and detention of a suspect, a law enforcement official need not have probable cause. Instead, he must have only a well-founded suspicion of criminal activity. State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977). This suspicion must be based on facts which the officer observes in the light of his knowledge and experience. Taylor v. State, 384 So.2d 1310 (Fla.2d DCA), review denied, 392 So.2d 1380 (Fla.1980). Under these standards, we think that a temporary stop of appellees was justified because the circumstances were, in our view, such as to give Sergeant DeLuna a well-founded suspicion of criminal activity when he initially ordered the stop.

While DeLuna could not be certain that the Spanish C.B. transmission emanated from one of the three vehicles, he had every reason to believe that it did. The transmission was very clear. Two of the three vehicles had C.B. radio antennas on them, and there was almost no other traffic in the area. Moreover, there were Latin males in the vehicles. The slow speed at which the vehicles were travelling suggested a heavy load of marijuana. The vehicles were obviously travelling in a caravan which was the customary method of transporting marijuana. Finally, the area was known as a disposition point for marijuana. We reach our conclusion without regard to the transmission concerning the sighting of marijuana residue on the truck prior to the stop because we accept the trial court’s finding that there was no such transmission.

Having determined that there was a well-founded suspicion of criminal activity which would justify an investigatory stop, we must now turn to the court’s ruling that the stop was still invalid because it amounted to what the court termed a traditional arrest. We think that to say that the initial stop was an arrest involves an incorrect assessment of the evidence. When the officers first pulled appellees over, they did nothing which went beyond the scope of a temporary stop and detention as defined in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or section 901.151, Florida Statutes (1979). Even a person temporarily detained is not free to leave. Of course, immediately after the stop probable cause for arrest developed since the officers found both marijuana residue and the smell of marijuana all over appellees and their vehicles. See Dixon v. State, 343 So.2d 1345 (Fla.2d DCA 1977). Thus, anything which occurred after that point must be judged by the law of arrest, and there is no contention that, given the right to arrest, the officers acted improperly.

Our view is not changed simply because some of the officers may have had the intent to arrest appellees prior to stopping them. Actions taken by a law enforcement officer must be examined objectively as to how they affect a suspect and not from the standpoint of what the officer’s intent was. See Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); United States v. Bugarin-Casas, 484 F.2d 853 (9th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974). To hold otherwise would invalidate many temporary stops since whenever an officer thinks there is enough reason to stop and detain a citizen, he is likely to also have it in his mind that an arrest might occur. The mere fact that an officer makes a stop for the purpose of effecting an arrest upon the erroneous belief that he has probable cause does not mean that the stop cannot be sustained if the officer had the requisite well-founded suspicion. If he obtains probable cause on the scene before he effects the arrest, the resultant arrest is perfectly proper.

That the officers used their sirens and flashing lights and had their guns drawn also did not change the stop into an arrest. Obviously, an officer cannot stop a vehicle in the darkness without making an appropriate signal. Moreover, where there is a clear possibility of the type of criminal activity which the officers believed they were encountering in the present case, we cannot fault them for having their guns at the ready for their own protection. We know of no authority which limits the right of police to display a weapon where necessary to make a stop. To the contrary, the United States Supreme Court, in defining the concept of a temporary stop, has indicated that it can involve the display of force or authority. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. at 19, 88 S.Ct. at 1878-79, 20 L.Ed.2d at 904-05.

We reverse the order of suppression and remand the case for further proceedings consistent with this opinion.

BOARDMAN, A.C.J., and RYDER, J., concur.


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    POST TENSIONED ENGINEERING CORP. and Commercial Construction Corp., Petitioners, v. FAIRWAYS PLAZA ASSOCIATES, Respondent.
    Nos. 81-2473, 81-2604.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Rehearing Denied May 3, 1982.

      Mahoney, Hadlow & Valdes-Fauli and William L. Richey, Miami, Kent, Watts, Durden, Kent & Mickler and William G. Cooper, Jacksonville, for petitioners.
    Fine, Jacobson, Block, Klein, Colan & Simon and Joseph H. Serota, Miami, for respondent.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Fairways Plaza Associates, the owner, filed suit against Commercial Construction Corporation, the contractor, and Commercial moved to compel arbitration pursuant to a contract which provides:

“7.9 ARBITRATION
“7.9.1 All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof . .. shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise.”

We review by writ of certiorari the trial court’s denial of Commercial’s motion.

In our view, the very issues Fairways seeks to resolve by litigation must be resolved in arbitration. First, Fairways’ suit does not challenge the validity of the contract or its provision for arbitration, but instead, in full recognition of the contract, seeks damages for its breach. The Florida Arbitration Code, Section 682.03(1), Florida Statutes (1981), specifically provides:

“A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.” (emphasis supplied).

Thus, the role of the court in deciding, ab initio, whether arbitration may be compelled is limited to determining whether an enforceable arbitration clause exists. See Comment, The Uniform Arbitration Act in Missouri, 46 Mo.L.Rev. 627, 684 (1981). See generally Annot., Violation or Repudiation of Contract as Affecting Right to Enforce Arbitration Clause Therein, 32 A.L.R.3d 377 (1970); compare Annot., 3 A.L.R.2d 383 (1959) (discussing earlier contrary rule and noting trend toward present rule). There being no challenge by Fairways to the making of the contract, much less the making of the included provision for arbitration, the unchallenged arbitration clause is valid,, regardless of the “justiciable character of the controversy.” It follows that an alleged breach of a valid contract does not forfeit the included agreement to arbitrate, but rather makes the question of breach one to be decided in arbitration. Gersh v. Concept House, Inc., 291 So.2d 258 (Fla.3d DCA 1974); Merkle v. Rice Construction Company, 271 So.2d 220 (Fla. 2d DCA 1973).

“[The] circuit court may not enjoin or stay an arbitration proceeding upon the ground that the contract providing for arbitration is not in force and effect, because of factual matters which have occurred since the making of the contract. Such an issue is for the arbitrators.” Gersh v. Concept House, Inc., supra, at 259.

Second, though it is true that if the arbitration clause of the contract calls for arbitration to take place in a foreign jurisdiction, Florida courts cannot, over objection, compel arbitration, § 682.02, Fla. Stat. (1981); Damora v. Stresscon International, Inc., 324 So.2d 80 (Fla.1975); Romar Transports Limited, Inc. v. Iron & Steel Company of Trinidad, 386 So.2d 572, 573 (Fla. 4th DCA 1980); see Murphey v. Dean Witter & Co., Inc., 392 So.2d 286 (Fla. 4th DCA 1980); Knight v. H. S. Equities, 280 So.2d 456 (Fla. 4th DCA 1973); the arbitration clause found in the contract between Fairways and Commercial, which provides that arbitration shall be conducted under the rules of the American Arbitration Association, is considered one which merely expresses the method to be followed, not a choice to arbitrate in a foreign jurisdiction or a stipulation that the Florida Arbitration Code shall not apply. Hall v. Nationwide Mutual Insurance Co., 189 So.2d 224 (Fla. 4th DCA 1966). See Travelers Insurance Co. v. Luckett, 279 So.2d 885 n. 1 (Fla. 3d DCA 1973).

Having concluded that the arbitration clause is valid and enforceable, we now address Fairways’ contention that Commercial waived its right to demand arbitration. The waiver, says Fairways, arises from Commercial’s failure to bind its subcontractors to arbitration pursuant to its agreement with Fairways. If Commercial’s alleged failure is simply a breach of its contract with Fairways, then, as we have said, that breach does not affect Commercial’s right to compel arbitration, but itself will be submitted to arbitration. Therefore, for Fairways to prevail on its contention, it must show that the alleged breach is an act inconsistent with Commercial’s right to arbitration. See, e.g., Lapidus v. Arlen Beach Condominium Association, Inc., 394 So.2d 1102 (Fla. 3d DCA 1981). But even if, arguendo, Commercial elected not to arbitrate with its subcontractors, see n. 6, supra, that election is in no way inconsistent with Commercial’s insistence on its right to arbitrate with Fairways. For an act to be inconsistent with the right to arbitrate and thus constitute a waiver of that right, it must repudiate the right of the party who does the act. See Lapidus v. Arlen Beach Condominium Association, Inc., supra, and cases collected therein. The most that can be said about Commercial’s failure to bind its subcontractors to arbitration is that it might impinge upon Fairways’ ability to include these subcontractors in an arbitration proceeding, not upon Commercial’s right to arbitrate with Fairways.

We reject as well Fairways’ remaining arguments in defense of the trial court’s ruling. Commercial’s right to compel arbitration is unaffected by the fact that Fairways’ complaint alleges fraud, Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980); Raymond, James and Associates, Inc. v. Maves, 384 So.2d 716 (Fla. 2d DCA 1980); seeks equitable relief, Collier Land Corporation v. Royal Palm Realty, Inc., 338 So.2d 859 (Fla. 3d DCA 1976); and concerns a complex construction industry dispute, William Passalacqua Builders, Inc. v. Mayfair House Association, Inc., 395 So.2d 1171 (Fla. 4th DCA 1981). Finally, and most emphatically, we reject Fairways’ argument that because it has not only sued Commercial with which it has an agreement to arbitrate, but has sued and intends to sue others with which it has no such agreement, and with which, therefore, the dispute must be litigated in court, the threat of such “piecemeal” resolution of the multiple disputes is, ipso facto, sufficient to justify the denial of Commercial’s motion to compel arbitration. In light of the strong- public policy favoring arbitration, Fenster v. Makovsky, 67 So.2d 427 (Fla.1953); Arrieta v. Volkswagen Insurance Company, 343 So.2d 918 (Fla. 3d DCA 1977); Morton Z. Levine and Associates, Chartered v. Van Deree, 334 So.2d 287 (Fla. 2d DCA 1976); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975), we cannot accept the proposition that a party to a contract calling for arbitration may avoid that undertaking by the simple device of joining as defendants in its lawsuit others with which the party has no such agreement to arbitrate.

- There being no other basis for sustaining the trial court’s order, the petition for writ of certiorari filed by Commercial Construction Corporation is granted, and the order of the trial court denying Commercial’s motion to compel arbitration is quashed. The petition for writ of certiorari filed by Post Tensioned Engineering Corporation is dismissed.

      . Post Tensioned Engineering Corporation admits that it did not file a motion to compel arbitration and that its petition for writ of cer-tiorari in Case No. 81-2473 seeking review of the trial court’s order denying arbitration was filed out of concern that non-action might be deemed a waiver of arbitration. Given this, we dismiss Post Tensioned’s petition for writ of certiorari.

      . The plain language of Sections 682.02, .03 and .04, Florida Statutes (1981), refers to “an agreement or provision to arbitrate,” not to the contract in its entirety. Thus, a challenge to the validity of the contract on the ground of fraud in the inducement, as distinguished from a challenge to the validity of the arbitration provision, has been held under the Federal arbitration statute (substantially similar to the Florida statute) to be subject to arbitration.
      “Under [the Federal statute] ... the federal court is instructed to order arbitration to proceed once it is satisfied that ‘the making of the agreement for arbitration or the failure to comply [with the arbitration agreement] is not in issue.’ Accordingly, if the claim is fraud in the inducement of the arbitration clause itself — an issue which goes to the ‘making’ of the agreement to arbitrate — the federal court may proceed to adjudicate it. But the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally... .” Prima Paint Corporation v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402, 87 S.Ct. 1801, 1805, 18 L.Ed.2d 1270, 1277 (1967).

        See Quirk v. Data Terminal Systems, Inc., 379 Mass. 762, 400 N.E.2d 858, 861 (1980).
      It would appear in the present case (absent any issue of waiver by Commercial), that the trial court’s labor should have come to an end upon simple review of Fairways’ complaint, which contains no attack on the validity of the arbitration provision. Had Fairways’ complaint asserted that it was fraudulently induced by Commercial into agreeing to arbitrate by Commercial’s promise to compel its subcontractors to arbitrate an issue cognizable by the court would have been presented.

      . We read Sections 682.02, .03 and .04 as treating the arbitration provision of a contract as a separate contract as a matter of law. That being the case, “severability” or “separability,” seemingly “an issue when one party challenges the validity of an entire contract, part of which is an agreement to arbitrate,” see Comment, 46 Mo.L.Rev., supra, at 640, is not an issue in Florida. The other possible views concerning the relationship between arbitration clauses and the contracts to which they are appended are that (1) as a matter of law, the arbitration clause is part of the principal contract, and (2) whether the arbitration clause is a separate contract is a question of fact. See Note, Arbitration: ... Separability of Arbitration Clause As A Matter of Federal Law, 45 Cornell L.Q. 795, 800 (1960).
      Thus, under the Florida or Federal view, only an attack on the making of the arbitration provision of the contract raises an issue for the court to decide. Under either of the other possible views, an attack on the making of the contract itself creates an issue for the court, and under the second of these views, the court must additionally decide the issue of separability.

      . “[An agreement to arbitrate] shall be valid, enforceable and irrevocable without regard to the justiciable character of the controversy.” § 682.02, Fla.Stat. (1981).

      . Fairways points to a separate document, a purchase order, between Commercial and Post Tensioned Engineering Corporation, which provides:
      “ARBITRATION — Supplier and Purchaser agree that any dispute arising from this order shall be submitted to the American Arbitration Association, New York City, in accordance with their rules and regulations .. .. ”
      While it may be arguable that this constitutes an agreement between Commercial and Post Tensioned to arbitrate in New York, the agreement between them is irrelevant to Commercial’s right to enforce its arbitration agreement with Fairways.

      . Commercial disputes that its agreement with Fairways was to bind Commercial’s subcontractors to arbitration, but says, nevertheless, that it bound its subcontractors to arbitrate, while reserving to itself the right to reject arbitration with its subcontractors. We do not decide these issues. We assume, for the sake of argument only, that Fairways’ underlying premise is correct.

      . Klosters Rederi A/S v. Arison Shipping Company, 280 So.2d 678 (Fla.1973), does not, as Fairways suggests, announce a rule that a party may by seeking equitable relief in court extinguish another’s contractual right to arbitration. In Klosters, not only was there the fait accompli of the appointment of a receiver (an “extreme and unmistakable act by a court of equity”); there existed, as well, waiver by the party demanding arbitration, a fact which is noted in subsequent cases as severely limiting the holding of Klosters. See Raymond, James and Associates, Inc. v. Maves, supra; Morton Z. Levine and Associates, Chartered v. Van Deree, 334 So.2d 287 (Fla. 2d DCA 1976).

      . Fairways’ response to the petition for writ of certiorari states, in part:
      “In addition, if this Court compelled arbitration between the Owner and Contractor, the Owner’s only remedy would be to pursue the lawsuit presently pending in the court below as to the other parties. Once again, the result of such a decision would be to deprive both the circuit court and the arbitration panel of the necessary parties each needs for a complete and final disposition of the issues raised by the Complaint.”


author: ORFINGER, Judge. SHARP, Judge,

text:
    Orla RALPH, Appellant, v. CITY OF DAYTONA BEACH, a municipal corporation, and Cheryl Ann Fetsko, Appellees.
    No. 79-515.
    District Court of Appeal of Florida, Fifth District.
    March 10, 1982.
    Rehearing Denied April 20, 1982.

      William H. Seitz of LaRue & Bernardini, P.A., Daytona Beach, for appellant.
    Alfred A. Green, Jr., Daytona Beach, for appellee City.
    No appearance for appellee Fetsko.
   ORFINGER, Judge.

Appellant, as plaintiff below, appeals the dismissal with prejudice of her third amended complaint directed to appellee City of Daytona Beach. A final order of dismissal was entered by the trial court after appellant declined to further amend her pleading. The issue on appeal is whether the City is immune from suit on the basis of the facts alleged.

Plaintiff alleged that she was sunbathing on the Atlantic Ocean beach within the limits of defendant City and that while so engaged, she was run over by an automobile driven by the co-defendant, Cheryl Ann Fetsko, suffering injuries as a result. In the count directed to the City, plaintiff contended that by virtue of a charter provision making the portion of the beach within the city limits a public highway and authorizing the City to regulate traffic thereon, the City had a duty to make the beach reasonably safe for sunbathers invited thereon in the same manner as would private persons owning a place of recreation and amusement; that the City thus had a duty to regulate or control vehicular traffic on the beach, to provide enough police officers or other attendants for that purpose, and to warn bathers of the dangers they faced from vehicular traffic; that the City failed to comply with its duty in that regard, did not regulate or control traffic on the beach, did not direct vehicular traffic away from areas, where sunbathers were on the beach and thereby proximately caused the injury to plaintiff.

Appellant contends that the City is liable under section 768.28, Florida Statutes (1979), the Waiver of Sovereign Immunity Act, as interpreted by the Supreme Court in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), in that the acts of negligence complained of are operational level activities for which acts sovereign immunity has been waived under the statute. We disagree and affirm the judgment.

Commercial Carrier reminds us that certain activities of government have traditionally been exempt from tort liability, not because of sovereign immunity, but

“. .. upon a concept of separation of powers which will not permit the substitution of the decision by a judge or jury for the decision of a governmental body as to the reasonableness of planning activity conducted by that body. As articulated by Judge Fuld [in Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960)]:
To accept a jury’s verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts. Acceptance of this conclusion, far from effecting revival of the ancient shibboleth that ‘the king can do no wrong’, serves only to give expression to the important and continuing need to preserve the pattern of distribution of governmental functions prescribed by constitution and statute.”

Id. at 1018.

Although section 768.28 evinces the intent of the legislature to waive sovereign immunity on a broad basis, certain “discretionary” governmental functions remain immune from tort liability.

Legislative, judicial and purely executive processes of government, including discretionary acts and decisions within the framework of such processes, cannot and should not be characterized as tortious. Public policy and maintenance of the integrity of our system of government necessitate this immunity, however unwise, unpopular, mistaken or neglectful a particular decision or act might be. (emphasis supplied).

371 So.2d at 1019.

How to distinguish between such “planning level” activities and the day-to-day operational activities of government is not a simple task. It is not enough to point to discretionary authority on the part of public officials, because many routine administrative (operational) acts involve the exercise of some discretion. The Supreme Court has adopted the test of Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), as a preliminary indication of how an act or omission would be characterized:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom. If, however, one or more of the questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances involved.

371 So.2d at 1019.

Applying these principles to the facts here, it is clear that these questions may all be answered in the affirmative. Whether to allow, restrict or otherwise regulate vehicular traffic on the beach requires a decision which involves a basic governmental policy, program or objective; the questioned omission or decision is essential to the realization of that policy or objective; the decision requires the exercise of basic policy evaluation on the part of the governmental agency which has the lawful authority and discretion to make that decision.

While the City has the power to regulate vehicular traffic on the beach, and as indicated by the dissent, even the power in some form or other to restrict or eliminate it, when, where, why, how and whether to implement such power is a serious matter of governmental concern. In a tourist oriented community, a beach modestly described as “The World’s Most Famous Beach,” on the sands of which famous race drivers have driven famous racing automobiles and over which many thousands of motor cars are driven annually, we cannot impose tort liability on a municipality simply because we conclude that accidents on the beach between motorists and pedestrians can be avoided by limiting or restricting vehicular traffic. To restrict or not restrict, to regulate or not to regulate traffic on the beach where the tourist industry is so important to the economy of the community, and where motoring on the beach is a well recognized tourist attraction, is a basic governmental policy decision to be decided by the elected officials of the community, and not by a court or jury.

So we, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain “discretionary” governmental functions remain immune from tort liability. This is so because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance.

371 So.2d at 1022.

Collum v. City of St. Petersburg, 400 So.2d 507 (Fla.2d DCA 1981), relied on in the dissenting opinion, is not applicable to the facts here. There, the City had completed its “discretionary” or decision making function- and had acted. In implementing the plan at the operational level, it did so negligently, so it was alleged, and as a result of that negligence in maintenance and design of a storm sewer system, plaintiff’s decedents were swept into the storm sewer and drowned. The case did not involve the determination of whether the City should or should not have designed and built the system, or whether there would be tort liability for not building it. Even there, however, the court recognized that there can be no tort liability in the absence of a duty to act:

As already noted, the so-called exception for “discretionary” acts is a misnomer. “Discretion to act" completely precludes any possibility that a duty to act will be breached. Historically, no one — whether an individual or a government — has ever been liable where true discretion has been exercised in deciding whether to act or which of two or more reasonable courses of action to follow.

400 So.2d at 508.

The fact that the City has the power to curtail or regulate traffic on the beach cannot and should not make it liable in tort when the determination of when and how to exercise that power is a matter of governmental discretion, at least not under the facts presented here. It is not a tort for government to govern. Dalehite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 979, 97 L.Ed. 1427 (1953) (Jackson, J., dissenting), and the basic issue of whether traffic should or should not be restricted or regulated on this beach is one for governmental, not judicial, determination.

The final judgment for appellee is

AFFIRMED.

COWART, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I respectfully dissent in this case. Ralph appealed an order of the trial court dismissing with prejudice her third amended complaint against the City of Daytona Beach for failure to state a cause of action. She sought to recover damages for injuries suffered when she was struck by a car while sunbathing on Daytona Beach. Daytona contended the negligent acts complained of come within the planning level of decision making by the City, rendering it immune from tort liability. See Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979).

The complaint alleged that Daytona breached its duty to Ralph by failing to provide a safe place for sunbathing on the City controlled beach. It advertised and encouraged use of the beach by swimmers and sunbathers, but it allowed to mix with them, streams of vehicular traffic. The traffic was not supervised or regulated or confined to traffic lanes apart from the sunbathers; nor were the sunbathers warned they should or should not sunbathe in certain locations because of their proximity to the traffic. The complaint further alleged that the danger to the sunbathers because of the auto traffic was well known to the City.

The City argued that its decision to undertake traffic control on the beaches or not, and its decision to warn sunbathers or not, are “planning” level functions, and therefore sovereign immunity applies. The appellant argued these activities are within the City’s “operational” level functions. The difficulty of determining what is “operational” as opposed to “planning” promises to be as deep a legal quagmire as the bog of “governmental” versus “non-governmental.”

Judge Ott wrote in Collom v. City of St. Petersburg, 400 So.2d 507, 508 (Fla.2d DCA 1981):

As we review the cases which come before us, it is all too obvious that many people still do not really understand that ‘sovereign immunity’ simply no longer exists in this state. A government is liable for its negligent acts and omissions without exception .. ., ‘Discretion to Act’ completely precludes any possibility that a duty to act will be breached. Historically, no one — whether an individual or a government — has ever been liable where true discretion has been exercised in deciding whether to act or which of two or more responsible courses of action to follow. But immunity of a government for negligently performing an act no longer exists even though the initial decision to act may have been purely discretionary and not compelled in any way. [Ojnce a government decides to act, whether out of obligation or free choice, it must act responsibly and reasonably under the existing circumstances, and in accordance with acceptable standards of care and common sense.

In Coliom the city had allegedly designed and built an unsafe storm sewer system that allowed the plaintiffs to be swept up into it and drowned. Cities as well as other state agencies are subject to the Commercial Carrier doctrine.

In this case Daytona was allegedly negligent because it failed to control traffic on the beach. Daytona clearly has the power to regulate and control traffic on the beach. It could have restricted it, or even banned it on a limited basis, depending upon the circumstances.

The need or lack of need for regulation of traffic, where subject to reasonable debate, would probably be a “planning-level” decision. But if the need for regulation is readily apparent, as for example at an intersection between 1-4 and 1-95, then the City’s failure to take reasonable regulatory measures would be “operational” level in my view. The question should not turn on “feasance” versus “nonfeasance.” In Commercial Carrier, the Florida Supreme Court said that planning versus operational activity depended upon whether or not there are basic governmental policy decisions involved:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program or objective?
(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?
(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?
(4) Does the governmental agency involved possess requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission or decision? (Emphasis added).

Commercial Carrier, 371 So.2d at 1019.

The complaint alleged the City allowed a dangerous condition to bathers to exist on its beaches, that it knew of the danger, and that it failed to regulate traffic when it should have done so. In my opinion, this is sufficient under Commercial Carrier. The type of traffic control possible, given the flux of the tides, and whether or not its absence contributed to Ralph’s injury, would be issues which she would have to prove. Because I think the complaint states a cause of action I would reverse the judgment.

      . A claim for damages against Fetsko is contained in a separate count of the complaint and is not involved in this appeal.

      . There were other allegations of negligence, which are summarized by the following excerpt from the complaint:
      “As a direct and proximate result of . . . the City’s failure to have a sufficient number of attendants to regulate traffic or direct traffic, the City’s failure to properly direct motor vehicle traffic on the beach, the City’s failure to properly control motor vehicle traffic in relation to sunbathers and pedestrian traffic, and the fact that the City knowingly improperly allowed motor vehicles to drive near the water where sunbathers were lying unprotected and not readily visible, ... and in the absence of proper warning to sunbathers ...” the collision occurred.
      The quoted provision claims proximate causation between the alleged negligence of the City and the injury caused by the third party. In the light of our decision here, we do not discuss the issue of proximate cause between the alleged acts and omissions of the City and the injury caused by any intervening negligent operation of a motor vehicle by a third party.

      . Town of Atlantic Beach v. Oosterhoudt, 127 Fla. 159, 172 So. 687 (1937).

      . As an example of a decision holding a city not liable in tort because of an alleged failure to have police officers present during a rally which turned into a riot causing extensive property damage, see Wong v. City of Miami, 237 So.2d 132 (Fla.1970), approved in Commercial Carrier.

      . See Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979).

      . Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.1981).

      . Ch. 67-1274, § 7(b), Laws of Fla. states: (b) Beach a public highway; power of city. That the beach of the Atlantic Ocean between high and low water mark, within the limits or confines of the city of Daytona Beach, be and the same is hereby made and declared to be a public highway, and the said city is hereby given jurisdiction, supervision and control over the same; said city is also hereby given the power and authority to regulate and/or license any and all businesses, trades, occupations and/or concessions conducted upon said beach.

      . § 316.008, Fla.Stat. (1979).

      . Town of Atlantic Beach v. Oosterhoudt, 127 Fla. 159, 172 So. 687 (1937).

      . Banta v. Rosier, 399 So.2d 444 (Fla. 5th DCA 1981).


author: NESBITT, Judge.

text:
    Ralph G. BOALT, Jr., and Margaret L. Boalt, Appellants, v. Hilma B. HANSON, Appellee.
    No. 81-799.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Rehearing Denied May 3, 1982.

      R. Stuart Huff and Gregg J. Ormond, Coral Gables, Rosenberg, Rosenberg, Reis-man & Glass, Miami, for appellants.
    Peters, Maxey, Short & Morgan and Wirt T. Maxey, Coral Gables, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

The individual co-trustees have perfected this interlocutory appeal to review an order granting immediate right of possession of an automobile to the beneficiary of a trust. We have jurisdiction. Fla.R.App.Pro. 9.130(a)(3)(C)(ii).

Ralph G. Boalt, Sr. and his wife, Hilma 0. Boalt, executed an inter vivos trust on March 20, 1975, under which they were the initial beneficiaries. Under the provisions of the trust, when Mr. Boalt died, it was divided into two equal parts comprising: (a) a marital trust for Mrs. Boalt; and (b) a children’s trust for their natural children, Ralph, Jr. and Margaret. Under the express trust, the children were co-trustees but Ralph, Jr. was the managing trustee. When the trust was established, it was funded with $847,000 of registered securities. The dominant purpose of the trust was to establish support for the elder Boalts and, upon the death of the survivor, a distribution to the children. Under the express terms of the marital trust, which vested upon Mr. Boalt’s death, Mrs. Boalt specifically retained a power of appointment over the marital trust.

During the administration of the trust, the life income beneficiary of the marital trust, Mrs. Boalt, Sr., now known as Mrs. Hanson, and the individual co-trustees became embroiled in trust proceedings instituted pursuant to Part II, Chapter 737, Florida Statutes (1979). In the course of those proceedings, the trial court appointed a bank as an additional co-trustee and ordered that all assets of the trust be titled in the bank’s name as trustee. One of the assets was a Mercedes automobile. This vehicle was undeniably purchased in Ralph, Jr.’s name, individually — from the corpus of the marital trust — but use and possession was given over to Mrs. Hanson. The bank did not want to take title to the vehicle because it was considered to be ah improper trust asset. Consequently, it suggested to the individual co-trustees that the vehicle be sold and the proceeds be delivered over to it. As a result, the individual co-trustees took the vehicle from Mrs. Hanson’s possession without notice. She promptly filed a “Motion to Compel Return of Automobile” and requested an emergency hearing.

That motion alleged the foregoing facts and further alleged that, by reason of the purchase of the vehicle from funds from the corpus of the marital trust, it had proportionately diminished Mrs. Hanson’s annual distribution of earnings from the marital trust. At the emergency hearing, the co-trustees’ counsel stipulated as to the use of an accountant’s deposition generally substantiating the purchase of the vehicle by Ralph, Jr. utilizing funds from the corpus of the marital trust. At the conclusion of the hearing, the court ordered that immediate possession of the vehicle be delivered to the beneficiary — based solely on the determination that the beneficiary was entitled to legal title to the vehicle. The order requiring the immediate delivery of the vehicle to Mrs. Hanson also required the co-trustee to transfer legal title to her.

In an attempt to support the trial court’s order, the life income beneficiary contends that transfer of title was warranted either under a resulting or constructive trust theory. The problem with application of either theory is that the vehicle is already subject to an express trust. Ordinarily, a resulting trust will not arise when there is a valid trust in existence. 89 C.J.S. Trusts § 102 (1955). Nonetheless, it is clear that where a trustee purchases property in his individual name, which it is his duty to purchase on behalf of the trust, the beneficiary can charge him as a constructive trustee of the property so purchased and compel him to hold the property subject to the trust; or if he has sold it at a profit, to account for the profit. See Restatement (Second) of Trusts § 206, comment i.

The life income beneficiary also argues that the purchase of the vehicle constituted breach of the trustee’s fiduciary duty in that invasion of the corpus of the marital trust to purchase the vehicle diminished the corpus and thereby diminished the earnings for annual distribution accruing to the life income beneficiary under the marital trust.

The remedy for alleged breach of the fiduciary duty to the beneficiary is to hold the trustee personally liable pursuant to Section 737.306, Florida Statutes (1979) rather than reward the beneficiary with legal title to the vehicle and thus strip the marital trust of an asset contrary to the manifested intention of the grantors. After accounting for the vehicle, if it is ultimately determined that the purchase of the car constituted a breach of a fiduciary duty, Ralph, Jr. may nonetheless be liable for any remaining permanent diminution to the corpus of the marital trust, as well as loss of income not generated and available for distribution.

Because the sole basis for the order requiring immediate, delivery of possession of the vehicle to the life income beneficiary was the trial court’s erroneous determination that the beneficiary was entitled to legal title, it is reversed with directions that legal title to the vehicle be transferred to a proper trustee of the trust. On remand, the trial court will once again be empowered to determine whether the trustee should be required to provide the life income beneficiary with a personal automobile and to make such other orders as are consistent with the trust instrument and circumstances of the case.

Reversed and remanded with directions.


author: PER CURIAM.

text:
    Leo Hillery KING, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2521.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Bennett H. Brummer, Public Defender and Lee Weissenborn, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   ON REHEARING

PER CURIAM.

Affirmed. Bell v. State, 93 So.2d 575 (Fla.1957); Miller v. State, 389 So.2d 1210 (Fla. 1st DCA 1980); Hampton v. State, 336 So.2d 378 (Fla. 1st DCA), cert. denied, 339 So.2d 1169 (Fla.1976); Martin v. State, 218 So.2d 195 (Fla. 3d DCA 1969).


author: GRIMES, Acting Chief Judge.

text:
    COFFEE POT PLAZA PARTNERSHIP, Appellant, v. ARROW AIR CONDITIONING AND REFRIGERATION, INC., and Gulf Shores Industries, Inc., d/b/a Cleo’s Meat and Produce, Appellees.
    No. 81-1464.
    District Court of Appeal of Florida, Second District.
    March 17, 1982.
    Rehearing Denied April 20, 1982.
    L. James Dickson of Jacobs, Robbins, Gaynor, Hampp, Burns, Cole & Shasteen, P.A., St. Petersburg, for appellant.
    Ira M. Seidler, St. Petersburg, for Appel-lee Arrow Air Conditioning and Refrigeration, Inc.
   GRIMES, Acting Chief Judge.

Arrow Air Conditioning and Refrigeration, Inc., recovered a judgment from Coffee Pot Plaza Partnership on the theory of unjust enrichment. On appeal, Coffee Pot challenges the trial court’s finding that the facts of this case fit that theory.

Coffee Pot purchased the Coffee Pot Plaza Shopping Center in St. Petersburg. The center included a vacant supermarket in which meat lockers and related refrigeration equipment were located. Coffee Pot divided the supermarket into two stores, one of which it leased along with the refrigeration equipment to Gulf Shores Industries for use as a meat market. The lease provided that Gulf Shores was responsible for the installation, maintenance, and repair of the equipment and that Gulf Shores would return the equipment to Coffee Pot in good repair at the end of the lease.

Subsequently, Gulf Shores entered into an agreement with Arrow for Arrow to repair and install the equipment. Arrow performed this work and billed Gulf Shores for $8,239.92. Gulf Shores operated the meat market for several months, but it never paid Arrow for the repairs and failed to pay rent to Coffee Pot under the lease. As a result of the failure to pay rent, Coffee Pot finally terminated the lease. Thereafter, in spite of a concerted effort, Coffee Pot was unable to lease the store again as a meat market.

Arrow brought the present action against Gulf Shores and Coffee Pot seeking to recover for the work it did. It asserted that Coffee Pot was obligated to pay for the work under theories of agency and unjust enrichment. After hearing the case without a jury, the court found that Gulf Shores was not Coffee Pot’s agent and dismissed Arrow’s claims premised on the agency theory. However, the court did find that Arrow was entitled to recover from Coffee Pot on the basis of unjust enrichment and entered an $8,239.92 judgment against both Gulf Shores and Coffee Pot.

We agree with Coffee Pot’s assertion that the facts and circumstances of this case do not justify Arrow’s recovery under an unjust enrichment theory. Where unjust enrichment is asserted, a party is liable for services rendered only when he requests the other party to perform the services or knowingly and voluntarily accepts their benefits. Nursing Care Services v. Dobos, 380 So.2d 516 (Fla. 4th DCA 1980). Here, Coffee Pot did not request that Arrow repair and install the refrigeration equipment. Moreover, it cannot be said that Coffee Pot knowingly and voluntarily accepted the benefits of Arrow’s work since it did not come into control of the equipment until after Arrow had completed the work and only then because it was forced to terminate Gulf Shores’ lease. That the equipment was personalty so as to prevent Arrow from filing a mechanics’ lien and that its size effectively precluded the maintenance of a possessory lien cannot change this result. Arrow contracted with Gulf Shores to do the work, and it must look to Gulf Shores for payment.

There is another reason why this judgment cannot stand. One basic element of unjust enrichment is that some benefit must flow to the party sought to be charged. Variety Children’s Hospital v. Vigliotti, 385 So.2d 1052 (Fla.3d DCA 1980). While' the repairs no doubt enhanced the value of the equipment, it is speculative to say that any benefit has come to Coffee Pot since Coffee Pot did not receive its rental payments from Gulf Shores and has been unable to find a new tenant for its store.

We reverse the judgment of the trial court as it pertains to Coffee Pot and remand the case with directions that it enter judgment in Coffee Pot’s favor.

OTT and SCHOONOVER, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Emily WRIGHT, Appellant, v. GOLF DRIVE RESIDENCE, INC., and Insurance Company of North America, Appellees.
    No. VV-149, XX-290.
    District Court of Appeal of Florida, First District.
    March 18, 1982.
    Rehearing Denied April 30, 1982.

      L. Barry Keyfetz, Keyfetz & Poses, Miami, for appellant.
    Gerald W. Pierce, Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   LARRY G. SMITH, Judge.

Appellant, claimant in a workers’ compensation proceeding, asserts that several errors were made in the deputy commissioner’s order awarding compensation. She challenges the provisions of the order: (1) requiring her to travel from her home in Naples to Fort Myers for further treatment; (2) finding that her disability is restricted to her 50% body as a whole anatomical rating, with no award for wage earning capacity loss; (3) finding that she is in need of psychiatric treatment, but failing to order the employer/carrier to provide it; and (4) allowing the employer/carrier a set-off for previous permanent partial disability and social security benefits paid without determining the manner and method by which this should be done. We agree reversible error has been shown.

Claimant is a 39-year old woman with a twelfth grade education who has worked as a nurse’s aide during her adult life. In 1973, she injured her back, underwent surgery, and was later discharged with a 10% permanent partial disability of the body as a whole for which she was paid settlement benefits. Subsequent to this injury, she was able to continue her work, although she did suffer back pain. She injured her back again in April, 1978, while working for the appellee-employer when she slipped and fell while pulling a patient out of a tub.

Claimant now suffers severe headaches in the back of the head, pain in both buttocks, her kneecap and shoulders, and pressure in her back. Medical treatment has been limited to bed rest and flexiril, claimant being unable to take any more medication than this due to gastrointestinal troubles. She suffers severe depression because of her pain. At the hearing she indicated a willingness to work if she could get relief from her pain. Her treating physician, Dr. Hus-sey, ruled out surgery as useless and has given her a 50% anatomical impairment rating of the body as a whole.

Dr. Hussey has restricted claimant from lifting, bending or stooping. He initially felt claimant was totally disabled since she is unable to do any laboring type of job, but later testified that claimant might be able to do some part-time work, but not a “standard job.” He elaborated that claimant needed a job where she could work for three hours and then rest for three hours, or at least lie down for a half an hour. He ruled out such jobs as a receptionist or medical records file clerk as too demanding for claimant’s physical capabilities. He described claimant’ injury as one which aggravated a pre-existing weak spot in her back, but he was unable to apportion claimant’s present disability, noting that claimant was previously clinically asymptomatic. When asked to assume that the claimant had a 10% impairment rating from her earlier compensable accident, the doctor stated that he would say there was a “40% add on” from the new accident. However, he also testified that he did not know how the earlier 10% had been arrived at, and assuming the further facts that she could return to work and was asymptomatic and without pain, 10% was more than adequate, or may have been actually high. He also stated that “[I]f she were asymptomatic and working, I don’t think I would have given her a 10% rating before.”

The E/C deauthorized Dr. Hussey on September 1, 1979, and authorized two doctors in the Fort Myers area. The claimant took the position below that authorizing medical treatment in Fort Myers, was improper, since she resides in Naples, contending that to require medical care and treatment in the Fort Myers area would impose a hardship upon her. She testified that she would have to use a taxi, and the trip would take about an hour. Dr. Hussey testified there would be nothing wrong with sending claimant to Fort Myers for further opinions and evaluations; however, he felt it was appropriate medically for her to be treated in the Naples area because with pain problems of claimant’s type, traveling in a car for any distance only aggravates the problem.

Because claimant suffered such severe depression and anxiety as a result of her injury, Dr. Hussey felt a psychological component was involved and he sent claimant to see Dr. Love, a clinical psychologist. Dr. Love felt that claimant’s psychological condition had deteriorated as a result of the depression she suffered from her unremitting pain. He related this psychogenic problem to claimant’s accident within a reasonable degree of medical probability. With respect to employment, he felt jobs might exist that claimant would be physically capable of doing; but until her depression is brought under control, she would be unable to perform them. It was his view that claimant is not a candidate for individual psychotherapy but might benefit from treatment at a pain clinic. He felt nothing much could be done for claimant on an out-patient basis because of the depth of her depression. Claimant is unable to take antidepressive drugs because of her stomach problems. Both doctors felt there was absolutely no evidence that claimant is malingering.

The E/C paid temporary disability benefits from the date of the accident to January 11, 1980, and the parties stipulated claimant reached MMI on January 30, 1980. At the hearing claimant sought permanent total disability benefits from the date of MMI or, in the alternative, permanent partial disability benefits.

After a hearing, the deputy commissioner found that claimant is in need of further psychiatric treatment, although he expressed doubts that there was evidence claimant would experience any profound improvement in her physical or psychiatric condition. At the same time, he ordered further remedial and/or palliative orthopedic treatment for claimant by the authorized physicians in the Fort Myers area. Since no psychiatric disability had been given and no opinion rendered as to temporary disability on a psychiatric basis, the deputy concluded there was no related disability on that basis. He accepted Dr. Hussey’s 50% rating and the stipulated MMI date. Because the claimant had made no job search, however, he declined to award benefits based on loss of wage earning capacity, limiting her to 50% anatomical disability of the body as a whole. He ordered the bills of Dr. Hussey to be paid up to July 31,1979 together with interest and penalties. Finally, he ordered the E/C to pay benefits equal to 50% permanent partial disability of the body as a whole with an appropriate set-off for the previous (1973) settlement, social security benefits as may be appropriate, and any permanent partial disability paid since the stipulated date of MMI.

In City of Jacksonville Fire Division v. McDaniel, 388 So.2d 1336 (Fla. 1st DCA 1980), we reversed an award of permanent partial disability benefits as premature, since the deputy simultaneously found claimant to be in need of further psychiatric care. The facts of this case are quite similar, in that the deputy found that the claimant is in need of psychiatric (as well as orthopedic) care, and the evidence is not conclusive that claimant cannot respond to further psychiatric treatment. We recognize that the deputy here felt constrained to award permanent disability benefits based on claimant’s orthopedic disabilities only, since no disability rating was given by the doctors based on permanent psychiatric impairment, and because the parties had stipulated to January 30, 1980, as the date of maximum medical improvement. Joint stipulations of the parties are normally binding on the deputy, and ordinarily a finding by the deputy at variance with a stipulation will be overturned. Principe v. Mount Sinai Hospital, 156 So.2d 385 (Fla.1963). However, a deputy should not bind himself to a stipulation if the facts are at variance with, and show good cause for modification of the stipulation. Woods v. Greater Naples Care Center, 406 So.2d 1172, at 1173 (Fla.App.); Delta Drilling Company, Inc. v. Wells, IRC Order 2-3708 (1979), cert. den. 379 So.2d 204 (Fla.1979). Further, it is the obligation of the deputy commissioner, as the trier of fact, to determine the date of maximum medical improvement. Corral v. McCrory Corp., 228 So.2d 900 (Fla.1969).

This case presents somewhat of a dilemma in that while the evidence and the deputy’s specific findings would strongly indicate that the claimant had not, as stipulated, reached MMI on January 30, 1980, no request was made for the deputy to disregard the stipulation, and the deputy did not see fit to do so on his own motion. Neither party has challenged the stipulated MMI date on appeal. We therefore do not disturb the deputy’s reliance on the stipulation. However, in view of the overwhelming medical evidence of claimant’s inability to work as of the time of the hearing in this case, we reverse that portion of the deputy’s order basing the disability award on claimant’s anatomical disability only, without consideration of any disability based on loss of wage earning capacity in excess of her anatomical disability.

The law is clear that where an injured person can handle only a specially created job, one requiring only light effort and responsibility, but laden with rest and comfort, the burden shifts to the E/C to show that such a job is in fact within the claimant’s reach. If the E/C do not present such proof, the claimant is entitled to a permanent total disability finding. Smith v. Lake Butler Groves, Inc., 275 So.2d 229 (Fla.1973); Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960). Here, the testimony of claimant’s treating physician, considered in the light most favorable to appellees, clearly shows that claimant is able to handle only a specially created job involving no heavy work, one in which she can work for three hours and rest for several hours, and in which she would not be required to get up and move around. Further, Dr. Love testified that claimant is unable to work at this point because of her depression, even if a job might exist that she is capable of performing. It was error, in view of this evidence, to find that claimant’s entitlement to consideration of her wage-earning capacity loss was dependent upon a job search. Burger Chef of Bradenton v. Benedetto, 394 So.2d 206 (Fla. 1st DGA 1981); Sizemore v. Canaveral Port Authority, 332 So.2d 23 (Fla.1976); Chicken ’N’ Things v. Murray, 329 So.2d 302 (Fla.1976).

As for the claimant’s contention that the deputy commissioner erred in allowing a set-off for compensation previously paid for her permanent partial disability from a previous accident, we observe that the order in question provides for 50% permanent partial disability of the body as a whole “with an appropriate set-off for the previous settlement ....’’ We do not know what is meant by “appropriate,” since the order contains no findings as to the application of Section 440.15(5)(c). Specifically, the order does not address the issue of whether the second injury is one that “merges” with the pre-existing permanent partial disability or impairment “to cause a permanent partial disability that is greater than that which would have resulted from the subsequent injury . .. alone,” nor does the order specify “the degree of disability that would have resulted from the subsequent injury ... if the previous disability had not existed.” Section 440.15(5)(c), Florida Statutes (1977). We agree with claimant’s contention that the order must be reversed for failure to provide a basis for review. Brevard County Clerk of Court v. Winslow, 399 So.2d 111 (Fla. 1st DCA 1981). However, we reject claimant’s contention that the E/C waived any claim of set-off under this statute, since evidence bearing on this issue was introduced without objection. We note also that the order made no specific determination as to a set-off for social security benefits subject to review, since no social security benefits had been received as of the date of the hearing. We therefore find no basis for review of that portion of the order, since it has not been shown what, if any, justiciable issue exists as to social security benefits.

Claimant further complains that it was error to require her to travel to Fort Myers for further treatment when no medical or practical necessity for such travel was shown. We agree. It was unreasonable for the deputy to require her to travel outside her home community in Naples where adequate treatment is available. Hall’s Camp Inc. v. Decker, 394 So.2d 1041 (Fla. 1st DCA 1980).

Claimant further complains that the deputy commissioner ordered payment of Dr. Hussey’s bill only through July 31, 1979, although he was authorized through September 1, 1979, and the deputy should have ordered payment through this date. Claimant also argues that temporary disability benefits were due through January 30,1980 and the deputy erred in failing to award these benefits. The E/C concede these two points and we therefore modify the order accordingly.

In view of our reversal and remand, the deputy commissioner may enter such further orders for psychiatric care or treatment as may be appropriate, upon request of either party.

Finally, we have not overlooked the E/C’s cross-appeal concerning the deputy’s award of taxable costs, which we find to be totally without merit.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

BOOTH and THOMPSON, JJ., concur.

      . The deputy commissioner made a specific finding that Dr. Hussey was unable to apportion.


text:
    BLAESER DEVELOPMENT CORPORATION, Appellant, v. COVE CAY CONDOMINIUMS ASSOCIATION, INC., Appellee.
    No. 81-1365.
    District Court of Appeal of Florida, Second District.
    March 19, 1982.
    Rehearing Denied April 20, 1982.

      Stephen 0. Cole of McMullen, Everett, Logan, Marquardt & Cline, P. A., Clear-water, for appellant.
    John T. Blakely of Johnson, Blakely, Pope, Bokor & Ruppel, P.A., Clearwater, for appellee.
   GRIMES, Acting Chief Judge.

The one point in this appeal which merits discussion pertains to that portion of a judgment determining Blaeser Development Corporation’s obligation to increase its contribution to certain common expenses at Cove Cay Condominiums.

Cove Cay Condominiums is located in Clearwater. The original master plan for the Cove Cay tract contemplated the development of four villages containing a total of 1,046 units. Between 1972 and 1974 the original developer constructed 459 units in villages I and II. There was no further construction until December 1978 when Blaeser acquired the former developer’s interest. In 1979 and 1980, Blaeser built ninety-eight units in village IV and obtained building permits for forty-nine more.

The main entrance to the entire development is on U. S. Highway 19. Cove Cay Drive runs from the entrance toward the bay for a length of about one mile and connects all of the development. « There is a guard at an entrance gate and a roving guard who assists in traffic control on the drive and helps with security. The cost of maintaining Cove Cay Drive with its attendant lawn maintenance and security expenses is referred to as the “Cove Cay Drive expenses,” and it is the proration of these expenses which formed the basis of the condominium association’s claim.

The declaration of condominium addresses the allocation of the Cove Cay Drive expenses. Article III(B) provides that the share or fraction of Cove Cay Drive expenses which the developer is to pay is determined by the number of units it owns plus the number it plans to build and

shall be subject to increase or decrease by Developer from time to time at its option and accordingly the Developer reserves the right from time to time at its option to increase or decrease the total number of APARTMENT UNITS to be constructed in all VILLAGES OF COVE CAY. At any time the Developer increases or decreases the total number of APARTMENT UNITS to be constructed ... said fraction shall accordingly be changed to reflect the actual number of APARTMENT UNITS determined by Developer to be constructed by Developer. Such determination of the total number of APARTMENT UNITS to be constructed .. . shall be effective and binding on all APARTMENT UNIT Owners.

Article III(B) also provides that the developer must notify the association in writing of any change in the total number of units to be constructed and that the notice is effective on the first day of the first month following receipt.

Initially, the condominium documents provided that the developers planned to construct 1,046 units in the four villages, and from the beginning they paid their share of the Cove Cay Drive expenses based upon this figure. However, by written notice dated September 20, 1979, Blaeser advised the condominium association of its intent to adjust the fractional contribution and declared that the total number of units it planned to construct was 557. It then stopped paying for any units not already under construction. The association filed a suit for declaratory judgment seeking to require Blaeser to continue to pay its fractional contribution based upon 1,046 units. On February 29, 1980, Blaeser served a subsequent notice declaring that the total number of units then planned had risen to 606.

At trial the association presented evidence directed toward showing that Blaeser had not changed its plan to build all 1,046 units. Such evidence included the fact that in obtaining financing for the purchase and development of Cove Cay, Blaeser had obligated itself in its purchase money mortgage to build all the remaining units and to pay to the association the pro rata share of the common expenses applicable to those units until they were sold to third parties. The loan agreement required Blaeser to build all the additional units before November 1, 1983, and any attempt by Blaeser to reduce the number of units to be built would constitute a default in the mortgage. Blaeser’s 1979 master plan as well as the prospectus and map used by Blaeser in selling units all showed full development of the 1,046 units. Finally, Mr. Blaeser admitted that he hoped to be able to build all 587 units in villages III and IV as originally planned. The court ruled that the developer was obligated to report honestly the total number of units which it planned to build and concluded that the evidence showed that Blaeser planned to build 1,046 units. Therefore, the court recomputed the amount owed by Blaeser for Cove Cay Drive expenses and entered judgment against Blaeser for $55,-906.01 plus interest.

Blaeser argues that by virtue of the language of the declaration of condominium, the association had no right to challenge Blaeser’s designation of the number of units it planned to build. We cannot accept this interpretation. Obviously, the declaration could have been drawn to give the developer the absolute right to determine what contribution it would make to the Cove Cay Drive expenses. If it had been so written, cautious purchasers might not have been as inclined to purchase units in Cove Cay. However, when the developer’s contribution to the Cove Cay Drive expenses was made to depend upon the filing of a statement by the developer of the number of units it planned to build, we believe that the language of the declaration contemplated a good faith statement of intention. To accept Blaeser’s position would mean that if it were so inclined it could state that it did not plan to build any more units at a time when it actually had further units under construction. There was ample evidence to support the court’s conclusion that Blaeser still intended to build all 1,046 units. Hence, the court’s determination of Blaeser’s share of the Cove Cay Drive expenses was proper.

AFFIRMED.

OTT and CAMPBELL, JJ., concur.


author: BASKIN, Judge.

text:
    Pedro Juan ROSA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-711.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Rehearing Denied May 5, 1982.

      Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

We reverse defendant Rosa’s conviction of second-degree murder upon our holding that the photograph of the deceased’s blood-spattered body, which depicted the results of emergency procedures performed after the stabbing, including protruding surgical tubes and sutures, was irrelevant. Dyken v. State, 89 So.2d 866.(Fla.1956); Beagles v. State, 273 So.2d 796 (Fla. 1st DCA 1973); see Booker v. State, 397 So.2d 910 (Fla.1981); Leach v. State, 132 So.2d 329 (Fla.1962).

In addition, we find error in the trial court’s failure to state its reasons for retaining jurisdiction over defendant Rosa pursuant to section 947.16(3)(a), Florida Statutes (1979).

Defendant’s remaining point lacks merit.

Reversed and remanded.


author: COBB, Judge.

text:
    WRIGHT & FORD MILLWORKS, INC., and Florida Farm Bureau Mutual Insurance Company, Appellants, v. Warren H. LONG and Beatrice Long, his wife, Appellees.
    No. 81-719.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.
    Rehearing Denied April 19, 1982.
    Lester A. Lewis of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for appellants.
    Thomas R. Hess of Ossinsky, Krol & Hess, Daytona Beach, for appellees.
   COBB, Judge.

Appellee Long was injured by a motor which fell on his foot while he was on the premises of appellant Wright & Ford Mill-works, Inc. Long filed a complaint against the millworks and its insurer. Millworks answered and raised affirmative defenses. The case was tried by a jury, which returned a verdict finding the millworks 75% negligent and Long 25% negligent. The jury assessed Long's damages at $82,000 and his wife’s damages at $18,000. The millworks moved for a new trial. The trial court entered final judgment for Long in the amount of $61,500, and in favor of his wife for $13,500. The trial court also denied the motion for new trial. It is this final judgment that the millworks is appealing.

The key issue on appeal, as we see it, is the prejudicial effect upon the jury of the error by the trial judge in overruling defense counsel’s objection to an improper closing argument by plaintiff’s counsel.

That argument, and the objections and rulings thereon, are as follows:

PLAINTIFF’S COUNSEL: Now, when we talk about the issue of damages, we have set forth figures for the Jury which we feel are well-reasoned figures.
You know, we often hear we are going to apply our common knowledge or common experience.
You know, if we had James Garner or Paul Newman or someone who was in here on this accident — and let’s use the example of Paul Newman.
Paul Newman in addition to being an actor is a race car driver. Right?
Every year he’s out at the track and he drives race cars. And he uses a great part of his time healing [sic] and toeing to drive those cars.
And I’m sure if Paul Newman had his foot injured, he would be before this Jury asking for two and a half million dollars.
DEFENSE COUNSEL: That’s improper argument. I respectfully object. That just has nothing to do with this lawsuit.
THE COURT: You may proceed.
PLAINTIFF’S COUNSEL: The latest case we can remember a month ago Carol Burnett recovered a judgment of one and a half million dollars. And—
DEFENSE COUNSEL: Same objection, Your Honor.
THE COURT: Overrule the objection.
PLAINTIFF’S COUNSEL: An article was published. It impuned her reputation. She was liabled. She was slandered.
She received a million and a half dollars.
Maybe we ought to ask Carol Burnett, you know. We’ll wipe the record clean and all you have to do is let the motor drop on your foot and crush your foot. Will you trade that for a million and a half dollars?
You know, I’d like to know why we think we didn’t ask this Jury for two and a half million dollars or one and a half million dollars or a million dollars or a half million dollars.
We asked this Jury for what we feel is a reasonable compensation for Mr. Long.
Now, I don’t really know why the Warren Y. Longs and the Beatrice Longs here in Volusia County, Florida, should really be entitled to any less than anyone else.
I don’t think that the injury to Mr. Long hurt him any less than it would Paul Newman or someone else.

We recognize the established principle, long acknowledged by the Florida Supreme Court, that attorneys are allowed wide latitude in jury argument. Gaston v. State, 134 Fla. 538, 184 So. 150 (1938). But that latitude, as noted in Gaston, should have some logical nexus in deduction or analogy to the evidence and the facts of the instant case. It is also an established principle that inflammatory or prejudicial remarks of counsel may be grounds for a new trial. Seaboard Air Line Railroad Co. v. Strickland, 88 So.2d 519 (Fla.1956).

We fail to see any logical connection between Carol Burnett’s punitive damage award against a national magazine for slander and a compensatory damage award to Warren Long for simple negligence based upon an electric motor falling on his foot. In Mallory v. Edgar, 128 Fla. 812, 175 So. 863 (1937), the Florida Supreme Court held that it was reversible error for a trial judge to overrule an objection to a “comparative verdict” argument. Compare, Murray-Ohio Mfg. Co. v. Patterson, 385 So.2d 1035 (Fla. 5th DCA 1980), where there was no timely objection to the improper argument, hence no erroneous ruling by the trial judge reinforcing the impact of the argument upon the jury, and the issue was not preserved for appeal.

In Erie Ins. Co. v. Bushy, 394 So.2d 228 (Fla. 5th DCA 1981), where there was a contemporaneous motion for mistrial resulting from an improper closing argument suggesting punitive damages, which were not an issue in the case, and the motion was denied, this court found the argument “highly improper and patently prejudicial” and reversed and remanded for a new trial. Based upon this, and the other precedents cited above, we feel the same result is mandated here.

The appellant’s remaining point on appeal, relating to the exclusion of impeachment evidence, is patently without merit.

Accordingly, this cause is reversed and remanded for a new trial.

REVERSED and REMANDED.

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


author: CAMPBELL, Judge.

text:
    John GADD, as Chief Executive Officer of Lee Memorial Hospital, Appellant/Cross-appellee, v. NEWS-PRESS PUBLISHING COMPANY, INC., d/b/a Fort Myers News-Press, Appellee/Cross-appellant.
    No. 81-1430.
    District Court of Appeal of Florida, Second District.
    March 24, 1982.
    Rehearing Denied April 20, 1982.

      Gerald W. Pierce and James A. Franklin, Jr,, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant/cross-appellee.
    Steven Carta of Smith, Carta & Rings-muth, Fort Myers, for appellee/cross-appel-lant.
    Joel T. Strawn of MacMillan, Newett, Adams, Strawn, Stanley & Botos, Delray Beach, for amicus curiae, Florida Hospital Ass’n, Inc.
   CAMPBELL, Judge.

Appellant John Gadd, as chief executive officer of Lee Memorial Hospital, appeals from a final order of the trial court which granted a writ of mandamus requiring him to permit inspection by appellee News-Press Publishing Company of personnel or “personal” files of present and past medical staff physicians of the hospital.

News-Press cross-appeals the trial court’s denial of access to the minutes and other documents pertaining to activities of the Utilization Review Committee of the hospital. It is conceded that the hospital is a public agency subject to chapter 119, Florida Statutes, the Public Records Law. We also conclude that the records sought by News-Press are public records as contemplated by chapter 119 and broadly defined in Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So.2d 633 (Fla.1980). The question for our determination is whether the records which News-Press sought to inspect are provided by law to be exempt or confidential and therefore not subject to inspection or review.

The hospital argues that a combination of section 768.40(4), Florida Statutes (1979), and public policy afford a confidentiality and therefore an exemption from inspection of the personnel records of its staff physicians. Public policy considerations, aside from statutory or constitutional rights, can no longer be urged as an exemption to the Public Records Law. Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979); Douglas v. Michel, 410 So.2d 936 (Fla.5th DCA 1982); State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla.4th DCA 1977), cert. denied, 360 So.2d 1247 (Fla.1978). Further, by holding that exemptions must find expression in statutes and not emanate from public policy, the supreme court in Wait dispenses with the hospital’s argument that section 768.40(4) must be interpreted to afford an exemption to chapter 119. Chapter 768 is the Negligence chapter of Florida Statutes. Section 768.40(2) does not mention “confidentiality” or exemption from chapter 119, but deals solely with discovery and evidentiary matters arising in civil actions against providers of professional health services. We are prohibited by the holding and reasoning of Wait from enlarging that statute by interpretation to provide an exemption from chapter 119. The hospital cites a number of cases which hold or imply that section 768.40(4) affords a privilege from disclosure of the matters enumerated in that section as a matter of public policy. Segal v. Roberts, 380 So.2d 1049 (Fla.4th DCA 1980); Dade County Medical Association v. Hlis, 372 So.2d 117 (Fla.3d DCA 1979); Good Samaritan Hospital Association, Inc. v. Simon, 370 So.2d 1174 (Fla.4th DCA 1979). Those cases dealt with personal injury, malpractice or defamation actions specifically covered by section 768.40(4), and we reject their application to a case arising under the Public Records Act. We, therefore, affirm the writ of mandamus as to the personnel records of the hospital’s medical staff.

In its cross-appeal, News-Press urges that the trial court erred in finding that chapter 395, Florida Statutes (1979), provides for an exception under chapter 119 in regard to the minutes and records of the hospital’s Utilization Review Committee. The same reasoning that causes us to affirm the writ of mandamus directed to the personnel records of the medical staff causes us to agree with News-Press and reverse the trial court on this point. Chapter 395 pertains to “Hospital Licensing and Regulation.” Section 395.0653(3) specifically provides that the standards and procedures used by a hospital and its medical staff in considering and acting upon applications for staff membership or professional privileges shall be available for public inspection. Nevertheless, the hospital argues that section 395.065 provides an exemption for the records of the Utilization Review Committee. The language relied on in that section simply states that the procedures for the exercise of disciplinary powers by the medical staff of any hospital shall comply with the standards “outlined by the Joint Commission of Accreditation of Hospitals and the Principles of Participation in the Federal Health Insurance Program for the Aged” (JCAH). The hospital argues that the quoted language affords confidentiality under chapter 119 because the Joint Commission of Accreditation of Hospitals (JCAH) interprets its standards referred to in section 395.065 to require confidentiality. We cannot make such a bold leap as would cross the chasm between the language in section 395.065 and the requirement of section 119.-07(3)(a), as interpreted by Wait v. Florida Power & Light and State ex rel. Veale v. City of Boca Raton, that any exemption or confidentiality must be “provided by law.” Simply requiring compliance with the standards of the JCAH, in our opinion, does not create an exemption or confidentiality “provided by law.”

We recognize that the public nature of these records may create hardships in securing adequate information to achieve prompt and thorough accreditation and may cause a lessening of the candor needed from fellow staff physicians when disciplining or granting professional privileges to other physicians. The supreme court in News-Press Publishing Co. v. Wisher, 345 So.2d 646, 647-48 (Fla.1977), quashed this court’s decision in Wisher v. News-Press Publishing Co., 310 So.2d 345 (Fla.2d DCA 1975), saying:

It was unnecessary for the court to concern itself with these difficult matters, however, since the document originally sought by petitioner was not provided by a private source who had been promised confidentiality. The document was authored by a public body acting in an open public meeting. To be sure the document may have been embarrassing to the employee, but not for the policy reasons which concerned the district court, such as those which suggest a need for confidentiality of health records, psychiatric records, or the records of past indiscretions.

Contrary to that statement, it may well be that information contained in the records of the Utilization Review Committee came from sources who had expected or been promised confidentiality. Nevertheless, we are bound by the decision of the legislature. As expressed by the supreme court in Wait, if this type of record is to be afforded an exemption or confidentiality, regardless of expectations or promises of confidentiality to those furnishing information, “it is up to the legislature .... Courts deal with the construction and constitutionality of legislative determinations, not with their wisdom. In this case, we are confined to a determination of the legislature’s intent.” Wait v. Florida Power & Light, 372 So.2d at 424.

The solution for the hospital is simple. It and others like it need only to persuade the legislature to add section 768.40 to the short list of statutes provided by section 119.-07(3)(b) to be exempt from public inspection.

AFFIRMED IN PART and REVERSED IN PART and REMANDED for treatment consistent herewith.

BOARDMAN, A. C. J., and RYDER, J., concur.

      . Part II is titled “Medical Malpractice and Related Matters.” Section 768.40 is the lead section of Part II and is titled “Medical review committee, immunity from liability.”


text:
    PUROLATOR COURIER CORPORATION and Royal Globe Insurance Company, Appellants, v. Hazel HESS, Appellee.
    No. AD-196.
    District Court of Appeal of Florida, First District.
    March 29, 1982.
    Rehearing Denied May 4, 1982.
    Walter E. Beisler of Beisler & Wells, Palm Beach, for appellants.

      J. J. Goodmark of Goodmark & Good-mark, West Palm Beach, for appellee.
   PER CURIAM.

This is a workers’ compensation case. Claimant suffered a compensable industrial accident on July 25, 1979. On April 25, 1980, the deputy commissioner entered an order finding the claimant’s average, weekly wage to be $160.05, which entitled her to compensation at 60% or $96.03. On November 6, 1980, the deputy commissioner found claimant had reached maximum medical improvement on October 7, 1980.

The employer/carrier appeals a subsequent order, entered on April 22, 1981, in which the deputy commissioner, relying on Gunite Works, Inc. v. Lovett, 392 So.2d 910 (Fla. 1st DCA 1980), modified the April 25, 1980 order by increasing claimant’s compensation rate to 66%%. In addition, he modified the November 6,1980 order by revising the date of maximum medical improvement to January 21, 1981. The deputy commissioner also found claimant to have a 10% impairment of the body as a whole, with a loss of wage earning capacity equal to 55% of the body as a whole. We reverse.

The employer/carrier raises five issues, three of which require discussion. The first is that the deputy commissioner erred in revising claimant’s rate of compensation. We agree. The deputy commissioner’s reliance on Gunite Works, Inc. v. Lovett, was misplaced. In that case, we held that the effective date of Section 440.-12(2)(a) was July 1,1980. This section does not apply to the case at bar. Instead, Section 440.15(2)(a) applies. That section was effective August 1, 1979. State Department of Transportation v. Houlihan, 402 So.2d 490 (Fla. 1st DCA 1981). Claimant’s accident occurred prior to the effective date of this section, and the applicable compensation rate became fixed at that time. Houlihan. Accordingly, the deputy commissioner erred in increasing claimant’s compensation rate.

The employer/carrier next challenge the deputy commissioner’s revision of the claimant’s date of maximum medical improvement. The record contains no evidence which would support a revision of claimant’s maximum medical improvement date. Where there is no competent, substantial evidence to support the deputy commissioner’s finding, it must be reversed.

Finally, the employer/carrier challenge the deputy commissioner’s finding that claimant has sustained a 55% loss of wage earning capacity. While the order is somewhat unclear, it appears that the deputy commissioner found that claimant had not conducted an adequate work search. In absence of a proper work search, which we find to be the case here, an award of loss of wage earning capacity benefits is improper. However, in view of the deputy’s findings and the substantial evidence pointing to limitations upon claimant’s ability to compete in the job market, the interests of justice require that claimant be permitted to present further evidence as to her loss of wage earning capacity. See, Flesche v. Interstate Warehouse and U. S. Fidelity & Guaranty Company, 411 So.2d 919 (Fla. 1st DCA 1982), particularly footnote 14.

We find no error in the provisions of the order requiring further medical care by Dr. Toward, and Dr. Robiner. The order of the deputy commissioner is reversed, in part, and affirmed in part, and the cause is remanded for further proceedings not inconsistent with this opinion.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WIGGINTON, JJ„ concur.

      . The November 6, 1980 order contained no ruling on the issue of permanent disability, this issue being initially addressed in the April 22, 1981 order.

      . Paragraph 19 of the order states:
      Considering the claimant’s impairment, her age, and the physical restrictions medically advised, I find that the claimant has suffered a loss in her ability to compete on the open labor market. Although the claimant has conducted an unsuccessful work search, I find that she has not fully explored her residual capabilities. I accept the medical testimony that there are various kinds of physical work that the claimant can perform, despite her lifting limitations. At such point as the claimant discontinues the use of her cervical collar, as medically recommended, she should be able to secure steady employment. Nonetheless, it is apparent from the seriousness of her condition and its affect upon her activities, that the claimant has suffered a substantial loss in her wage earning capacity equal to 55% of the body as a whole.
      The evidence discloses that claimant wore her cervical collar to each job interview, and failed to obtain or request from her doctor a medical release indicating her ability to work and designating what limitations or restrictions would be placed on her work activities.

      .In addition to a lack of adequate work search evidence, we find in the record no basis upon which the deputy commissioner could have determined the percentage of wage earning capacity loss suffered.


text:
    KELLER INDUSTRIES, INC., Foremost Insurance Company and Alan D. Fulton Company, Inc., Appellants, v. BELLEFONTE INSURANCE COMPANY, Appellee.
    Nos. 80-2292, 80-2307 and 80-2340.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Rehearing Denied May 3, 1982.
    Levine, Reckson, Reed & Geiger and Allen P. Reed, Miami, and Elizabeth M. Bohn, Harold C. Knecht, Jr. and David A. Crowley, Coral Gables, Welbaum, Zook, Jones & Williams and J. Bruce Hoffman, Miami, for appellants.
    Adams & Ward and Steven Hunter, Greene & Cooper and Joan M. Bolotin, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

The judgment under review is affirmed on the ground that the record supports the conclusion that the insured, Keller, through its agent, Fulton, became aware of the alleged deficiency in the coverage actually provided by Bellefonte Insurance Co. and thereafter nonetheless renewed the policy. This set of facts invokes the rule stated as follows in Burns v. Consolidated American Ins. Co., 359 So.2d 1203, 1206 (Fla. 3d DCA 1978): Transfer & Storage, Inc., 139 So.2d 476 (Fla. 2d DCA 1962).

Failure of an insured to take appropriate action when he becomes aware that the coverage he thought he had was not obtained by the agent constitutes both a waiver of his right to performance under an alleged oral contract and an estoppel against his right to assert the claim under the alleged oral agreement. First National Insurance Agency, Inc. v. Leesburg

Affirmed.