text:
    George SMITH, Appellant, v. TOWN OF GOLDEN BEACH, Richard Granata and James L. Roden, Appellees.
    No. 80-1808.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    E. T. Hunter and Gordon C. Brydger and Harry Hipler, Hollywood, for appellant.
    Greene & Cooper and Sharon L. Wolfe, Pyszka & Kessler and John Hamilton, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

George Smith was a probationary police officer employed by the town of Golden Beach when he was discharged from his position without prior written notice on June 28,1978. When the town failed to act on Smith’s request for review by a Complaint Review Board pursuant to Section 112.532(2), Florida Statutes (1979), Smith filed suit against the town of Golden Beach, Richard Granata and James Roden as police chief of the town of Golden Beach. Smith alleged violation of his right to due process under the Florida Constitution and the Constitution of the United States claiming that he was entitled to the process of review offered by the statute because he had been interrogated within the meaning of Section 112.532(1), Florida Statutes (1979) and had not been afforded his right to pre-termination notice under Section 112.532(4). The trial court, without specifying its reason, dismissed those counts of Smith’s amended complaint claiming rights under Section 112.531, et seq. and Smith appeals.

In determining whether there are any conceivable sets of facts which would support Smith’s claims under Section 112.531, et. seq. and the Constitutions of the United States and Florida against a motion to dismiss, we must first determine whether Smith as a probationary police officer is entitled under Section 112.532 to the rights of the law enforcement officers enumerated in subsections one through five of that Section, and second, whether Smith had either a property or liberty interest which required procedural protection. See, e. g., Allison v. City of Live Oak, 450 F.Supp. 200 (M.D.Fla.1978) (motion to dismiss denied where possibility that non-probationary policeman could prove entitlement under § 112.531, et. seq.); Barton v. City of Eustis, 415 F.Supp. 1355 (M.D.Fla.1976) (motion to dismiss denied where possibility of property or liberty interest).

First, Smith cites us no Florida case and we find none which grants to a probationary policeman the protections offered by Section 112.531, et. seq., Florida Statutes (1979). In Bembanaste v. City of Hollywood, 394 So.2d 1053 (Fla. 4th DCA 1981), the court specifically declined to reach the issue of whether a probationary police officer is “employed full time” within the meaning of Section 112.531(1), Florida Statutes (1979) in holding that a probationary policeman was not entitled to a pre-termi-nation hearing. Though Smith argues with some force that the provision granting rights to “all law enforcement officers” under Section 112.532, Florida Statutes (1979) includes probationary employees, we disagree.

Prior to the effective date of Section 112.531(1), et. seq., a city could by its own rules or ordinances provide that a probationary policeman may be discharged without cause or assignment of reason. See, e. g., Purdy v. Cole, 317 So.2d 820 (Fla.3d DCA 1975). Absent express procedural provisions to the contrary, the enforcement of such city ordinances continued after enactment of the Florida Policeman’s Bill of Rights. See, e. g., City of Miami v. Fraternal Order of Police, 378 So.2d 20 (Fla.3d DCA 1979) (dispute of whether probationary officers who may be fired without cause and assignment of reasons had procedural rights under collective bargaining agreement was subject to grievance-arbitration procedure); Archer v. City of Miami, 360 So.2d 34 (FIa.3d DCA 1978) (probationary police lieutenant could be reduced in rank upon notice). In light of the past practice of excluding probationary policemen from procedural rights accorded permanent employees, we cannot conclude that the legislature intended to include probationers within the statute or that the statute as currently worded creates an expectation of continuing employment for probationary employees. Accordingly, we hold that a probationary police officer is not “employed full time” within the meaning of Section 112.531(1) and is not entitled to the rights and privileges under Section 112.532.

We now address Smith’s claim that he is entitled to procedural protection under the Fourteenth Amendment of the United States Constitution and Article I, Section 9, of the Florida Constitution. Cf. West v. State Department of Criminal Law Enforcement, 371 So.2d 107 (Fla. 1st DCA 1978) (finding a permanent employee entitled to the procedure of § 112.532(2) both under the statute itself and under the constitutional requirements of due process). In order to avail himself of procedural protection under the Fourteenth Amendment, Smith must first establish a deprivation of either a property or liberty interest. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). See, e. g., Parratt v. Taylor, - U.S. -, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

Our decision above precludes Smith from finding an entitlement or property interest as probationary employee under Sections 112.531, et. seq., Florida Statutes (1979). Neither may Smith claim an expectation of employment under local rules where Rule 100 of the Golden Beach Police Department Rule provides that a probationary police officer may be dismissed without cause. Compare Thurston v. Dekle, 531 F.2d 1264, 1272 (5th Cir. 1976) (city ordinance allowing termination only for cause creates a constitutionally protectable property interest for non-probationary employee), vacated, 438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978) for further consideration in light of Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and Barton v. City of Eustis, supra (City of Eustis ordinance provides for dismissal for causes enumerated) with Purdy v. Cole, supra (Miami ordinance providing for discharge without charges or hearing results in probationary officer having no property interest in his employment).

Smith also alleges loss of reputation. In order to successfully assert a due process violation based on loss of reputation, however, Smith must allege the acts disparaging his reputation, deny the truth of those acts or words, Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977), allege that the loss of reputation was in conjunction with some interest such as loss of employment and establish that the reasons for discharge from employment were disclosed to the general public. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Here, the only disclosure was to the Unemployment Compensation Board. This record is privileged and exempt from Florida Public Records Disclosure Act, § 443.16(3), Fla.Stat. (1979), Greene v. Hoiriis, 103 So.2d 226 (Fla.3d DCA 1958), and is not public disclosure as required by Bishop v. Wood, supra. Cf. Purdy v. Cole, supra (court found a liberty interest where Cole labelled as a “subversive” and there was issue of Cole’s First Amendment rights of free speech and free assembly); West v. State Department of Criminal Law Enforcement, supra (numerous media articles amounted to public disclosure). See also Wardlow v. City of Miami, 372 So.2d 976 (Fla.3d DCA 1979) (no stigma where statement privileged), quashed in part on other grounds, 403 So.2d 414 (Fla.1981).

Because there are no grounds which support Smith’s claim to a review board under Section 112.532 or under the United States and Florida Constitutions, the trial court correctly granted appellees’ motion to dismiss.

Affirmed.

      . We find the following cases inapposite to the facts of this case: Allison v. City of Live Oak (non-probationary employee), supra; Barton v. City of Eustis (no status indication), supra; City of Coral Gables v. Dodaro, 397 So.2d 977 (Fla.3d DCA 1981) (permanent employee, Coral Gables Charter): City of Miami v. Kory, 394 So.2d 494 (Fla.3d DCA 1981) (voluntary resignation, City of Miami rules); City of Tarpon Springs v. Meister, 392 So.2d 1345 (Fla.2d DCA 1980) (no status indication, City of Tarpon ordinance); West v. State Dept. of Criminal Law Enforcement, 371 So.2d 107 (Fla. 1st DCA 1978) (non-probationary employee); City of Hallandale v. Inglima, 346 So.2d 84 (Fla. 4th DCA 1977) (no status indication).

      . Section 112.531(1), supra, provides: “Law enforcement officer” means any person, other than a chief of police, employed full time by any municipality or this state or any political subdivision thereof, whose primary responsibility is the prevention and detention of crime or the enforcement of the penal, traffic, or highway laws of this state.


source: Caselaw Access Project

author: PER CURIAM. COWART, Judge,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Diana L. WAGNER and Pamela M. Cranford, Respondents.
    No. 81-464.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for petitioner.
    J. David MeFadden, Daytona Beach, for respondents.
   PER CURIAM.

The State seeks review by certiorari of an order of the circuit court affirming the dismissal of an information charging the respondents with “massaging without a license” in violation of section 480.047, Florida Statutes (1979).

Two undercover police officers visited the “Mens Paradise Tanning Spa” and submitted to a sun tanning session. Before the treatment began, each officer was asked by one of the respondents if he wished to have sun tan oil applied to his body, either before or during the session. Both officers consented and allowed the respondents to apply the oil.

Based on these facts, the respondents were charged with a violation of section 480.047, Florida Statutes (1979), in that each one “did unlawfully hold herself out as a masseuse without being first duly licensed under the provisions of this Chapter.” The respondents moved to dismiss the information, alleging the foregoing facts and contending that application of the statute to them under these circumstances violated their rights of freedom of association and freedom of expression. They also contended that the statute was vague, ambiguous and overbroad.

The State, replying to the motion to dismiss, denied that the respondents had merely “applied” the sun tan oil, but alleged that, in each case, they had “massaged” the officers “with an oily substance.”

The trial judge ruled that the statute was not vague, overbroad or ambiguous. He ruled that the key word in the definition of “massage” was “manipulation,” which the dictionary defined as including an element of skill, and that when the element of skillfulness was read into the statute, it passed constitutional muster.

Applying this construction to the facts of this case, the court held that the mere “application” of sun tan oil was not prohibited by the statute unless it was done “by manipulation or skill,” and that therefore the State had not properly traversed the allegation in the motion to dismiss that the oil was merely “applied,” since it had not alleged that the application was performed skillfully. The information was dismissed, the State appealed, and the dismissal was affirmed without opinion by the circuit court.

First, the statute is constitutional without the necessity to resort to the limiting construction placed upon it by the county court. “Massage” is defined by the legislature in section 480.033(4) to encompass two activities. The first part of the definition, “the manipulation of the superficial tissues of the human body,” etc., was that construed by the trial judge to require the element of skill. However, we are not concerned with that part of the definition, but rather are concerned here with the second activity included within the definition, that is, “the application to the human body of a chemical or herbal preparation.” This language clearly encompasses the application of sun tan oil to a person, whether it is done skillfully or unskillfully.

If the respondents were punishable for performing this activity without a license from the state, this statute might well be unconstitutionally overbroad. In State v. Bales, 343 So.2d 9 (Fla.1977), the supreme court considered a similar challenge to the predecessor statutes to present Chapter 480. The court held that, although the definition of “massage” at that time appeared to encompass constitutionally protected activity such as “casual back scratches or back rubs,” when the definition was read as a whole, the use of technical terms and examples of the movements included within the definition limited the application of the general terms used; therefore the definition would include only properly regulated activity.

Such a limiting construction is not possible here. The definition, as amended shortly after the Bales case and as it now exists, includes constitutionally protected activity. However, the present statute is not unconstitutional for that reason, as the old statute would have been. The old statute prohibited the practice of massage without a license, which would have made it unlawful to engage in protected activities defined as “massage.” The present statute, however, merely prohibits one from “holding himself out as a masseur unless duly licensed.” § 480.047(l)(a), Fla.Stat.(1979). “Masseur” is defined as “a person, including a masseuse, certified as required by this act, who administers massage for compensation.” § 480.033(5), Fla.Stat.(1979). Therefore, to show a violation of the statute, the state must show that:

(1) the defendant represented himself to be one who administers massage (as defined by the statute) for compensation;
(2) the defendant represented that he was duly licensed by the state; and
(3) the defendant was not in fact so licensed.

The statute under which the respondents were charged, then, merely prohibits them from falsely representing that they are state certified masseuses, an activity which is properly regulated by the state and in which the respondents can have no constitutional right to engage.

Since the respondents’ motion to dismiss did not address itself to the nonexistence of any of the above elements and did not attempt to establish a defense to the crime, but instead merely showed that the respondents were in fact practicing massage, a circumstance irrelevant to the crime charged, the county court erred in dismissing the information and the circuit court should have reversed.

The scope of review by certiorari has been blurred, particularly in the attempt to define “a departure from the essential requirements of law,” but as pointed out in City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1981), quoting from State v. Smith, 118 So.2d 792 (Fla. 1st DCA 1960):

A judgment void for lack of jurisdiction, or a proceeding characterized by a compete failure to observe essential requirements of law is subject to correction at the discretion of the court vested with the power to issue the writ. Failure to observe the essential requirements of law means failure to accord due process of law within the contemplation of the Constitution, or the commission of an error so fundamental in character as to fatally infect the judgment and render it void.

If the writ is discretionary, judges are bound to come to different conclusions on when there has been a “complete failure to observe essential requirements of law” or when the lower tribunal committed “an error so fundamental in character as to fatally infect the judgment and render it void.” What constitutes a “departure from the essential requirements of law” cannot be corralled within narrow fence lines. One size does not fit all.

In Matthews v. Metropolitan Life Insurance Company, 89 So.2d 641 (Fla.1956), the court said:

But we have the view that the duty of a trial judge to apply to admitted facts a correct principle of law is such a fundamental and essential element of the judicial process that a litigant cannot be said to have had the “remedy, by due course of law,” guaranteed by Section 4 of the Declaration of Rights of our Constitution, F.S.A., if the trial judge fails or refuses to perform that duty.

See also Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976) where the Supreme Court said:

The review on certiorari is to determine whether the order as made is illegal as a matter of law or was made without observing the provisions of law regulating the matters to be considered. . . .

Id. at 306.

Since the trial court applied an incorrect principle of law in dismissing the information and discharging the defendants, the court departed from the essential requirements of law, since by the application of this incorrect principle the State has been “effectively denied [its] day in court.” Jones, at 571. See also McGuire v. Nelson, 388 So.2d 42 (Fla. 5th DCA 1980). The circuit court should have required a trial on the merits.

The writ of certiorari is granted and the order of the circuit court affirming the order of the county court is quashed.

ORFINGER and COBB, JJ., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I agree with the majority that the gravamen of an offense against the old “massage” statute, section 480.02(1), Fla. Stat.(1975), was the act of massaging, but that the new statute, section 480.047, Fla. Stat.(1979), merely prohibits one from falsely holding one’s self out as a licensed masseur. I also agree that the respondents in their motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) tendered a false issue relating to whether, in fact, applying sun tan oil was massaging. Rather than pointing out that was not an issue under the statute and the information, the State controverted this false issue, thereby leading the county judge to err in dismissing the case. Finally, I agree with the majority that on appeal the circuit court erred on substantive law in affirming the erroneous county court ruling. However, I cannot agree that these errors should be corrected by this court on certiorari. The real issue in this case is the proper scope of the inquiry on common law certiorari review by a district court of appeal of a final decision of a circuit court acting in its appellate review capacity.

Certiorari is a discretionary extraordinary original proceeding in an appellate court and review by certiorari is different in principle from review by appeal. On appeal, judgments below can be affirmed, reversed, modified or remanded with directions but, properly, in certiorari the reviewing court either denies the writ or quashes the order or judgment being reviewed.

More importantly, on review by appeal, all three types of errors may be corrected: (1) jurisdictional, (2) procedural, and (3) substantive. However when confined to its legitimate scope, review by common law certiorari is strictly limited to only (1) the jurisdiction of the lower tribunal and (2) the regularity of the procedure followed below. It does not extend to the correctness of rulings of lower courts on substantive law. The inquiry on certiorari should be only whether the lower court had jurisdiction and proceeded in conformity to law, and the subject matter of the action below should not be reinvestigated, tried or determined on the merits. There is good reason why, as compared to appeal, the scope of inquiry on certiorari should be so limited and why it should not be extended to serve the same purpose as appeal. If, in cases in which the county courts have original jurisdiction and circuit courts have appellate jurisdiction, district courts of appeal review substantive law on certiorari, then there are two appeals from a trial in the county court but only one appeal from a circuit court trial. Substantive law gives no right to a second appeal from county court cases and this court should not provide one and call it certiorari. The constitution of the State of Florida gives the circuit court final appellate jurisdiction of those cases originating in the county court and expressly withholds from the district courts of appeal appellate jurisdiction over final judgments of trial courts directly appealable to a circuit court. Therefore, when a district court of appeal reviews substantive law on certiorari review of circuit courts acting in their appellate capacity, it does not follow the constitution and usurps the circuit court’s final appellate jurisdiction.

It is true that appellate courts in Florida, while acknowledging the limited scope of certiorari review, have defined that scope by blurred and intentionally vague phrases (rather than in terms of jurisdiction and constitutional due process which are better defined concepts), thus allowing review as full as on appeal. Some such intentional broad and ambivalent phrases are “a departure from (or a failure to observe) the essential requirements of law,” “fundamental error,” “an order that is illegal as a matter of law,” “failure to apply a correct principle of law,” and “an error which effectively denies the party his day in court.” All of these phrases are the same: they are disguises under the cover of which an appellate court without jurisdiction to review by appeal is doing so. The cases cited by the majority are only examples; there are plenty more.

None of this is new. All of it has been better said long ago and recently by serious scholars and writers. However, the Florida Supreme Court in Jenkins v. State, 885 So.2d 1356 (Fla.1980) [1980 FLW 316], set an example by following the constitutional scheme and declined to encroach upon the final appellate jurisdiction of the district courts of appeal. The district courts of appeal should exercise the same intellectual integrity and self-restraint and quit exceeding their jurisdiction by using certiorari review to substitute their opinion as to substantive law for that of the circuit courts when the circuit courts are acting in their final appellate jurisdiction. After all, as a practical matter, a court opinion is only “right” if, and because, it is from a court of last resort. In this case the “errors” we perceive as having been made in the county court and the circuit court were simple errors of substantive law relating to whether certain acts constituted massaging and whether that determination disposed of the criminal charges. Both the county court and the circuit court had the jurisdiction they exercised and exercised it consistent with constitutional due process requirements. We must learn that jurisdiction and “correctness” are not the same and that judicial jurisdiction includes the power to err as well as the power to rule correctly.

By granting certiorari and reviewing the correctness of the substantive law question involved this court, not the county court or the circuit court, acts in excess of its jurisdiction and deprives the respondents of due process by depriving them of the final judgment obtained in the trial court and successfully defended in the one appeal authorized by the Florida Constitution. Ironically, by granting certiorari review, this court itself, in one stroke, makes the only two errors that, if made by the trial court (county court) and the appellate court (circuit court), would justify this court’s use of the discretionary extraordinary remedy of common law certiorari. I would deny the writ.

      . “ ‘Massage’ means the manipulation of the superficial tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by hydrotherapy or thermal therapy, or any electrical or mechanical device, or the application to the human body or a chemical or herbal preparation.” § 480.-033(4), Fla.Stat.(1979).

      . “(a) For the purpose of this chapter the term ‘masseur’ or ‘masseuse’ shall be deemed to be a person who practices, administers or teaches all or any one or more of the following subjects and methods of treatments, viz: who administers or teaches treatments with any mechanical or electrical apparatus for the purpose of body slenderizing, body reducing or body contouring.
      (b) Further, a person who has studied the underlying principles of anatomy and physiology, including the theory of massage, its indications and contraindications, and administers or teaches all or any one or more of the following subjects and methods of treatments, viz: oil rubs, salt glows, hot or coldpacks, all kinds of baths including steamrooms, cabinet baths, sitz baths, colon irrigations, body massage either by hand or by any mechanical or electrical apparatus or device, excluding fever therapy, applying such movements as stroking, friction, rolling, vibration, kneading, cupping, petris-sage, rubbing, effleurage, tapotement.
      (c) Nothing in this section shall be construed as applying to licensed practical nurses, or to orderlies, or attendants, or nurses aides in hospitals under the direction of a licensed physician.”
      § 480.01(1), Fla.Stat.(1975).

      . Art. V., § 4(b)(1), Fla.Const.; Fla.R.App.P. 9.030(b)(1)(a).

      . McNamara Pontiac, Inc. v. Sanchez, 388 So.2d 620 (Fla. 5th DCA 1980).

      . Art. V, § 5(b), Fla.Const.; § 26.012, Fla. Stat.(1979).

      . Rogers & Baxter, Certiorari in Florida, 4 U.Fla.L.Rev. 477, 493 (1951).

      . Haddad, Certiorari in Florida, 29 U.Fla.L.Rev. 207, 220 (1977).

        . See School board of Marion County, Florida v. Angel, - So.2d - (Fla. 5th DCA 1981) [1981 FLW 1141],


author: BARKDULL, Judge.

text:
    In re The ESTATE OF Alberta SAWYER. Thomas R. POST, Appellant, v. CENTRAL BANK & TRUST COMPANY and William Sawyer, Jr., co-Personal Representatives of the Estate of Alberta Sawyer, Deceased, William Sawyer, Jr., as income beneficiary, William L. Barnett and Mary Elizabeth Barnett, as income beneficiaries and vested remaindermen, and Bernice Sawyer, as contingent remainderman, Appellees.
    Nos. 80-1782, 80-1783.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 1981.
    Rehearing Denied Oct. 16, 1981.

      Goodwin, Ryskamp, Welcher, Carrier & Donoff and Kenneth L. Ryskamp, Miami, for appellant.
    Bailey & Dawes and Jesse C. Jones, Harold Heller, Marwin Cassel, Miami, for ap-pellees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   BARKDULL, Judge.

Thomas R. Post appeals from an order of the circuit court, rejecting his offer to purchase property from the estate of Alberta Sawyer, deceased, and directing that the sale be made to the deceased’s son, William Sawyer, Jr.

The late Alberta Sawyer provided the following in her Will, among other things: appointment of co-executors, sale of real property. At the time of her death, she was possessed of certain real property located in the City of Miami. During the probate of the estate, the estate became in need of additional funds and the co-executors had a dispute as to whether to enter into a contract to sell the real property. The co-executor, Central Bank and Trust Company, filed a petition authorizing the sale of property wherein it sought the approval of the court to sell the property at a cash purchase price of $138,000.00, subject to a $14,000.00 brokerage commission payable to a brokerage firm, the principal of which was the son of the attorney for the Bank. The deceased’s son (and co-executor) objected to the sale and requested an opportunity to secure a higher bid which might include a bid from himself. Thereupon, the judge entered an order which read in part as follows:

“ORDER EXTENDING TIME FOR APPROVAL OF SALE, GRANTING TIME FOR ADDITIONAL BIDS AND ESTABLISHING TIME FOR OPENING OF SEALED BIDS AND FOR APPROVAL OF SALE OF PROPERTY
THIS MATTER coming on upon the Petition of the Central Bank and Trust Company as Co-Personal Representative of this Estate for an Order authorizing the sale of four (4) parcels of real property owned by the Estate of the Deceased, and the Court finds that:
1. All interested parties have been served with proper notice of said hearing.
3. At the time of the hearing William Sawyer, Jr., on his own behalf, requested an opportunity to secure a higher bid than that previously secured by the Central Bank and Trust Company as Co-Personal Representative of the Estate, that he would secure a substantially higher bid for the said parcels of property, which bid may include a bid from William Sawyer, Jr. himself.
ORDERED AND ADJUDGED:
That further argument on the said Petition heretofore filed in this cause is hereby postponed and adjudication thereon is postponed pending the attempt on the part of Co-Personal Representatives to secure additional bid or bids for the property based upon the following terms and conditions:
A. That any such bid shall be in the form of a formal Contract of Purchase and Sale executed by the prospective purchaser, accompanied by cash or cashier’s check in the amount of 10% of the total bid, made payable to the Co-Personal Representatives of the Estate of Alberta Sawyer, Deceased; that said bid shall be delivered to the Court in a sealed envelope to be opened by the Court at a hearing established for that purpose on the 12th day of August, 1980 at 10:00 A.M.
B. That the said bid shall be for all cash and shall provide that the premises be acquired in an “As Is” condition.
C. That in the event a substantially higher bid is not obtained and submitted to the Court at that time, the Court shall accept the offer as previously submitted to the Court.”

This order required the sealed bids to be submitted to the court, to be opened by the court at a time certain. At the time set for the opening of the bids, three sealed bids had been received: one from the son, William Sawyer, Jr., and two from Thomas R. Post. The trial court opened the three envelopes and they revealed the following bids:

$200,000.00 William Sawyer, Jr.
$200,100.00 Thomas R. Post
$15,000.00 above the highest bid. Thomas R. Post

The trial court announced, without showing the bids to those present, that the highest bid was from Thomas Post for $215,000.00 and entered an order authorizing a sale to Post for said amount. William Sawyer, Jr. then filed a petition to vacate the order authorizing the sale of the property to Post. Upon hearing on this later petition, the court vacated the sale authorization to Post, declared it null and void, and entered an order authorizing the sale of the property to William Sawyer, Jr., which reads in part as follows:

“2. By Order entered August 21, 1980, the Court has Vacated its Order entered August 20, 1980, which Order had accepted a bid by Mr. Thomas R. Post, submitted on August 12, 1980, as a bid for $215,000. That bid was found by the Court to be invalid and contrary to the letter and spirit of this Court’s July 16, 1980 Order Extending Time for Approval of Sale, Granting Time for Additional Bids and Establishing Time for Opening of Sealed Bids and for Approval of Sale of Property. Therefore, only two valid bids are before the Court: (1) the bid of Mr. Thomas R. Post for $200,100, and (2) the bid by Mr. William Sawyer, Jr. for $200,000.
3. Manifestly, Mr. Post’s bid is not substantially higher than Mr. Sawyer’s bid.
4. Article XI of the Deceased’s Will requires that Mr. Sawyer consent in writing to the sale of any real estate owned by the Estate, unless the Court orders that a sale be had ‘in order to obtain cash to meet obligations of the Estate . . ., reflecting the specific allocation of the funds acquired by such sale . . .The Court finds that this manifests the Testator’s intent that her son have control over disposition of the real estate owned by the Estate, and that the exception to that control set forth in the Will does not warrant the Court’s accepting Mr. Post’s bid of $200,100 over Mr. Sawyer’s bid of $200,000.
5. Moreover, at the hearing the attorney for the remaining vested beneficiaries, William Barnett and Mary Elizabeth Barnett, waived any objection to the Court’s accepting Mr. Sawyer’s $200,000 bid over Mr. Post’s $200,100 bid. All of the beneficiaries have therefore either supported or waived objections to Mr. Sawyer’s bid.
6. For these reasons and for the reasons set forth in Mr. Sawyer’s Petition, the Court finds that equity will best be served by accepting Mr. Sawyer’s bid.”

These appeals have been taken and consolidated from the order vacating the sale authorization to Post and from the order authorizing the sale of the property to Sawyer.

The unsuccessful bidder, Thomas R. Post, contends that the trial court erred in failing to authorize the sale of the property to him as the highest bidder, either under the $15,-000.00-plus bid or as the highest bidder in cash of $200,100.00. We affirm.

The order calling for the bids provided:

“A. That any such bid shall be in the form of a formal Contract of Purchase and Sale executed by the prospective purchaser, accompanied by cash or cashier’s check in the amount of 10% of the total bid, made payable to the Co-Personal Representatives of the Estate of Alberta Sawyer, Deceased; ...”

The bid of $15,000.00-plus is in fact no bid as it was not a bid for a fixed amount. Ex parte Keller, 185 S.C. 283, 194 S.E. 15 (1937); 50 C.J.S. Judicial Sales § 22, p. 606. Therefore, we find no error in the trial judge’s ruling that this was not a valid bid. Turning now to the $100.00 difference between the other two bids, we don’t find that the trial judge was required to accept the highest mathematical of the two bids. We find that the trial judge had discretion to determine which of the two bids, under circumstances in this probate matter, he would accept. The $100.00 difference in the two bids is not a sufficient difference to find that the trial judge abused his discretion in approving a sale to the son of the deceased. Accordingly, the orders under review be and the same are hereby affirmed.

Affirmed.

      . As the court stated in rejecting the $15,-000.00-plus bid:

      “But more important than that, from an equitable standpoint, it was not in the spirit in which the rules were made up previously for these bids. It was simply an all-around no-lose bid. There wasn’t any way that bidder could lose by just making a bid that it is going to be $15,000.00 more than any other bid. That was not in the spirit of this thing.
      As a matter of fact, everyone agreed that nobody wanted an auction here of alternate bids running the price up. Both sides agreed to that previously; but in the Court’s opinion, this bid was in violation of the spirit of that agreement:”

      . Generally, a chancellor has discretion in confirming a judicial sale between strangers. See: 47 Am.Jur.2d, Judicial Sales, § 143, page 411. Also see the original opinion in Financial Corporation v. Therrell, 118 Fla. 596, 159 So. 868 (1934) [receded from on rehearing on other grounds], wherein the Supreme Court of Florida recognized this discretion in a chancellor. If this be so in a normal judicial sale, he certainly should have the discretion in the instant case to award the property to the son.


author: PER CURIAM.

text:
    KING’S BAY PROPERTY OWNERS ASSOCIATION, INC., Appellant, v. Robert W. RYAN and Joseph W. Ryan (Promontory, Limited), Appellee.
    No. 80-1698.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 1981.

      Ponzoli & Wassenberg and Richard L. Wassenberg, Miami, for appellant.
    Sparber, Shevin, Rosen, Shapo & Heil-bronner and Ronald A. Shapo, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

King’s Bay Property Owners Association, Inc. appeals from a court order of July 24, 1980, denying various motions to dismiss, vacate, or set aside court orders of July 19, 1978, and confirming the June 14, 1973 order granting certain zoning exceptions and variances to appellees, Robert W. Ryan and Joseph W. Ryan (Promontory, Limited).

The Association raises four points on appeal: (1) the trial court lacked jurisdiction in 1973 to grant a trial de novo, (2) the trial court lacked jurisdiction in 1978 to enter an order which modified the 1973 final judgment, (3) there was a misrepresentation in 1978 regarding ownership of the land which affected the court’s decision with respect to substantial compliance of site plans, and (4) the court erred in entering the June, 1980 order because the matter had not been remanded to the County Commission as required by the 1978 order.

The facts are summarized as follows. Paradise Point is an undeveloped peninsula of approximately seventy-four acres which juts out into South Biscayne Bay and is adjacent to a now inoperative Florida Power & Light plant. Florida Power & Light owns a small triangular piece of the land in the northwest corner of the peninsula. The remaining property was owned by Robert and Joseph Ryan in 1972 and is currently owned by Promontory, Limited and H. J. Ross.

In 1972 the Ryans presented a site plan to the Dade County Building and Zoning and Planning Departments which approved the proposed development of forty-eight townhouse units, pool, tennis courts, boat storage facilities, marina, restaurant, a lounge complex, and a yacht club. The Ryans applied to the Metropolitan Dade County Zoning Appeals Board for special exceptions and variances necessary for the development. The Board, and subsequently on appeal, the Dade County Commission, denied the application. The Ryans then initiated a new suit in Circuit Court challenging the existing zoning ordinances.

On June 14, 1973, the Circuit Court entered a final judgment granting special exceptions and variances with respect to the development of the Paradise Point property and stating that additional government agencies must give final approval to the development of the approximate twenty-four acres left from the original seventy-four, and retaining jurisdiction for the purpose of entering further orders necessary to enforce the judgment.

In 1978, Promontory, Limited as new owner, wished to proceed with development and requested the Court to declare that a new site plan dated March 1, 1978 was in substantial compliance with the 1972 site plan. In a supplemental motion, Promontory attached a' revised and third site plan dated May 15, 1978. On July 19, 1978, the Circuit Court held that the March 1, 1978 plan was in substantial compliance with the 1972 plan but expressly remanded the cause to the County Commission for the limited purpose of determining whether certain differences in the May 15, 1978 plan were also acceptable to the County. The Court also stated that “nothing in this order shall be deemed to release plaintiff’s successors from obtaining such approvals necessary to development of the project, if any, as may be required from others than defendant.”

On November 8, 1978, the Property Owners Association, filed motions to intervene and set aside the court order of July 19, 1978 confirming approval of the March 1, 1978 plan. On July 24, 1980, the Circuit Court issued the order denying the motions.

We uphold the determination by the Circuit Court that it had subject matter jurisdiction in this case. The Ryans’ attack on the unconstitutionality of the existing zoning ordinance as related to their property provided a proper basis for the exercise of jurisdiction. Bama Investors, Inc. v. Metropolitan Dade County, 349 So.2d 207 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1217 (Fla.1978). Where the Court acts in the type of case which it determines to be within its competence and there is no clear usurpation of power, the judgment will not be rendered void. See, e. g., Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972); Carter v. United States, 135 F.2d 858 (5th Cir. 1943).

We find also that the trial court had jurisdiction to enter the July 19, 1978 order confirming and clarifying the 1973 judgment because the court expressly retained jurisdiction for the purpose of enforcing the June, 1973 order. The 1978 order is an unconditional approval of the March 1, 1978 site plan which was determined to be in substantial compliance with the 1972 plan. The approval of the March 1, 1978 site plan is not affected by remand to the County of the May 15, 1978 plan. Accordingly, we find that with respect to approval of a site plan, the 1978 order is an enforcement and not a modification of an existing order. See, e. g., Buckley Towers Condominium, Inc. v. Buchwald, 321 So.2d 628 (Fla. 3d DCA 1975), dismissed, 330 So.2d 15 (Fla.1976).

The 1978 order did not release the plaintiffs from other approvals necessary to the development of the project. We find, however, that the trial court erred in omitting from the July 19, 1978 order the specific language of prior approval. Accordingly, we remand with instructions to conform the July 19,1978 order to the 1973 judgment by including the express requirement that “additional government agencies must likewise give their final approval of the development of the appropriate twenty-four acres left from the original seventy-four. . . . ”

We find the Association’s third argument to be without merit. The record shows that evidence in 1973 was sufficient to find that the Court had knowledge of Florida Power & Light’s ownership of the northwest triangle of the Point. In addition, the Court had before it in 1978 both the March 1, 1978 site plan and the revised May 15, 1978 site plan. The May 15, 1978 plan indicates in typed legend that Florida Power & Light owned one acre and that the stated gross acres did not include the Florida Power & Light property. From this record evidence, and absent other evidence sufficient to support appellant’s argument of misrepresentation, we can only conclude that the Circuit Court was aware in 1973 and in 1978 that appellant did not own the triangular piece of Paradise Point.

We also reject appellant’s fourth argument and agree with appellee that the July 19, 1978 order specifically directed the County to accept and process the March 1978 site plan as an approved site plan in substantial compliance with the June 14, 1973 final judgment. This order is not contingent upon the results of a review by the County Commission of the May 15, 1978 site plan.

Affirmed in part; reversed in part and remanded with instructions to correct the order of July 19, 1978 consistent with this opinion.


author: MOORE, Judge.

text:
    Ray LA QUAY, Appellant, v. UNION FIDELITY LIFE INSURANCE COMPANY, a Pennsylvania corporation licensed to do business in Florida, Appellee.
    No. 79-1021.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.

      Valentine Gabaldon, West Palm Beach, for appellant.
    John D. O’Donnell of Panza & O’Donnell, Fort Lauderdale, for appellee.
   MOORE, Judge.

The appellant, Ray La Quay, is the named beneficiary on a life insurance policy issued by the appellee, Union Fidelity Insurance company, to his deceased spouse. La Quay appeals from a final summary judgment entered in favor of Union Fidelity-

Patricia La Quay, appellant’s deceased spouse, died on May 2, 1975, the same day on which the insurance policy was issued. Union Fidelity contends that it not liable on the policy because the policy was issued after the insured died. Thus, the sole issue on appeal is the time at which the policy became effective, as opposed to the date on which the policy became effective. We hold that the policy was effective at 12:01 A. M. on May 2, 1975 and therefore reverse.

Although the facts of this case are relatively simple, the application of what we perceive to be the correct principle of law to these facts is troublesome. Patricia La Quay applied for a term life insurance policy on April 21, 1975. The application for the policy states:

I understand that no insurance shall take effect until the policy is issued and the full first premium paid.

There is no dispute that the first full premium was paid.

The policy of insurance is an annually renewable policy which contains an expiration date of May 2, 1976. The date of issuance, as stated on the face of the policy, is May 2,1975. No specific time of day was set forth. Patricia La Quay died in the early morning hours of May 2, 1975. After Union Fidelity refused to pay the policy amount of $10,000, the appellant filed suit and both parties eventually moved for summary judgment. In support of its motion for summary judgment, Union Fidelity submitted the affidavit of one of its employees which stated that the policy of insurance was issued after 4:30 P. M. on May 2, 1975. In its final summary judgment in favor of Union Fidelity, the trial court stated:

The death of the insurance applicant, Patricia A. La Quay, occurred prior to both the acceptance and issuance of the policy of insurance so that no contract for insurance was effective under which the plaintiff may recover as a matter of law.

Appellant argues that since the policy unambiguously states that the date of issuance is May 2, 1975, and the other conditions precedent to coverage have been fulfilled, the coverage began at 12:01 A. M. on May 2nd. There are numerous cases which amply support this contention. In Mississippi Ben. Association, et al. v. Brooks, 184 Miss. 451, 185 So. 569 (1939), where the issue on appeal involved the effective date of a policy for funeral insurance, the court stated:

Under our decisions, a day begins at midnight and ends the following midnight. The policy and the application did not fix any hour within this day at which the policy would be effective, and consequently it took effect at the earliest moment of February 1st. (citations omitted).
In construing contracts it is a familiar rule to give such construction as will make the policy effective. Under the application, the Funeral Benefit Association was bound, as stated above, at the beginning of the day of February first. The fact that the policy was not actually received by [the applicant] on February first is immaterial. The policy, by its terms of the certificate, was to be effective on February first, and was actually issued and put in the mail, and under its terms became effective on February first — that is to say, at the beginning of that day, which was the hour of midnight. (emphasis added).

See also, Hodges v. Filstrup, 94 Fla. 943, 114 So. 521 (1927).

The legal significance of a specification of a particular date on a policy of insurance was considered in Lincoln Income Life Insurance Co. v. Mayberry, 341 S.W.2d 199 (Tex.Civ.App.1960), rev’d., 162 Tex. 492, 347 S.W.2d 598 (1961).

It is apparent that the pleadings, evidence and insurance raise the question of which of the above is the controlling date and time. There is no question but what September 1st consists of the time between 12:01 A. M. and 12:00 midnight. The premium was paid for the entire twenty-four hours of that date.
There can be no question but that the insurance company can provide that the policy shall not be effective unless the insured is in good health at the time of its issuance, or upon its date, or at the time or date of delivery; but we believe that one of the above indicated specific times must be chosen, and that the insurance company cannot take advantage of all of them, (citation omitted). As has been stated by our courts many times, the rule is “that contracts of insurance are to be strictly construed in favor of the insured.” 341 S.W.2d at 202.

The same issue arose in the context of an interpretation of the proper date for contractual performance in Grizzly Bar, Inc. v. Hartman, 169 Colo. 178, 454 P.2d 788 (1969):

It is here observed that no hour of the day was specified in the agreement. Under such circumstances, the intention of the parties was that defendant Grizzly Bar have the full day of the 15th until midnight in which to tender performance. The law generally does not recognize fractions of a day. (citations omitted). As stated in Denver v. Pearce, supra, “. . . It is certain that the ends of justice can never require the law to depart from the ordinary rule, and recognize a fraction of a day, to defeat the manifest intention of the parties.”

In Scott v. National Travelers Life Insurance Company, 171 N.W.2d 749 (N.D.1969), the effective date for life insurance coverage was at issue. Coverage for the newly born insured was to begin after she had lived for at least 14 days. The Court held that even though the insured was not born at the exact moment past midnight of the prior day, the date of her birth would be considered to have begun at 12:01 A. M. of the day upon which she was born. In support of its construction, the Court stated:

The policy contract in question was drawn by the defendant insurance company. It could have been worded so that its meaning was clear. If it was the intention of the company to require a child to have lived 14 full days before coverage became effective under the rider, it could have so provided. Any ambiguity in the policy’s provision as to when a child was to be considered “at least 14 days old” must be construed most strongly against the party which caused the uncertainty of meaning, (citations omitted).

The foregoing authorities make it clear that it was incumbent upon Union Fidelity to specify the exact time that coverage was to begin if it intended that coverage was to begin at any time other than at the earliest moment of May 2, 1975. If the language in an insurance policy is susceptible to doubt, the language should be construed adversely to the insurer and in favor of the insured. See, Tannen v. Equitable Life Insurance Company of Washington, D.C., 303 So.2d 352 (Fla. 3rd DCA 1974).

Appellant also suggests that the affidavit of Union Fidelity’s employee should have been given limited effect. This proposition is supported by Reid v. Bankers Life Insurance Company, 148 Neb. 604, 28 N.W.2d 542 (1947):

Varying reasons are given by courts adopting the majority rule, chief of which is that effective dates of policies and premium due dates should be definitely fixed by binding written contracts rather than determinable after loss at the caprice of the parol testimony of doubtful veracity, thereby permitting the avoidance or destruction of plain contractual provisions and undermining their actuarial foundations, the fundamental basis of all insurance. When so fixed in writing, the result is a definite contract, easily understood and entirely just to the parties. It seems almost trite to say that a contract for insurance, ante-dated by agreement of the parties, as shown by the application and policy in the case at bar, is binding upon them and the premium payment dates should be those inserted in the contract. Who can truthfully say that injustice could result from the construction of such a valid written contract in accordance with its terms? 28 N.W.2d at 547.

Although Reid involved an attempt by an insurance company to negate a written, predated effective date by extrinsic parol evidence of the “true” intent of the parties, we find the Reid Court’s underlying hypothesis of fraud prevention to be a sound one.

It is abundantly clear that the term coverage on Mrs. La Quay’s life began at 12:01 A. M. on May 2, 1975. Even if we accept the appellee’s assertion that the policy was not effectively processed until 4:30 P. M. on May 2,1975, the term coverage related back to 12:01 A. M. on that date. This is so even though the insured died between 12:01 A.M. and the time that the insurance company “officially” issued the policy. There is nothing to suggest that there was any fraud, misrepresentation or concealment of material facts present in this case. At the time Union Fidelity issued its policy, it was unaware of the insured’s death, and it cannot be argued that the appellant or anyone else did anything to promote indemnity with knowledge of the insured’s death.

Union Fidelity asserts that the paramount rule of contractual interpretation is to effectuate the intent of the parties. In the present case, however, the only objective manifestation of intent is the policy itself, and that instrument clearly provides that coverage is to begin on May 2, 1975. Union Fidelity alternatively suggests that there could be no offer and acceptance inasmuch as the meeting of the minds was precluded by the death of the insured. While it is true that ordinary principles of contract law apply to the formation of insurance contracts, Rosin v. Peninsular Life Insurance Company, 116 So.2d 798 (Fla. 2nd DCA 1960), the mere death of the insured in this case did not foreclose the possibility of a meeting of the minds. The insured’s application for insurance, whether viewed as an offer made to Union Fidelity or as an acceptance of Union Fidelity’s offer to provide coverage, was a definitive act undertaken to procure a contractual benefit for the named beneficiary. There is nothing to indicate that the application was tentative or subject to modification by the insured. Union Fidelity’s issuance of the policy on May 2 can only be considered as either an acceptance made in contemplation of the insured’s prior offer, i. e. the application, or as an affirmation of Union Fidelity’s own offer to provide coverage made in contemplation of the insured’s acceptance of the original offer and Union Fidelity’s approval of the insured as an insurable person.

Although there is a paucity of case law to be applied to the facts of this case, we are persuaded by the reasoning of the Supreme Court of Texas in Burch v. Commonwealth County Mutual Insurance Company, 450 S.W.2d 838 (Tex.1970). Burch involved a factual scenario similar to that presented here. The insured experienced an automobile accident between the time when he was advised by an agent that he had coverage and the actual issuance of the insurer’s policy. Neither the agent nor the insurer was aware of the accident at the time the policy was issued. In affirming a summary judgment in favor of the insured, the Court stated:

Most courts that have considered the question hold that recovery may be had on a policy antedated to include the time at which a loss occurred provided neither the applicant nor the insurer knew of the loss when the contract was made, (citations omitted). We approve and adopt this as a general rule, because in our opinion, it is entirely sound as applied to the facts of this case. Aside from any question of protecting insurance companies against possible fraud on the part of their customers or agents, we can think of no reason for holding that the parties may not effectively contract for the insurer to assume the risk of a loss that may or may not have occurred when the contract is made. If that is their intention, they are not mistaken in any material respect even though the insured property has in fact, been damaged or destroyed. When neither of them knows of the loss, there is no basis for charging the insured with fraud and the company is not in the position of promising unconditionally to pay a substantial amount of money in exchange for a much smaller sum.
* * * * * *
Petitioner did not know that an insurance contract for his benefit was to be made the morning of July 19th. He thought his automobile was already covered and his failure to notify [the agent] of the accident before the policy was issued cannot be regarded as either conscious or negligent. There is no contention that petitioner fraudulently failed to disclose the loss, and respondent has never claimed that the policy was antedated as the result of a mutual mistake. Its entire case is built on the proposition that an insurance company can never assume the risk of a loss that has already occurred, and this contention is unsound. 450 S.W.2d at 841.

As in Burch, the beneficiary in the present case has neither acted deceitfully nor negligently in failing to report the death of his wife. Moreover, the effective date on the face of the policy was not a result of a mutual mistake of the respective parties’ intentions.

Because of the obvious ramifications, we are wary of a holding that a binding and enforceable contract did not come into existence until the exact time when it was officially approved by the insurer as a risk. For example, if we assume identical facts, except that the insured died at 3:30 P. M. on May 2, 1975, would not the insurance company be able to determine, in a self serving manner, the exact time the policy was issued and effective? On the other hand, assuming the insured died at 4:00 A. M. on May 2, 1976, would not the insurance company be able to claim that because the one year term policy went into effect on May 2, 1975, the policy terminated on the first moment of the new year, or 12:01 A. M. on May 2, 1976? In both instances, the insurance company would be free to dictate, to its own advantage and the disadvantage of the insured, a convenient term for insurance coverage. If no specific time is placed on the face of the policy, then the beneficiaries, as a matter of practicality, would be unable to disprove the claims of the insurer.

We believe that the policy should be construed in favor of the insured and that the effective date and time of the life insurance coverage was 12:01 A. M. on May 2, 1975. Accordingly, the final summary judgment in favor of Union Fidelity is reversed and this cause is remanded with directions to enter summary judgment for the appellant.

REVERSED and REMANDED.

DOWNEY and GLICKSTEIN, JJ., concur.

      . The reversal was for reasons not germane to the purpose for which the case is cited.


author: BERANEK, Judge.

text:
    Eldridge PIZARRO, Appellant, v. STATE of Florida, Appellee.
    No. 80-1174.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Rehearing Denied Oct. 21, 1981.
    Richard L. Jordanby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals from two concurrent thirty-year sentences for burglary and attempted sexual battery imposed after remand from this court for resentencing in State v. Pizarro, 383 So.2d 762 (Fla. 4th DCA 1980). We affirm.

At the original sentencing, the judge ruled over the State’s objection that the sentencing provisions of the Youthful Offender Act, Section 958.05, Florida Statutes (1979), were mandatory since defendant met the criteria under Section 958.04(2), Florida Statutes (1979). The trial court sentenced defendant to the maximum under the Act, six years — four years in the Department of Corrections and two years in a Community Control Program.

The State appealed that sentence to this Court pursuant to Florida Rule of Appellate Procedure 9.140(c)(l)(I) arguing that application of the Youthful Offender Act to defendant was discretionary not mandatory and improperly retroactive. This Court vacated the sentence and remanded for resen-tencing holding the Act did not apply because it could not alter punishment for crimes committed before its effective date.

On remand, defendant was sentenced to concurrent thirty-year terms in prison. Defense counsel maintained below and argues before this Court that such an increase in sentence after appeal is unlawful in that a court may not increase valid portions of any sentence it imposes if service of the legal portion of the sentence has begun. For this proposition defendant relies upon Pahud v. State, 370 So.2d 66 (Fla. 4th DCA 1979).

In Pahud, defendant was convicted of two counts of lewd assault on a child and sentenced to two concurrent twenty-year terms of imprisonment. Although the maximum for each count was ten years, the applicable statute provided for a maximum twenty-five year sentence after a court ordered psychiatric examination. Defendant later moved to vacate his sentence because such an examination was never made. The trial court vacated the sentence, imposing instead two ten year sentences to run consecutively. Defendant appealed and this Court held that since he had already begun serving the concurrent term of the sentence the change to consecutive terms increased the sentence. Relying upon Ex parte Lange, 18 Wall 163, 86 U.S. 163, 21 L.Ed. 872 (1874), and United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1930), this Court concluded that a sentence may not be increased once service has commenced and, therefore, vacated the sentence.

The United States Supreme Court in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), delivered an opinion holding that a sentence may be validly increased after the Government’s appeal from a sentence imposed under The Organized Crime Control Act of 1970. In DiFrancesco, defendant was convicted of Federal racketeering offenses and he received a total of nine years imprisonment. The Government then sought an increased sentence because defendant was a “dangerous special offender.” Under the Organized Crime Control Act, a convicted “dangerous special offender” as defined by the Act may receive an increased sentence and the Government may under certain conditions appeal that sentence. 18 U.S.C. §§ 3575-3576. DiFrancesco received two ten-year terms as a dangerous special offender to run concurrently with his previous nine-year sentence. This amounted to an increase of only one year and the Government appealed claiming this was insufficient enhancement. The Second Circuit dismissed the appeal on the grounds that subjecting defendant to a greater sentence after an appeal by the Government violated double jeopardy. United States v. DiFrancesco, 604 F.2d 769 (2d Cir. 1979). The Supreme Court disagreed finding that an increased sentence after such appeal does not violate double jeopardy.

The double jeopardy clause of the fifth amendment protects both against second prosecutions for the same offense after acquittal or conviction and against multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). DiFrancesco concludes that the pronouncement of sentence does not carry the finality that attaches to an acquittal thus the Government’s appeal from a sentence does not violate double jeopardy’s protection from multiple trials. Similarly, it holds that the increase of a sentence after appeal does not violate the prohibition against multiple punishments. In reaching this latter conclusion, the Court discusses its prior decisions in Ex parte Lange, supra, and United States v. Benz, supra, both of which were relied upon by this Court in Pahud, supra.

DiFrancesco stated as follows in this regard:

We turn to the question whether the increase of a sentence on review under § 3576 constitutes multiple punishment in violation of the Double Jeopardy Clause. The Court of Appeals found that it did. 604 F.2d, at 784-787. This conclusion appears to be attributable primarily to that court’s extending to an appeal this Court’s dictum in United States v. Benz, 282 U.S. 304, 307 [51 S.Ct. 113, 114, 75 L.Ed. 354] (1931), to the effect that the federal practice of barring an increase in sentence by the trial court after service of the sentence has begun is constitutionally based. The real and only issue in Benz, however, was whether the trial judge had the power to reduce a defendant’s sentence after service had begun. The Court held that the trial court had such power. It went on to say gratuitously, however, id., at 307-308 [51 S.Ct. at 114], and with quotations from a textbook and from Ex parte Lange, 18 Wall., at 167, 173, that the trial court may not increase a sentence, even though the increase is effectuated during the same court session, if the defendant has begun service of his sentence. But the dictum’s source, Ex parte Lange, states no such principle. In Lange the trial court erroneously imposed both imprisonment and fine, even though it was authorized by statute to impose only one or the other of these two punishments. Lange had paid the fine and served five days in prison. The trial court then resentenced him to a year’s imprisonment. The fine having been paid and the defendant having suffered one of the alternative punishments, “the power of the court to punish further was gone.” Id., at 176. The Court also observed that to impose a year’s imprisonment (the maximum) after five days had been served was to punish twice for the same offense. Id., at 175. The holding in Lange, and thus the dictum in Benz, are not susceptible of general application. We confine the dictum in Benz to Lange’s specific context .... [Emphasis supplied.]
The guarantee against multiple punishment that has evolved in the holdings of this Court plainly is not involved in this case. As Ex parte Lange demonstrates, a defendant may not receive a greater sentence than the legislature has authorized. No double jeopardy problem would have been presented in Ex parte Lange if Congress had provided that the offense there was punishable by both fine and imprisonment even though that is multiple punishment. (449 U.S. at 138, 101 S.Ct. at 438).

We perceive the instant case to be controlled by DiFrancesco and distinguishable from Pahud. The facts in Pahud are more closely akin to Lange. In Pahud, as in Lange, defendant received a greater sentence than was authorized by law, twenty years, because he had not received a psychiatric evaluation. In response to a motion to vacate, the Court reduced the terms to an authorized length, ten years, but changed the terms to run consecutively, resulting in the same twenty-year sentence. The change from concurrent to consecutive terms was properly deemed an increase in sentence. To approve such an action by the trial court would allow the court to punish defendant for his successful challenge of an illegal sentence. As established by North Carolina v. Pearce, supra, a defendant may not be punished for the successful appeal of his conviction by having his sentence increased after reconviction. To increase the sentence after retrial, the court must articulate some events subsequent to the original sentence which justify the increase.

In the instant ease, the State appealed the sentence imposed under the Youthful Offender Act. Such appeal is authorized by the Appellate Rules and we have previously found the Youthful Offender Act inapplicable to this case. DeFrancesco clearly authorizes an increase in sentence after the Government’s appeal from a sentence where such a right to appeal is provided by law. We have distinguished this Court’s decision in Pahud and limit it to its context. The sentences herein are, therefore, affirmed.

AFFIRMED.

GLICKSTEIN and HURLEY, JJ., concur.

      . The Youthful Offender Act formerly provided under Section 958.04(2) that if defendant met certain criteria he “shall be classified a youthful offender." This has been interpreted as directory. Evans v. State, 398 So.2d 1018 (Fla. 5th DCA 1981); Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980). Section 958.04 was rewritten effective October 1, 1980, eliminating the mandatory language.

      . The Florida Supreme Court has recently held that double jeopardy’s protection against a second prosecution after conviction barred a second prosecution under the Rico Act for keeping a house of ill repute. Carlson v. State, 405 So.2d 173 (Fla.1981). That protection is not violated here as discussed in DiFrancesco.


text:
    Jesse B. VANCE, Jr., Brenda Vance and Robert Hartleb, Appellants, v. INDIAN HAMMOCK HUNT & RIDING CLUB, LTD., Appellee.
    No. 80-1682.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.

      Charles R. Gardner of Gardner, Shelter, Mendelson, Duggar & Thompson, Tallahassee, for appellants.
    Ted R. Brown and Scott J. Johnson of Maguire, Voorhis & Wells, P. A., Orlando, for appellee.
   OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

Plaintiffs, land purchasers claiming to have been defrauded by the developer, appeal from an adverse final judgment entered after the court had granted the defendant’s motion for involuntary dismissal made at the close of the plaintiffs’ case in chief during a non-jury trial. We reverse and remand for a new trial.

Defendant’s development, registered with the Division of Florida Land Sales pursuant to Chapter 498, Florida Statutes, is a private, family oriented planned recreation development consisting of 299 platted lots of two and one half acres each for private homesites, with the remaining 2,600 acres being common area for use by all residents. The plaintiffs each purchased and own one or more lots in the development.

Subsequent to the purchase of their respective lots, plaintiffs filed this lawsuit. Initially filed as a multi-count class action, it ultimately went to trial as a suit on behalf of the named plaintiffs on Counts III and VII only. Count III alleged, in essence, that defendant had advertised and represented that improvements to be completed within the subdivision would include a “spacious hunting lodge in excess of 12,000 square feet”, a “duck pond” and other improvements, and that the entire subdivision would be surrounded with “a very strong perimeter fence” for security purposes; that none of these improvements had been completed; that the representations or advertisements were made by the defendant with the intention that plaintiffs rely on them, the defendant knowing that such representations or advertisements were false and were violations of the Florida Uniform Land Sales Practices Law; that plaintiffs, believing the representations and advertisements to be true, relied on them in entering into the contracts for purchase of lots; and that plaintiffs had suffered damages as a result. The relief sought was a judgment for specific performance of all obligations to construct the promised improvements and to maintain the common area, together with attorneys fees. Count VII realleged the same matters as common law fraud in inducement and sought relief in the form of compensatory and punitive damages, together with attorneys fees.

The court’s order on pretrial conference required plaintiff to furnish to the court, prior to trial, citations to the appropriate sections of the statutes pursuant to which the suit was brought. In responding, plaintiff cited not only to Chapter 498, Florida Statutes, which had been specifically pleaded, but also to Sections 817.40 and 817.41, Florida Statutes, which had not been pleaded.

At the commencement of the trial, the court ruled that plaintiffs could not maintain a cause of action under Section 817.-41(1), Florida Statutes, because (1) plaintiffs had not specifically pleaded the statute in the complaint, (2) had it been pleaded, plaintiffs would still have had to prove all of the elements of common law fraud in inducement, including reliance, and (3) in any event, Section 817.41(1), Florida Statutes, (as applied to sales advertisement of land registered pursuant to Chapter 498, Florida Statutes) had been preempted by the provisions of Chapter 498, Florida Statutes.

This ruling, as well as two of the three reasons for it, was in error. First, while it would be better pleading practice, plaintiffs were not required to specifically designate or refer to Section 817.41(1), Florida Statutes in order to maintain an action under it, so long as they pleaded sufficient facts to bring the allegations of the complaint within the statute. See, City of Lakeland v. Select Tenures, Inc., 129 Fla. 338, 176 So. 274 (1937). Second, plaintiffs were not precluded from maintaining this action under Section 817.41(1), Florida Statutes due to any preemption by Chapter 498, Florida Statutes. The statutes are not inconsistent or repugnant to one another. We find no express legislative intent that Chapter 498, Florida Statutes, repeals Section 817.41(1), Florida Statutes, and repeal by implication is not favored. Mann v. Goodyear Tire and Rubber Company, 300 So.2d 666 (Fla.1974). However, the trial court quite properly determined that one seeking to maintain a civil action for violation of Section 817.41(1), Florida Statutes, must, in order to recover damages, prove each of the elements of the common law tort of fraud in inducement (discussed infra), which would include not only reliance, but also detriment. This is so despite the fact that the state, in charging a crime under Section 817.41(1), Florida Statutes, need not prove either reliance or detriment in order to obtain a conviction. Major v. State, 180 So.2d 335 (Fla.1965). The reason is that in the criminal case the wrong for which public vindication is sought is the knowing making or dissemination of the false or misleading advertising with the intent or purpose of inducing a member of the public to enter into some obligation relating to the property or the services being advertised. The offense occurs irrespective of reliance by or detriment to a member of the public. On the other hand, one who seeks by civil suit to vindicate a violation of the statute as a private wrong must show that the wrong was the proximate cause of his injury or damage, and proof of reliance is necessary in order to prove the causal connection.

At the close of the plaintiff’s case in chief, the court granted defendant’s motion for involuntary dismissal on the grounds that: (1) as to the action for common law fraud, there was no proof of the essential element of reliance, and the only evidence of false statement or misrepresentation of fact pertained to a promise to do something in the future, (2) the absence of proof of reliance was also fatal to plaintiffs’ cause of action under Section 498.061(1), Florida Statutes, (3) the evidence did not show any violation of Section 498.023(2), Florida Statutes, and (4) the more credible evidence established that the common area had been properly maintained. Plaintiffs attack this ruling on several grounds.

First, plaintiffs assert that reliance is not an essential element of a cause of action under Section 498.061(1), Florida Statutes, for a subdivider’s untrue statement of a material fact made in disposing of any interest in subdivided lands or in a registration statement or public offering statement. We disagree. While at first blush the wording of the statute might make it appear that proof of lack of reliance is an affirmative defense, the burden of proof of which would be on the subdivider, we think, upon reflection, that logic and reason place on the plaintiff the burden to show reliance, failure of which would be fatal, as the court held in this case.

Our attention has not been called to any reported cases construing this particular statutory provision. Plaintiffs and defendant agree that this statute was modeled after Section 410(a) of the Uniform Securities Act, the interpretation of which is helpful. The trial court, in making its ruling, relied upon the case of S & F Supply Company v. Hunter, 527 P.2d 217 (Utah 1974), which was concerned with Section 410(a)(2) of the Uniform Securities Act. In the cited case, the Utah court, after noting that the statute only provided a remedy for the falsity of a “material” fact, stated, at page 221:

In that regard, some notice should also be taken of the fact that the statute gives a remedy only for falsity of a “material” fact or omission. That also seems to import some objective standard of reliance, because the determination of whether a fact is “material” can only be made in the frame of reference of the definition of what a material fact is: that is, it must be something which a buyer or seller of ordinary intelligence and prudence would think to be of some importance in determining whether to buy or sell.

We are persuaded that the reasoning of the Utah court is logical, and we therefore conclude that in order for a fact to be a “material” fact (in a statement alleged to be untrue) the party claiming to have sustained loss, injury, or damage has the burden to show reliance upon the untrue statement.

Plaintiffs next claim that the court erred in ruling that there was no proof of reliance. We agree. Coming, as it did, at the close of the plaintiffs’ case in chief in a non-jury trial, defendant’s motion for involuntary dismissal precluded any weighing of the credibility or probative value of the evidence, restricting the trial court solely to a determination of whether the evidence, viewed in a light most favorable to the plaintiffs, presented a prima facie case. Tillman v. Baskin, 260 So.2d 509 (Fla.1972); Curls v. Tew, 346 So.2d 1242 (Fla. 1st DCA 1977).

Mr. Vance and Mr. Hartleb each testified that he had purchased one or more lots in the development in reliance upon the statements contained in the sales brochure, as supplemented by oral statements made by defendant’s salesman, Mr. Reiss. Both of these plaintiffs had visited the property before purchasing, and the principal theory of their case, as well as the principal thrust of their testimony, was to the effect that each had been induced to purchase his lots on the basis of statements and representations made to him as to improvements which were to be made in the future. Mr. Reiss corroborated the plaintiffs’ testimony in this respect.

The existence of evidence tending to show reliance on plaintiffs’ part was confirmed by the trial court itself, when, after Mr. Vance and Mr. Hartleb had each testified, plaintiffs moved for leave to amend the complaint “to conform to the evidence,” particularly to allege that the plaintiffs had relied on the sales brochure. In response to that motion, the court stated: “The evidence clearly shows that they relied on that.”

At the time of ruling on defendant’s motion for involuntary dismissal, the court either failed to adequately recollect the existence of evidence touching on the subject of plaintiffs’ reliance, or the court impermissi-bly weighed the evidence at that point.

Next, plaintiffs claim that the court erred in ruling that they had not shown evidence of a false statement of fact, another essential element of common law fraud. True, the only evidence tending to show a false statement of fact were the representations concerning improvements to be made to the property in the future. The trial court applied the general rule, i. e., that a false statement of fact, to be a ground for fraud, must be of a past or existing fact, not a promise to do something in the future. See 27 Fla.Jur.2d, Fraud and Deceit, § 24, and cases cited therein. However, the cases recognize an exception where the promise to perform a material matter in the future is made without any intention of performing or made with the positive intention not to perform. Home Seekers’ Realty Co. v. Menear, 102 Fla. 7, 135 So. 402 (1931); Gottsch v. Walker, 376 So.2d 879 (Fla.1st DCA 1979). The plaintiffs’ evidence, viewed most favorably to them, would sustain a factual finding that defendant made false promises with no intention of performing, or with the positive intention not to perform, thereby bringing this case within the above recognized exception. The truth of these matters will be determined by the trier of fact when, proee-durely, the case is ripe for consideration of the credibility and probative value of the evidence.

Plaintiffs claim that the court erred in holding that there was no legal basis for recovery of punitive damages by plaintiffs. Here, because the court granted the defendant’s motion for involuntary dismissal, there was no necessity to consider damages. Nonetheless, on the retrial of this matter, that issue may again arise. By statute, punitive damages (in addition to actual damages proven) are allowable for a violation of Section 817.41, Florida Statutes. Likewise, punitive damages are recoverable in an action for fraud in inducement. Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla.3d DCA 1972). Punitive damages are justified where torts are committed with fraud, actual malice, or deliberate violence or oppression, or when the defendant acts wilfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Winn & Lobett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). But, cf., Dunn v. Shaw, 303 So.2d 6 (Fla.1974).

Plaintiffs’ remaining points are without merit and do not require discussion.

REVERSED AND REMANDED.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.

      . Amended at trial to “a spacious hunting lodge to look like the artist’s conception in the Sales Brochure.”

      . The relevant portions are Section 817.40(5) and Sections 817.41(1) and (6) as follows:
      Section 817.40(5) — The phrase “misleading advertising” includes any statements made, or disseminated, in oral, written or printed form or otherwise, to or before the public, or any portion thereof, which are known, or through the exercise or reasonable care or investigation could or might have been ascertained, to be untrue or misleading and which are or were so made or disseminated with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such property or services. Section 817.41(1) — It shall be unlawful for any person to make or disseminate or cause to be made or disseminated before the general public of the state, or any portion thereof, any misleading advertisement. Such making or dissemination of misleading advertising shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses. Section 817.41(6) — Any person prevailing in a civil action for violation of this section shall be awarded costs, including reasonable attorneys fees, and may be awarded punitive damages in addition to actual damages proven. This provision is in addition to any other remedies prescribed by law.

      . Although Section 817.41(1), Florida Statutes, is penal in character, it is the type of penal statute the violation of which affords civil relief. See Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla.3d DCA 1964). Section 817.-41(6), Florida Statutes, confirms this conclusion.

      . Section 498.06(1), Florida Statutes:
      Any subdivider who disposes of any interest in subdivided lands in violation of s.498.023, or who in disposing of any such interest makes an untrue statement of a material fact, or who in a registration statement or public offering statement makes an untrue statement of a material fact or omits a material fact required to be stated therein is liable as provided in this section to the purchaser unless, in the case of an untruth or omission, it is proved that the purchaser knew of the untruth or omission, that the subdivider did not know and in the exercise of reasonable care could not have known of the untruth or omission, or that the purchaser did not rely on the untruth or omission.

      . Section 498.023(2), Florida Statutes:
      No person may dispose of, or participate in the disposition of, any interest in subdivided lands unless a current public offering statement is delivered to the purchaser prior to the disposition, and the contract used contains a provision which authorizes any party thereto to cancel the agreement without cause within 72 hours after execution by the purchaser.

      . Seemingly, the court may have weighed the evidence, because although both Mr. Vance and Mr. Hartleb each testified that defendant had failed to adequately or properly maintained certain parts of the common area, one of the reasons advanced by the court in granting defendant’s motion for involuntary dismissal was that “the court finds from the totality of the credible evidence that the common areas have been properly maintained. . . .

      . The elements of common law fraud are set forth in Poliakoff v. The National Emblem Insurance Company, 249 So.2d 477 (Fla.3d DCA 1971), as follows:
      (1) A false statement of fact; (2) known by the defendant to be false at the time is was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage to the plaintiff.


author: COBB, Judge. SHARP, Judge,

text:
    GOLDEN DOLPHIN NO. 2, INC., t/a Golden Dolphin, Appellant, v. STATE of Florida, DIVISION OF ALCOHOLIC BEVERAGES & TOBACCO, Appellee.
    No. 79-1611/T4-675.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 1981.

      Jerrold A. Bross, Titusville, for appellant.
    Dennis E. LaRosa, Staff Atty., Dept, of Business Regulation, Tallahassee, for appel-lee.
   COBB, Judge.

Appellant (Golden Dolphin) was charged by the appellee (Division) with violating various rules of the Division and statutes of Florida, thereby placing the Golden Dolphin’s beverage license in jeopardy pursuant to section 561.29, Florida Statutes (1977).

The hearing officer found that the Golden Dolphin had: (1) allowed one of its employees to perform a lewd, lascivious, indecent, or obscene show in violation of section 847.011(4), Florida Statutes (1977); (2) surrendered the control and management of the licensed premises through a management contract contrary to Florida Administrative Code Rule 7A-3.17; and (3) failed to keep copies of its invoices on its premises in violation of Florida Administrative Code Rule 7A-4.45. The Division adopted the findings of the hearing officer and ordered the Golden Dolphin’s license suspended for 45 days. The Golden Dolphin has appealed the first two of the above three findings of the hearing officer’s order.

A review of the management contract shows that it violated the provisions of Florida Administrative Code Rule 7A-3.-17, in several respects. We affirm the finding of the hearing officer that dealt with this issue.

We now turn to the question of whether the Golden Dolphin allowed one of its employees to perform an obscene show. In order to prove the charge, the Division had to present evidence that the Golden Dolphin’s corporate officers knew that the employee was performing in that manner and that the show was obscene.

Where the evidence shows a persistent or recurring activity, the fact-finder may infer that the licensee had knowledge. G.R.B. of Jacksonville, Inc. d/b/a Out of Sight v. State, 371 So.2d 139 (Fla.1st DCA 1979), appeal dismissed, 379 So.2d 205 (Fla.1979); Pauline v. Lee, 147 So.2d 359 (Fla.2d DCA 1962). In the case at hand, one of the customers of the Golden Dolphin testified that he had witnessed this type of activity occurring on several previous occasions pri- or to the occasion that prompted the charge. This was sufficient evidence for the hearing officer to find that the Golden Dolphin’s corporate officers had knowledge that its employee was performing in that manner.

With regard to the question of whether there was substantial competent evidence to support the hearing officer’s finding that the show was obscene, the Golden Dolphin contends on appeal, as it did at the hearing, that since there was no evidence submitted to the hearing officer as to the contemporary community standards of the area, there was insufficient evidence to support a finding that the dance was obscene. We agree.

It has been recognized that dances that were once considered obscene, such as the waltz and the two-step, may meet with approval today. State ex rel. Swanboro v. Mayo, 155 Fla. 330, 19 So.2d 883 (1944). Both the United States Supreme Court and the Florida Legislature have declared that a decision as to whether something is obscene must be made with regard to community standards. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Section 847.011(11), Florida Statutes (1977).

The decision as to what are the community standards must come from either the prior knowledge of the trier of fact or through knowledgeable witnesses. United States v. 2,200 Paper Back Books, 565 F.2d 566 (9th Cir. 1977). This decision usually arises in the context of a criminal trial where the defendant exercises his right to a jury trial. The jury is supposed to be a cross-section of the community and thus knowledgeable of the community standards. Therefore, independent testimony is not necessary to enable a jury to judge the obscenity of material which has been placed into evidence. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). However, such independent testimony may be presented if a party so desires.

If a defendant waives his right to a jury and is tried by a judge, it is logically arguable that such defendant cannot complain that the judge is unrepresentative of the community. But if that judge affirmatively asserts his incapacity to discern community standards in the absence of evidence thereof, then it would be incumbent upon the state to present such evidence at trial. See United States v. 2,200 Paper Back Books, 565 F.2d 566 (9th Cir. 1977).

In the case at hand, the proceeding was a civil administrative hearing and, therefore, there was no right to a jury trial. Robins v. Florida Real Estate Commission, 162 So.2d 535 (Fla.3d DCA 1964); 1 Fla. Jur.2d Administrative Law § 64 (1977). No opportunity for a jury trial was provided. Instead, the Golden Dolphin was tried by a hearing officer, and no evidence was presented on the subject of contemporary community standards. With the case in this posture, the Division failed to prove that the show was obscene.

Accordingly, we affirm that part of the hearing officer’s order that dealt with the management contract; we reverse that part of the hearing officer’s order finding that the Golden Dolphin permitted one of its employees to perform an obscene show; and we remand the case to the Division for resentencing in light of the lesser number of violations.

DAUKSCH, C. J., concurs.

SHARP, J., dissents in part, with opinion.

SHARP, Judge,

dissenting in part.

I disagree with that part of the majority opinion holding that the State failed to prove that the conduct in question was obscene.

The essence of the majority’s opinion is that when a cause of action turns upon whether or not particular conduct is obscene, and the defendant is not entitled to a jury trial, the judge or hearing officer is an incompetent trier of fact unless some evidence of the relevant community standard is presented for consideration by the tribunal.

Admittedly, evidence regarding the applicable community standard is desirable; but it is not necessary. A trier of fact be it judge or jury, is presumed to be familiar with the sensitivities of the average person in the community. United States v. 2200 Paper Back Books, 565 F.2d 556, 570 (9th Cir. 1977). While a jury consisting of a cross-section of the community might be better than a judge at measuring the standards of the community, it does not follow that a judge without extrinsic assistance is an unqualified trier of fact.

The general rule that a trial judge, sitting as a trier of fact, and without hearing any testimony regarding contemporary community standards, may apply what he has determined to be the common conscience of the community has been the law in our sister courts for some time.

Absent a showing by the defense at trial that the judge trying the case is unaware of the community standards, I see no reason why the trial judge or hearing officer should not be able to make the obscenity determination by examining the challenged activity and applying his own knowledge of the community standards. Trial judges, like juries, are deemed competent to know community standards and apply them in other contexts. No different rule should be evolved for obscenity cases without express guidance from our two Supreme Courts.

      . Rachleff v. Mahon, 124 So.2d 878, 881 (Fla. 1st DCA 1960); Testimony, expert or otherwise regarding the applicable community standard, is not necessary for a finding of obscenity. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) and numerous cases cited therein.

      . The appellant failed to make any such showing or even raise the objection before the hearing officer.

      . W. Prosser, Law of Torts § 65, (4th ed. 1971) (reasonable man standard); 33 Fla.Jur., Trusts § 96 (1960) (prudent investor rule).