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

text:
    DEPARTMENT OF ADMINISTRATION and Department of Agriculture and Consumer Services, Division of Forestry, Appellants, v. George C. NELSON, Appellee. George C. NELSON, Appellant, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF FORESTRY, Appellee.
    Nos. AB-11, AB-12.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 17, 1983.
    See also 424 So.2d 860, 424 So.2d 864.

      Samantha Boge, Asst. Gen. Counsel, Tallahassee, for Dept, of Admin., appellant/ap-pellee.
    Robert A. Chastain, Gen. Counsel, Tallahassee, for Dept, of Agriculture and Consumer Services, Div. of Forestry, appellant/appellee.
    Stephen J. Keller of Patterson & Trayn-ham, Tallahassee, for George C. Nelson, ap-pellee/appellant.
   ROBERT P. SMITH, Jr., Chief Judge.

These consolidated appeals, two of four cases decided today that are rooted in the same controversy, are from orders of the Division of Administrative Hearings. The Department of Administration (DOA) and the Division of Forestry of the Department of Agriculture and Consumer Services appeal from the hearing officer’s order sustaining a challenge by George Nelson, a Division of Forestry firefighter, to DOA rules declaring a state employee ineligible for continued employment, and deeming him to have resigned, if he qualifies for another public office without his employing agency’s and DOA’s approval pursuant to section 110.233(4)(a), Florida Statutes (1980 Supp.). And Nelson appeals from another DOAH order rejecting his rule challenge to the effect that the Division of Forestry disapproved his candidacy for the Wakulla County School Board under personnel policies that were required to be, but were not, adopted as rules.

We find that section 110.233(4)(a) is a sufficient legislative predicate for DOA Rules 22A-7.10(4)(a) and 22A-13.04. We reverse the hearing officer’s finding that the rules represent an invalid exercise of the delegated legislative power. We affirm the hearing officer’s determination that the Forestry Division’s policy disapproving Nelson’s proposed candidacy was not invalid as an illicit rule. Thus we reject both of Nelson’s rule challenges.

Since 1967 subsection (4)(a) of Florida’s “Little Hatch Act” has prohibited state career service employees to

[hjold, or be a candidate for, public office while in the employment of the state or take any active part in a political campaign while on duty or within any period of time during which he is expected to perform services for which he receives compensation from the state.

A 1970 amendment created this exception to (4)(a)’s broad proscription:

However, when authorized by his agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his state employment, an employee in the career service may be a candidate for or hold local public office.

Before the 1970 legislative session, nothing in section 110.092 distinguished (4)(a) activity from other proscribed political activity, insofar as administration and enforcement were concerned. Thus, whether one’s violation was running for the school board while holding a career service job that conflicted with school board meeting times, as proscribed by (4)(a), or soliciting money in exchange for one’s appointments or promotions, subsection (3), the statute was administered and enforced after the fact, retrospectively, by conventional disciplinary measures. That is to say, the employing agency initiated proceedings to suspend or dismiss the offending employee, and the Career Service Commission reviewed the agency’s action. Section 110.-061, Fla.Stat. (1969). But in 1970 the legislature added to subsection 110.092(4)(a), and to that subsection only, this particular language:

The Department of Administration shall prepare and make available to all affected personnel who make such request a definite set of rules and procedures consistent with the provisions herein.

Exercising this rulemaking authority, DOA in 1973 promulgated Rule 22A-7.10D, precursor of the rules here challenged by Nelson:

D. Failure to Resign to Run for Public Office—
An employee who becomes ineligible for continuation of employment in accordance with Section 110.092(4)(a), Florida Statutes, shall be terminated without the right of appeal to the Career Service Commission.

Fla.Admin.Code R. 22A-7.10D (eff. 7-1-73, Supp. No. 33).

As elaborated by 1980 amendments, DOA’s rules in chapter 22A-7, dealing with “Appointments, Status, Transfers, Separations and Layoffs,” and Chapter 22A-13, “Political Activities, Unlawful Acts, and Penalties,” implement the statutory restrictions on political activities by state employees. In Rule 22A-7.10, pertaining to “Separations,” subsection (4) provides:

(4) Unauthorized Seeking or Holding of Public Office—
(a) An employee who seeks or holds office contrary to or without complying with the provisions of Section 110.233(4), Florida Statutes, shall be presumed to have become ineligible for continuation of employment and shall be deemed to have resigned from the Career Service without the right to appeal to the Career Service Commission.
(b) [provides for agency or DOA review pursuant to Section 120.57 processes, detailed in Chapter 22A-13, of free-form agency or DOA denial of authorization for local candidacies].

And DOA’s Rule 22A-13.04, specifying “Penalties” for unauthorized political activities, provides:

An employee who qualifies as a candidate for or holds public office without obtaining prior approval according to this chapter shall be ineligible for continued state employment and shall be deemed to have resigned without right to appeal to the Career Service Commission. In addition, the employee may be subject to penalties set forth in Section 110.127, Florida Statutes.

The hearing officer declared the quoted rules an invalid exercise of delegated legislative authority, section 120.56, Florida Statutes (1979), because the automatic resignation provision “runs contrary to the spirit and purpose of the Career Service System in the State of Florida,” section 110.301 et seq., Florida Statutes (1979). Specifically, the hearing officer stated, the “de novo fact-finding hearing” secured to discharged employees before the Career Service Commission, section 110.309(1), is “the due process hearing” that DOA’s rules may not lawfully disturb; DOA rules may not lawfully displace Career Service standards for discharge on grounds of “insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, [and] misconduct ... section 110.227(1); and DOA rules may not lawfully supplant Commission authority to reduce an agency dismissal to a suspension if the Commission thinks the infraction “did not justify the severity of the action taken” by the employing agency. Section 110.-309(4), Fla.Stat. (1979). The hearing officer’s order states:

Relief sought before the Career Service Commission is exclusive absent some alternative procedure through a collective bargaining agreement and in that instance the affected employee may pursue this alternative form of relief. See Subsection 110.305(5), Florida Statutes. There is no concurrent or exclusive jurisdiction with the State of Florida, Department of Administration, to cause the termination or dismissal of a permanent status Career Service employee premised upon that employee’s violation of the statute and rules dealing with offering himself as a candidate for office or holding that office as a local public official.

This controversy arose when George Nelson, employed in permanent status as a firefighter for the Division of Forestry, sent a letter to his supervisor on July 14, 1980, stating that he intended to run for the Wakulla County School Board. Nelson’s letter stated that he had read and understood the applicable rules. He requested that the Division authorize his candidacy before July 22, the last day to qualify.

Because of the short notice given by Nelson, Division officials orally denied his request on July 18 and again on July 21. Nelson nevertheless took a qualifying loyalty oath and made a statement of his candidacy on July 22,1980. On July 24, Nelson’s supervisor again denied Nelson permission to be a candidate, this time by written memorandum, and attached a copy of another memorandum by the Division head stating that Nelson’s candidacy should be disapproved because of potential scheduling conflicts between Nelson’s state job as a forest ranger and the duties of a school board member, and because controversies in local government could adversely affect the Division’s ability to carry out its duties.

In the following weeks, Nelson met several times with Forestry officials and their superiors in the Department of Agriculture and Consumer Services, who sought to dissuade Nelson from his candidacy because his only alternative was resignation without right of appeal. Nelson refused to withdraw, arguing that there was no conflict of interest. On August 12, the Department’s chief of personnel management sent Nelson a letter stating that under section 110.-233(4)(a) and Rule 22A-13.04, Nelson was deemed to have resigned on August 15 without right of appeal to the Career Service Commission because he qualified for office without the necessary prior approval. The letter pointed out that Nelson could request section 120.57 proceedings on the Department’s decision not to approve Nelson’s candidacy. See Rule 22A-7.10(4)(b), referenced above.

We disagree with the hearing officer’s judgment that the DOA rules applicable here are invalid. The apparent premise of his order is that the Career Service statutes, and the procedures they ordinarily require, are in Florida “the due process” standard by which these rules must be measured. We cannot accept that premise, for due process constraints may be observed in a variety of notice and hearing methods. Automatic termination of an objecting employee, with due process review by the employing agency or by DOA, is a legitimate legislative choice, and both this Court and the Supreme Court have sustained a DOA rule, promulgated with proper legislative authority, having that effect. In Cook v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st DCA 1978), this Court sustained against a like challenge another section of DOA Rule 22A-7, to the effect that “absence without authorized leave for three consecutive days” is to be deemed a formal resignation without recourse to the Career Service Commission. In a case decided while the Nelson appeals were pending here, the Supreme Court approved this qualification of Career Service Commission review powers in Hadley v. Department of Administration, 411 So.2d 184 (Fla.1982).

It is possible, of course, to cite differences between DOA’s Rule 22A-7.10B, upheld in Cook, and the companion rules before us today. The Cook rule, presuming abandonment of and resignation from career service employment by virtue of three days’ consecutive absence without leave, rested on the very practical consideration that “some term of absence” must in the day-to-day operations of an agency be “construed as a resignation.” Cook, 356 So.2d at 358. It may therefore be suggested that the Cook rule is simply a housekeeping measure, intended to clear off the public roster those who without formally resigning “leave abruptly or simply fail to show up for work” and are never heard of again. Id. But that’ distinction misses the point that the Cook rule operates against those who protest, as did Cook and Hadley, as well as against those who do not.

The rules before us now, like DOA’s rule presuming resignation from three days’ absence, protect the protesting employee through notice and hearing processes that are no less effective, and no less satisfactory by due process standards, than a de novo hearing before the Career Service Commission. Thus Cook found:

As provided by the Rule, the State Personnel Director held a hearing and ruled that Petitioner had abandoned her position and was no longer an employee of the Department. 356 So.2d at 357.

The Supreme Court in Hadley, 411 So.2d at 186, approved this alternative method of review by due process standards:

Petitioner argues that the due process clauses of the United States and Florida constitutions require that a career service employee found to have “abandoned” his job pursuant to Rule 22A-7.10(2)(a), be given a hearing before the [career service] commission. We do not agree, however, that petitioner’s due process rights were violated, and are of the opinion that the procedures followed herein, which were those established by the rules, provide adequate safeguards for one in his situation.

Similarly, DOA’s Rule 22A-7.10(4)(b) afforded Nelson a section 120.57 hearing to review either the agency’s disapproval, or DOA’s disapproval, of his request for authorization to become a candidate for the Wakulla County School Board.

And so the question here is not whether the legislature may constitutionally authorize procedures for terminating employees other than by “de novo fact-finding hearing” before the Career Service Commission, section 110.309(1). Obviously the legislature may do so; obviously, as Hadley and Cook attest, it has done so. Rather the question is whether the legislature, after forbidding employees to become candidates for or hold other public office without DOA authorization, in fact delegated to the responsible agency, DOA, power to specify termination procedures affording a fair hearing but without recourse to the Career Service Commission.

Seen in this light, and with appropriate deference to DOA’s interpretative powers as the agency to whom the legislature committed implementation of section 110.-233(4)(a), the challenged rules must be judged a lawful exercise of the legislatively delegated authority. Several considerations impel us to this view:

First and foremost, the 1970 legislature took pains to substitute, for the Career Service Commission’s case-by-case method of defining (4)(a) violations and their consequences, “a definite set of rules and procedures consistent with the provisions” of section 110.233(4)(a), to be promulgated by DOA. The legislature thus distinguished (4)(a) from all other subsections of the “Little Hatch Act” whose meaning, application, and enforcement were left with ultimate review authority in the Commission. The reason for that distinctive treatment of (4)(a) is not difficult to imagine. The legislature, already having promoted uniformity by requiring DOA approval, in addition to the employing agency’s approval, of an employee’s local candidacy, intended that the application and enforcement of the statute should be made “definite,” and that DOA, not the Career Service Commission, should accomplish that.

That too is understandable. The language of (4)(a) prohibits readily identifiable conduct in explicit terms, in contrast to other subsections’ more general proscriptions, which were left to case-by-case review by a Commission having power to vary the consequences with the perceived seriousness of the conduct. The legislature deemed “a definite set of rules and procedures” enforcing (4)(a) not only desirable but possible of achievement. In that assessment the legislature was correct: DOA’s challenged rules are notice to career service employees that seeking public office without agency and DOA approval is fatal to one’s job status, fatal without exception, through presumed resignation. While less draconian measures might have been adopted to implement the statute, the one adopted swiftly and surely executes the legislative purpose, and nothing in the statute suggests that DOA’s “definite set of rules and procedures” must necessarily have included Career Service Commission review.

Second, the legislature’s (4)(a) mandate that DOA provide “a definite set of rules and procedures” presented DOA with a choice between two possible avenues. Should the critical review process, examining the employee’s candidacy in light of his other state duties, take place before or after the employee has become a candidate? The Career Service Commission, by design and necessity, operates retrospectively in assessing objectionable employee conduct, for pursuant to section 110.227(5)(a), Florida Statutes (1979), it reviews agency disciplinary action by such standards as

negligence, inefficiency or inability to perform assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime involving moral turpitude. Section 110.-227(1), Fla.Stat. (1979).

DOA, on the other hand, determined that the critical issue arising under section 110.-233(4)(a) — whether an employee’s candidacy or holding of local public office involves an “interest which conflicts or activity which interferes” with state employment — should if possible be determined prospectively.

DOA’s choice has obvious benefits to an employee mulling public office, who is given an opportunity to determine the propriety of his intended action without risking irrevocable harm. DOA could reasonably have considered this to have been the process preferred by the statute itself, requiring DOA to “make available to all affected personnel who make such request” a “definite set of rules and procedures.” Knowing the rules and procedures, knowing the consequences of unauthorized candidacies, and knowing the risks of qualifying without first prevailing in section 120.57 proceedings to secure authorization, is of great value prospectively, less so retrospectively. Thus the rules provide prospectively affected employees their clear point of entry to section 120.57 procedures, supra note 4, even if, as is the case here, those proceedings cannot be completed by the candidate’s qualifying deadline.

Third, DOA could properly have considered that Career Service Commission review would be redundant if not seriously disruptive of the “definite” scheme required by the legislature in (4)(a). The critical issue under (4)(a) is whether a conflict exists between the employee’s job and his candidacy such that permission to run for or hold the other office should be denied. For sound reasons stated above, DOA’s rules determine that question prospectively if possible. On that issue, then, retrospective Career Service Commission review, in de novo proceedings for suspension or dismissal, would either redundantly endorse the agency’s and DOA’s decision or would install the Commission in DOA’s place as the statewide authority for determining the propriety of candidacies, and the consequences to offending employees. Plainly, that would be contrary to the terms of (4)(a), inimical to agency control over the qualifications of its own employees, and contradictory of DOA’s identity as the agency chiefly responsible for the qualifications of personnel. Section 20.31(2)(b), Fla.Stat. (1979). If the Commission’s retrospective determination of the most critical issue should become decisive, then employees will be encouraged to disregard prior agency or DOA action, and DOA’s “definite set of rules and procedures,” mandated by (4)(a), will have been replaced by uncertain predictions of Commission action.

Fourth, we have repeatedly held that when the agency committed with statutory authority to implement a statute has construed the statute in a permissible way under APA disciplines, that interpretation will be sustained though another interpretation may be possible. When the agency so interprets the statute through rulemaking, the presumption of correctness is stronger. And when as here the agency’s interpretation of the statute through rulemaking has been on the books for several years without legislative correction, in this case since 1972, the presumption is stronger still. The principle of King v. Seamon, 59 So.2d 859, 861 (Fla.1952), thus gains new vitality through APA processes. Florida Commission on Human Relations v. Human Development Center, 413 So.2d 1251, 1254 (Fla. 1st DCA 1982); State Department of Health & Rehabilitative Services v. Framat Realty Inc., 407 So.2d 238, 242 (Fla. 1st DCA 1981); ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981); Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So.2d 759, 762 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979); Florida Beverage Corp. v. Wynne, 306 So.2d 200, 202 (Fla. 1st DCA 1975).

The hearing officer’s error in invalidating Rules 22A-7.10(4)(a) and 22A-13.04 seems attributable to two factors, the first of which, as we have said, was treating the Career Service Commission statute as equivalent to the due process clauses of the United States and Florida Constitutions. Thus the hearing officer stated that the challenged rules are “contrary to the spirit and purpose of the Career Service System in the State of Florida” and that

permanent status employees in the Career Service System may only be suspended or dismissed for cause and cause shall include claims of insubordination, or willful violation of the provisions of law or agency rules.
The Department of Administration, while it may establish the rules and procedures for this suspension or dismissal of the employees, it may not disturb the due process hearing ... (emphasis added)

As the Supreme Court held in Hadley, due process may be afforded by means other than review by the Career Service Commission. Plainly, due process is afforded by the section 120.57 proceedings and judicial review offered by DOA’s rules to determine, prospectively if possible, whether authorization should be given for an employee’s desired candidacy. See supra note 4.

The hearing officer was further misled by his misconception that hearings under the challenged rules are of use only to

those persons who have voluntarily submitted themselves to the process of review after being denied their opportunity to run for public office or holding public office, (emphasis added).

DOA’s rule process is of no use, the hearing officer suggested, “once an employee has violated” the statute by becoming a candidate without agency and DOA authorization. That person’s proper recourse, the hearing officer states, is Career Service Commission review of his dismissal under section 110.309. The implications of the hearing officer’s analysis is that an employee who “voluntarily submits” his request to the agency and DOA must perhaps accept their decision, but one who becomes a candidate without “voluntarily submitting” to the prescribed process may have the whole matter reviewed later by the Commission.

On the contrary, we think, the statute flatly prohibits unauthorized candidacies and mandates a “definite set of rules and procedures” for authorizing candidacies. DOA’s rules provide, and were required by statute to provide, the clear and only point of entry to proceedings for determining the critical point in issue, whether authorization to run should be given. See Capeletti Bros. v. State Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979).

The hearing officer correctly points out that DOA’s rules, envisioning as they do prospective decisions by the agency and DOA allowing an employee to run for or accept public office, do not in terms provide a forum for determining the potential issue of whether the employee having been denied authorization to become a candidate, nevertheless did so. If that is a disputed fact (it is not disputed by Nelson), we know of no reason why agency section 120.57 processes, subject to section 120.68 judicial review, cannot fairly determine the issue in determining the substantial interest of the employee.

Accordingly, we uphold Rules 22A-7.-10(4)(a) and 22A-13.04 as having been promulgated by DOA in the lawful exercise of delegated legislative authority.

Using DOA’s appeal as a vehicle to present to us a related constitutional question that the hearing officer had no authority to decide, Nelson argues that the statute itself, section 110.233(4)(a), unconstitutionally delegates the legislative authority without adequate standards for its exercise. See Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978). We find, on the contrary, that the statute sufficiently guides DOA and employing agencies in determining whether to authorize local candidacies. Authorization is to be granted or withheld depending on whether the employee’s campaign or holding of public office involves an “interest which conflicts” or “activity which interferes” with his state employment. Those terms are subject to common understanding and, given the variety of situations in which the legislature expected the terms to be applied, need not have been further defined in the statute. See League of Mercy Association v. Walt, 376 So.2d 892, 893 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980).

Finally, Nelson argues on his consolidated appeal that the Forestry Division had and enforced against him an illicit rule, which is to say a firm policy not promulgated by rule, against employee candidacies. The hearing officer’s order convincingly characterizes the evidence to the contrary. See Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

The order in No. AB-11, declaring DOA’s rules invalid, is REVERSED. The order in No. AB-12, rejecting Nelson’s challenge to policy not promulgated as rules, is AFFIRMED.

JOANOS and THOMPSON, JJ., concur.

      . Section 110.092, Fla.Stat. (1967); section 110.233, Fla.Stat. (1980 Supp.).

      . Ch. 70-277, § 1, Laws of Fla.; section 110.-233(4)(a), Fla.Stat. (1980 Supp.). As amended In 1970, the statute required concurrent approval of the agency head and the Division of Personnel and Retirement of the Department of Administration. Subsequently the name of the Division was changed and, by chapter 79-190, reference to the Division was replaced by a general reference to the Department of Administration. The statute was renumbered § 110.-233(4)(a) by reviser in 1979. A further 1980 amendment, not pertinent here, eased the proscription to allow a career service employee to serve as a member of a county or state executive committee of a political party. Ch. 80-207, § 2, Laws of Fla.

      . Ch. 70-277, § 1, Laws of Fla. Again, the 1970 reference was to the Division of Personnel of the Department of Administration. See n. 2.

      . DOA’s Rule 22A-13.032, Fla.Admin.Code, provides:
      (1) If the agency head denies an employee’s request submitted in accordance with this chapter, the employee shall have the right to a Section 120.57, Florida Statutes, proceeding before the agency head or his/her designate. A request for hearing pursuant to this section shall be filed with the agency head within 20 days from the date the employee receives notice of the decision to deny approval of his/her request to campaign for or hold a local public office.
      (2) If the Department of Administration disapproves an employee’s request pursuant to this chapter, the employee shall have the right to a Section 120.57, Florida Statutes, proceeding before the Secretary of Administration or his/her designate. A request for hearing pursuant to this section shall be filed with the Secretary of Administration within 20 days from the date the employee receives notice of the Department’s decision to deny approval of his/her request to campaign for or hold a local public office.

        (3) In proceedings pursuant to this section, the employee shall bear the burden of establishing that his/her candidacy or the duties of the local public office will not involve a conflict of interest or interfere with his/her state employment. If the agency head or Secretary of Administration determines that approval was withheld unreasonably by the agency or Department, respectively, the employee may become a candidate for the requested local public office or continue to hold the local public office without terminating his/her state employment.
      (4) An agency or an employee who is adversely affected by final agency action, shall be entitled to judicial review pursuant to Section 120.68, Florida Statutes. The employee shall not have the right to appeal such action to the Career Service Commission.


source: Caselaw Access Project

license: Public Domain

text:
    George C. NELSON, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. AB-196.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 17, 1983.
    See also 424 So.2d 852, 424 So.2d 864.
    Stephen J. Keller of Patterson & Trayn-ham, Tallahassee, for appellant.

      Robert A. Chastain, Gen. Counsel, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

This is a companion case to another decided today, in which we sustained against Nelson’s rule challenge, section 120.56, Florida Statutes (1979), rules of the Department of Administration (DOA) implementing section 110.233(4)(a), Florida Statutes (1979). That statute prohibits career service employees from campaigning for or holding a public office that is found by the employing agency, or by DOA, to involve an interest conflicting or an activity interfering with his state employment. Rules 22A-7.10(4)(a), 22A-13.04, Fla.Admin.Code; Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982).

Agreeably to DOA procedural rules implementing the statute, a section 120.57(1) hearing was conducted by a Division of Administrative Hearings hearing officer, acting for the Department of Agriculture and Consumer Services (“Agriculture”), to review Agriculture’s free-form decision denying Nelson authorization to run for the Wakulla County School Board while retaining employment as a firefighter in the Division of Forestry. Between July 14 and August 15, 1980, Nelson advised his superiors that he intended to run for the school board; they informally advised him that he could not, because of possible conflicts with his state employment; Nelson took a qualifying loyalty oath as a candidate; a series of further informal meetings failed to dissuade Nelson from his candidacy, and he failed to convince his superiors that there would be no conflict or interference in his holding the office. On August 12, the Department notified Nelson, pursuant to DOA rules, that Nelson was considered as having resigned, and he was terminated as of August 15.

Nelson’s self-styled “appeal” of his “dismissal” was accepted by the Agriculture as invoking Nelson’s right to section 120.57 review proceedings pursuant to Rule 22A-13.032. Agriculture referred the matter to DOAH, whose hearing officer received evidence and entered a recommended order, adopted by Agriculture, which denied Nelson relief, finding that Nelson had failed to ask for a Rule 22A-7.10(4)(b) remedy, namely, formal APA proceedings to determine whether Nelson’s school board candidacy, or holding the office, would conflict or interfere with his state job. Companion Rule 22A-13.032(1), the hearing officer held, does not independently entitle a party to section 120.57 proceedings for the determination of that issue. At any rate, the hearing officer said, since both rules had been held invalid by his order in the companion case, Nelson had recourse before the Career Service Commission should Agriculture forfeit Nelson’s job for his having undertaken a political candidacy without permission.

In view of our decision today upholding Rules 22A-7.10(4)(a) and 22A-13.04, Agriculture was obliged to give Nelson section 120.57 proceedings determining the disputed issue of whether his candidacy for the school board, and his holding that office if successful in his campaign, would conflict with or interfere with his duties as a firefighter.

Nelson was entitled to that APA remedy, extended to him by the DOA rule implementing the controlling statute, whether or not Nelson had already qualified as a candidate before timely requesting 120.57 proceedings before Agriculture. While DOA’s rules for determining questions of conflict and interference are intended to operate prospectively if possible, enabling an affected employee to postpone his candidacy until final agency action has been taken on his request, nothing in DOA’s implementing rules suggest that the employee should lose his entitlement to APA proceedings if they are not completed, or begun, by the deadline for qualifying as a candidate; indeed, the rules bear a contrary inference. But if they did not bear that inference, APA concepts would dictate the same result, for conceptually an agency’s free-form action refusing an employee authorization for a candidacy is, with APA remedies timely requested and as yet unfulfilled, no agency action at all. General Development Utilities, Inc. v. Department of Environmental Regulation, 417 So.2d 1068, 1070 (Fla. 1st DCA 1982); Szkolny v. State Awards Committee, 395 So.2d 1290, 1294 (Fla. 1st DCA 1981); United States Service Industries-Florida v. State Department of Health and Rehabilitative Services, 385 So.2d 1147, 1148 (Fla. 1st DCA 1980); Graham Contracting, Inc. v. Department of General Services, 363 So.2d 810, 814-15 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 457 (Fla.1979); Capeletti Brothers, Inc. v. State Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979); McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977):

Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily.

Nelson was entitled to qualify as a candidate, to take his opportunity to change the agency’s mind in section 120.57 proceedings, and to assume the risk of failure.

Thus we find that the hearing officer erred in concluding that Nelson, by qualifying as a candidate in the face of Agriculture’s free-form refusal to authorize it, either waived entitlement to APA remedies to obtain that authorization or rendered those remedies “moot,” as the hearing officer put it:

[I]t is obvious that a determination by the review procedure contemplated by Rule 22A-13.032, Florida Administrative Code, is moot.... [W]hen Nelson decided to go forward with his candidacy by taking the candidate’s oath on July 22, 1980, after being advised on July 18 and July 21, 1980, that it would not be approved ... the effect of his decision was to forego the review procedure set forth in Rule 22A-13.032, Florida Administrative Code. Therefore, the only purpose which the formal hearing held in this matter has served is to confirm the factual development of this case, i.e., the fact of Nelson’s decision to run ..., the oral representations to him ... that he would not be allowed to run; his taking of the oath of candidacy ...; the ensuing discussions by various officials within the agency in an attempt to persuade him from pursuing this course, having failed to gain the necessary permission to offer his candidacy; and the eventual termination of his employment....

We find, to the contrary, that Agriculture offered Nelson unrestricted APA proceedings to determine retrospectively whether authorization for his candidacy should have been granted; that Nelson understood the offer to be as comprehensive as it was, and he undertook to show that there was neither “conflict” nor “interference” sufficient for Agriculture to deny him authorization to run; and, indeed, that the hearing officer, by findings he deemed superfluous, but which we deem decisive, found that Nelson’s proposed school board duties would in fact conflict or interfere with his duties as a state forest ranger.

Thus, Agriculture’s letter to Nelson of August 12, 1980, was clear notice to Nelson that “you are deemed to have resigned from your Forest Ranger position” for having qualified as a school board candidate without authorization, but that

[s]ince your decision to qualify as a candidate was made after your request to run had been initially denied by the department and in accordance with Chapter 22A-13.032 of the Career Service Rules, you may request an Administrative Hearing toward obtaining an additional review of your situation. If you wish to make such a request, it should be submitted in writing ....

Nelson replied on August 27, requesting the “appeal” described by Agriculture. Agriculture’s general counsel forwarded the request for hearing to DOAH on August 27, noting that Rule 22A-13.032(1) “provides that the employee has a right to a Section 120.57 ... hearing .... ”

The hearing officer’s notice of hearing, issued October 31,1980, recited that the issues to be determined were:

Consideration of the dismissal of Petitioner from his employment with the Respondent and Respondent’s decision not to allow the Petitioner to qualify as a candidate for election to an office in the State of Florida.

The DOAH proceedings apparently consisted only in receiving exhibits and deposition testimony by Nelson and by his superi- or, the Division director. On this evidence Nelson considered that he had established, retrospectively, his entitlement to run for the school board office; that is to say, Nelson took the position on the evidence that holding the school board position would neither conflict nor interfere with his duties as a forest ranger. Thus, Nelson’s proposed findings of fact and conclusions of law, section 120.57(1)(b)4, recited:

12. Petitioner in this case has established that his candidacy for the local public office did not and would not involve a conflict of interest or interfere with his state employment. See Joint Exhibit 1. Petitioner indicated his willingness to leave the school board meetings if he was on call during one of the nights of the meetings. Petitioner indicated his willingness to take annual leave to attend meetings on days which he was not scheduled to be off. Based on the findings of fact, this tribunal cannot in good faith conclude that Petitioner had any conflict of interest with his state employment. The existence of a prospective possibility of conflict of interest is not enough to sustain a factual finding of conflict of interest by this tribunal. Petitioner has sustained his burden of establishing that there was no conflict of interest between his state employment and running for public office. The agency introduced not even scintilla of evidence of any actual conflict of interest. The agency introduced only evidence of a possible prospective conflict of schedules. This evidence is simply not sufficient to rebut or overcome Petitioner’s showing of no conflict of interest, nor is it sufficient to support a finding of fact of conflict of interest by this tribunal.

For reasons we have described above and found wanting, by recommended order the hearing officer remitted Nelson to the Career Service Commission for review of his termination, and found Nelson had waived or mooted an agency hearing on his entitlement to authorization to become a candidate. Nevertheless, the hearing officer did address the conflicting evidence submitted by Nelson and by Agriculture, and concluded, in findings well supported by the record, that Nelson’s candidacy and his proposed school board office would indeed conflict or interfere with his forest ranger duties:

In fact, the Petitioner’s duty assignment as a forest ranger would conflict at times with his function as School Board Member, in that some of the meetings of the School Board would be held at times when the Petitioner was actively on duty. In addition, the Petitioner is also on call and required to be available in his off-duty time should an emergency arise requiring his assistance as a forest ranger.

In view of the hearing officer’s finding of fact on this noticed and actively litigated issue, we consider that his recommended order and Agriculture’s final order have concluded, in all but the most formal terms, that Nelson is not entitled retrospectively to authorization to run for or hold office on the Wakulla County School Board, because to do so would create conflicts or interference with his duties as a forest ranger. Section 110.233(4)(a), Fla.Stat. (1979); Rules 22A-7.10(4)(a), 22A-13.04, Fla.Admin.Code. Nothing would be accomplished by remanding this case either to DOAH or to Agriculture for entry of a new final order reciting that as a formality. That conclusion is “required by law,” and we so pronounce it, in consequence of findings of fact entered on substantial evidence in the recommended and final orders, after proceedings were fairly conducted under section 120.57. See section 120.68(13)(a)l. Accordingly, we construe Agriculture’s final order as final action terminating Nelson’s employment effective August 15, 1980, for having become a candidate for local public office in the face of his employing agency’s denial of authorization that was found in section 120.57 proceedings to be properly withheld. The order so construed is

AFFIRMED.

JOANOS and THOMPSON, JJ., concur.

      . An employee whose request to run for office is denied by the agency head or DOA is entitled to a section 120.57 hearing before agency head or the Secretary of Administration or his designate for determination of whether approval was withheld unreasonably. Rules 22A-7.10(4)(b), 22A-13.032, Fla.Admin.Code.

      . Rule 22A-13.032(3) provides:
      In proceedings pursuant to this section, the employee shall bear the burden of establishing that his/her candidacy or the duties of the local public office will not involve a conflict of interest or interfere with his/her state employment. If the agency head or Secretary of Administration determines that approval was withheld unreasonably by the agency or Department, respectively, the employee may become a candidate for the requested local public office or continue to hold the local public office without terminating his/her state employment, (emphasis supplied).


text:
    George C. NELSON, Appellant, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. ZZ-240.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 19, 1983.
    See also 424 So.2d 852, 424 So.2d 860.
    Stephen J. Keller of Patterson ?& Trayn-ham, Tallahassee, for appellant.
    Robert A. Chastain, Gen. Counsel for Florida Dept, of Agriculture and Consumer Services, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

This is Nelson’s fourth and final appeal in the related cases decided today. Here he appeals from the Career Service Commission’s order granting the Department of Agriculture’s motion to dismiss for lack of jurisdiction. In one companion case we sustained the Department of Administration Rules 22A-7.10(4)(a) and 22A-13.04 that supplant Career Service Commission review. Department of Administration and Florida Department of Agriculture and Consumer Services v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982). In another we found that Nelson was entitled to and did have the benefit of a section 120.57 hearing on the matters in issue. Nelson v. Florida Department of Agriculture and Consumer Services, 424 So.2d 860 (Fla. 1st DGA 1982). That remedy was exclusive, for the reasons stated in the companion decisions. Consequently, the Career Service Commission was correct in holding that it has no jurisdiction. Its order granting dismissal for lack of jurisdiction is AFFIRMED.

JOANOS and THOMPSON, JJ., concur.


author: PER CURIAM. ANSTEAD, HARRY LEE, Associate Judge,

text:
    Kelvin L. AVERBUCH, Appellant/Cross-Appellee, v. Mary E. AVERBUCH, Appellee/Cross-Appellant.
    Nos. 81-1565, 82-718.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1982.
    Kelvin L. Averbuch, pro se, Port Orange, and Donald C. Jacobson, Daytona Beach, for appellant/cross-appellee.
    Louis Ossinsky, Jr. of Ossinsky, Krol & Hess, Daytona Beach, for appellee/cross-appellant.
   PER CURIAM.

AFFIRMED.

LETTS, GAVIN K., and HURLEY, DANIEL T.K., Associate Judges, concur.

ANSTEAD, HARRY LEE, Associate Judge, concurs specially with opinion.

ANSTEAD, HARRY LEE, Associate Judge,

specially concurring:

I agree with the majority that the husband-appellant has failed to demonstrate reversible error as to any of the trial court rulings attacked on appeal. However, but for the fact that the wife has now remarried and the award of permanent alimony to her thereby terminated, I believe the award of permanent alimony after this marriage of short duration would have constituted error. But since the wife actually received only a small amount of alimony over a brief period of time I think the issue as to permanent alimony has become moot. Clearly the trial court could have ordered an award of rehabilitative alimony for the same brief period. Further, since there is competent substantial evidence in the record that would support a conclusion that at the time of final hearing the husband had sufficient assets to meet the child support obligations imposed upon him, I do not believe we can reverse the trial court’s determination on this issue. This is especially true in light of the husband’s testimony that he had recovered from his drinking problem and had regained control of his personal and professional affairs.


author: JOANOS, Judge.

text:
    James M. McKEE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    Nos. AK-456, AL-168.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.
    Rehearing Denied Jan. 27, 1983.

      Bruce J. Greenspan, Jacksonville, for appellant.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   JOANOS, Judge.

Appellant contends the Parole and Probation Commission incorrectly applied the objective parole guidelines as amended on September 10,1981, in determining his presumptive parole release date. Appellant, who received a minimum mandatory sentence, was one of those inmates affected by this court’s decision in Greer v. Florida Parole and Probation Commission, 403 So.2d 1000 (Fla. 1st DCA 1981). He was interviewed initially on October 29, 1981, pursuant to that decision.

The crimes for which appellant is now incarcerated were committed in 1975 and in February, 1979, before the original objective parole guidelines were adopted on March 20, 1979, thus this case is indistinguishable from Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982). See also Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982), and Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982). Appellant did not allege that the Commission delayed unreasonably in complying with Greer.

AFFIRMED.

SHAW and WIGGINTON, JJ., concur.


author: DOWNEY, Judge.

text:
    Melvin Duane MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 80-136.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 19, 1983.

      Richard L. Jorandby, Public Defender, and John R. Cullom, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Melvin D. Mills pleaded guilty to robbery and attempted burglary of a conveyance. In this appeal from the ensuing judgment and sentence Mills contends the juvenile court judge erred in failing to make written findings of fact regarding all of the criteria listed in Section 39.09(2)(c), Florida Statutes (1979), for transfer of a minor from the juvenile division of the circuit court to the criminal division of the circuit court for criminal prosecution, and that the criminal division of the circuit court to which appellant was transferred erred in (a) failing to obtain a presentence investigation report pursuant to Florida Rule of Criminal Procedure 3.710, and (b) assessing costs against appellant.

After a hearing mandated by Section 39.09(2)(c), the judge of the juvenile division entered a written order setting forth numerous reasons why appellant was being transferred to the criminal division for prosecution. In doing so the judge set forth findings of fact with respect to seven of the eight criteria which he is mandated to consider in determining whether a child should be transferred to adult court. However, because of the provisions of Section 39.09(2)(e), Florida Statutes (1979), compliance with which we hold to be mandatory, the omission of a finding as to Item 5 of subsection C requires that we remand the cause to the juvenile division judge so he may consider that item. Woods v. State, 369 So.2d 632 (Fla. 4th DCA 1979).

The criminal division judge who received appellant’s guilty plea and sentenced appellant failed to obtain a presentence report from the Probation and Parole Commission pursuant to the mandate of Florida Rule of Criminal Procedure 3.710. Appellant was under 18 years of age and therefore a presentence investigation and report was required before sentence could be imposed. It thus appears that this feature of the case should also be remanded to the criminal division judge so he may obtain a presentence report, pursuant to Rule 3.710 and thereafter resentence appellant. De Oca v. State, 326 So.2d 453 (Fla. 4th DCA 1973).

In addition, we reverse the $2 cost assessment, which appellee concedes was improper. See Cox v. State, 334 So.2d 568 (Fla. 1976). Accordingly, the sentence appealed from is vacated and the cause is remanded to the circuit court with directions that the juvenile division judge consider Item 5 of Section 39.09(2)(c), Florida Statutes (1979), and enter a written order regarding that item in accordance with Section 39.09(2)(e), Florida Statutes (1979), and that the criminal division judge obtain a presentence investigation and then resentence appellant, eliminating therefrom any assessment of costs.

LETTS, C.J., and HERSEY, J., concur.

      . Any decision to transfer for criminal prosecution shall be in writing and shall include consideration of, and findings of fact with respect to, each of the foregoing criteria. The court shall render an order including a specific finding of fact and the reasons for a decision to impose adult sanctions. The order shall be reviewable on appeal pursuant to s. 39.14 and the Florida Appellate Rules.

      . The trial court did receive a predisposition report from the Department of Health and Rehabilitative Services which contained a great deal of information about appellant. However, Rule 3.710 requires a Presentence Investigation Report prepared by the parole and probation commission for use by the trial judge in sentencing.

      .Pursuant to the dictates of De Oca, the failure to obtain a presentence report before sentencing requires a remand for resentencing. This is not a situation where the defendant complains that the sentencing judge did not comply with the provisions of Section 39.111(6), Florida Statutes (1979). Were it such a situation, then the holding in Jones v. State, 418 So.2d 1256 (Fla. 4th DCA 1982), would govern the outcome of the sentencing question.


text:
    Otis Bell LURRY, III, Appellant, v. STATE of Florida, Appellee.
    No. 80-171.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 26, 1983.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

On authority of Woods v. State, 369 So.2d 632 (Fla. 4th DCA 1979), and Mills v. State, 424 So.2d 866 (Fla. 4th DCA 1982), we hereby vacate the sentence in this cause and remand the cause to the juvenile division of the circuit court for that division’s entry of a transfer order setting forth the findings of fact with respect to the eight criteria contained in Section 39.02(e), Florida Statutes (1979).

On authority of Jones v. State, 418 So.2d 1256 (Fla. 4th DCA 1982), we hold that appellant has not preserved the error complained of in his second point. However, our holding does not preclude appellant from seeking relief by means of Fla.R.Crim.P. 3.850.

REMANDED with directions.

BERANEK and HERSEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Joseph J. CURCIO, Helen Curcio, his wife, and Crescent 609 Corp., d/b/a Safari Aviation, Appellants/Cross-Appellees, v. CESSNA FINANCE CORPORATION, Appellee/Cross-Appellant, v. CESSNA AIRCRAFT COMPANY, Appellee.
    No. 80-1406.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 26, 1983.

      Howard Todd Jaffee of Kaplan, Jaffee & Gates, P.A., Hollywood, for appellants/cross-appellees.
    G. William Allen, Jr., of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellee/cross-appellant.
    Paul J. Bonavia of Steel, Hector & Davis, Miami, for appellee.
   GLICKSTEIN, Judge.

This is an appeal by Mr. and Mrs. Curcio from an amended final judgment resulting from three adverse jury verdicts as well as a directed verdict. Joining them in the appeal is Crescent 609 Corporation d/b/a Safari Aviation against which two of the jury verdicts as well as the directed verdict remain effective.

Appellee Cessna Finance Company, the recipient of two of the jury verdicts, cross-appeals, contending that Crescent 609 Corporation should not have been removed from the effect of one of the jury verdicts by the trial judge pursuant to post-trial motion.

The action was originated by Cessna Finance Company in 1978 against all three appellants upon an agreement, bond and mortgage executed in May, 1975, for the sum of $141,465.65. The Curcios filed an answer, alleging eleven affirmative defenses. Although one of the defenses was failure to state a cause of action, the only ground asserted was the absence of an allegation that the plaintiff had performed all of its obligations. Mrs. Curcio further asserted that she was not a party to the agreement and executed the bond and mortgage for the purpose of assisting in providing security. In the complaint, Cessna Finance Company alleged that Crescent 609 Corporation was the vehicle by which Mr. Curcio subsequently engaged in buying and leasing aircraft as well as other business related thereto and that the “business” was obligated under the contract as well as Curcio. Crescent filed a short answer in which it asserted only that it was adopting the Curcio answer.

Ultimately, all appellants filed a two-count amended counterclaim against Cessna Finance Company and Cessna Aircraft Company. In Count I, appellants alleged the former to be the alter ego of the latter on the one hand while simultaneously contending in the same count that the two corporations conspired to take away from appellants their aircraft dealership and flight school obtained pursuant to the agreement with Cessna Finance Company. They further alleged that the two corporations defrauded the appellants, ostensibly by inducing them to execute the agreement, bond and mortgage by wrongful assurances as to the dealership and flight school. In the ad damnum clause, compensatory and punitive damages were sought only against Cessna Finance Company. In Count II, appellants alleged Cessna Aircraft Company to be guilty of fraud and sought compensatory and punitive damages against it.

The able trial judge, sensing some eviden-tiary drought, directed a verdict in favor of Cessna Aircraft Company on Count I. However, he let the jury decide the corporation’s fate on Count II as well as that of Cessna Finance Company on its complaint and on Count I of the amended counterclaim. The jury absolved both Cessna corporations of any liability, rendering verdicts against all appellants on the amended counterclaim. It also found that all appellants owed Cessna Finance Company the original sum of the bond and mortgage.

Crescent, by means of motion for new trial or in the alternative to modify final judgment, persuaded the trial court to amend the final judgment and exclude it from the verdict in favor of Cessna Finance Company on the latter’s complaint.

Appellants raise three points in support of the main appeal. As for their first point, they have provided us with no supportive authority whatsoever in either of their briefs (nor has the appellee involved). The point is directed to the verdict in favor of Cessna Finance Company on its complaint and has three elements; namely, that Mrs. Curcio is not liable for damages because she did not execute the agreement as did her husband; that her execution of the bond and mortgage was solely as a legal bystander, her joinder being required by law to make the instrument effective; and that appellee’s action was on the agreement as opposed to a “foreclosure” action on the bond and mortgage. First, the record fails to disclose that appellants made any objection to the introduction of the bond and mortgage on this ground or that they raised this point in their motions for directed verdict; thus it appears their attempt to argue this point for the first time after the trial is untimely. See Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980). Second—and determinative in our thinking — the action was to collect on the bond as well as being based on the agreement, and it is patent by their pursuit of the amended counterclaim that Mr. and Mrs. Curcio, as well as Crescent, collectively considered themselves indispensable parties to the entire transaction. In Gallion v. Belk, 180 So.2d 349 (Fla. 1st DCA 1965) where a joint venture was found, the wife was held liable on a note executed with her husband. The wife in this case claimed direct financial benefit from the transaction; therefore, her execution of the bond had the same legal effect as the execution by her husband. Appellants’ first point then fails.

Their second point is equally uncom-pelling. Again their attack is directed to the verdict rendered in favor of Cessna Finance Company on its complaint, and they contend there was no consideration for Mr. Curcio’s agreement with that corporation. Appellants have apparently considered the evidence in the light most favorable to themselves, which is inappropriate. Our review of the record discloses substantial, competent evidence of consideration.

Third, appellants argue the trial court erred in directing a verdict in favor of Cessna Aircraft Company on Count I of the amended counterclaim. They first contend that there was a question of fact for the jury upon the issue whether Cessna Finance Company was the alter ego of Cessna Aircraft Company. We agree with the trial court’s conclusion that the proof of the latter’s dominance and control of the former was insufficient to be considered by the jury. Appellants’ next propound that there was sufficient proof to go to the jury on the issue of conspiracy by Cessna Aircraft Company. Ignoring the absence of any demand for relief in Count I against the subject corporation, the proof is void of any conspiracy or agreement between the two corporations that would withstand a directed verdict. See Quigg v. Helm, 119 Fla. 693, 161 So. 55 (1935). Therefore, we affirm on the main appeal.

In contrast to appellants’ arguments in the main appeal, that raised by Cessna Finance Company in its cross-appeal has merit. The trial court was convinced by Crescent in its post-trial motion that the verdict against it could not stand, the arguments being that it did not execute the agreement, bond or mortgage and was not in existence when these instruments were executed. There are a number of reasons to compel reversal of that part of the amended final judgment. First, Crescent’s motion on this point was essentially a motion to dismiss on the ground that the complaint failed to state a cause of action. As such, it was untimely because such motion can be made as late as the trial of an action but not thereafter. Fla.R.Civ.P. 1.140(h)(2). Second, the complaint alleges that Mr. Curcio conducted his business by means of Crescent and there is testimony corroborating such conduct after May 1, 1975. Third, not only did Crescent remain silent upon this point in the motions for directed verdict at trial, it simultaneously pursued an amended counterclaim for compensatory and punitive damages against Cessna Finance Corporation based on the transaction it disavowed. Accordingly, on the cross-appeal, we reverse that part of the amended final judgment and remand with direction to reinstate the verdict against Crescent on the original complaint.

AFFIRMED ON APPEAL; REVERSED AND REMANDED ON CROSS-APPEAL.

DOWNEY and HURLEY, JJ., concur.

      . Appellee, Cessna Aircraft Company, the recipient of the directed verdict and one of the three jury verdicts, seeks no affirmative relief from this court.

      . The agreement was a four page letter agreement executed by Mr. Curcio which provided for a number of matters involving Cessna aircraft and which required a bond and mortgage. The “bond” was that type of instrument defined in Black’s Law Dictionary 161 (5th ed. 1979) as:
      A written obligation, made by owner of real property, to repay a loan under specific terms, usually accompanied by a mortgage placed on land as security.
      The land in this case was located in New York, which explains the printed form of bond and mortgage used by the parties. By the terms of the bond and mortgage, the Curcios obligated themselves to pay Cessna Finance Company $154,446.33. The foregoing sum represented the amount owed Cessna Finance Company by third parties who had sold aircraft out of trust. On May 8, 1975, Mr. Curcio executed an agreement with these third parties by which he undertook the obligation to enter into a separate agreement with Cessna Finance Company to pay the sum owed by the third parties. The Curcio-Cessna letter agreement is dated May 7, 1975, and the date of execution of the bond and mortgage is May 12, 1975.

      . The initial pleading against Cessna Aircraft Company was a third party complaint, which the trial court later permitted to be restyled so that both Cessna corporations were “counter-defendants.”

      . Illustrative of this claim is paragraph 10 of the amended counterclaim wherein Mrs. Curcio and the other appellants allege the counterde-fendants conspired to take away from them the aircraft dealership and flight school extended to' appellants in exchange for the agreement, bond and mortgage.

      . In Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982) we discussed at length parent liability based on the theory of alter ego and in a note suggested that the issue becomes one of fact. That suggestion presupposes proof of sufficient indicia of dominance and control. In this case, the only elements of dominance and control were (1) aircraft’s ownership of Finance’s capital stock; (2) a common director shared by both corporations; (3) Finance’s lease or purchase of time on Aircraft’s computer; (4) Finance’s lease of space for its corporate offices on the grounds of a fabrication plant owned by Aircraft; (5) use of the existence of Finance as a selling point for Aircraft in seeking out new dealers; and (6) an attorney’s representation of both corporations.

      .While it played no part in our review of the directed verdict in favor of Cessna Aircraft company, the jury did consider Count I as to Cessna Finance Company — which the evidence established as the major protagonist — and absolved it of any liability for conspiracy and fraud.

      . Fla.R.Civ.P. 1.140(h)(2) provides:
      The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised in either a motion under subdivision (b) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time.
      The concomitant federal rule is Fed.R.Civ.P. 12(h)(2), which provides:
      A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.
      In discussing the federal rule, 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1392 (1969) states:
      According to the plain language of Rule 12(h)(2), the three enumerated defenses are waived if they are not presented before the close of trial. Thus, for example, they may not be asserted for the first time on appeal and at least one court of appeals has held that the words “at the trial” do not permit the defense to be asserted by a motion for judgment notwithstanding the verdict.
      (Footnote omitted.)
      We have earlier alluded to the absence of anything in Crescent’s answer to raise this question before the trial court; and we do not find it raised thereafter in timely fashion.

      . See Diaz v. Rodriguez, 384 So.2d at 907.


text:
    William MEAGHER, Appellant, v. STATE of Florida, Appellee.
    No. 82-297.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 26, 1983.

      Richard L. Jorandby, Public Defender, and Ellen Morris, 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.
   GLICKSTEIN, Judge.

We are asked in this appeal to reverse the judgment of aggravated battery and sentence of ten years entered by the trial court in Broward County and to remand with direction that appellant be permitted to withdraw his plea of nolo contendere. We reluctantly do so. Our reluctance is occasioned by the care and deliberation given this matter by the trial judge who had the onerous task of working his way through a jurisprudential mine field. He was faced with the dilemma of a twenty-four-year-old paranoid schizophrenic who had spent twelve years in mental institutions and who was being held at the South Florida State Hospital pursuant to a court order. This same twenty-four-year-old who had admitted to the crime of throwing an inflammable liquid onto an employee at the South Florida State Hospital and igniting it, had also later raised pro se the issue of conflict of interest between the public defender and himself. It is the conflict of interest issue which compels reversal.

The chronology of events establishes that on September 15,1981, appellant moved pro se to disqualify the public defender and to appoint private counsel as special public defender. On October 5, 1981, appellant and his public defender appeared before the trial judge, and although the pro se motion was denied, the trial judge gave the public defender leave to file a motion to withdraw after he had discussed the question of conflict with his superior. On October 7th, the trial court heard testimony from three psychiatrists as to appellant’s competency to go to trial. One testified that appellant was feigning mental illness; another, that he had a personality disorder; and the third, that he had a mental illness but was not psychotic. All apparently believed he was competent to stand trial and the trial court so found.

The critical date for the purposes of this decision was October 19th. On that date the trial court considered appellant’s change of plea. There were two hearings — morning and afternoon — and two factual settings. In the earlier hearing, it was brought out that appellant had nine pending charges in Dade County, six of which were life felonies. The public defender announced that appellant wished to plead nolo contendere to the aggravated battery charge, conditioned upon denial of an ore tenus motion which had been made to discharge appellant because of a speedy trial violation. When sworn, appellant testified that the only possible defense he would have to the charge would be insanity; and that with the present testimony such defense was not tenable. He also testified that his public defender should not be allowed to represent him because of their conflict of interest and because of the ineffective assistance of counsel which he had received; but he also said that the result in the ease would be the same with effective assistance of counsel. Finally, he testified that he would prefer to defer his decision on a change of plea until after the trial of the nine charges in Dade County scheduled for the following week.

After the lunch break, the public defender informed the court that appellant desired to proceed with the change of plea but the entire discussion then turned to the critical issue of conflict of interest. Appellant said the conflict was his only problem and that he understood he could appeal the issue. The trial court then proceeded with the express understanding that appellant was preserving his right to appeal the denial of his pro se motion to compel the public defender to withdraw; and we are absolutely convinced that appellant went through with the change of plea in large measure because of that understanding.

Of course, a plea of nolo conten-dere which is made subject to the condition that the defendant be allowed to file an appeal is permissible only when the legal issue to be determined on appeal is disposi-tive of the case. Brown v. State, 376 So.2d 382 (Fla.1979). In this case the conflict issue was clearly not dispositive of the case. Appellant had the right to know that — particularly in view of the unanimity among the psychiatrists as to his competency to understand and participate in all of the judicial proceedings involving the pending charge — and it was prejudicial error for the trial court to lead him to think otherwise.

This error is compounded by the additional fact that on November 25, 1981, the public defender moved to withdraw as counsel for appellant upon substantially the same reasons that appellant had earlier sought withdrawal by his pro se motion. As the public defender’s motion was granted, the net effect was that the change of plea was sandwiched between the two motions to withdraw, at a time when the question of conflict was unresolved and suspended because of the trial court’s earlier grant of leave to the public defender to file such motion. It was incumbent upon the assistant public defender to resolve the conflict issue with his superiors and to make any motion to withdraw prior to involving himself in a change of plea. We acknowledge the obvious; namely, that there were reasons to conduct a hearing on a change of plea at that particular time. Unfortunately, the lack of resolution by the public defender as to whether that office was going to withdraw simply was overlooked.

ANSTEAD and HURLEY, JJ., concur.

      . In imposing the sentence the trial judge recommended that:
      this case be brought to immediate attention of Mr. Schreimer, Mental Health Director of Department of Corrections. Defendant has a history of mental illness, paranoid schizophrenic [sic] and should be evaluated immediately for consideration to transfer to hospital facility under F.S. 945.12.

      . , There is a chronological footnote that bears mentioning. After the appointment of a special public defender to represent appellant, the trial court heard testimony of two psychiatrists on January 28, 1982. One, who had testified in October, 1981, that appellant was mentally ill but not psychotic, now testified that appellant was presently “insane but competent” and that he had been the same when the earlier testimony was given. He diagnosed appellant as a paranoid schizophrenic who should be committed to a state hospital. Another psychiatrist, who did not testify previously in this case, opined that appellant was psychotic and should be exonerated from legal responsibility; and that he must be carefully watched so that he does not hurt himself or others — but that he was competent. In sum, the trial court had the uncontradicted testimony of four psychiatrists that appellant was competent to stand trial, while two of whom were also simultaneously of the opinion that appellant was medically, not legally, insane.


author: MILLS, Judge.

text:
    Elaine W. PARKS, Appellant, v. Ralph A. PARKS, Appellee.
    No. AL-361.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 19, 1983.

      Gregory W. Johnson of Weil, Johnson & Benson, Jacksonville, for appellant.
    Edward A. Dempsey, Jr., Jacksonville, for appellee.
   MILLS, Judge.

The wife appeals an order modifying a child support provision. We affirm.

In light of the husband’s support of the college-age child, his substantial contributions toward the family’s medical expenses, and the frequency with which the minor daughter visits the husband, we cannot describe the increase of $10 weekly from $115 to $125 weekly, as well as private school tuition, as an abuse of discretion.

Given the temporary support order entered in this case, it was not error not to make the modification retroactive.

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.


author: PER CURIAM.

text:
    Bill M. DAVIS, Appellant, v. STATE of Florida, Appellee.
    Nos. AF-372, AF-373.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Rehearing Denied Jan. 19, 1983.
    Michael J. Korn and Tyrie A. Boyer of Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

The Duval County Grand Jury returned two indictments against appellant, Davis, charging violations of Florida’s theft statute, Section 812.014, Florida Statutes. A jury found appellant guilty of both charges. We reverse.

In October of 1980, appellant was employed as City Manager of the City of Atlantic Beach. During that month, he attended the Florida League of Cities Convention with the members of the City Commission, including Commissioner/Mayor Howell. All of these individuals planned to spend time at the convention working for the election of Mayor Howell as President of the Florida League of Cities. In anticipation of the expense of such a campaign, both the Mayor’s and the City Manager’s expense accounts had been increased from $1,200.00 each to $1,500.00 each for the 1980 budget year. In preparation for the trip, appellant and each commissioner received per diem and mileage checks. Appellant received $377.20 representing his per diem and mileage for the trip. One hundred thirty-seven dollars and twenty cents ($137.20) of this amount represented mileage. Appellant requested and received an additional twelve hundred dollars ($1,200.00) from the City Comptroller, Mrs. Tucker.

THE MILEAGE CHECK

Mileage and per diem expenses for travel by City of Atlantic Beach employees are governed by resolution. Prior to 1980 these amounts were set by resolution 72-8, which purported to bring the amounts paid and reporting requirements in line with those established for state employees. Evidence at trial showed that this resolution was amended in 1980 by resolution 80-6 because the amounts reflected in resolution 72-8 were no longer adequate due to the effects of inflation, and because state reporting requirements were seen as too strict.

Immediately prior to the trip Mrs. Tucker computed the mileage involved and prepared checks for the commissioners based on the mileage and per diem figures set out in resolution 80-6. Appellant and at least one other commissioner received travel monies in cash. There is no evidence that the money was accompanied by any documentation showing a mileage/per diem breakdown, nor is there any evidence that Mrs. Tucker informed the recipients of any such breakdown. The checks introduced into evidence, similarly show only a single sum, with no indication that separate categories of money were included in the amount.

The state did not at trial, and does not now contend that appellant knew the monies he received included money for mileage. Rather, the state contends that appellant should have known, because, as part of his duties, he had drafted resolution 80-6. However, it is clear that all the participants realized that a convention the size of the Florida League of Cities would be quite expensive, especially in light of the Mayor’s ambitions and the concomitant duty to politic and entertain which would fall on the various members of the commission. As previously noted, resolution 80-6 provided for. the expenditure of more than $40 per diem, with supporting documentation. The requirement of prior commission approval, present in resolution 72-8, was deleted in resolution 80-6. Thus, under the guidelines in evidence, it appears that city employees could exceed the $40 per diem cap while traveling on city business, but if they did so without furnishing supporting documentation, they would not be entitled to reimbursement. Among the receipts introduced was appellant’s hotel bill. There is no indication in the record that anyone other than appellant paid this bilí. The amount of the hotel bill added to the amounts of appellant’s other receipts nearly equals the total amount of the expense check, $376.53 as against $377.20.

There is no evidence that appellant expended this money for any purpose except expenses incurred during the convention. Rather, the state’s case was based solely on the fact that a portion of the money which appellant received represented mileage money and appellant rode to the convention in a commissioner’s automobile, the Commissioner having also received an amount for mileage.

The fact that Mrs. Tucker handed him cash, a portion of which, in her mind, represented mileage, cannot support appellant’s conviction of grand theft in light of resolution 80-6 which permitted him to exceed the per diem cap. Nor can Mrs. Tucker’s testimony that appellant did not timely document his expenditures support the conviction in light of the evidence that all of the money was accounted for, albeit tardily, and none of the expenditures were challenged as being for other than a valid municipal purpose.

II. THE EXPENSE ACCOUNT CHECK

At the time appellant received his travel money from Mrs. Tucker, he also received an additional twelve hundred dollars ($1,200.00) in cash. The city budget contained line item expense accounts for the Mayor and the City Manager in the amount of $1,500.00 each. Witnesses were in agreement that this amount was raised from the previous year’s $1,200.00 because it was anticipated that additional entertaining would be necessary at the Florida League of Cities Convention due to the Mayor’s campaign for president of that organization.

In accounting for this money appellant returned in excess of $500.00 cash and two receipts. One of these was identified as a receipt from a luncheon for voting delegates, the other as the receipt from a dinner for the Atlantic City Beach Commissioners. Evidence at trial showed the “luncheon” receipt was actually from the dinner for the commissioners and the “dinner” receipt (in the amount of $452.90) was a “composite.” Appellant testified he received a blank receipt at one of the convention restaurants and filled it in just to have “some record” of money expended at the convention.

The question before us is whether the fraudulent receipt is sufficient evidence from which the jury could have found appellant guilty of grand theft. We hold that under the facts of this case, it was not. Appellant was required to use this money in furtherance of the Mayor’s campaign at the League of Cities Convention. The state introduced no evidence showing or tending to show that appellant used the money for any purpose other than in furtherance of the established municipal purpose of obtaining the Mayor’s election to the presidency of the League.

We do not condone appellant’s failure to properly account at his earliest opportunity for the expenditure of these funds. Nor are we insensitive to the existence of “white collar crime” and the difficulties attendant to proving such offenses. Here, however, the appellant rightfully received the money and attended the convention at which he was to spend it. The City had furnished no guidelines as to how the money was to be spent or accounted for. At trial appellant testified as to the various expenditures represented by the $452.90 receipt.

In the absence of some showing by the state that appellant wrongfully used the money, his convictions cannot stand.

REVERSED.

LARRY G. SMITH, JOANOS and THOMPSON, JJ., concur.

      . Indictment number 81-3377-CF charged, in pertinent part, that “... Bill M. Davis, on or between the 21st day of October, 1980, and the 27th day of October, 1980, in the County of Duval and the State of Florida, did knowingly obtain or use or endeavor to obtain or use money of a value of One Hundred Dollars ($100.00) or more but less than Twenty Thousand Dollars, the property of the City of Atlantic Beach, Florida, with intent to deprive the said City of Atlantic Beach, Florida, of a right to the property or benefit therefrom or with intent to appropriate the money to his own use or to the use of any person not entitled thereto, to wit: By causing a check to be issued to said Bill M. Davis in the amount of $377.20 on the account of the City of Atlantic Beach, Florida, and receiving cash from said check in the amount of $137.20 which represented mileage on a trip for which said Bill M. Davis was not entitled to mileage, contrary to the provisions of Section 812.014, Florida Statutes.”
      Indictment number 81-3378-CF charged Bill M. Davis with committing the offense, “... by causing a check to be issued to said Bill M. Davis in the amount of Twelve Hundred Dollars on the account of the City of Atlantic Beach, Florida, and receiving the cash therefrom and misappropriating some or all of said $1,200 but at least an amount of $100.00 or more, contrary to the provisions of Section 812.014, Florida Statutes.”

      .Section 812.014, Florida Statutes (1979) provides:
      (1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent:
      (a) To deprive the other person of a right to the property or a benefit therefrom.
      (b) To appropriate the property to his own use or to the use of any person not entitled thereto.
      Subsection (2)(b) provides: It is grand theft of the second degree and a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084, if the property stolen is:
      1. Valued at $100.00 or more, but less than $20,000.00. Section 812.012(2) defines “obtains or uses” as:
      (a) Taking or exercising control over property.
      (b) Making any unauthorized use, disposition, or transfer of property.
      (c) Obtaining property by fraud.
      (d) 1. Conduct previously known as stealing; larceny, purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception; or
      2. Other conduct similar in nature.

      . These expense accounts appear only as line items in the City budget. Members of the City Commission testified that these accounts were to be used to pay expenses incurred while travelling on City business. The record contains no other evidence regarding their use. It is clear that both appellant and the Mayor received mileage and per diem money on this occasion. There is no indication that this money came from or would be credited to their respective expense accounts. In fact, it may be reasonably inferred from the record that these expense accounts were intended to supplement ordinary per diem and mileage expenses.

      . City Resolution 72-8 provides:
      WHEREAS, it is the opinion of the City Commission of the City of Atlantic Beach, Florida, that there has never been a firm policy as to the re-imbursement to City officials and employees of expenses incurred in matters requiring their presence out-of-town overnight, or for any extended period of time, and WHEREAS, it is the opinion of said City Commission that no firm policy exists in regard to re-imbursement to City officials and employees for expenses incurred in the use of private cars on such out-of-town journeys, and
      WHEREAS, no firm policy exists in regard to re-imbursement to City officials and employees in respect of expenses incurred for attendance at professional seminars and conventions entailing payment of all reasonable and necessary registration fees, etc.,
      NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF ATLANTIC BEACH, FLORIDA:
      1. That, City officials and employees be re-imbursed for expenses incurred in matters requiring their presence out-of-town overnight, or for any extended period of time at the rate of $25.00 per day (conforming to State law covering State officials and employees [sic] and, upon exceptional occasions, with prior City Commission approval and subsequent supporting documentation, the City Commission may allow a larger per diem.
      2. Should commercial transportation be used, accommodation should be paid for at the most reasonable rate. In the case of air travel this shall be at Tourist rates.
      3. That, City officials and employees be re-imbursed for use of private cars for transportation at the rate of 12c per mile, round trip.
      4. That, City officials and employees be re-imbursed in respect of expenses incurred for attendance at professional seminars and conventions entailing payment of all reasonable and necessary registration fees, etc.

      . Section 112.061, Florida Statutes (1972). Section 112.061(11) provided that fraudulent expense claims were punishable as second degree misdemeanors.

      . City Resolution 80-6 provides:
      WHEREAS, it is the opinion of the City Commission of the City of Atlantic Beach, Florida, that the reimbursement rates for travel outside the City as the same is [sic] contained in Resolution No. 72-8 are no longer adequate due to the inflationary factor, and WHEREAS, it is further the opinion of the City Commission that City Officials and employees who are required on periodic occasions to travel outside this City should do so at no expense to themselves for normal accommodations and normal travel arrangements,
      NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF ATLANTIC BEACH, FLORIDA:
      1. That, City Officials and employees be reimbursed for expenses incurred in matters requiring their presence out of town overnight, or for any extended period of time at a rate not to exceed $40.00 per 24-hour period with supporting documentation. Additionally, normal room accommodations will be paid over and above the maximum $40.00 per day per diem, provided supporting documentation is furnished.
      2. Should commercial transportation be used, accommodation should be paid for at the most reasonable rate. In the case of air travel this shall be at Tourist rates.
      3. That, City officials and employees be reimbursed for use of private cars for transportation at the rate of 20$ per mile, round trip.
      4. That, City officials and employees be reimbursed in respect of expenses incurred for attendance at professional seminars and conventions entailing payment of all reasonable and necessary registration fees, etc.

      .We need not decide whether a municipality may enact travel provisions at variance with Section 112.061, Florida Statutes. The State did not charge appellant under this Section, nor has appellant defended on this basis. In this regard, see, op. of the Att’y Gen. of Fla. 074-81 (January 14, 1974); op. of the Att’y Gen. of Fla. 076-127 (June 3, 1976).

      . See, footnote 6.

      . In addition to the provision for exceeding per diem expenses contained in paragraph 1. of resolution 80-6, paragraph 4. provides for payment of all “reasonable and necessary registration fees, etc... ” incurred for attendance at professional seminars and conventions.

      . A portion of the City Charter, included in the record, requires the Comptroller to prescribe all forms of accounting and receipts to be used by the City. There is no indication in the record that this was ever done.

      . See, footnote 5.

      . It has long been settled in Florida that where the State relies solely on circumstantial evidence, the evidence must be such as to exclude every reasonable hypothesis of innocence. McGough v. State, 302 So.2d 751 (Fla.1974); Gunn v. State, 78 Fla. 599, 83 So. 511 (Fla.1919); McBride v. State, 338 So.2d 567 (Fla. 1st DCA 1976).


author: WIGGINTON, Judge.

text:
    PLANTATION RESIDENTS’ ASSOCIATION, INC., et al., Appellants, v. SCHOOL BOARD OF BROWARD COUNTY, Florida, Appellee.
    No. AN-473.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Rehearing Denied Jan. 26, 1983.

      Lawrence Bunin, Hollywood, for appellants.
    Edward J. Marko of Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
   WIGGINTON, Judge.

The Plantation Residents’ Association, a group of concerned parents of public school students in Broward County, appeals from an order of the Division of Administrative Hearings that let stand certain high school attendance area boundary changes recently enacted by the Broward County School Board. The parents have claimed that the proposed boundary changes were arbitrary and capricious, that they were unlawfully made without benefit of a proper statutorily-required economic impact statement, and that they constitute a violation of the affected students’ rights to equal protection.

This controversy involves six Broward County high schools: Taravella and Western High, two new schools; Dillard and Ely, which are predominantly black; Pompano and Plantation, predominantly white. Under the boards’ plan, some Dillard and Ely students will be going to the new schools, and certain white Plantation and Pompano students will “replace” them in the boards’ effort to minimize the anticipated decrease in the ratio of whites to blacks at Dillard and Ely.

The parents’ primary argument against the proposed rule is that the board was misinformed or misled in its decision making — misinformed as to the facts, and misled in the belief that the county may be legally required to continue its artificial control of the racial mixture at Dillard and Ely. The parents forcefully argue that once a school system has desegregated, the school board is not required to correct future racial imbalances that may occur as a result of natural demographic shifts, citing Swann v. Charlotte-Mecklenburg, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and other authorities. Because white students will be zoned out of Dillard and Ely and into the newly built schools simply because of natural demographic shifts, the parents contend, the board, misunderstanding its obligations, will needlessly require a readjustment in the Dillard and Ely racial mixtures.

We do not believe this argument merits reversal. First, even assuming that the parents’ interpretation of the law is correct, there is no assurance that a federal court would find that the new schools have appeared strictly as a result of natural demographic shifts or that their attendance zones have been drawn to avoid de facto segregation.

Second, despite the uncertainty about whether the board was legally compelled to introduce more white students at Dillard and Ely, it is clear that the school board had the authority to decide that the maintenance of such a racial mixture may be a legitimate board policy. See generally Darville v. Dade County School Board, 497 F.2d 1002 (5th Cir.1974). The school board is composed of elected officials who serve a quasi-legislative function when they draw school zone boundary lines. A reviewing court may overturn a boundary line decision only when the school board has given in to a flagrant abuse of discretion. See Polk and authorities cited therein. That is why we are compelled to sustain the board’s action. Where, as here, the school board makes a decision within its discretion, the aggrieved parents’ remedy is not judicial, but political.

In short, we find no error in the hearing officer’s order regarding the parents’ claim that the proposed boundary lines were so arbitrarily and capriciously drawn as to be unlawful.

Similarly, we must affirm the hearing officer on the equal protection issue. The parents have not demonstrated that, once the board adopted a policy of maintaining a racial mixture at the schools, the rezoning of the school boundaries was an irrational or unreasonable means to implement that policy. Accordingly, the hearing officer did not err in rejecting the parents’ constitutional challenge.

Finally, we affirm the hearing officer’s findings that any deficiencies in the boards’ economic impact statement did not impair the fairness of the proceedings. The requirements of Section 120.54(2) (1981) do not oblige the hearing officer to reverse a school board decision solely on the basis that the attendant economic impact study appears to be facially deficient. Such a standard would add a transparent technicality to the rule-making process and would exalt form over substance. See Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944 (Fla.1980). Here, it is arguable that the school board’s economic impact statement was less than thorough. However, if proceedings are not rendered unfair, or if the action is not found to be incorrect, then minimal deficiencies in an economic impact statement will not constitute reversible error. Florida-Texas Freight; School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979). The hearing officer acted within his authority in finding no prejudicial error occurred.

The order of the Division of Administrative Hearings is AFFIRMED.

SHAW and JOANOS, JJ., concur.

      . Sec. 120.54(2) requires that each agency provide an “adequate” economic impact statement before adopting, amending or repealing any rule. ■

      . The process of drawing school zone boundary lines is rule-making within the meaning of Section 120.54, Fla.Stat. (1981). See Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979).


text:
    Timothy Duane HARRELL, by his next friend Herman B. HARRELL, and Herman B. Harrell, individually, Appellants, v. Horace SELLARS, Barbara Jean Messer, Capital City First National Bank, J.D. Harris, Safeco Insurance Company of America, Allstate Insurance Company and State Farm Mutual Automobile Insurance Company, Appellees.
    No. AH-443.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.
    Rehearing Denied Jan. 19, 1983.

      P. Kevin Davey of Douglass, Davey & Cooper, Tallahassee, for appellants.
    David W. Spicer of McFarlain, Bobo, Sternstein, Wiley & Cassedy, Tallahassee, Ronald E. Cabaniss and Lori J. Caldwell of Rumberger, Kirk, Caldwell & Cabaniss, Orlando, Jon D. Caminez and Paul D. Srygley, Tallahassee, for appellees.
   MILLS, Judge.

. Harrell appeals and Sellars cross-appeals a judgment following a nonjury trial. The trial court found that Sellars was the beneficial owner of a 1973 Pinto and entered judgment in favor of the defendants, Capital City First National Bank, its insurer, and Safeco. We affirm.

This litigation arose from an accident involving the Pinto driven by Barbara Jean Messer, the step-daughter of Sellars. The car had been sold by Sellars to Harris with financing by the Bank. Sellars co-signed Harris’s note. When Harris defaulted, the Bank looked to Sellars. The car was repossessed at Sellars’ instigation.

There is ample evidence that Sellars had control over the vehicle. He maintained and stored it. He had it available for his regular use. He was making the payments on it. Beneficial ownership was properly found in Sellars although legal title remained in Harris and the Bank held the certificate of title and Harris’s power of attorney.

These facts do not require a finding of any bailment of the auto to the Bank by either Harris or Sellars.

Because the auto was available for Sellars’ regular use, in fact beneficially owned by Sellars, it clearly was excluded under Sellars’ insurance policy with Safeco. Alternatively, Messer, Sellars’ step-daughter, was clearly resident of her mother’s separate household and, therefore, her accidents are not covered under the policy.

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.


text:
    STATE of Florida, Appellant, v. Stephen Richard MOORE, Appellee.
    No. AK-231.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.
    Rehearing Denied Jan. 26, 1983.

      Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellant.
    Larry G. Turner and Thomas W. Kurrus, Gainesville, for appellee.
   JOANOS, Judge.

The State of Florida appeals a non-final order granting Moore’s motion to suppress evidence based upon a finding that section 812.055, Florida Statutes (1981), is unconstitutional. We agree with the state’s position and reverse.

We concur in the well-reasoned analysis of the Fourth District Court of Appeal in Bludworth v. Arcuri, 416 So.2d 882 (Fla. 4th DCA 1982), where the constitutionality of Section 812.055, Florida Statutes (1981), was upheld. Section 812.055, Florida Statutes (1981), is limited to specified commercial establishments (here, a motor vehicle repair shop) and to execution during normal business hours, so there is no unlawful infringement of Moore’s private property as he contends. Moore is on notice by the statute’s clear language and the searching officer does not have unbridled discretion, as the statute specifically limits the purpose of the inspection.

Accordingly, the trial court’s order is REVERSED.

SHAW and WIGGINTON, JJ., concur.