text:
    Robert GRAHAM et al., Appellants, v. Gul T. RAMANI, Appellee.
    No. 57076.
    Supreme Court of Florida.
    May 1, 1980.
    Jim Smith, Atty. Gen., and Pamela L. Lutton and Martin S. Friedman, Asst. At-tys. Gen., Tallahassee, for appellants.
    Joel V. Lumer, Miami, for appellee.
   ALDERMAN, Justice.

This is an appeal from an order of the trial court declaring unconstitutional that part of section 117.01, Florida Statutes (1977), requiring notaries public to be citizens of the United States. We affirm the trial court and hold that the citizenship requirement of section 117.01(1) violates the equal protection guarantee of the fourteenth amendment of the constitution of the United States.

Gul T. Ramani, a member of The Florida Bar and a resident alien, applied for a notary public commission pursuant to chapter 117 Florida Statutes (1977). His application was denied because he was not a citizen of the United States. He then filed a complaint asserting that this denial violated his right to equal protection of the laws. In reaching its decision, the trial court concluded that a notary public’s duties are not discretionary and do not affect the state’s constitutional responsibility for establishing and operating its own governmental and democratic political institutions and that the constitutionality of the citizenship requirement of section 117.01(1) is correctly measured by the strict scrutiny test. Seeking reversal of this decision, the State contends that the trial court should have used the rational relationship test instead of the strict scrutiny test and should have found a reasonable basis for this alienage-based classification.

To resolve this appeal, we must first determine the applicable constitutional standard. To make this determination, we look to the United States Supreme Court decisions dealing with aliens’ rights.

It has been long settled that the term “person,” in the context of the fourteenth amendment, encompasses lawfully admitted resident aliens as well as citizens of the United States and that the fourteenth amendment entitles both citizens and aliens to the equal protection of the laws of the state in which they reside. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).

In some early cases, however, the Supreme Court upheld state statutes that treated citizens and aliens differently, the ground for distinction being that such laws were necessary to protect special interests of the state or its citizens. For example, the Court upheld statutes that, in the absence of overriding treaties, limited the rights of non-citizens to. engage in exploitation of a state’s natural resources, restrict-ed the devolution of real property to aliens, or denied to aliens the right to acquire land.

But doubt was cast upon the continuing validity of the special public interest doctrine when, in 1948, the Court held that California’s claim of ownership of ocean fish in its territorial waters was not such a special public interest as would justify the state’s prohibiting aliens from making a living by fishing in those waters while permitting its citizens to do so. Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). The vitality of the special interest doctrine in other contexts was further undercut when, in 1971, the Court held that a state may not condition welfare payments on United States citizenship. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). It became clear from these decisions that the power of a state to apply its law exclusively to its alien inhabitants as a class is confined within narrow limits. Under traditional equal protection principles, a state retains broad discretion to classify as long as its classification has a reasonable basis, but classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.

In 1973, the Court decided In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). At issue was a Connecticut statute that prohibited aliens from taking the state bar examination. In accordance with this law, Griffiths, a Connecticut resident and a Netherlands citizen, was denied permission to sit for the examination. Connecticut defended the law, arguing that by statute a Connecticut lawyer is a public officer with authority to sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgments of deeds. Connecticut also argued that an alien might have a conflict of loyalty between the courts and clients in favor of a foreign nation. The Court rejected this argument and explained:

We find these arguments unconvincing. It in no way denigrates a lawyer’s high responsibilities to observe that the powers “to sign writs and subpoenas, take recognizances, [and] administer oaths” hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens. Nor do we think that the practice of law offers meaningful opportunities adversely to affect the interest of the United States. Certainly . [Connecticut] has failed to show the relevance of citizenship to any likelihood that a lawyer will fail to protect faithfully the interest of his clients.

413 U.S. at 724, 93 S.Ct. at 2856. The law was stricken as violative of the equal protection clause.

Griffiths becomes even more significant when it is read' in conjunction with Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973). In Sugarman, which was decided on the same day as Griffiths, a New York statute forbade appointment of an alien to any competitive class civil service position. As a result, Dougall, an alien, was discharged from his job. He and others then brought a class action suit challenging the statute’s constitutionality. The question before the court was “whether New York’s flat statutory prohibition against the employment of aliens in the competitive classified civil service is constitutionally valid.” 413 U.S. at 639, 93 S.Ct. at 2846. The Court said:

[I]n seeking to achieve this substantial purpose, [defining and limiting participation in the political community] with discrimination against aliens, the means the State employs must be precisely drawn in light of the acknowledged purpose.
In view of the breadth and imprecision of . [the law] in the context of the State’s interest, we conclude that the statute does not withstand close judicial scrutiny.

413 U.S. at 643, 93 S.Ct. at 2848. The Court concluded that the New York law violated equal protection, saying:

“[E]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” . Such power inheres in the State by virtue of its obligation . . . “to preserve the basic conception of a political community.” . . . And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government. There ... is “where citizenship bears some rational relationship to the special demands of the particular position.”

413 U.S. at 647, 93 S.Ct. at 2850 (emphasis added).

A similar result was reached in Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). The issue there was whether New York could constitutionally bar certain resident aliens from state financial assistance for higher education. New York required that an applicant for educational financial assistance be a United States citizen or that he submit a statement affirming his intention to apply for citizenship as soon as he is eligible. Mauclet filed a statement indicating he intended to retain his French citizenship, and therefore his application for assistance was not processed. The Court said:

[Classifications by a State that are based on alienage are “inherently suspect and subject to close judicial scrutiny.” [Citations omitted.] In undertaking this scrutiny, “the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.”

432 U.S. at 7, 97 S.Ct. at 2124. New York attempted to justify this limitation as an attempt to preserve its political community. The Court recognized that alienage may be considered in establishing and limiting participation in the state government but .only when the official participates directly in the formulation, execution, or review of broad public policy. 432 U.S. at 11, 97 S.Ct. at 2126, citing Sugarman, 413 U.S. at 642, 93 S.Ct. at 2847.

In Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), another New York law provides an example of a valid restriction based on citizenship. Foley, who was a resident alien, claimed that a statute requiring state policemen to be United States citizens violated his equal protection rights. In analyzing that claim, the Court concluded that every restriction based on alienage need not be subjected to strict scrutiny. When the matter is within the state’s constitutional prerogatives, the state needs to show only a rational relationship between the interest sought to be protected and the limitation classification. Chief Justice Burger, speaking for the Court, said:

[I]t is clear that a State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions. [Citation omitted.] Similar considerations support a legislative determination to exclude aliens from jury service. [Citation omitted.] Likewise, we have recognized that citizenship may be a relevant qualification for fulfilling those “important nonelective executive, legislative, and judicial positions,” held by “officers who participate directly in the formulation, execution, or review of broad public policy.” [Citation omitted.] This is not because our society seeks to reserve the better jobs to its members. Rather, it is because this country entrusts many of its most important policy responsibilities to these officers, the discretionary exercise of which can often more immediately affect the lives of citizens than even the ballot of a voter or the choice of a legislator. In sum, then, it represents the choice, and right, of the people to be governed by their citizen peers. To effectuate this result, we must necessarily examine each position in question to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community.
The essence of our holdings to date is that although we extend to aliens the right to education and public welfare along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens.

435 U.S. at 296-97, 98 S.Ct. at 1070-1071. The Court then examined the functions of police and determined that they are fundamental obligations of a government to its constituency. “The execution of the broad powers vested in them affects members of the public significantly and often in the most sensitive areas of daily life.” 435 U.S. at 297, 98 S.Ct. at 1071. It went on to say:

Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals. ... A policeman vested with . discretionary powers . is not to be equated with a private person engaged in routine public employment or other “common occupations of the community” who exercises no broad power over people generally. .

435 U.S. at 298-99, 98 S.Ct. at 1072 (emphasis added). The law was upheld.

Another example of a valid restriction based on citizenship is found in Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979). At issue was a New York statute forbidding certification as a public schoolteacher of any person who is not a citizen of the United States unless that person has manifested an intention to apply for citizenship. The Court concluded that some state functions are so bound up with the operation of the state as a governmental entity so as to permit the exclusion from those functions all persons who have not become a part of the process of self-government, and thus the state is required to justify exclusion of aliens from such governmental positions only by showing some rational relationship between the interest sought to be protected and the limiting classification. The Court then considered the role of public education and the degree of responsibility and discretion teachers possess in fulfilling that role. The manner in which a teacher daily exercises this discretion can influence a student’s attitude toward government and the political process. The Court found that since public schoolteachers may be regarded as performing a task that goes to the heart of representative government, the law requires only that a citizenship requirement applicable to teaching in the public school bear a rational relationship to a legitimate state interest. Applying the rational relationship test, the Court held that the law was constitutionally valid.

The applicable law can thus be summarized: The equal protection clause protects aliens as well as citizens. Classifications based on alienage are inherently suspect and generally subject to strict judicial scrutiny; however, if the limitation is against alien participation in public offices that formulate, execute, or review broad public policy or other functions that exercise discretion and go to the heart of representative government, a state need show only some rational relationship between the interest sought to be protected and the limiting classification.

We conclude that the trial court correctly determined that Florida’s statutory limitation against aliens being notaries public is subject to strict judicial scrutiny and that the State has failed to meet this test. We recognize the State’s constitutional prerogative to define who is eligible to govern and who is not, but a notary public’s duties do not involve governing. Nor are they so bound, up in the State’s governing function that an alien can constitutionally be excluded from the position. The duties of a notary public, prescribed by chapter 117, Florida Statutes (1977), include acknowledging written instruments, solemnizing marriages and taking renunciations of dower, protesting papers necessary to be protested. Attending at a demand, tender or deposit and noting the same, executing certificates, executing orders for survey, copying papers necessary to be copied, and administering oaths and making certificates thereof. None of these duties entail formulating, executing, or reviewing public policy, or other functions that go to the heart of representative government. Instead, the notary public functions are more of the nature of routine public employment. In re Griffiths.

Accordingly, we affirm the trial court and hold that the citizenship requirement, of section 117.01(1), Florida Statutes (1977), violates the equal protection guarantee of the fourteenth amendment.

It is so ordered.

ENGLAND, C. J., and BOYD and SUND-BERG, JJ., concur.

ADKINS, OVERTON and McDONALD, JJ., dissent.

      . Section 117.01(1), Florida Statutes (1977), provides:
      The Governor may appoint as many notaries public as he shall deem necessary, each of whom shall be at least 18 years of age, a citizen of the United States, and a permanent resident of the state.

      . McCready v. Virginia, 94 U.S. (4 Otto) 391, 24 L.Ed. 248 (1877).

      . Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1880).

      . Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255 (1923).

      . The same conclusion was reached by two federal district courts where resident aliens challenged state requirements that notaries public be United States citizens. The district courts in each case concluded that the various functions of a notary public are largely ministerial in nature and each declared the state law in question unconstitutional. Cheng v. Illinois, 438 F.Supp. 917 (D.Ill.1977); Taggart v. Mandel, 391 F.Supp. 733 (D.Md.1975).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Ronald J. HOFFER, Respondent.
    No. 57288.
    Supreme Court of Florida.
    May 1, 1980.
    Donald A. Smith, Jr., Asst. Staff Counsel, Tampa, and A. P. Gibbs, Bar Counsel, Dade City, for complainant.
    Robert F. Moeller of the Law Offices of Ronald J. Hoffer, Zephyrhills, and Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for respondent.
   PER CURIAM.

This disciplinary action is before us on complaint of The Florida Bar, report of the referee, and petition of Hoffer to review the referee’s recommendations.

The referee made extensive findings of fact from which we quote in part:

As to Count I
3) On or about 5 December 1975, Respondent, RONALD J. HOFFER, a Member of the Florida Bar prepared and filed a Civil suit, in Case No. 75-1996 in the Circuit Court for Pasco County, Florida, wherein B. M. Lantzy and L. Lantzy, his wife were designated Plaintiffs and J. B. White and Government National Mortgage Association were designated as Defendants. The nature of the proceedings was to “establish and foreclose a lien on certain real property . . . The alleged property owner, JOHN B. WHITE, was served by publication, the first publication date being 10 December 1975.
4) The Complaint prepared and filed by the Respondent alleges that Government National Mortgage Association was made a party to the action “by virtue of the fact that said Defendant is the current holder of the mortgage on the real property which is subject of this action.” At the time the complaint was filed, the Public Records of Pasco County, Florida, affirmatively showed that the subject mortgage had been assigned by an instrument filed for record on 26 February 1974 from Government National Mortgage Association (herein referred to as GNMA) to Colonial Mortgage Service Company of California (herein referred to as CMSC).
5) Respondent Hoffer, as Counsel for the plaintiffs did not personally search the public records, nor did he obtain a certified search of ownership and encumbrance report prior to filing the complaint. The search was conducted per his request by a secretary in his office. Had a proper search been conducted, Respondent would have known that the then current holder of the subject mortgage was CMSC and not GNMA as alleged. By answer Respondent admitted that he failed to sufficiently search or cause to be searched, the Public Records of Pasco County, Florida, prior to filing the Complaint.
As to Count II
7) Attorney David G. Mulock testified that his law firm was retained by CMSC to foreclose their mortgage given by John B. White and his former wife; that he obtained a title report and discovered the lis pendens filed in the case of Lantzy v. White; that the Lantzys were served; and that an Answer was filed on their behalf by Respondent Hoffer. The Answer attempted to assert the defense of res judicata against CMSC by reason of Respondent’s suit in Lantzy v. White. Mr. Mulock then moved for leave to intervene in the Lantzy v. White case.
8) It is significant that the Complaint filed by CMSC against Defendants White and Lantzy specifically alleged that CMSC was the holder of the subject note and mortgage “by assignment of mortgage dated January 21, 1974 recorded February 28, 1974 in OR BOOK 739 page 1174, Public Records of Pasco County.”
9) The Motion of CMSC for Leave to Intervene, filed on June 1, 1976 alleged that CMSC is the assignee of the mortgage originally given by Defendant John B. White and that GNMA has no right title and interest in said mortgage. Hearing was set for June 8, 1976 by notice served May 28, 1976.
11) Having no response on July 27, 1976 Mr. Mulock again noticed hearing on his motion to intervene for September 7, 1976. Despite this notice, Respondent submitted a Final Judgment to Circuit Judge Robert L. Williams which was signed on August 18, 1976 and filed for record the following day. The proposed Final Judgment was submitted to the Court without notice to CMSC and was not discovered by counsel for CMSC until the September 7th hearing. At the hearing Respondent argued that CMSC was precluded from asserting any interest because Final Judgment had already been entered. Mr. Mulock then prepared an Affidavit and motion for Relief from Default and Final Judgment. The Affidavit complained inter alia that the Judgment was obtained through surprise and fraud; that Respondent knew that CMSC claimed to own the subject mortgage and agreed to postpone the final hearing “but nonetheless rescheduled the final hearing without notice. . . . ”
14) The intentional submission of the Judgment to the Court without notice to opposing counsel prior to the scheduled hearing on the motion to intervene thwarted proper administration of justice and cannot be condoned. While it might be said that the mere failure to notice the assignment on thé original search constitutes technical though not a wilful violation, I find that Respondent’s delegation of legal responsibility; his failure to properly supervise his non-lawyer staff; and his subsequent wilful actions in the face of actual and constructive notice, to be improper and inexcusable in direct violation of the Disciplinary Rules as charged under paragraphs 11 and 30 of the Complaint.
As to Count III
15) In June 1975 Respondent represented Plaintiff William Lane and Marjorie Lane, his wife, in a personal injury action against Withlacoochee River Electric Cooperative, Inc. and Employers Mutual Liability Company of Wisconsin. For purpose of settling this case, defense counsel prepared a special release and hold harmless Agreement which was sent to Respondent to present to his clients.
16) The original “smooth” copy contained a provision releasing not only the defendants but also “any other person, partnership, firm or corporation charged or chargeable with responsibility or liability,” and when the document left the office of attorney Robert E. Banker, no provisions had been typed over or stricken.
18) Marjorie Lane testified that Respondent brought the Release to her home where it was signed. It was notarized by Respondent and at the time it was executed the objectionable phrase was X’d out.
21) Mrs. Marjorie Lane confirmed that the retyped language was not in the release when it was signed. Respondent subsequently filed another lawsuit for the Plaintiffs against one Mr. Doty.. A copy of the release was then filed as a bar to the proceeding. Robert L. Williams, then Circuit Judge, testified that Respondent represented to the Court that the release had been altered; that when he had the release executed the language was X’d out and unbeknownst to him the words were typed back in. Mr. Hoffer was given additional time to check into the matter and- as a result of Mr. Hoffer’s representation, the Court was concerned and had the distinct impression that the release may have been altered by defense counsel after it had been delivered by Respondent’s office.
23) Marsha Carter related that she typed in the X’s at Mr. Hoffer’s direction; and that she also typed the interlined words back in. This was also done at Mr. Hoffer’s direction. The defense indicated Marsha Carter is confused and that the additions were not made on their typewriters.
26) Based upon the evidence, testimony and demeanor of the witnesses I find it incredible to believe that Respondent was unaware of the alteration. He was informed that there would be no settlement if everyone was not released after which Respondent personally arranged for his secretary to deliver the document and pick up the check. His secretary admitted typing the words back in at his direction and the implication to the Court that defense counsel may have changed the instrument after it left his office is of serious concern. His poor judgment and lack of candor [sic] is inconsistent with accepted professional behavior.

The referee recommends Hoffer be found guilty of violating certain Florida Bar Code of Professional Responsibility disciplinary rules and that he be suspended from the practice of law for three years and thereafter until he proves rehabilitation and demonstrates that he understands Florida’s Code of Ethics.

Hoffer challenges the referee’s findings of fact as not being supported by clear and convincing evidence. Our responsibility in a disciplinary proceeding is to review the referee’s report and, if his recommendation of guilt is supported by the record, to impose an appropriate penalty. The Florida Bar v. Hirsch, 359 So.2d 856 (Fla.1978). The referee, as our fact finder, properly, resolves conflicts in the evidence. See The Florida Bar v. Rose, 187 So.2d 329 (Fla.1966). We have reviewed the record and the report of the referee, and we find that the referee’s findings of fact and recommendations of guilt are supported by clear and convincing evidence.

We disagree, however, with the referee’s recommendation that Hoffer be suspended for three years. The discipline assessed against an attorney not only should protect the public interest but also should be fair to the attorney. The Florida Bar v. Thomson, 271 So.2d 758 (Fla.1972). Under the peculiar facts of this case, we conclude that a two-year suspension is appropriate.

Accordingly, we approve, the referee’s recommendation of guilt and suspend Hof-fer from the practice of law for two years and until such time as he proves rehabilitation and demonstrates that he understands Florida’s Code of Ethics. The suspension shall be effective June 2, 1980, thereby giving Hoffer time to close out his practice and take the necessary steps to protect his clients, and it is ordered that Hoffer shall not accept any new business. Costs' of $1,180.29 are taxed against Hoffer.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.

      . DR 1-102. Misconduct
      (A) A lawyer shall not:

      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
      (5) Engage in conduct that is prejudicial to the administration of justice.

      DR 6-101. Failing to Act Competently
      (A) A lawyer shall not:

      (2)Handle a legal matter without preparation adequate in the circumstances.

      DR 7-102. Representing a Client Within the Bounds of the Law
      (A) In his representation of a client, a lawyer shall not:
      (2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.
      (3) Conceal or knowingly fail to disclose that which he is required by law to reveal.
      (4) Knowingly use perjured testimony or false evidence.
      (5) Knowingly make a false statement of law or fact.
      (6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.


author:
PER CURIAM.
      ADKINS, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Louis GLICK, Respondent.
    No. 57340.
    Supreme Court of Florida.
    May 1, 1980.
    John A. Weiss, Branch Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary matter is before us on complaint of The Florida Bar, report of the referee, and petition for review by The Florida Bar seeking a greater penalty than that recommended by the referee.

The complaint charged, and the referee found, that respondent improperly handled a quiet title suit; that, although he had not been and would not be successful in clearing' the title to the property, and, even though he had not undertaken any efforts to clear the title of the interest reserved to the state, respondent closed the transaction and allowed his client to take title to the property without advising his client that the defects in the title continued to exist; that respondent prepared an incomplete deed; and that respondent has never refunded to his client the $1,000 fee paid for the handling of the quiet title suit. The complaint charged, and the referee also found, that respondent was asked to represent a party in a breach of warranty suit; that he failed to notify his client of the date of the hearing on the matter and, because his client failed to appear at the hearing, the court dismissed the client’s action; that respondent did not initiate contact with his client within a reasonable time before the scheduled hearing in order to prepare for the final hearing and to arrange for the attendance of witnesses; and that respondent never attempted to reopen the case.

The findings of the referee are supported by the record, and we agree with the referee’s recommendation that respondent be found guilty of violating Florida Bar Code, •of Professional Responsibility Disciplinary Rule 6 — 101(A)(1), (A)(2), and (A)(3). The referee recommends that respondent receive a public reprimand and be placed on probation for a period of one year. During this probation period, the referee recommends that respondent undertake no legal representation of clients in real estate matters, other than the drawing of routine deeds, mortgages, contracts, or similar instruments until after he has completed thirty hours of continuing legal education courses approved for credit in the real property specialty under The Florida Bar designation plan. Additionally, the referee recommends that respondent make restitution to both clients.

Although The Florida Bar recommends that respondent receive a sixty-day suspension and probation, we have considered the facts that respondent has practiced law in Florida for thirty years without any prior disciplinary proceedings and that the present charges do not involve dishonesty or fraud, and we conclude that the referee’s recommendation of public reprimand and a one-year conditional probation is appropriate under the particular circumstances of this case.

Accordingly, respondent is hereby publicly reprimanded, and the publication of this opinion in Southern Reporter will serve as a public reprimand. He is further placed on probation for a period of one year, and during this time he is not to undertake any legal representation of clients in real estate matters, other than drawing of routine deeds, mortgages, contracts, arid similar instruments until he has completed thirty hours of continuing legal education courses approved for credit in real property. He is further ordered to refund to the two clients whose affairs he mishandled the attorney’s fees paid by them. Costs in the amount of $537.00 are hereby assessed against respondent.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., concurs in part and dissents in part with an opinion.

ADKINS, Justice,

concurring in part and dissenting in part.

I concur in that portion of the opinion which orders that respondent be publicly reprimanded, but I dissent from that portion of the order placing respondent on probation.

The respondent should be reprimanded for allowing his client to take title to the property without advising his client that, defects in the title continued to exist, and his failure to notify another client of the date of a hearing in a breach of warranty suit.

The question of whether respondent was incompetent in handling a legal matter, or handled a legal matter without adequate preparation, should be determined in an appropriate malpractice suit. After determination of the malpractice suit, we would be in a position to determine whether respondent should be disciplined.

There is no way to determine whether the respondent handled a legal matter which he knew or should have known that he was not competent to handle, or whether he handled a legal matter without preparation adequate in the circumstances, or whether he neglected a legal matter entrusted to him. Respondent has practiced law in Florida for thirty years without any prior disciplinary proceedings, so I.hesitate to say that he was handling a legal matter which he knew or should have known that he was not competent to handle. Also, I hesitate to say that he handled a legal matter without preparation adequate in the circumstances. Perhaps the evidence would show that he neglected a legal matter entrusted to him.' It is on the latter basis that I would order a public reprimand. I do not believe it is appropriate to require respondent to complete thirty hours of continuing legal education courses approved for credit in real property.

The goals of The Florida Bar are lofty, but there are no recognized standards by which to measure competency. Most clients who fail to prevail in the course of their lawsuit feel that their failure is due to the competency of the attorney rather than the facts of the case. The line dividing the competent from the incompetent is ill-defined. I hate to judge a man’s competency by his activities in a few instances. For that reason I believe the matter should be determined on the question of whether respondent neglected a legal matter. He did and should be reprimanded.

      . Rule 6-101 provides:
      DR 6-101. Failing to Act Competently
      (A) A lawyer shall not:
      (1)Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it; however, he may accept such employment if in good faith he expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to his client.
      (2) Handle a legal matter without preparation adequate in the circumstances.
      (3) Neglect a legal matter entrusted to him.


text:
    STATE of Florida, Appellant, v. Dominick P. GIORDANO, Appellee.
    No. 57985.
    Supreme Court of Florida.
    May 1, 1980.
    Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    Norman Kent, Deerfield, for appellee.
   PER CURIAM.

The opinion of the trial court, finding section 893.03(1)(c), Florida Statutes (1978 Supp.), unconstitutional, is reversed. This case is remanded for further proceedings consistent with State v. Cheatham, 376 So.2d 1167 (Fla.1979).

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.


author: COBB, Judge.

text:
    Russell J. CHAUDOIN, Appellant, v. STATE of Florida, Appellee.
    No. 79-133.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Janis Mary Halker, Winter Park, for appellant.
    No appearance for appellee.
   COBB, Judge.

The appellant filed in the trial court, pursuant to Rule 3.850, Florida Rules of Criminal Procedure, a motion to vacate judgment and sentence imposed for the crime of second degree murder and aggravated battery. We affirm the trial court’s denial concerning the first eight grounds raised in the motion. The ninth ground raises the issue of whether appellant’s right to appellate review by direct appeal from the judgment and sentence had been frustrated by his court-appointed attorney. In effect, appellant contends that his court-appointed counsel was ineffective on appeal. Appellant alleges that after the conviction his attorney filed a motion for a new trial. Before the trial court acted on the motion for new trial appellant’s attorney filed a notice of appeal, thereby nullifying the motion for a new trial. See Harrell v. State, 197 So.2d 505 (Fla.1967). Since a denial of a motion for new trial “is an absolute prerequisite to any appellate consideration of the sufficiency of the evidence to sustain the conviction,” Huntley v. State, 267 So.2d 374, 376 (Fla. 4th DCA 1972), appointed counsel thereby waived appellant’s right to appeal that issue. In his brief in support of his motion for post-conviction relief, appellant alleges that the evidence was insufficient to sustain a conviction, and alleges that his appointed counsel frustrated his right to appellate review of this issue.

Frustration of appeal does not occur during trial and does not affect the validity of a conviction, therefore Rule 3.850 is not the appropriate procedure for raising this issue. The trial court was correct in denying the motion for post-conviction relief. See State v. Wooden, 246 So.2d 755 (Fla.1971); Mays v. State, 285 So.2d 637 (Fla. 4th DCA 1973). The proper remedy is to apply for delayed appellate review by petition for writ of habeas corpus directed to the appellate court for the district in which the appellant was convicted. Baggett v. Wainwright, 229 So.2d 239 (Fla.1969); Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967).

However, under Florida Rule of Appellate Procedure 9.040(c), this court will treat this case as though the proper remedy had been sought. See Article V, Section 2(a), Florida Constitution (1973); Thompson v. Dilley, 275 So.2d 234 (Fla.1973); Tobler v. State, 350 So.2d 555 (Fla. 1st DCA 1977); Rushing v. State, 233 So.2d 137 (Fla. 3d DCA 1970). Accordingly, in order to determine whether petitioner is entitled to full appellate review, the Honorable John W. Booth Circuit Judge of the Fifth Judicial Circuit of Florida, is appointed a Commissioner to take testimony and receive evidence as is necessary to resolve petitioner’s allegations, and thereafter, with all convenient speed, report his findings and recommendations to this Court.

It is so ordered.

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


author: UPCHURCH, Judge.

text:
    Thomas E. GORDON, Jr., D. D. S., Petitioner, v. Dr. Alvin SAVAGE et al., Respondents.
    No. 79-507.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.

      J. Russell Hornsby, Orlando, for petitioner.
    L. Haldane Taylor, Jacksonville, for respondents.
   UPCHURCH, Judge.

Petitioner, Dr. Thomas E. Gordon, a practicing dentist, seeks a Writ of Prohibition to prevent Respondents, Dr. Alvin Savage, et al., acting as the State Board of Dentistry and the Department of Professional Regulation, from proceeding further against him.

We decline to issue the Writ.

Petitioner, invoking this court’s original jurisdiction under Florida Rules of Appellate Procedure 9.030(b)(3), presents the following question: .

WHETHER A WRIT OF PROHIBITION SHOULD ISSUE TO PROHIBIT RESPONDENTS FROM PROCEEDING FURTHER DUE TO RESPONDENTS DELAY OF 104 DAYS IN REFILING AN ADMINISTRATIVE ACCUSATION FOLLOWING DISMISSAL BY A HEARING OFFICER OF THE ORIGINAL ACCUSATION.

A Writ of Prohibition is not a writ granted as a matter of right, but rather is one of sound judicial discretion, to be granted or refused according to the facts and circumstances of the particular case. 25 Fla.Jur. Prohibition § 7 (1959). It may be granted generally only when it is shown that the lower tribunal is without jurisdiction or is attempting to act in excess of its jurisdiction. English v. McCrary, 348 So.2d 293 (Fla.1977). The Writ will be issued only in emergency, cases to forestall an impending present injury where no other appropriate and adequate legal remedy exists. Joughin v. Parks, 107 Fla. 833, 147 So. 273 (1933). It will lie against any person assuming judicial or quasi-judicial power, although not technically a court. State ex rel. Swearingen v. Railroad Comm’rs of Florida, 79 Fla. 526, 84 So. 444 (1920). Prohibition is proper when an administrative board is exceeding its jurisdiction in not proceeding in accordance with the essential requirements of law. State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So.2d 628 (Fla. 1st DCA 1974).

The facts which we are concerned reflect that after Respondents initiated an Administrative Accusation against Petitioner seeking revocation or suspension of his license to practice, Petitioner requested a formal hearing. The hearing officer’s order adopted Florida Administrative Code, chapter 28-5 pertaining to formal proceedings. The order also states the intention that the hearing be held within ninety days absent good cause for an extension.

The hearing was set for early May, 1979, but was rescheduled for July 25, 1979, and then because of a conflict of Petitioner’s attorney, for August 29, 1979. On August 29, the hearing officer entered an order granting Petitioner’s Motion to Dismiss with Leave for Respondents to Refile.

One hundred four days later, a new Administrative Accusation was filed charging Petitioner with the same five counts of violation as in the first Accusation. Petitioner contends that Florida Administrative Code, chapter 28-5, and more specifically Rule 28-5.25, adopts the Florida Rules of Civil Procedure which mandate dismissal with prejudice because Respondents failed to comply with the twenty-day amendment period for pleadings as specified in Rule 1.190. In the alternative, Petitioner asserts Respondents are guilty of laches for failing to amend within a reasonable time.

First, we shall examine Petitioner’s contention that Respondents have violated Florida Rules of Civil Procedure 1.190 by not refiling within twenty days. The Florida Administrative Procedure Act, section 120.53(1)(c), Florida Statutes (1977) provides that agencies shall adopt rules of procedure. The Rules of the Administrative Commission were adopted pursuant to this authority and apply to all proceedings in which substantial interests, are determined by an agency. Florida Administrative Code Rule 28-5.01. Rule 28-5.25, which applies to formal proceedings, provides:

To the extent that the rules of discovery in the Florida Rules of Civil Procedure are not inconsistent with Ch. 120, F.S., the rules of discovery of the Florida Rules of Civil Procedure shall be applicable.

This rule is a limited adoption of the Rules of Civil Procedure and cannot be interpreted as adopting the amendment guidelines and procedures of Rule 1.190. Florida Administrative Code, chapter 28, does not specify a time to refile or to amend complaints, nor did the hearing officer’s order.

It is not necessary to examine the elements of laches as delineated in The Florida Bar v. McCain, 361 So.2d 700 (Fla.1978), because prohibition does not lie as a result of denial of affirmative defenses available to a party. Mullin v. Department of Administration, 354 So.2d 1216 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1217 (Fla.1978).

Petitioner also contends that because the proceeding is essentially criminal in nature the speedy trial rule, Florida Rules of Criminal Procedure 3.191(a)(1) applies, and the failure to provide a formal hearing within ninety days of petitioner’s request requires dismissal. Prohibition is a proper remedy in a criminal case when the state fails to comply with the speedy trial rule., Turner v. Olliff, 281 So.2d 384 (Fla. 1st DCA 1973). An Administrative Accusation, as involved here,- is not a criminal proceeding because its purpose is to inquire into Petitioner’s fitness to practice dentistry. See Lewis v. State Bar, 9 Cal.3d 704, 108 Cal.Rptr. 821, 511 P.2d 1173 (1973). Therefore, procedures governing criminal proceedings are inapplicable, especially since they have not been adopted as the governing rules of procedure. Even the Florida Rules of Criminal Procedure support such a result. Rule 3.010 states: “[t]hese rules shall govern the procedure in all criminal proceedings in State courts . .” Rule 3.191 provides that the speedy trial provision applies to “. every person charged with a crime by indictment or information . . . .” An Administrative Accusation is not an indictment or information; it is only the basis for an inquiry into probable cause.

Finally, petitioner argues he has been deprived of due process because of the delay between initiation of the proceedings and a formal hearing. The right to a prompt inquiry into criminal charges is fundamental and the State is obligated to provide a prompt hearing to prevent interference with the defendant’s fair opportunity to defend himself. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). Prejudice to one’s defense by reason of the delay is required. State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977). Petitioner did not demonstrate, other than by claims of prejudice of a general nature, that the delay caused any inconvenience.

While Petitioner has failed to demonstrate a basis for issuance of the Writ, we emphasize that the Fifth and Fourteenth Amendment guarantees of procedural due process ensure that proceedings to suspend or revoke Petitioner’s license to practice dentistry must be essentially fair. Annot., 98 L.Ed. 851 (1954). Any denial of due process which Petitioner demonstrates in the conduct of the hearing or as a result of unreasonable delay in conducting the hearing may be raised in an appeal upon entry of the final order at the conclusion of the administrative hearing.

Writ of Prohibition is DENIED.

DAUKSCH, C. J., and CROSS, J., concur.

      . It is significant to note that a portion of the delay was occasioned by a change in the procedure by which professions, are regulated. Ch. 455, Fla.Stat. (1979). Effective July 1, 1979, Ch. 79-36, Laws of Fla. created the Department of Professional Regulation. See § 455.-225, Fla.Stat. (1979).


author: PER CURIAM. ORFINGER, Judge,

text:
    Naomi Lois Adams (EVANS), Appellant, v. Boyd Daniel EVANS, Appellee.
    No. 79-268.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.
    Rehearing Denied May 7, 1980.
    Naomi Lois Adams (Evans), Longwood, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED.

CROSS and COBB, JJ., concur.

ORFINGER, J., concurs specially with opinion.

ORFINGER, Judge,

concurring specially:

This is an appeal from a non-final order (Interim Order on Custody). I concur in the result because the court has the power under chapter 61, Florida Statutes (1977) to temporarily give custody of children to someone other than the parents when the court finds, as it did here, that there appears to be a “. . . substantial present threat to the . . . well being of the children if they are permitted to continue to remain with either of the parties.” I agree with appellant, however, that the trial court did not have the power to commit these children to H.R.S. under the chapter 39, Florida Statutes (1977) petition, absent a finding of dependency; but this was corrected by the trial court in a subsequent modified order. We should give the trial court an opportunity to complete the dissolution proceeding and make a permanent custody award on the merits.


author: ROBERT P. SMITH, Jr., Judge. WENTWORTH, Judge, PER CURIAM.

text:
    Bernadette Louise ANTHONY, a minor, and Willie L. Anthony, Jr., a minor, etc., Appellants, v. The JACKSONVILLE TRANSPORTATION AUTHORITY, etc. et al., Appellees.
    No. OO-491.
    District Court of Appeal of Florida, First District.
    March 25, 1980.
    On Rehearing May 20, 1980.
    Penland, McCranie & Shad, Jeffery B. Morris and C. Wayne Alford, of Sinoff & Alford, Jacksonville, for appellants.
    James M. McLean, of Rogers, Towers, Bailey, Jones & Gay, William S. Burns, Jr. of Marks, Gray, Conroy & Gibbs, and Richard W. Kreidler, of Rice & Kreidler, Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Appellants complain of the trial court’s dismissing with prejudice their third amended complaint, which was appellants’ second effort to aver ultimate facts showing a cause of action in the incident complained of. Suing the Jacksonville Transportation Authority, the City of Jacksonville, and Metropolitan Systems, Inc., which either operated a bus transportation system or placed benches at bus stops for the convenience of passengers, appellants alleged that the corner of Atlantic Boulevard and Live Oak Drive was negligently chosen for a bus stop because of danger from “busy vehicular traffic at said intersection,” and also that

the said bench [at that corner] was unreasonably close to busy vehicular traffic and posed an unreasonable risk of harm to those persons, including the plaintiffs, who would utilize said bench while awaiting the arrival of buses at said bus stop

Plaintiffs were struck by an automobile while they sat on the bench awaiting a bus. The complaint, which is somewhat vague in this detail, was treated in argument as alleging that the bench was in a position near but not in the roadway and that the automobile left the road before striking plaintiffs. There is no allegation that, under particular circumstances which might have been but were not described in the complaint, this particular wayside was more than ordinarily vulnerable to runaway automobiles, or that conditions made it reasonably foreseeable that a vehicle would run off the road at or near the bus stop. See Newton v. Davis Transport & Rentals, Inc., 312 So.2d 200 (Fla. 1st DCA 1975); Nance v. James Archer Smith Hospital, Inc., 329 So.2d 377 (Fla. 3d DCA 1976), cert. den., 339 So.2d 1171 (Fla.1976); contrast Brinkley v. Southern Bell Tel. & Tel. Co., 353 So.2d 593 (Fla. 3d DCA 1977), cert. den., 359 So.2d 1219 (Fla.1978). We agree with the trial judge that plaintiffs failed to allege ultimate facts tending to support the concluso-ry allegations that, under all the circumstances, this bench was placed or maintained in a position unreasonably close to the roadway, and that its placement contributed to plaintiffs’ injury. Nothing in the record suggests that plaintiffs may by further amendment be able to cure the deficiencies in their third amended complaint. The judgment of dismissal is therefore -

AFFIRMED.

LARRY G. SMITH, J., concurs.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting:

The • complaint appears to me to adequately identify certain conditions of alleged unreasonable risk which are within the province of a jury to determine on sufficient evidence. The conditions described were (1) heavy traffic volume (busy vehicular traffic) at the point in question where (2) specified streets intersected together with (3) close proximity between traffic and the bench, which was easily movable and erected under a contract (attached to the complaint) permitting placement 18 inches from the curb face unless closer placement was authorized.

Appellees argue that plaintiffs were not yet passengers, that the driver’s negligence was an efficient independent intervening cause, and that the risk of a vehicle leaving the roadway created “extraordinary exigencies” beyond their liability as a matter of law. The latter conclusion is supported to some extent by Speigel v. Southern Bell Telephone Co., 341 So.2d 832 (Fla. 3rd DCA 1977), denying liability to occupants of a vehicle which collided with a telephone pole near the road. Without elaboration of distinctions between duty toward persons seated on bus stop benches and those in other vehicles, I believe the better view would not as a matter of law in this case support total unforeseeability of any vehicle’s departure from the travel lane at a busy street intersection. Peninsular Telephone Co. v. Marks, 144 Fla. 652, 198 So. 330 (1940).

ON PETITION FOR REHEARING

PER CURIAM.

It appearing from their petition for rehearing that the trial court dismissed appellants’ complaint only once on the merits, rather than twice as previously stated, and that plaintiffs conceivably may be able to further amend to state a cause of action, rehearing is GRANTED, the trial court’s order dismissing the third amended complaint is AFFIRMED, but the dismissal with prejudice is REVERSED and the cause is remanded with instructions to afford plaintiffs another opportunity to amend. Bradham v. Hayes Enterprises, 306 So.2d 568 (Fla. 1st DCA 1975).

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


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

text:
    William L. GANEY, Jr., Appellant, v. Raymond F. BYRD et al., Appellees.
    No. PP-274.
    District Court of Appeal of Florida, First District.
    March 28, 1980.
    Rehearing Denied May 28, 1980.
    O. E. Adams, Sr., Pensacola, for appellant.
    William Guy Davis, Jr. of Beggs & Lane, Pensacola, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Ganey appeals from an order dismissing his action with prejudice for repeated failure to state a cause of action to establish a statutory way of necessity over the lands of Byrd. Section 704.01(2), Florida Statutes (1979). A statutory way may be declared only if no other access exists by common law implication, Section 704.01(1), or by expressed grant. Appellant’s contract for deed with another neighbor, Shelby, secures appellant an equitable interest in the access easement expressly granted by the contract. By virtue of the same contract, appellant likewise has an equitable interest in the lands surrounding his dwelling, to be conveyed by Shelby; and for that reason, were there no expressed grant of easement, appellant would enjoy an implied way of necessity over the lands of Shelby. Appellant therefore has no cause of action for a statutory way of necessity. Reyes v. Perez, 284 So.2d 493 (Fla. 4th DCA 1973); Miami Bond & Mortgage Co. v. Bell, 101 Fla. 1291, 133 So. 547 (1931); Mid-State Investment Corp. v. O’Steen, 133 So.2d 455 (Fla. 1st DCA 1961), cert. den., 136 So.2d 349 (Fla.1961).

AFFIRMED.

BOOTH and SHAW, JJ., concur.


text:
    CITY OF WINTER PARK, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION; and Laborers’ International Union of North America, Local # 517, Appellees.
    No. 78-1800/T4-190.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.
    Rehearing Denied April 29, 1980.
    Charles R. Fawsett, Orlando, for appellant.
    C. Anthony Cleveland, Tallahassee, for appellee, Florida Public Employees Relations Commission.
    Joseph H. Williams, Winter Park, for ap-pellee, Laborers’ Intern. Union of North America, Local # 517.
   UPCHURCH, Judge.

This is an appeal from an order of the Florida Public Employees Relations Commission (PERC) which found appellant, the City of Winter Park, guilty of an unfair labor practice against appellee, Laborers’ International Union of North America, Local # 517.

We REVERSE.

This appeal essentially involves a single question, whether PERC erred in concluding that in the absence of ratification by all parties, upon demand, a public employer was required to enter collective bargaining after resolution of a bargaining impasse by legislative action.

Appellant, the City of Winter Park, and appellee, Laborers’ International Union of North America, Local # 517, had engaged in collective bargaining in an attempt to reach a contract to cover the fiscal years 1976-1977 and 1977-1978. The parties were unable to agree on several items, one of which was the duration of the agreement. A bargaining impasse was declared which was ultimately resolved by “legislative action” under applicable procedures of section 447.403, Florida Statutes (1977). The procedure followed has not been questioned. The agreement under the statutory impasse procedure was ratified and approved by the City Commission on December 3, 1976; thereafter, the Union refused to ratify and rejected the entire agreement. In June of 1977, the Union demanded that the City enter into bargaining for a new agreement for the next succeeding year, 1977-78.

On August 16, 1977, General Counsel for PERC issued a complaint alleging that the City, by refusing to bargain, interferred with, restrained, and coerced employees in the exercise of rights under the Public Employees Relations Act. The hearing officer of PERC found against the City, concluding it had unlawfully refused to bargain for the period after 1976-77.

Article I, section 6, Florida Constitution, while protecting the right of employees to maintain membership in a labor union and to collectively bargain, denies the right to strike to public employees. Part II of chapter 447, Florida Statutes, was designed to implement section 6 of Article I, Florida Constitution.

It is PERC’s position that despite the final action taken under section 447.403 by the City Commission, the Union had a right to reject the resolution of the impasse reached under section 447.403 and demand bargaining de novo for a new contract. The City, on the other hand, contends that when the parties have submitted certain impasse items to legislative action and such action has been lawfully completed those items plus the previously negotiated items, if any, are a contract. Basic contract law,, which PERC and the Union have correctly cited and argued extensively in their briefs, clearly requires ratification and approval of a proposed agreement by both parties before either party is bound. This principle is recognized in section 447.309(4), Florida Statutes (1979). Clearly, then, the City would be obligated to bargain upon demand, if only basic contract principles apply, because of the Union’s failure to ratify the agreement. The City, because of the language of section 447.309(4), in the context of section 447.309 as a whole, suggests that it is not totally clear whether legislative action is conditioned upon the ratification of both parties. Ratification is clearly required under section 447.309(4) in the case of a contract reached without impasse. PERC, in its brief, contends that a contract to be “valid” must be ratified, with or without resolution of impasse; in the absence of a “valid” contract, there remains a continuing obligation to bargain. PERC distinguishes between “substantive” terms and conditions of employment (e. g., those establishing wages, hours of work, vacation and sick leave, etc.) from those such as “preambles, reopener clauses, or contract duration articles.” PERC acknowledges that Madison County Education Association and District School Board of Madison County, 4 FPER ¶ 4006 (1977), held that the terms and conditions of employment legislatively resolved by a public employer pursuant to section 447.-403(4)(d) become effective from the date of their resolution and need not be ratified by the employee organization involved.

We do not recognize the distinction which PERC argues between substantive terms and contract duration articles. It is compelling that the duration of an agreement is as substantive as the amount of sick pay provided. Chapter 447, Florida Statutes (1975) does not specifically authorize resolution of impasse as to length of a contract, but section 447.309(1) gives as the subject of collective bargaining “[Wjages, hours, and terms and conditions of employment.” A reasonable interpretation of “terms and conditions of. employment” would include the “period or duration” of a collective bargaining agreement. Both the Union and PERC concede that the contract period was a subject of impasse. If an item is the subject of lawful impasse, section 447.403 defines the manner of resolution. Perhaps, as the Union and PERC suggest, such interpretation will not serve to accomplish the statement of policy enunciated in section 447.201: “to promote harmonious and cooperative relationships between government and its employees, . . . ” but this is an area to be addressed by the Legislature rather than by this court.

After resolution of the impasse through legislative action, there is no obligation to bargain further as to the provision mandated by the legislative body. In Dade County Employees, Local No. 1368, AFSCME, AFL-CIO v. City of South Miami, 4 FPER ¶ 4065 (1978), the Commission stated:

If the parties do not ratify the negotiated provision of -a collective bargaining agreement, the agreement shall be returned to the representatives of the parties for further negotiations, but such negotiations are limited to the previously negotiated provision. There is no obligation on either party to bargain with regard to the provision mandated by the legislative body. (Emphasis added.)

No contention has been made that the City, in proceeding under section 447.403 with legislative action, did not act in good faith in what it deemed to be in the public interest including the interest of the public employees; therefore, there was no obligation on either party to bargain further.

The Union argues that if the interpretation we now reach prevails no public body will ever accept less than a multiple year contract. This danger was anticipated by the Legislature in its enactment of section 447.309(5), Florida Statutes (1975) limiting any collective bargaining agreement for public employees to three years. It is possible to envision many circumstances where the Union may not be pleased when the “legislative body” resolves an impasse against the interest of the Union. The contention can always be made that the public employer, as a party to the bargaining process, is unlikely to reverse itself where it sits as a “legislative body” when the procedure of section 447.403, Florida Statutes, is triggered. That same argument is equally applicable to hours and wages or other “terms and conditions of employment.” While in an inflationary period it may be in the interest of the public employees to be bound only for a minimum term, the employees may favor a maximum contract term if they have obtained an especially beneficial agreement.

That portion of the order of the Public Employees Relations Commission dated August 9, 1978, holding that Appellant had unlawfully refused to bargain for the period after the 1976-1977 fiscal budget year, is hereby REVERSED.

CROSS and ORFINGER, JJ., concur.

      . Right to work. The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike. Art. I, §-6, Fla.Const.

      . Statement of policy. It is declared that the public policy of the state; and the purpose of this part, is to provide statutory implementation of s. 6, Art. I of the State Constitution, with respect to public employees; to promote harmonious and cooperative relationships between government and its employees, both collectively and individually; and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government. It is the intent of the Legislature that nothing herein shall be construed either to encourage or discourage organization of public employees. These policies are best effectuated by:
      (1) Granting to public employees the right of organization and representation;
      (2) Requiring the state, local governments, and other political subdivisions to negotiate with bargaining agents duly certified to represent public employees;
      (3) Creating a Public Employees Relations Commission to assist in resolving disputes between public employees and public employers; and
      (4) Recognizing the constitutional prohibition against strikes by public employees and providing remedies for violations of such prohibition. § 447.201, Fla.Stat. (1979).


author: BOARDMAN, Judge.

text:
    John L. WHEELER, Sr. and Aileen Wheeler, Appellants, v. Wanda M. WHEELER and John L. Wheeler, Jr., Appellees. John L. WHEELER, Jr., Appellant, v. Wanda M. WHEELER, John L. Wheeler, Sr., and Aileen Wheeler, Appellees.
    Nos. 79-424, 79-554 and 79-438.
    District Court of Appeal of Florida, Second District.
    April 9, 1980.
    Rehearing Denied May 21, 1980.

      Lyman T. Fletcher of Fletcher & Fletcher, Jacksonville, for John L. Wheeler, Sr., Aileen Wheeler, and John L. Wheeler, Jr.
    Wayne 0. Smith of Wallace & Smith, and Leonard Lubin, St. Petersburg, for Wanda M. Wheeler.
   BOARDMAN, Judge.

Appellee Wanda M. Wheeler, the mother of the minor child involved here, filed a petition in the Pinellas County circuit court seeking custody of the child. Defendants/appellants John L. Wheeler, Jr., (the child’s father), John L. Wheeler, Sr., and Aileen Wheeler (the paternal grandparents) moved to dismiss the complaint for lack of subject matter jurisdiction. We hold that the trial court erred in denying that motion, and we reverse.

The child, Marcus Alexander Wheeler, was born on August 21, 1971, in Tennessee. Wanda M. Wheeler (the mother) and John L. Wheeler, Jr. (the father) were living in Tennessee at the time.

Shortly thereafter, the couple and their baby moved, living in various states over the next three years. In September, 1974, however, the mother moved to Florida by herself, leaving Marcus with his paternal grandparents in Tennessee. She brought Marcus to Florida in February of 1975. She secured the dissolution of the marriage by default and was awarded custody of the child on July 10, 1975.

In an effort to reconcile with the father, the mother moved back to Tennessee with Marcus in July of 1976 and set up a home for the family there. However, on May 31, 1977, she left and returned to Florida, taking Marcus with her. Marcus stayed in Florida with her for three weeks, and she then returned him to Tennessee in June, 1977, for a summer visitation with the father. However, the father refused to return the child and initiated custody proceedings in juvenile court in Tennessee in September, 1977, without notice to the mother, who did not learn of the proceedings until they had concluded. Child custody in those proceedings was awarded to the paternal grandparents.

Upon learning of the proceedings, the mother appealed the juvenile court order and the case was heard in June, 1978, before the circuit court in Hamilton County, Tennessee. The mother was represented by both a Tennessee lawyer and an attorney from Florida. She consented to the jurisdiction- of the Tennessee court, and a consent agreement was entered into with the grandparents and the father leaving custody of the child with the grandparents and giving the mother summer visitation rights.

The mother had Marcus to visit with her for the summer of 1978, pursuant to the Tennessee consent judgment. At the conclusion of the visitation period, she refused to return Marcus to the grandparents. Instead she filed a: petition for custody on August 28, 1978, after having Marcus with her in Florida for two months.

Sections 61.1308, .1314, .1316, .1318, and .133, Florida Statutes (1977) set forth the circumstances under which the trial court may exercise jurisdiction under the Uniform Child Custody Jurisdiction Act (the Act), Sections 61.1302-61.1348, Florida Statutes (1977).

The trial court had jurisdiction under Section ei.lSOSilXb). However, we do not believe the trial court should have exercised its jurisdiction under the circumstances of this case in view of Section 61.133(1), which provides:

(1) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless:
(a) It appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree; and
(b) The court of this state has jurisdiction.

Here the Tennessee court had entered a valid custody decree and had jurisdiction to modify it under the jurisdictional prerequisites of the Act, specifically under Section 61.1308(1)(a). Furthermore, there is no indication in the record before us that Tennessee has declined to assume jurisdiction to modify its decree.

Accordingly, the trial court’s order denying appellants’ motion to dismiss the mother’s complaint is REVERSED.

HOBSON, Acting C. J., and DANAHY, J., concur.

      . Section 61.1308(1)(b) provides:
      (1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

        (b) It is in the best interest of the child that a court of this state assume jurisdiction because:
      1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
      2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships ....

      . While Tennessee had not enacted the Act at the time its decree was entered, it has subsequently done so.

      . Section 61.1308(1)(a) provides:
      (I) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      (a) This state:
      1. Is the home state of the child at the time of commencement of the proceedings, or
      2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; .


author: WENTWORTH, Judge.

text:
    AETNA CASUALTY & SURETY CO., Appellant, v. Albert M. CRABTREE, Jr., et ux., Appellees.
    No. OO-206.
    District Court of Appeal of Florida, First District.
    April 10, 1980.
    Rehearing Denied June 9, 1980.

      Charles T. Wells of Wells, Gattis & Hal-lowes, Orlando, for appellant.
    Ellis E. Neder, Jr., Jacksonville, for ap-pellees.
   WENTWORTH, Judge.

This appeal is from a final judgment entered against appellant Aetna following a jury trial. The Crabtrees brought suit, contending they are third party creditor beneficiaries of a performance and payment bond written by Aetna. We reverse based upon our finding that the trial court erred in striking Aetna’s evidence of the settlement of a prior suit brought against it by the named owner-obligee of the bond, and remand to the trial court for reconsideration of Aetna’s motion for directed verdict.

The Crabtrees, as fee simple owners of an office building in downtown Jacksonville, entered into a lease agreement dated February 2,1972, with Blackstone Developers, a partnership. Under this lease Blackstone Developers agreed to raze the existing structure and to construct a condominium office building on the Crabtrees’ property. Blackstone Developers leased the Crabtrees’ property for the period necessary to raze the old building and to construct the new building and for a period of 99 years after the completion of the new building. Mr. Crabtree was a partner in Blackstone Developers, but Mrs. Crabtree was not.

Blackstone Developers entered, into an agreement for the construction of the proposed building with Wiggs & Maale Construction Co., Inc. Wiggs & Maale furnished Blackstone Developers a performance and payment bond issued by Aetna as surety with Wiggs & Maale as principal. Blackstone Developers was the named owner-obligee of the bond. The appellees were not named obligees in the bond. Wiggs & Maale defaulted by not completing construction on schedule. In 1975 the partners of Blackstone Developers (including Mr. Crabtree), individually and doing business as Blackstone Developers, brought suit against Aetna seeking damages under the performance and payment bond occasioned by the delay in the completion of the building. That 1975 suit was terminated by final judgment entered pursuant to an offer of judgment by Aetna and acceptance thereof by Blackstone Developers.

The present action was filed by the Crab-trees in 1977, seeking damages under the performance and payment bond for delay in completion of the building. Appellees alleged they were either owners-obligees under the bond or third party creditor benefi-eiaries thereof. Appellant has not appealed the trial court’s ruling that as a matter of law the appellees are not owners-obligees under the bond, and that determination must therefore be respected as the law of the case.

Appellant frames the three following points on appeal:

1. The court erred in not determining, as a matter of law, that plaintiffs were not entitled to recover as third party beneficiaries of the surety bond.
2. The trial court erred in striking from the evidence defendant’s composite exhibit 3 (the evidence of the 1975 litigation), and failing to hold that the final judgment prohibited appel-lees’ recovery as a matter of law.
3. The court erred in not setting aside the jury's verdict in respect to damages.

As to point 1, we find no showing of reversible error in rejection of appellant’s contention. The intent of the parties to the payment and performance bond determined whether appellees were entitled to maintain an action as third party creditor beneficiaries of the bond, based on its terms and evidence of related transactions between the parties.

We reverse as to point 2. Appellant affirmatively pled that the 1975 litigation was a discharge of its obligations under the payment and performance bond. The trial court struck the evidence of the 1975 litigation on the grounds that it had not proven the affirmative defense of res judicata. While that evidence was properly excluded as insufficient proof on the issue of res judicata, the evidence should have been admitted as proof of the defense of discharge. The doctrine is stated by Restatement of Contracts, § 143:

A discharge of the promisor by the prom-isee in a contract or a variation thereof is effective against a creditor beneficiary if
(a) the creditor beneficiary does not bring suit upon the promise or otherwise materially change his position in reliance thereon before he knows of the discharge or . variation, and
(b) the promisee’s action is not a fraud on creditors.

The trial court ruled on the appellant’s motion for directed verdict without benefit of the evidence of the 1975 litigation. The cause is remanded for reconsideration of appellant’s motion for directed verdict in light of that evidence. In the event the court denies appellant’s motion for directed verdict, a new trial will be required because the jury is entitled to consider such evidence.

Point 3 has been mooted by our disposition of the evidentiary issue. However, in the event there is a new trial, we note that appellees’ damages, if any, are derivative. The derivative nature of those damages precludes recovery for loss of the rentals over the life of the lease and the rever-sionary interest in the fee.

The order is accordingly reversed and the cause remanded for proceedings consistent herewith.

ERVIN and SHAW, JJ., concur.


text:
    Evelyn Patricia FREEDMAN, Appellant, v. HORTON, SCHWARTZ & PERSE, Appellees.
    No. 79-1203.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Rehearing Denied June 4, 1980.

      Devitt, Friedrich, Blackwell, Mikos & Ridley, Ft. Lauderdale, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellees.
    Before BARKDULL and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Evelyn Patricia Freedman appeals from a final judgment awarding attorneys’ fees to the law firm of Horton, Schwartz and Perse (appellees). These fees were awarded to appellees predicated upon an implied contract that they would be compensated by the appellant for appellate services rendered by them in a complicated estate proceeding. For background, see: In Re Estate of Freedman, 226 So.2d 423 (Fla.3d DCA 1969) cert. denied 234 So.2d 122 (Fla.1969); Kramer v. Freedman, 272 So.2d 195 (Fla.3d DCA 1973); Kramer v. Freedman, 295 So.2d 97 (Fla.1974); In Re Estate of Freedman, 340 So.2d 1275 (Fla.3d DCA 1977); Freedman v. Kramer, 347 So.2d 790 (Fla.3d DCA 1977).

In the final judgment, the court made the following findings of fact and conclusions of law:

“A petition for an attorneys’ charging lien, or in the alternative, an award of attorneys’ fees for services based upon quantum meruit, was filed on behalf of Attorneys HORTON, SCHWARTZ & PERSE. It alleged first that Evelyn Patricia Freedman had agreed to pay a fee on a contingency basis of 10% of the gross amount which ultimately would be distributable to her from her father’s estate and alternatively if they were unable to establish the contingency contract the court award them a fee for their services based upon quantum meruit and require the payment from the assets of the estate distributable to Evelyn Patricia Freedman. Response was filed to said petition. The Court heard testimony and received evidence upon the issues made by the pleadings and finds as follows:
“In late 1969 Evelyn Patricia Freedman, an illegitimate child of Harry Freedman deceased, filed an action in the Probate Court of Dade County, Florida to participate in the estate of her deceased father as a pretermitted child. The trial court denied her petition to revoke probate of her father’s will and to appropriate a portion of his estate for her as a pretermitted child. She took an appeal to the District Court of Appeal and that court affirmed the trial court. Shortly thereafter, when it became apparent after the ruling of the District Court that Evelyn Patricia Freedman could not obtain a portion of her father’s estate through an attack on his will, an independent action for the constructive trust was filed in the Circuit Court of Dade County, Florida. This action was successful to the extent that she was able to share in the estate of her father through his bequests to her two half sisters. An appeal was taken to the District Court of Appeal, Third District of Florida, by the executors of her father’s estate and the District Court of Appeal affirmed the trial court’s holding of a trust. The petitioners first through Alan Schwartz and later through the other petitioners, successfully retained the fruits of their success in the trial court. After the District Court of Appeal’s opinion upholding the constructive trust judgment of the Circuit Court, certiorari was taken by the estate to the Supreme Court of Florida. All of the petitioners worked on the proceedings in the Supreme Court of Florida either by way of assisting in response to the jurisdictional brief and by their response to the brief on the merits after the Supreme Court had granted certiorari. After granting certiorari the cause was orally argued in the Supreme Court of Florida resulting in affirmance of the District Court of Appeal, Third District’s opinion and decision.. This result catapulted Evelyn Patricia Freedman from a position where she had no interest in her father’s estate to the establishment of an interest in the estate of her father estimated to be between $280,000 and $300,-000. Copies of the briefs in the cause both in the District Court of Appeal and the Supreme Court of Florida were furnished to Dunn & Johnson, the trial counsel, and they in turn furnished copies to Miss Freedman. Evelyn Patricia Freedman admitted that she had received copies of the opinion of the District Court of Appeal and the Supreme Court affirming the judgment of the trial court imposing a constructive trust and, of course, on those opinions appeared the names of the petitioners. Evelyn Patricia Freedman has never taken the position that the services were not rendered in this cause by the petitioners nor that the results of their efforts were not advantageous to her. She simply contends that the contract she had with Dunn & Johnson for 40% of whatever distributable share of the estate she received included the fee for appellate counsel and that in any event she had not authorized or agreed to pay a fee for appellate counsel. Attorney Dunn testified he had discussed with Evelyn Patricia Freedman her additional obligation for appellate fees to the petitioners in April 1970 and that she agreed to be responsible therefor. There is evidence in the record indicating that Evelyn Patricia Freedman knew or should have known that petitioners were acting in her behalf in the appellate courts of this state, and at no time did she correspond or communicate with the petitioners or in any other way put them on notice that she did not intend to pay them for their services. There was evidence of a contingent fee contract between Evelyn Patricia Freedman and trial counsel Dunn & Johnson but it did not contain a provision for the payment of appellate fees. This court finds that Evelyn Patricia Freedman knew or should have known of the work of the petitioners and the services which they had rendered to her. Not only did they represent her in the two appeals mentioned but there was evidence of collateral appeals handled by petitioners on her behalf growing out of the interpretation of her interest in the estate. Direct testimony by Attorney Dunn, which the court accepts, shows that he had discussed with her her additional obligation for appellate fees as early as April 1970 and that she had agreed to be responsible for those fees. There is no evidence in this record nor does the respondent contend that she demurred to the services of the petitioners or ever advised them in any manner that she did not intend to compensate them for their services. There can be no question that the services were rendered and that they were of value to the respondent. She should not be permitted to unjustly enrich herself at the expense of the petitioners whose work and services were rendered over a period of more than eight years. The court finds that there was an implied contract on the part of the Respondent Evelyn Patricia Freedman to pay the petitioners a reasonable sum for their services. The only evidence before the court on the question of what is a reasonable fee is that of the petitioners and their expert Lucien Proby. The Petitioner Horton testified that in his opinion a reasonable fee would be in the neighborhood of $35,000 to $40,000. The witness Proby testified that in his opinion a reasonable fee would be $50,000.00. The court finds that a reasonable fee would be $35,000.00. The premises considered it is
“ORDERED AND ADJUDGED that the Petitioners Horton, Schwartz & Perse have and recover from the Respondent Evelyn Patricia Freedman, the sum of $35,000. The personal-representatives of the estate of the decedent shall pay to said petitioners from those sums on hand belonging to the Respondent Evelyn Patricia Freedman the sum of $35,000.00. A lien is hereby impressed upon the distributable share of the Respondent Evelyn Patricia Freedman in the hands of the personal representatives of the Estate of the decedent to the extent of the fee awarded herein. This judgment shall bear interest at the legal rate as provided by Sec. 55.03 of the Florida Statutes. “DONE AND ORDERED in Chambers at Miami, Dade County, Florida, this 11th day of April, 1979.
/s/ FRANCIS J. CHRISTIE CIRCUIT JUDGE”

The appellant relies heavily on the following in her brief:

“The general rule is that an attorney has no implied authority, by virtue of his employment, to engage assistant or associate counsel at his client’s expense. Orwig v. Chicago, R. I. & P. R. Co., 217 Iowa 521, 250 N.W. 148, 90 A.L.R. 258; Orozem v. McNeill, 103 Kan. 429, 175 P. 633, 3 A.L.R. 1598, on reh. 103 Kan. 694, 176 P. 106, 3 A.L.R. 1601; Forman v. Sewerage & Water Bd., 119 La. 49, 43 So. 908; Bentley v. Fidelity & D. Co., 75 N.J.L. 828, 69 A. 202; Skeen v. Peterson, 113 Utah 483, 196 P.2d 708; 7 Am.Jur.2d, Attorneys at Law Sec. 105; and the mere fact that the client knows that beneficial services are being performed, and he does not object but receives the benefits, which may be enough to raise an implied promise to pay for the services, does not necessarily do so in the case of services performed by assistant or associate counsel, since the client may logically assume that the services were performed for the original attorney and not for the client. Park v. Morin, 304 Mass. 35, 22 N.E.2d 603 (1939).”

These cases clearly indicate that the presumption can be rebutted by a sufficient showing, which we find to be the case before us and therefore, examining the record in light of the following authorities, we affirm. See: In Re Barker’s Estate, 75 So.2d 303 (Fla.1954); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972); Kucera v. Kucera, 330 So.2d 38 (Fla.4th DCA 1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Cruz v. Brown, 338 So.2d 245 (Fla.3d DCA 1976); Klarish v. Cypen, 343 So.2d 1288 (Fla.3d DCA 1977).

Affirmed.