author: PER CURIAM. FERGUSON, Judge

text:
    MIAMI LINCOLN MERCURY, INC., Appellant, v. Daniel W. KRAMER, Appellee.
    Nos. 80-1507, 80-2088.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied July 6, 1981.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Robert K. Tucker and R. Owen Ricker, Jr., Miami, for appellant.
    David H. Zoberg and Michael D. Felton, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

The final order denying attorney’s fees which is under review by this appeal is reversed and the cause is remanded to the trial court with directions to award the defendant Miami Lincoln Mercury, Inc. reasonable attorney’s fees under Section 817.-41(6), Florida Statutes (1979), upon a holding that: (a) the defendant herein was the prevailing person in a civil action brought against it inter alia for misleading or deceptive advertising under Section 817.41(1), Florida Statutes (1979), and accordingly, was entitled to an award of reasonable attorney’s fees under Section 817.41(6), Florida Statutes (1979), see e. g., Johnny Crews Ford, Inc. v. Llewellyn, 353 So.2d 606 (Fla.2d DCA 1977); and (b) the defendant’s entitlement to said attorney’s fees was not defeated by its failure to plead for same in its answer as it properly presented the issue before the trial court by timely motion — although admittedly it would have been better practice for the defendant to have pled for said attorney’s fees in its answer. See e. g., Ocala Music & Marine Center v. Caldwell, 389 So.2d 222 (Fla. 5th DCA 1980), and cases collected.

Reversed and remanded.

FERGUSON, Judge

(dissenting).

Kramer filed this suit against Miami Lincoln Mercury pursuant to Sections 817.40 and 817.41, Florida Statutes (1977), for damages arising from an alleged misleading advertisement that the auto he purchased had been driven less than 7,000 miles. He joined in the suit as defendants prior dealers and a prior owner of the vehicle contending that one of the defendants unlawfully turned back the odometer on the vehicle and that the other defendants, including Miami Lincoln Mercury, knew or reasonably should have known that the odometer had been tampered with. After a jury trial, a verdict was returned for Miami Lincoln Mercury. Miami Lincoln Mercury then sought attorney’s fees from Kramer as the prevailing party pursuant to the statute. § 817.41(6).

The parties are unable to provide the court with a case construing the statutory provision in question. Section 817.41(6) provides for attorney’s fees to be awarded “to any person prevailing in an action for violation of this action.” Similar statutes relied upon by appellant provide for an award of fees to the prevailing party and have been construed to apply as well to a prevailing defendant. This same section provides for “punitive damages in addition to actual damages proven.” Under no realistic hypothesis could the defendant-retailer ever be the party proving actual and punitive damages based on plaintiff-consumer’s “action for violation of this section.”

As an aid to interpreting this statutory provision, I find it unnecessary to look further than the entire chapter on fraudulent practices. Chapter 817, unlike the statutes relied upon by appellant, is a criminal statute. Unquestionably, it was enacted to grant to consumers a stronger remedy for redress against fraudulent commercial practices than already existing legal remedies.

There are sixty-five sections under Chapter 817 identifying and prohibiting certain frauds. Nearly all of the frauds are made criminal acts and are punishable as such. Section 817.416, supra, prohibits misrepresentations in the sale of franchises and distributorships. A violation of the section is a crime. § 817.416(2)(b). Activities in violation of the section may be enjoined by the Department of Legal Affairs or the Department of Agriculture and Consumers Services in behalf of the people of the state. Most persuasive to an interpretation of the provision in question is the language found in subsection (3) of Section 817.416 which provides for a civil remedy in addition to criminal penalties and injunctive relief:

Any person, who shows in a civil court of law a violation of this section may receive a judgment for all moneys invested in such a franchise or distributorship. Upon such a showing, the court may award any person bringing said action reasonable attorney’s fees....

It is perfectly clear that this section does not intend to award fees to a prevailing defendant even though the very nature of the subject contemplates a more sophisticated type of litigation than does Section 817.41. I am aware of no criminal statute which awards attorney’s fees to a prevailing defendant.

Section 817.41 prohibits misleading advertising but is the only fraudulent practice in this Chapter for which no criminal penalty is prescribed, nor is expressly subject to injunctive action by a department of state government. The single statutory remedy for violation of the section is a civil action by a member of the public who has been misled. I believe that the purpose of Section 817.41(6) is to place aggrieved consumers on equal footing with retailers in terms of access to the court for the purpose of vindicating a public as well as private wrong. The interpretation by the majority, that the prevailing retailer is to be awarded attorney’s fees even where the action is meritorious and brought in good faith, is contrary to the intent of the statute. Under no other section would a non-prevailing party, be it the government or a private consumer, be liable for attorney’s fees. It is doubtful that the Legislature intended this inconsistency.

I would affirm the trial court.

      . § 501.2105(1) Florida Statutes (1979); § 713.-29 Florida Statutes (1979); § 718.303(1) Florida Statutes (1979).

      . § 817.415 Florida Free Gift Advertising Law
      (1) LEGISLATIVE INTENT
      (2) The Legislature of the State of Florida recognizes that the deceptive misuse of the term “free” and words of similar meaning and intent in advertising by the unscrupulous had resulted in deception of consumers, leading them unknowingly to assume contractual obligations which were initially concealed by the deception.


source: Caselaw Access Project

author: NESBITT, Judge.

license: Public Domain

text:
    Dr. Philip GLATSTEIN, Lynn Glatstein, Leonard Turkel and Annsheila Turkel, Appellants, v. The CITY OF MIAMI, a Florida Municipal Corporation, and Diplomat World Enterprises Ltd., a limited partnership under the laws of the State of Florida, Appellees.
    No. 80-57.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied July 6, 1981.

      Hall & Hauser, Andrew C. Hall, and Gail V. Ferrington, Miami, for appellants.
    George F. Knox, Jr., City Atty., and Mik-ele S. Carter, Asst. City Atty., Aronovitz & Weksler and Alfred Aronovitz, Miami, for appellees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

Plaintiffs/appellants, who are citizens and taxpayers, commenced this suit for declaratory injunctive relief against the defendants/appellees seeking to enjoin the proposed development of Watson Island as a theme amusement park. Their six-count complaint alleged that:

COUNT I, the development of Watson Island as a theme amusement park was a material departure from the “Master Use Plan” adopted by the City of Miami in 1973, and violated deed restrictions from the State of Florida requiring the city to use the island solely and exclusively for public purposes;

COUNT II, the original agreement between the city and Diplomat World Enterprises Ltd. (Diplomat), dated November 11, 1977, constituted a joint venture agreement in violation of Article VII, Section 10 of the Florida Constitution;

COUNT III, the amendment of June 4, 1979 to the original contract failed to cure the illegality alleged in Count II;

COUNT IV, the original contract violated Article VII, Sections 3, and Section 10, which prohibits the pledging of credit for private purposes, of the Florida Constitution, and Section 196.199(2)(a), Florida Statutes (1977), which defines exemptions applicable to municipally owned and operated properties when used to serve a governmental, municipal, or public purpose as defined in Section 196.012(5).

COUNT V, (a), the original contract was executed contrary to the city charter, which requires invitations for competitive bidding to be executed according to detail plans; and that (b) the amendment to the original agreement failed to correct the illegality alleged in Count IV; and

COUNT VI, the development constituted a private nuisance.

After the cause was at issue and extensive discovery had been made, the defendants moved for and procured a summary final judgment. Because we are of the unqualified view that the trial court erred in failing to find that the competitive bidding provisions of the city charter were patently violated [Count V, (a)], we reverse and remand for the entry of a declaratory judgment determining that the violations of the competitive bidding provisions of the Miami City Charter render the challenged contract and amendment thereto void.

The original contract between the city and Diplomat, executed November 11,1977, was essentially a management contract for the theme park yet to be planned and developed by Diplomat. The funding and consequent risks were to be borne by the city. The project was to be funded in the amount of $55,000,000 through the issuance of certificates of indebtedness secured initially by a pledge of gross revenues received less current obligations, and by non ad valorem taxes and franchise fees not otherwise pledged. The gross revenues were to be divided between the city and Diplomat on a percentage basis. The agreement was to run for a period of thirty years.

The amendment to the above agreement executed June 4, 1979:

(1) reduced the term of the contract from thirty to five years;
(2) altered the calculations as to the amount of revenue Diplomat was to receive from an “increasing percentage on an increasing gross revenue” formula to a five-year fixed management fee totaling $12,-000,000; and
(3) additionally provided that in the event that the non ad valorem tax sources were deemed by a court of competent jurisdiction to be taxable, that Diplomat would receive a tax credit pro tanto.

In early 1977, after previous attempts to develop Watson Island were unsuccessful, the Miami City Commission requested proposals for its development based upon a plan then in existence (prepared by the firm of Fowler, Ettinger, Potter & Hart) and upon an economic feasibility study (prepared by Economic Research Associates). This published invitation for bids requested interested parties to submit proposals based upon those plans and additionally authorized proposals which would alter or modify the design scheme specified. The invitation for bids indicated that a $35,000,-000 budget had been established for the project with a contingency for an additional $10,000,000. Five proposals were submitted in response to the invitation for bids. By resolution, the city adopted the proposal submitted by Diplomat and a contract was entered into between the city and Diplomat on November 11, 1977. The proposal submitted by Diplomat, though adopted by the city on November 11, 1977, was based upon a design plan prepared by R. Duell and Associates, which was not ultimately finalized until January of 1978. Additionally, the proposal submitted by Diplomat and accepted by the city was for an estimated $55,000,000 as opposed to $45,000,000 budgeted in the invitation for bids.

The pertinent provision of the City of Miami Charter regarding competitive bids, Section 53, requires that:

Before authorizing the direct execution of any work or improvement, detailed plans and estimates thereof shall be submitted to the commission by the city manager and there shall be separate accounting as to each work or improvement so executed, [emphasis supplied]

In Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931), the Supreme Court of Florida held:

[I]t is the duty of public officers charged with the responsibility of letting contracts under the statute to adopt, in advance of calling for bids, reasonably definite plans or specifications, as a basis on which bids may be received. Such officers, in view of such requirement, are without power to reserve in the plans or specifications so prepared in advance of the letting the power to make exceptions, releases, and modifications in the contract after it is let, which will afford opportunities for favoritism, whether any favoritism is actually practiced or not. Neither can they include other reservations which by their necessary effect will render it impossible to make an exact comparison of the bids.
That a contract made by public officers in violation of the statutes requiring them to be let pursuant to competitive bids, to the best responsible bidder, is absolutely void, and no rights can be acquired thereunder by the contracting party, is beyond question in this jurisdiction, [emphasis supplied]

138 So. at 724.

A reading of the Section 53 of the city charter, referred to above, gauged against Wester v. Belote, supra, makes it readily apparent that the material variance between the detailed plans upon which corn-petitive bidding was proposed to be submitted and that which was submitted by Diplomat and ultimately adopted by the city renders the contract void. We have previously recognized that a lease concession agreement which was materially and substantially different from the published invitation required by a city’s charter was void. City of Miami Beach v. Klinger, 179 So.2d 864 (Fla.3d DCA 1965). Diplomat’s proposal not only altered the design plans for the theme park but also embodied a management contract as its primary element. Because of this infirmity, it requires no reason or authority to recognize that the amendment to the original contract, which could not and did not overcome this fundamental deficiency, is also void.

The appellees implore us to determine that the collateral bond proceeding, in which some $55,000,000 in certificates of indebtedness to be issued by the City of Miami were validated, precludes an assault on the instant contract because the trial court, in the collateral bond validation proceeding, made a finding that the city had the power to enter into the contract herein disputed. In construing Sections 75.02, 75.-07, and 75.09, Florida Statutes (1979), concerning bond validation, our Supreme Court has uniformly held that a bond validation and its underlying purpose becomes unassailable in collateral proceedings. State v. City of Miami, 379 So.2d 651 (Fla.1980); State v. Sarasota County, 372 So.2d 1115 (Fla.1979); State v. City of Sunrise, 354 So.2d 1206 (Fla.1978); Lipford v. Harris, 212 So.2d 766 (Fla.1968); State v. City of Miami, 103 So.2d 185 (Fla.1958). However, most of the cases understandably recognize that there are limitations upon the doctrine. We find the most recent pronouncement as to the limitations in bond validation proceedings expressed in McCoy Restaurants, Inc. v. City of Orlando, 392 So.2d 252 (Fla.1980), where it was stated that:

The sole purpose of a validation proceeding is to determine whether the issuing body had the authority to act under the constitution and laws of the state and to ensure that it exercised that authority in accordance with the spirit and intent of the law.

392 So.2d at 253. In McCoy Restaurants, Inc., the Supreme Court recognized that a lease agreement between the aviation authority and the restauranteur was collateral to the bond validation proceeding and, consequently, the appellant did not have standing to contest the validity of the lease agreement in the same proceeding. That case, directly in point, clearly supports the plaintiff’s standing to challenge the agreements between Diplomat and the City of Miami even though a bond validation proceeding has already been maintained. The appellants are not collaterally estopped from bringing an action on questions which were precluded from consideration in the bond validation proceeding.

The next position asserted by the appellees in support of the contract is that Section 16-20 of the City of Miami Code expressly exempts contracts for professional services from bidding requirements and that the management and development of the theme park constituted a professional service. This was a management contract and not a contract for professional services which normally encompasses planning or design proposals. Moreover, this argument ignores the simple fact that the invitation for competitive bids also solicited a request for plans for the development of Watson Island. Absent specific plans, no bidding could take place. If the city had “detailed” plans, as expressly required by Section 53 of the city charter, ready for competitive bidding, there was no need for further solicitation of plans from any source.

Viewing the several provisions of the city charter here in issue, it is apparent that the city is exempt from seeking competitive bids for design plans, feasibility studies, and other similar professional services so that, with firm plans in hand, they may request bids on sufficiently detailed and specific plans and thereby promote intelligent and competitive bidding as envisioned by the city charter. The contract with Diplomat was for management and operation of the completed park. The management aspects of the contract should be subject to the competitive biddings requirements.

Finding the determination of Count V to be dispositive, we do not address appellants’ other contentions. Consequently, there being no material facts in dispute, we reverse the order of the trial court granting summary final judgment with directions to enter a declaratory judgment for the appellants upon Count V of the complaint determining the contract and amendment thereto void.

Reversed and remanded with directions.

      . The proposal for bids allowed the bidder to design and bid on their own plan. Diplomat did just that. The plan as designed for Diplomat, which included a management contract, was never competitively bid nor could it have been under this proposal because it was not in existence at the time the bidding was advertised.

      . Assuming the original agreement had been valid, we do not reach the question of whether the modifications made by the amendment were so substantial so as to circumvent the competitive bidding requirements.

      . This section has subsequently been renumbered as § 18-54.

      . A summary judgment may be entered for a non-moving party where the other party moves for a summary judgment and the record discloses the non-moving party is entitled to summary judgment. Carpineta v. Shields, 70 So.2d 573 (Fla.1954); Jockey Club, Inc. v. Blake, 297 So.2d 44 (Fla.3d DCA 1974); King v. L & L Investors, Inc., 133 So.2d 744 (Fla.3d DCA 1961). The better practice is to file cross-motions, Carpineta v. Shields, supra.


author: PER CURIAM.

text:
    Barry Richard MANN, Appellant, v. Mary June MANN, Appellee.
    No. 80-855.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied July 6, 1981.

      Edward C. Vining, Jr., Miami, for appellant.
    Joe N. Unger, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment as amended upon rehearing is affirmed upon the main appeal herein, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Leonard v. Leonard, 389 So.2d 256 (Fla. 3d DCA 1980). Said judgment as amended is, however, reversed upon the cross appeal herein and the cause is remanded to the trial court with directions to restore the provision of the final judgment (modified upon rehearing) awarding the appellee wife seven (7) years of rehabilitative alimony at $630 per month.

The trial court, in our view, improperly modified on rehearing the findings of the special master appointed by the trial court herein to hear the testimony in this cause. Among the findings made by the special master in his report to the trial court was a finding that the appellee wife be awarded not less than seven (7) years of rehabilitative alimony at $630 per month. At first, the trial court accepted this finding and awarded the appellee wife seven (7) years of rehabilitative alimony at $630 per month in the final judgment; upon rehearing, however, that provision was modified to reduce the term of rehabilitative alimony from seven (7) years to three and one-half (3V2) years. In our view, this was a special master finding, not a recommendation as the trial court saw it, and could not be modified unless the trial court found, as it concededly did not in this case, that said special master's finding was clearly erroneous or that the special master had misconceived the legal effect of the evidence. Shaw v. Shaw, 369 So.2d 81 (Fla. 3d DCA 1979).

Affirmed in part; reversed in part.


text:
    Stanley J. KLINE, Charlotte Kline and E. B. Kline, a/k/a B. E. Kline, Appellants, v. DEVCON REALTY CORPORATION and SOJ Realty Corporation, as Trustee, Appellees.
    No. 80-923.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied July 6, 1981.

      Prunty, Ross, Olsen & Israel and Wm. Bruce Israel, Miami, for appellants.
    Jepeway & Jepeway and Louis M. Jepe-way, Jr., Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Parker v. Brinson Construction Co., 78 So.2d 873, 874 (Fla.1955).


author: SCHWARTZ, Judge. BARKDULL, Judge,

text:
    Miriam DONNER, Appellant, v. Vernon HETHERINGTON, the City of Miami, and Appalachian Insurance Company, Appellees.
    Nos. 80-1205, 80-2017.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied July 6, 1981.
    Arthur J. Morburger, Miami, Miriam Donner, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Fred R. Ober and Mike Murphy, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

For the third time, Ms. Donner appeals from an adverse judgment in her false imprisonment action. For the third time, we reverse. At the retrial required by Donner v. Hetherington, 376 So.2d 404 (Fla. 3d DCA 1979), the trial judge directed a verdict at the conclusion of the plaintiff’s case in favor of the defendant Hethering-ton, the Miami police officer who originally took Donner into custody, as well as the city itself, and their insurance carrier. Because of the plaintiff’s picketing activities at the Metro Justice Building, Hetherington arrested her without a warrant for a second degree misdemeanor, breach of the peace or disorderly conduct, in violation of Section 877.03, Florida Statutes (1977). Such an arrest may be justified only when the officer reasonably believes that the misdemean- or has been committed in his presence. State v. Outten, 206 So.2d 392 (Fla.1968); City of Miami v. Albro, 120 So.2d 23 (Fla. 3d DCA 1960). Our review of the record below reveals that jury issues were presented both as to (a) whether, when he placed the plaintiff under arrest, Hetherington in fact himself believed that the offense had been committed, see, Spicy v. City of Miami, 280 So.2d 419 (Fla.1973), cert. denied, 414 U.S. 1131 (1974); and (b) whether, if so, there was a reasonable basis for that belief in the circumstances he observed. Spicy v. City of Miami, supra; see State v. Saunders, 339 So.2d 641 (Fla.1976); Ciccarelli v. City of Key West, 321 So.2d 472 (Fla. 3d DCA 1975). Accordingly, the judgment below is reversed for still another trial as against the present appellees.

Reversed and remanded.

BARKDULL, Judge,

dissenting.

I would affirm the trial court in the direction of the verdict in favor of Officer Hetherington. Section 877.03, Florida Statutes (1977) provides, in part, as follows:

“Whoever commits such acts as are the nature to ... affect the peace and quiet of persons who may witness them ... or engages in such conduct as to constitute a breach of the peace ... shall be guilty of a misdemeanor of the second degree ...”

The record in this case indicates that Ms. Donner, in picketing and presenting petitions to pedestrians on the steps of the Metropolitan Justice Building, was deliberately attempting to cause a congregation of people. (She was dressed in hot pants, a halter top, high-heeled shoes, and was wearing a wig.) This activity continued in the presence of the officer until a crowd of persons, varying from 50 to 200 in number, had assembled. The activities had already resulted in one of the spectators stepping backwards near the stairs. A police officer at such a scene should not be required to wait until a riot occurs in order to make an arrest. Further, the Supreme Court of the United States held, in Ingraham v. Wright, 340 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 771 (1977), that an officer is not liable in damages for an arrest not based on probable cause if the officer reasonably believes that probable cause exists. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); compare City of Miami v. Albro, 120 So.2d 23 (Fla. 3d DCA 1960). Under the circumstances as demonstrated in this record, at the time the judge directed a verdict in favor of the officer and considering the volatile situation at the scene of the incident, I certainly think the officer had reasonable basis to believe that he had probable cause to request Ms. Donner to remove herself from the area in front of the doors and off the steps, and to arrest her when she refused to move.

Therefore, I would affirm the action of the trial judge in granting the directed verdict and so I dissent from the majority opinion.

      . Donner v. Hetherington, 370 So.2d 1225 (Fla. 3d DCA 1979) reversed a summary judgment entered in favor of the director of the facility where the plaintiff was taken and confined.

      . The case against the remaining defendants— who were involved in the plaintiffs subsequent imprisonment at the Dade County women’s jail — proceeded to jury verdict.

      . Ms. Donner was picketing at the main entrance on the south side of the Metropolitan Justice Building. At this location, there are 6 doors leading into the building off a plateau (or landing) that is approximately 44 feet across the front of the building by 29 feet wide. Leading up to this landing (or plateau) from the sidewalk is a series of steps and landings. From the bottom, one goes up three steps to a landing and then up eleven more steps to the top; this elevates the top landing about seven feet above the sidewalk.


text:
    Dwight S. CENAC, Appellant, v. FLORIDA STATE BOARD OF ACCOUNTANCY, Appellee.
    Nos. OO-68, OO-433.
    District Court of Appeal of Florida, First District.
    May 29, 1981.

      A. August Quesada, Jr. and Frederick R. Brock of Wildt, Quesada, Brock & Skinner, Jacksonville, for appellant.
    James S. Quincey and Samuel Hankin of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appel-lee.
   PER CURIAM.

Cenac appeals a final order of the Florida State Board of Accountancy (the Board) revoking his CPA license and an order of the hearing officer denying him relief in a related rule challenge proceeding. We affirm in part and reverse in part.

The Board rescinded Cenac’s license because while holding a CPA license and practicing public accounting, he improperly offered services for a contingent fee directly and indirectly solicited public accounting engagements, encroached on other practitioners, rendered services of a type performed by other professionals without complying with Chapters 1-8 of Chapter 21A, and practiced without reestablishing competency. In Point II A, which we find appropriate to discuss first, Cenac argues that the Board erroneously rejected some of the hearing officer’s findings of fact. We agree because there was competent substantial evidence to support those findings. § 120.57(l)(b)9., Fla.Stat. (Supp.1978).

THE FACTS

We paraphrase the hearing officer’s findings of fact as follows:

After college, Cenac worked two years for an accounting firm, receiving his certificate in 1973. Blue Cross of Florida employed him from 1973 until 1977 when a health care provider in Puerto Rico hired him to establish procedures to improve Medicare and Medicaid reimbursement. Cenac’s understanding of Medicare regulations, acquired while working at Blue Cross, coupled with his experience in Puerto Rico, convinced him that many health care providers needed special consulting concerning their financial record keeping. Thus, in 1977, Cenac formed Health Care Management Consulting Inc. (HCMC). He sent a “proposal” to health care providers, which informed them of HCMC’s services, clientele, and fee arrangement.

At this time Cenac notified the Board that he was no longer performing public accounting and requested an exemption from reestablishing his competency. Accordingly, his CPA certificate became inoperative. See § 473.111(9), Fla.Stat. (1977), permitting a CPA certificate to be marked inoperative if the CPA is not practicing public accounting and exempting the certificate holder from reestablishing competency for such period.

Two other HCMC consultants perform services similar to those performed by Ce-nac. Neither is a CPA and both obtained their special expertise while working in the intermediary field between the government and the health care provider.

HCMC provides specialized services not provided by public accountants such as setting up books and records for health care providers, preparing cost reports, providing assistance in setting rates, and providing general familiarity with Medicare regulations. Many of HCMC’s services, inasmuch as they involve financial records, are the same type services provided by Florida practitioners, that is, CPAs practicing public accounting in Florida.

Cenac does not hold himself out as a CPA. Although CPA certificates hang on his office wall, no clients visit the office. Cenac, by submitting the HCMC proposal to health care providers, is both advertising and soliciting business. HCMC has also obtained business previously performed by Florida practitioners. Finally, the proposal offers services on a contingent fee basis, i. e., a percentage of the additional Medicare funds obtained as a result of HCMC’s services.

No audits unrelated to Medicare or Medicaid are performed, and financial statements prepared by HCMC do not refer to generally accepted accounting principles and generally accepted auditing standards, nor do they purport to express or disclaim an opinion as to the fairness of the presentation. The other employees of HCMC are not in violation of Chapter 473 because they are not certified.

THE BOARD’S REJECTION OF CERTAIN FACTS

Section 120.57(l)(b)9., Fla.Stat. (Supp. 1978) limits the authority of an agency to reject the hearing officer’s findings of fact as follows:

The agency in its final order may reject or modify the conclusions of law and interpretation of administration rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. [Emphasis added.]

With this in mind, we examine the Board’s determination that Cenac was indeed holding himself out as a CPA. Although certificates were hung on the office wall, this is only prima facie evidence of holding out. § 473.22, Fla.Stat. (1977). Obviously, the hearing officer believed Ce-nac’s testimony that no clients visited the office and contrary to the Board’s assertion, there is no evidence he told people he was a CPA. At best, Cenac admitted that if asked whether or not he was a CPA, he would answer he was “nonpracticing.” Such evidence is insufficient to support the Board’s finding that there was no competent substantial evidence to support the hearing officer’s finding that Cenac was not holding himself out as a CPA.

The Board also rejected the finding that Cenac and other HCMC employees gained their special expertise while working in the intermediary field, stating that the evidence supporting the finding was hearsay. However, Cenac and another HCMC employee testified they had obtained most of their experience while working with Blue Cross. Therefore, this finding was also erroneously rejected.

Finally, the Board rejected the finding that many of HCMC’s services were services performed by certified public accounting firms. Instead, the Board found that all services performed by HCMC were services performed by CPA firms. However, the evidence on this issue was somewhat contradictory, with Cenac listing certain skills that CPA firms would not do, but at the same time admitting that he was aware of some firms that had purported to do the same work. Another employee testified that HCMC uses skills other than normal accounting and auditing skills and he knew of no CPA firms doing all of the same work. Therefore, the Board’s conclusion that both witnesses indicated that “all” services performed by HCMC were services performed by Florida CPA firms, is incorrect.

The hearing officer in an administrative proceeding is the trier of fact, and he or she is privileged to weigh and reject conflicting evidence. David Clark and Assoc., Inc. v. Kennedy, 390 So.2d 149 (Fla. 1st DCA 1980). After considering the above, we conclude that: the factual issues surrounding the order are susceptible of ordinary methods of proof, the Board does not claim special insight into any of the matters, and there is competent substantial evidence in the record to support the findings of the hearing officer. See Samson v. Bureau of Community Med. Fac., 363 So.2d 412, 415-416 (Fla. 1st DCA 1978); Catholic Social Services v. Dept. of Commerce, 365 So.2d 427 (Fla. 1st DCA 1978); McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 574, 579 (Fla. 1st DCA 1977).

CONCLUSIONS OF LAW

Whether Cenac is guilty of violating numerous provisions of Chapter 473 hinges upon whether Cenac was practicing “public accounting” under the facts we have framed above. This issue involves Points III A and III B of Cenac’s brief, which urge that Cenac was not practicing public accounting, not holding out, and therefore, not in violation of law. Chapter 473 provides for two different applications of the term “public accounting.” Section 473.-011(5) states:

(5) Whenever the term “public accounting” is used in this chapter, it shall be deemed and construed to mean:
(a) All services offered to or performed for-the public by a Florida practitioner or an out-of-state practitioner involving the use of accounting skills, specifically including, but not limited to, management services, and
(b) All services offered to or performed for the public by any other person, acting as an individual, as a partner or employee of a partnership, as a stockholder, officer or employee of a professional corporation, or as an officer or employee of any other corporation, involving the use of accounting skills, except as follows:
1. The keeping of books of account and related accounting records, including payroll records, and preparing trial balances;
2. The preparation of financial statements and submission thereof to others, if such statements are issued without certificate of expression or disclaimer of opinion as to the fairness of the representations shown therein and do not purport to result from an audit or examination;
4. The rendition of other management services.

Literally read, the statute indicates that if Cenac was a “Florida practitioner” under (5)(a), rather than “any other person” under (5)(b), then he was also practicing public accounting because he unquestionably performed accounting and management services. Notably, (5)(a) refers to all such services.

Was Cenac a “Florida practitioner?” Section 473.011(2) defines “Florida practitioner” to mean “a certified public accountant ... engaged in the practice of public accounting in Florida.” In turn, a CPA is “a person holding a certificate to practice as such, issued by the state under this chapter, or any law of the state heretofore in force and effect. § 473.011(1), Fla.Stat. (1977). Thus, again reading the statutes literally, it appears that Cenac is a CPA because he holds a CPA certificate, albeit inoperative while he is not practicing public accounting. See § 473.111(9), supra. Although we are confronted by the somewhat confusing circular definition of public accounting, as pointed out by the hearing officer, the agency interpretation of these statutes has not been so literal.

The hearing officer observed in his conclusions of law that in Declaratory Statement 75-01, the Board did not consider (5)(a) applicable because the CPA there did not hold himself out as a practitioner. In that case, two CPAs were shareholders and employees of a corporation which engaged in public practice, except that the corporation also sold insurance. The accounting function involved pension and profit sharing plans tied to insurance sales with the major emphasis on the sale of insurance. Financial statements prepared by the corporation did not refer to generally accepted accounting principles and generally accepted auditing standards, nor did they purport to express or disclaim an opinion as to the fairness of the presentation. In construing Sections 473.04, 473.011(1) and (2), and Rule 21A-2.10, the Board concluded that “A person who does not profess to the public that he is a certified public accountant, and thus is more qualified to render these services than unlicensed persons performing similar services, it not a person ‘practicing as a certified public accountant ... ’ ” Subsequently, in Declaratory Statement 76-02, without explication of the rationale for the result reached, the Board found that a CPA who had formed a partnership for the purpose of seeking and performing accounting, bookkeeping, and related tax work for the public, was nevertheless a Florida practitioner engaged in the practice of public accounting although he did not hold himself out to the public as a CPA. The hearing officer found, and we agree, that the facts here are closely analogous to those involved in Declaratory Statement 75-01.

Additionally, the hearing officer wrestled with the constitutionality of a contrary interpretation of the pertinent statutes. The Board, however, without discussing the implications of its prior practices in these matters or the implications of construing Chapter 473 to require certificate revocation in this case, concluded that Cenac was a Florida practitioner practicing public accounting; consequently, the Board then listed numerous Chapter 473 violations.

We conclude that the proper course is for us to remand this cause for the entry of an agency order consistent with the hearing officer’s findings of fact, without our first ruling on the proper interpretation to be given the pertinent statutes. Presumably, the agency’s conclusions of law were based upon its revised findings of fact, which we have now concluded to be erroneous. Therefore, we think it would be premature for us to pass on the question of whether Cenac’s conduct could constitutionally fall within the prohibitions of Chapter 473 and to expound on the meaning of pertinent statutes which are not clearly unambiguous. The APA guides us in this regard. Section 120.68(12)(b), - Fla.Stat. (Supp.1978) provides:

The court shall remand the case to the agency if it finds the agency’s exercise of discretion to be:
(b) Inconsistent with an agency rule, an officially stated policy, or a prior agency practice, if deviation therefrom is not explained by the agency ... but the court shall not substitute its judgment for that of the agency on an issue of discretion.

Here the Board’s order is at least arguably inconsistent with the policy or practice established in Declaratory Statement 75-01 under the facts found by the hearing officer. See State Dept. of Health and Rehabilitative Services v. Barr, 359 So.2d 503 (Fla. 1st DCA 1978), recognizing that declaratory statements are final agency action, are reviewable, and have the effect of stare decisis. Furthermore, we have consistently recognized that questions of statutory interpretation are for the agency to decide in the first instance. Roberts v. Ayers, on petition for rehearing, 380 So.2d 1057, 1060 (Fla. 1st DCA 1980); Rice v. Dept. of Health and Rehab. Services, 386 So.2d 844, 847, 850 (Fla. 1st DCA 1980), wherein we also noted that “the deference due the agency is ... less for its judgment on questions of law than for its greater familiarity with the statutory scheme and its expertise in the field regulated.”

Therefore, under the circumstances presented, where the agency’s order must fail because based upon erroneously adopted conclusions of fact, the agency will be given an opportunity to enter another order justifying its decision on the basis of law or policy if it wishes to adhere to its initial decision. However, we caution that the agency has a “duty to explicate its nonrule interpretation of the governing statute by conventional proof methods as far as reasonably possible.” ABC Liquors, Inc. v. Dept. of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981). Put another way, “[W]hen an agency elects to adopt incipient policy in a non-rule proceeding, there must be adequate support for its decision in the record of the proceeding.” See Florida Cities Water Company v. Public Service Comm., 384 So.2d 1280 (Fla.1980), where contrary to prior practice and the hearing officer’s recommendation, the Commission disallowed deductions, “offering no reason for the abrupt discontinuance of prior agency policy other than it was ‘wrong as a matter of law.’ ” There must be an eviden-tiary basis in the record for an agency’s factual premise and its reasoning from a statute if they are capable of being demonstrated by expert testimony, documentary opinion, or other appropriate evidence even though the agency’s conclusions are purportedly based upon matters of common knowledge, economic logic, or abstract statutory interpretation. Anheuser-Busch, Inc. v. Dept. of Business Regulation, 393 So.2d 1177 at 1182 (Fla. 1st DCA 1980).

In conclusion, should the agency choose to uphold its decision, under the circumstances its order must contain more than a summary conclusion that Cenac is a Florida practitioner practicing public accounting under Chapter 473, and a list of the statutes allegedly violated. Consonant with the APA, it must explicate its reasoning and there must be adequate support for its decision in the record.

In the rule challenge proceeding, which Cenac appeals in Point I, he urges that the Board failed to follow rulemaking procedures concerning an alleged statement, entitled “Note”, which explained the position of the Board regarding Declaratory Statements 75-01 and 76-02, discussed above. We find that this note was not an agency statement, intended by its own effect to create certain rights. See McDonald, supra, 346 So.2d at 580-581; § 120.-52(14), Fla.Stat. (1977). Rather, it was editorial in nature, having been written by the executive director of the Board, and intended merely to explain the effect of the two declaratory statements which appeared together in a publication of the Florida Ac- countaney News. Therefore, we affirm the hearing officer’s determination that the “note” was not a rule.

As to the other points raised, we find no basis in the record that the Board denied appellant substantive due process by allegedly acting as investigator, prosecutor, and judge. (Point III C) Because of our reversal, we do not regard it necessary to rule on the challenge to the constitutionality of the statute prohibiting solicitation by certified public accountants. (Point III D) Finally, there is no factual basis in the record to support the claim that the hearing officer erred in denying a motion to disqualify all members of the Board for bias and prejudice. (Point IV)

Accordingly, we affirm Points I, II C, III C and IV. We reverse for the reasons stated with respect to Points II A, III A, and III B. Our disposition of this appeal makes it premature or unnecessary for us to rule on the remaining issues.

The cause is remanded for entry of a new order consistent with this opinion and based on the existing record.

McCORD and SMITH, JJ., concur.

WENTWORTH, J., concurs in conclusion only.

      . Contrary to § 473.271, Fla.Stat. (1977); Fla. Admin.Code Rule 21A-5.02.

      . Contrary to § 473.291; Rule 21A-7.02.

      . Contrary to Rule 21A-6.01.

      . Contrary to Rule 21A-7.06.

      . Contrary to § 473.111 (9)(a)( 1).

      . The Board, for the first time in its brief, contends that Cenac was “holding out” because of certain statements in the proposal. However, this was not urged below nor was it a subject of concern in the orders below. Therefore, we are unwilling to make the factual determination on appeal that representations in the proposal showed Cenac was holding himself out as a CPA.

      . Thus, we find it unnecessary to rule on Ce-nac’s challenge to the adequacy of the order under § 120.59(2) Fla.Stat. (1977). (Point II B) Also, we reject his argument that violation of the 90-day rule under § 120.59(l)(b) automatically invalidates the agency’s order. (Point II C) See Jess Parrish Memorial Hosp. v. Florida Public Employees Relations Comm., 364 So.2d 777 (Fla. 1st DCA 1978); G&B of Jacksonville, Inc. v. Dept. of Business Regulation, 362 So.2d 951 (Fla. 1st DCA 1978).

      . 21A-2.10 Practice of, or practicing public accounting. “Practice of, or practicing public accounting” shall be deemed and construed to mean offering to perform, performing, or holding oneself out as being qualified to perform, those services described in Section 473.011(5), F.S. for the general public and shall not include the services rendered as an employee of a governmental unit or private enterprise.
      Section 473.04 provides in part: “It [the Board] shall prescribe a standard of professional conduct and formulate reasonable rules defining unethical practices for persons holding certificates... Every person practicing as a certified public accountant ... shall be governed ... by rules ... adopted by the Board.”

      . For example, the hearing officer found it difficult to conclude that the acts of Cenac, in providing services only to health care providers, without holding himself out as a CPA, in ally manner harmed the public so as to justify the use of the police power in revoking Cenac’s certificate. See Florida Accountants Assoc. v. Dandelake, 98 So.2d 323 (Fla. 1957), discussing legitimate dangers sought to be eliminated through regulation of accountants; Junco v. State Board of Accountancy, 390 So.2d 329 (Fla. 1980), discussing generally the limit of the state’s authority to regulate professions and quoting that “The purpose of Chapter 473 is to ensure that ‘only those persons who meet the high standards of proficiency established by the statute and the Board may practice as certified public accountants in this state.’ ” [Emphasis supplied.] See generally State Board of Medical Examiners of Florida v. Rogers, M. D., 387 So.2d 937 (Fla. 1980), providing an example of a regulating board acting in an unreasonable exercise of the police power.

      . Point II C complains of denial of due process by the Board in failing to comply with 90-day provision of Section 120.59(l)(b), Florida Statutes.

      . Point II B complains of denial of procedural due process by the Board in its failure to consider and respond to appellant’s proposed findings of fact and exceptions to the recommended order. Point III generally asserts a denial of substantive due process by the Board in exceeding its statutory authority. Point III D asserts a violation of the Sherman Anti-Trust Act, 15 U.S.C. § 1, 2 (1975), as well as violation of appellant’s right of free speech and equal protection of the laws in connection with the charges of offering services on a contingent fee basis, and solicitation (see footnotes 1 and 2, supra).

      .Appellant’s request for assessment of attorney’s fees and costs is denied. See Jess Parrish Memorial Hospital v. PERC, 364 So.2d 777 (Fla. 1st DCA 1978).


text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Paul F. HARTSFIELD, as Clerk of the Circuit Court of Leon County, Florida, Appellee.
    No. WW-371.
    District Court of Appeal of Florida, First District.
    May 29, 1981.
    Rehearing Denied July 7, 1981.

      Joseph R. Boyd and W. Crit Smith of Boyd, Harris, & Smith, Tallahassee, and Chriss Walker of the Dept, of Health and Rehabilitative Services, Tallahassee, for appellant.
    F. Phillip Blank of Tucker & Blank, Tallahassee, for appellee.
   PER CURIAM.

Appellants, Department of Health and Rehabilitative Services (HRS) petitioned for mandamus in the circuit court to compel the clerk of the circuit court to provide to HRS without charge “all necessary services ... including the issuance of photographic copies of necessary court records, relating to civil actions” in child support and paternity proceedings under Chapter 409, Florida Statutes (1979). The circuit court denied the petition for writ of mandamus and this appeal followed. We affirm.

Section 409.2571(1), Florida Statutes (1979) provides that HRS or its agents “shall be entitled to the necessary services of the clerk ... in any proceeding under this act; ... and no fees for such court, clerk or sheriff’s services shall be charged against the department.” (e. s.)

This statute requires the clerk to provide all “necessary services” to HRS without charge. .From the record, we are unable to determine exactly what services the clerk is declining to provide. The petition speaks of “necessary court records” and “photographic copies” but appellant never explains exactly what court records are necessary and under what circumstances they are necessary. We are, therefore, not in a position to determine whether or not “necessary services” are being refused by the clerk.

In order to show entitlement to the extraordinary writ of mandamus, the petitioner must demonstrate a clear legal right on his part, an indisputable legal duty on the part of respondents, and that no other adequate remedy exists. State ex rel Eichenbaum v. Cochran, 114 So.2d 797 (Fla.1959). State ex rel. Blatt v. Panelfab International Corp., 314 So.2d 196 (Fla.3d DCA 1975). Mandamus is available to enforce an established legal right but not to establish that right. Slaughter v. State ex rel. Harrell, 245 So.2d 126 (Fla.1st DCA 1971). State v. Gamble, 339 So.2d 694 (Fla.2d DCA 1976).

While we do not necessarily agree with the trial court’s conclusion that the clerk’s duties are divisible into those performed as clerk of the circuit court and those performed as county recorder, we need not consider that determination as we conclude that appellant has failed to show a clear entitlement to a writ of mandamus.

Accordingly the judgment below is affirmed.

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


text:
    Sondra J. ANDERSON, Appellant, v. CANVASSING AND ELECTION BOARD OF GADSDEN COUNTY, FLORIDA as constituted by J. Love Hutchinson, Forrest Davis and Richard Hood, Chairman; J. Love Hutchinson as Supervisor of Elections of Gadsden County; and Denny Hutchinson, Candidate for Supervisor of Elections for Gadsden County, Appellees.
    No. YY-410.
    District Court of Appeal of Florida, First District.
    May 29, 1981.
    Rehearing Denied July 7, 1981.
    Marlow V. White, Jr. of Busch & White, Tallahassee, for appellant.
    John Shaw Curry and Joann G. Slay of Johnson, Harnett, Curry & Slay, Quincy, for Canvassing and Election Board, and James 0. Shelter of Gardner, Shelfer, Mendelson, Duggar & Thompson, Quincy, for Denny Hutchinson, appellees.
   PER CURIAM.

Anderson appeals the judgment of the trial court which affirmed the Gadsden County Canvassing Board’s (Canvassing Board) rejection of certain absentee ballots. We affirm.

Anderson was the unsuccessful candidate for the Democratic nomination for Supervisor of Elections of Gadsden County. Subsequent to the Canvassing Board’s certification of defendant Denny Hutchinson as the Democratic nominee for this office, Anderson timely filed an election contest with the circuit court pursuant to Section 102.168, Florida Statutes (1979). In her complaint, Anderson alleged that the Canvassing Board improperly rejected at least 81 absentee ballots which if accepted would have affected the results of the election. Of these ballots the complaint alleged that the Canvassing Board improperly rejected 30 ballots because the electors had registered with a script signature but voted with an X; 10 ballots because the electors had registered with an X but voted with a script signature; 25 ballots because the signatures were of dubious authenticity; 8 ballots because the electors’ names did not appear in the registration book; four ballots because the electors voted twice due to confused procedures of the incumbent Supervisor of Elections; two ballots because the electors’ names were spelled differently on the ballot than in the registration book; one ballot because the elector printed his name to register but used a script signature to vote; four ballots because the electors cast two absentee ballots due to misinformation from the Supervisor of Election’s office; one ballot because it was not properly witnessed.

On defendant’s motion to dismiss, the court reviewed the complaint and ruled that the Canvassing Board had acted within its discretion as to the majority of ballots but determined that those rejected because of the differences in spelling, and the script versus printing should have been received because the discrepancies were insubstantial and in those instances where the voters mistakenly voted twice, one of their votes should have been counted. Since the number of votes improperly rejected would not have changed the results, the motion to dismiss was granted with prejudice.

On appeal, appellant urges that even in the absence of allegations of fraud or wrongdoing the trial court should have held an evidentiary hearing to allow appellant to present evidence on the validity of the contested ballots. Certainly, allegations of fraud or other wrongdoing are not necessary in order for the trial court to hold an evidentiary hearing, see e. g. Barber v. Moody, 229 So.2d 284 (Fla. 1st DCA 1969), Boardman v. Esteva, 323 So.2d 259 (Fla. 1979), however, under the circumstances of this case, a full hearing was not required.

The complaint set out with specificity each category of ballots rejected and the basis for that rejection. The trial judge reviewed each of these allegations in view of the criteria set out in Boardman, and determined that the rejected ballots were either patently illegal or were found to be illegal by the Canvassing Board within the latitude of discretion conferred upon it.

In Boardman, at 268, fn.5 the Supreme Court agreed with the trial judge that;

The canvassing of returns, including absentee ballots, is vested in canvassing boards in the respective counties who make judgments on the validity of the ballots. Those judgments are entitled to be regarded by the courts as presumptively correct and if rational and not clearly outside legal requirements should be upheld rather than substituted by the impression a particular judge or panel of judges might deem more appropriate. It is certainly the intent of the constitution and the legislature that the results of elections are to be efficiently, honestly and promptly ascertained by election officials to whom some latitude of judgment is accorded, and that courts are to overturn such determinations only for compelling reasons when there are clear, substantial departures from essential requirements of law.

We reject appellant’s argument that the Canvassing Board is not to compare the signatures on the absentee ballots with those in the registration book. While Section 101.68, Florida Statutes (1979) does not specifically state that signatures are included in the information the Canvassing Board is to compare, considering the nature of the absentee voting process the comparison of signatures would appear to be the most expeditious way of carrying out the Canvassing Board’s duty of insuring that only those qualified and registered to vote are allowed to do so. See Boardman, at 267.

We must also reject appellant’s argument that the outer envelope of the absentee ballot is equivalent to the affidavit an elector challenged at the polls must sign pursuant to Section 101.49, Florida Statutes (1979). As Justice Terrell noted in State ex rel. Whitley v. Rinehart, 140 Fla. 645, 192 So. 819, 823 (1939), “[P]urity of the ballot is more difficult to preserve when voting absent than when voting in person.” The challenge to an elector at the polls involves a face-to-face confrontation between the elector and the election officials. Obviously, no such opportunity is available with absentee voters. Additionally, unlike the right to vote, which is secured to every citizen by the United States Constitution, and the various state constitutions, the ability to vote in absentia is a privilege, Rinehart; Spradley v. Bailey, 292 So.2d 27 (Fla. 1st DCA 1974). The Florida legislature created this privilege by enacting statutory provisions separate from those applicable to voting at the polls and specified different procedures for challenging absentee ballots. By establishing separate and distinct procedures for the two situations, the legislature has evidenced an intent that belies appellant’s argument.

Upon examining appellant’s third point urged for reversal, we find it to be without merit and we therefore affirm.

AFFIRMED.

SHAW and WENTWORTH, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.

      . Boardman at 269 established criteria by which irregularities in absentee ballots are to be judged:
      (a)The presence or absence of fraud, gross negligence, or intentional wrongdoing;
      (b) Whether there has been substantial compliance with the essential requirements of the absentee voting law; and
      (c) Whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election.


author: McCORD, Judge.

text:
    The COCA-COLA COMPANY-FOODS DIVISION, Appellant, v. Michael LUCIEN, Appellee.
    No. VV-223.
    District Court of Appeal of Florida, First District.
    June 1, 1981.
    Rehearing Denied July 7, 1981.

      Jesse F. Sparks, Orlando, for appellant.
    Michael B. Murphy, of Stanley, Wines & Smith, Auburndale, for appellee.
   McCORD, Judge.

Appellant, employer/carrier, appeals from the deputy commissioner’s award to appellee of temporary total disability benefits from August 1978 to February 1979 and 25% permanent partial disability benefits thereafter, based on loss of wage-earning capacity. Competent substantial evidence does not support the deputy commissioner’s award. We reverse.

In January 1977, appellee injured his right foot, right shoulder and back in a work-related accident while employed by appellant as a fruit picker. According to the record, except for a two-week period in May 1978, appellee did not work again until February 1979. However, no evidence in the record indicates that he was temporarily totally disabled during the period from August 1978 to February 1979. We, therefore, reverse the deputy commissioner’s award of temporary total disability benefits for that period.

The record shows that appellee did conduct an extensive job search, visiting at least 27 potential employers in an effort to obtain work. His own testimony revealed, however, that most of those potential employers had no job openings. Appellee also testified that he did not inform many of his potential employers of his disability, thereby indicating that his disability was not the reason for not obtaining employment in those instances. Further, many of the jobs appellee sought were in areas in which he had no experience. In view of those facts, appellee failed to meet his burden of establishing that his inability to obtain a job was due to his disability. Therefore, the deputy commissioner’s finding of a 25% loss of wage-earning capacity was error. Compare Florida Division of Corrections v. Morgan, 382 So.2d 1288 (Fla. 1st DCA 1980).

REVERSED.

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


text:
    M. A. T., a child, Appellant, v. STATE of Florida, Appellee.
    No. VV-264.
    District Court of Appeal of Florida, First District.
    June 1, 1981.
    Rehearing Denied July 1, 1981.
    Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. Pons v. State, 278 So.2d 336 (Fla. 1st DCA 1973).

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


text:
    Robert SMITH, Appellant, v. Deborah SMITH, Appellee.
    No. 80-893.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Rehearing Denied July 8, 1981.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Lamchick, Glucksman & Johnston and Steven G. Glucksman, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

No error or abuse of discretion has been demonstrated, by either the appeal or cross-appeal, with respect to the trial judge’s rulings concerning lump-sum alimony and related issues in the judgment under review. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Yandell v. Yandell, 39 So.2d 554, 557 (Fla.1949); Rosen v. Rosen, 386 So.2d 1268, 1272 (Fla. 3d DCA 1980), review denied, 392 So.2d 1378 (Fla.1981). The court erred only in partitioning an en-tireties interest in real property known as 100 Mile Stable in the absence of an appropriate request in the pleadings and compliance with the requirements of Chapter 64, Florida Statutes (1979). Sanders v. Sanders, 351 So.2d 1126 (Fla.2d DCA 1977), and cases cited. That provision of the judgment below is therefore reversed. It is otherwise entirely affirmed.

Affirmed in part, reversed in part.


text:
    Rosemary T. HOUSE, Appellant, v. Hugh A. HOUSE, Appellee.
    Nos. 80-2471, 80-2472.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Rehearing Denied July 8, 1981.
    Edward C. Vining, Jr., Miami, for appellant.
    Jack J. Taffer, Miami, for appellee.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We hold that the trial court had the discretion to order that fees and costs to-talling $18,504.59 awarded to the wife’s attorney be paid over a period of approximately thirty (30) months, Harder v. Harder, 331 So.2d 341 (Fla. 2d DCA), cert. den., 342 So.2d 1101 (Fla.1976), and that no abuse of that discretion is shown on the record before us.

Affirmed.


author: HOBSON, Acting Chief Judge.

text:
    Delmar L. APPENFELDT, Laura K. Guild, Osceola Devco, Inc., a Florida Corporation, and Frederick J. Schramm, Jr., Appellants, v. Ronald W. QUINN and wife, Mary Lou Quinn, and John W. Tivnan and wife, Helen F. Tivnan, Appellees.
    No. 80-2099
    District Court of Appeal of Florida, Second District.
    June 5, 1981.
    Sherwood L. Stokes, Haines City, for appellants.
    Thomas C. Floyd of Wheeler, Traviss & Floyd, Winter Haven, for appellees.
   HOBSON, Acting Chief Judge.

Appellants maintain that the trial court erred when it denied their motion for a temporary injunction, refused to reform certain deeds, and granted appellees’ motion for attorney fees. We find appellants’ first and second contentions unpersuasive. We agree, however, that the award of attorney fees under section 57.105, Florida Statutes (1979), was improper.

Section 57.105 requires that, in a civil action, attorney fees be awarded to the prevailing party if the court determines that there was “a complete absence of a justiciable issue” raised by the opposing party. An award of fees under that section is proper only where “the action is so clearly devoid of merit both on the facts and the law as to be completely untenable.” Allen v. Estate of Dutton, 384 So.2d 171, 175 (Fla. 5th DCA 1980). Appellants’ cause of action in the instant case does not fall within this category.

We reverse the award of attorney fees and remand the case for the entry of an amended final judgment consistent with this opinion.

RYDER and DANAHY, JJ., concur.


text:
    STATE of Florida ex rel. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioners, v. Honorable Jeanne Dawes CRENSHAW, Acting Circuit Judge of the Eighth Judicial Circuit, Alachua County, Florida, Respondent.
    No. AC-283.
    District Court of Appeal of Florida, First District.
    June 5, 1981.
    Chester G. Senf, Asst. Gen. Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for writ of certiorari seeking to set aside Judge Crenshaw’s “Order Establishing Additional Juvenile Detention Criteria” is granted. See State ex rel. Department of Health and Rehabilitative Services v. Upchurch, 394 So.2d 577 (Fla. 5th DCA 1981); Schwarz v. Nourse, 390 So.2d 389 (Fla. 4th DCA 1980). Accordingly, the order below is vacated.

ORDER VACATED.

SHAW, WENTWORTH and THOMPSON, JJ., concur.

      . The order, exclusive of its formal parts, is set forth here in full:
      Florida Statute 39.032(2), 1980, enumerates the criteria for secure detention of children prior to the court’s disposition. These criteria are narrow in scope and do not consider other situations which may endanger the child or jeopardize the community if the child is not initially detained.
      Pursuant to those further provisions of this statute which authorize the court to “otherwise " order detention in a secure facility, it is
      ADJUDGED:
      1. The intake officer responsible for detention screening shall detain in a secure facility any child who:
      (a) is an escapee from a commitment program in Florida,
      (b) is currently under a Florida probation or Community Control order and is newly charged with a felony,
      (c) is a runaway from another state and is charged with a crime,
      (d) has been ordered into custody by a Florida court,
      (e) is charged with the sale of or manufacture of, or trafficking in a controlled substance,
      (f) is charged with criminal mischief and the damage is more than $1,000.00,
      (g) who is, by virtue of involvement in drugs or alcohol, or any uncontrollable mental disability, unable to control his or her own conduct, as evidenced by such activities as to place the said child in clear and present danger, or to cause an immediate danger to the community unless the child is temporarily detained,
      (h) is a child charged with a crime of violence to another where there is suspicion that should the child not be detained he is likely to injure the same victim or others.
      2. Children detained under this order will be presented for a detention hearing within the time prescribed by law.


text:
    Richard Earl LEE, Appellant, v. STATE of Florida, Appellee.
    No. WW-120.
    District Court of Appeal of Florida, First District.
    June 5, 1981.
    Rehearing Denied July 7, 1981.

      Carl S. McGinnes, Asst. Public Defender, for appellant.
    Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Lee appeals the denial of his motion to correct his sentence, arguing that he was entitled to be resentenced pursuant to the Florida Youthful Offender Act, § 958, Fla. Stat.(1979). We agree and reverse.

The trial court’s denial of relief was based upon two grounds: (1) that classification under the Youthful Offender Act was discretionary; and (2) that Lee’s conviction for armed robbery, pursuant to § 812.-13(2)(a), Fla.Stat.(1979), precluded youthful offender treatment.

In Goodson v. State, 392 So.2d 1335, 1336 (Fla.1st DCA 1980), this court held that classification as a youthful offender is mandatory if the criteria set forth in §§ 958.04(1) and (2), Fla.Stat., are met.

Additionally, the trial court relied upon § 958.04(l)(c), Fla.Stat., which provides in part that “no person who has been found guilty of a capital or life felony may be classified [as] a youthful offender.... ” The court reasoned that this statute was applicable because armed robbery is punishable by life imprisonment. However, armed robbery is not a “life felony,” but instead, it is a “felony of the first degree.” See § 812.13(2)(a) and § 775.081(1), Fla.Stat. Therefore, the trial court incorrectly found that Lee’s conviction for armed robbery precluded his treatment as a youthful offender.

The trial court’s Order is reversed, and this cause is remanded for proceedings consistent with this opinion.

SHAW, WENTWORTH and THOMPSON, JJ., concur.

       The holding in Goodson was premised upon the actual language in §§ 958.04(1) and (2), Fla. Stat.(1979). In 1980, that language was amended so as to make youthful offender classification a discretionary matter in all circumstances. See § 958.04, Fla.Stat. (Supp.1980). However, the 1980 amendments are not applicable to this case.


author: PER CURIAM. SHAW, Judge,

text:
    Mark Bradford INGHAM, Appellant, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, et al., Appellees.
    No. XX-451.
    District Court of Appeal of Florida, First District.
    June 5, 1981
    Rehearing Denied July 7, 1981.

      Britt Whitaker, Tampa, for appellant. Alan E. DeSerio, A. J. Spalla, and H. Reynolds Sampson, Tallahassee, for appel-lee Dept, of Transportation.
   PER CURIAM.

Appellant urges reversal of the trial judge’s order dismissing the Department of Transportation as a party defendant in his first amended complaint. We have reviewed that order in the context of the cited cases, together with the other cases bearing on this subject, and conclude that the trial court was correct and quote from the order as follows:

In the case before the Court, the plaintiff alleges that the Department of Transportation was negligent in three respects: First, in constructing State Road S-583 in Hillsborough County with a curve; Second, with respect to the position, shape and size of a median; and, Third, in failing to provide adequate signalization. This Court is of the view that under Feria and Commercial Carrier, these three activities constitute discretionary policy functions and not operational activity, (footnotes supplied)

AFFIRMED.

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

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

The majority affirmance is based on the following observation by the trial judge:

In the case before the Court, the plaintiff alleges that the Department of Transportation was negligent in three respects: First, in constructing State Road S-583 in Hillsborough County with a curve; Second, with respect to the position, shape and size of a median; and, Third, in failing to provide adequate signalization. This Court is of the view that under Feria and Commercial Carrier, these three activities constitute discretionary policy functions and not operational activity.

The first amended complaint alleges that the Department of Transportation negligently constructed, maintained and repaired the intersection so as to constitute a trap and unreasonable threat of harm to persons using the intersecting roads despite a Department engineering study which recommended remedial action designed to correct the dangerous nature of the intersection. The complaint contains specific allegations that the Department negligently constructed and maintained a curve on State Road S-583 which created the illusion that the roadway was continuous and non-intersecting; the Department negligently constructed and maintained a median within said intersection in such a way that the positioning, shape and size of said median created or contributed to the illusion; and the Department negligently maintained the intersection in a dangerous and unsafe condition by failing to provide adequate signalization. In my opinion, the allegations are sufficient to withstand the Department’s motion to dismiss based on the concept of sovereign immunity.

Section 768.28(5), Florida Statutes (1975), provides that “the state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances.” The Florida Supreme Court, in Commercial Carrier, supra, pointed out that even in the absence of a “discretionary exception” in the statutes specifying the extent to which sovereign immunity for liability for torts is waived by the state and its agencies or subdivisions, certain policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability. The sovereign, in exercising its discretionary authority, should be free from possible allegations of negligence.

In identifying discretionary acts as opposed to operational level functions, the court concluded that the decision must be rendered on a case-by-case basis utilizing the preliminary test iterated in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). That test involves four preliminary questions: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? Applying that test in Commercial Carrier, the Florida Supreme Court found that “the maintenance of a traffic signal light which is in place does not fall within that category of governmental activity which involves broad policy or planning decisions. This is operational level activity. So too is the proper maintenance of a traffic sign at an intersection and the proper maintenance of the painted letters ‘STOP’ on the pavement of a highway.” The court did not express an opinion with respect to whether liability could be imposed on the governmental bodies involved for failure in the first instance to place traffic control devices at the intersections.

The case under consideration goes further than merely alleging failure to provide adequate signalization. It is coupled with the allegation that the intersection and median were negligently constructed and maintained by the Department. By dismissing the Department as a defendant, the trial court has decided as a matter of law that such alleged negligence is not actionable against the State and its agencies. I do not believe that this comports with the legislative intent for, in the words of the supreme court, it “essentially emasculatefs] the Act and the salutary purpose it was intended to serve.” Commercial Carrier, at page 1017.

For the reasons expressed, I would reverse the order dismissing the first amended complaint as to the defendant, Florida Department of Transportation.

      . Ferla v. Metropolitan Dade County, 374 So.2d 64 (Fla.3rd DCA 1979).

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


author: SCHWARTZ, Judge.

text:
    D. P., a juvenile, Petitioner, v. Doris CAPRI, Director of Dade County Juvenile Detention Center, Respondent.
    No. 81-1197.
    District Court of Appeal of Florida, Third District.
    June 5, 1981.

      Bennett H. Brummer, Public Defender and Rory Stein, Asst. Public Defender and Henri Rauch, Legal Intern, for petitioner.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for respondent.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

After a detention hearing, the trial judge ordered the juvenile placed in secure detention pending trial solely upon an exercise of what were said to be the court’s “discretionary powers.” By separate order, we have granted the child’s petition for habeas corpus and ordered him released forthwith in the custody of his parents, because no such discretionary authority exists under Section 39.032(2), Florida Statutes (1980 Supp.). According to the express prohibitory language of the statute, see Neal v. Bryant, 149 So.2d 529, 532 (Fla. 1962), a juvenile simply “shall not be ... detained” in the absence of the statutory criteria, none of which, it is conceded, exists here.

Contrary to the state’s contention, the introductory phrase of the subsection, “[ujnless otherwise ordered by the court,” is not an escape clause which confers broad detention authority for any reason deemed appropriate by the court. Such an interpretation would have the unacceptable effect of completely nullifying the explicit language which follows. 30 Fla.Jur. Statutes §§ 134-136 (1974). Instead, the expression obviously must be read as referring only to an order entered before the detention hearing; it allows a court, but not an intake officer, to place the child in secure detention for that brief period, even if the Section 39.032(2) prerequisites are not met. However, the court’s order of detention after forty-eight hours, as in this case, must and may be based only on the Section 39.-032(2) standards. See Section 39.032(6), Florida Statutes (1980 Supp.).

Habeas corpus granted.

      . “(2) Unless otherwise ordered by the court, a child taken into custody shall not be placed or detained in a secure facility prior to the disposition by the court unless:
      (a) The child is from another jurisdiction and is an escapee from a commitment program or an absconder from probation, a community control program, or parole supervision for an offense which, if committed by an adult, would be a violation of law, or the child is wanted by another jurisdiction for an offense which, if committed by an adult, would be a violation of law;
      (b) The child requests protection in circumstances that appear to present an immediate threat to his personal safety;
      (c) The child is charged with a capital felony, life felony, or felony of the first degree; with a crime of violence, that is, murder in the third degree, manslaughter, sexual battery, robbery, aggravated battery, or aggravated assault; or with two or more serious property crimes arising out of separate transactions;
      (d)The child is charged with a serious property crime; that is, burglary as defined in s. 810.02(2) and (3) or arson; or with the sale or manufacture of, or the trafficking in, a controlled substance; which is committed by an adult would be a felony; and
      1. He is already detained or has been released and is awaiting final disposition of his case;
      2. He has a record of failure to appear at court hearings;
      3. He has a record of violent conduct resulting in physical injury to others; or
      4. He has a record of adjudications for serious property offenses.” [e. s.j


author: WENTWORTH, Judge.

text:
    In re the ESTATE of Robert L. REID, Deceased. Daniel REID, Appellant, v. Ruby WHITFIELD and Bertha Paul, Appellees.
    No. WW-248.
    District Court of Appeal of Florida, First District.
    June 9, 1981.
    David C. Goodman, Jacksonville, for appellant.
    Gerald R. Hart, Jacksonville, for appel-lees.
   WENTWORTH, Judge.

This is an appeal from the order of the probate judge which held that Daniel Reid, the sole surviving lineal descendant of Robert L. Reid was denied a share in the intestate estate of Robert L. Reid because the will provided a specific bequest for him. We reverse.

Robert L. Reid, a widower, died leaving a last will and testament establishing a trust, the net income of which was to be used for the benefit of his daughter Alma up to $75.00 per month, with any excess income to paid to his son Daniel. The will further provided that if Alma predeceased Daniel the trust should terminate and Robert’s other son Reuben should take the balance of the corpus and the income, but should pay Daniel $20.00 per month for the rest of his life. Alma and Reuben both predeceased Robert, leaving Daniel as the sole surviving lineal descendant. When Daniel applied for administration, appellees, nieces of the decedent, filed for construction of the will and designation of beneficiaries. In denying Daniel’s motion to dismiss their petition the trial court properly found that the bequests to Alma, Reuben and Mrs. Reid had failed, and, since no provisions for the remainder were made, the will was ineffective to dispose of the estate except for the bequest to Daniel of $20.00 per month. See In Re Levy’s Estate, 196 So.2d 225 (Fla.3d DCA 1967).

The trial court, relying on the general maxim that the testator’s intent is the polestar in interpreting a will, then determined that the testator intended that Daniel take only the $20.00 per month for the rest of his life, and the remaining estate should be distributed to the heirs-at-law determinable as of Daniel’s death. In this ruling, the trial court erred. Unquestionably, the intention of the testator is the primary factor in determining the meaning of any will. In Re Estate of Lesher, 365 So.2d 815 (Fla. 1st DCA 1979). However, once a will is declared invalid, the testator’s intent is no longer controlling and the property must pass according to the law of intestate succession. In Re Stephan’s Estate, 194 So. 343 (Fla.1940); In Re Lubbe’s Estate, 142 So.2d 130 (Fla.2d DCA 1962); Section 732.101(1), Florida Statutes (1979). Pursuant to § 732.103, Florida Statutes (1979), the lineal descendants of the decedent take the entire intestate estate if there is no surviving spouse. Daniel as the sole surviving lineal descendant is therefore entitled to the entire estate.

Accordingly, the judgment is reversed and remanded for proceedings consistent with this opinion.

SHIVERS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    EMBRY-RIDDLE AERONAUTICAL UNIVERSITY and the Hartford Insurance Group, Appellants, v. Helen VESTAL, Appellee.
    No. WW-277.
    District Court of Appeal of Florida, First District.
    June 9, 1981.

      Steven A. Rissman of Cooper & Rissman, P. A., Orlando, for appellants.
    Paul Smalbein of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for appellee.
   PER CURIAM.

Employer/carrier appeal the order of the Deputy Commissioner finding claimant temporarily totally disabled and awarding her attorney’s fees under 440.34(2)(b), Florida Statutes (1979). We affirm on all points; we discuss only the question of attorney’s fees.

In September 1979 while employed with Embry-Riddle Aeronautical University claimant suffered a flare up of preexisting dermatitis due to contract with ditto ink. The employee/employer relationship was stipulated and employer/carrier took the position that claimant’s condition was temporarily aggravated by an incident at work but her continuing difficulties were not related to this exposure. A claim was filed for various benefits including attorney’s fees and costs and the pretrial stipulation indicated that attorney’s fees were in issue.

During questioning of claimant’s witness regarding his efforts to contact the insurance company on behalf of claimant the following colloquy occurred:

[Claimant]: Did you ask him to start paying her compensation?
[Carrier]: Your Honor, I’m going to object to this line of questioning. It’s irrelevant. We’ve stipulated we haven’t paid benefits. That’s on your stipulation sheet.
[Claimant]: We’ve got a claim for attorney’s fees, your Honor, and we’re going to prove a wall of willful ignorance, where they, by design, didn’t want to know the situation. They’re making me prove it.
[Carrier]: Your Honor, if we’re going to prove attorney’s fees, why don’t we prove them by the usual customary way, where we have an attorney’s fee hearing on it, which is what you’ve done now since probably the last ten years, rather than having attorney’s fees proven at the claimant’s hearing.
[Claimant]: This is part of the claimant’s—
Deputy Commissioner: All right. I’ll allow it. Overruled.
[Claimant]: We can have an attorney’s fee hearing later, whether or not the facts justify—
Deputy Commissioner: This is for entitlement. All right. Continue.

On appeal, appellant urges that under Section 440.34(2)(b) entitlement to attorney’s fees based on bad faith may only be determined at a hearing separate and apart from the hearing on other matters. Appellant further argues that allowing this issue to be presented at the “benefits” hearing, deprived it of constitutional due process.

We cannot agree. The pretrial stipulation specifically noted that attorney’s fees were controverted and appellant’s objection relates to the amount of attorney’s fees and not to entitlement. The “usual customary way” of dealing with attorney’s fees is to determine entitlement at the regular hearing and to hold a later hearing or submit affidavits to prove amounts. Appellant failed to claim prejudice at the hearing below and has demonstrated no prejudice in his brief on appeal. Farm Stores v. Dyrda, 384 So.2d 269 (Fla. 1st DCA 1980).

Section 440.34(2)(b) in pertinent part provides: “Any determination of bad faith shall be made by the deputy commissioner through a separate fact-finding proceeding.” We do not read this language as requiring the deputy commissioner to hold a completely separate hearing on the question of bad faith. While this will, at times, no doubt, occur, it is not mandated. Under the interpretation urged by appellant, we would be required to reverse here, but if the deputy commissioner had adjourned the hearing, taken a five minute break and started a second hearing there would have been no error. We find this an absurd result and decline to attribute such an intention to the legislature, State ex rel. Register v. Safer, 368 So.2d 620 (Fla. 1st DCA 1979). In Interest of D. F. R, 346 So.2d 811 (Fla. 4th DCA 1977). Rather, we interpret the language as requiring only that the question of entitlement to attorney’s fees on the basis of bad faith be specifically litigated as a separate issue with factual evidence presented going directly to that issue. The deputy may not simply infer from general testimony that bad faith exists.

Accordingly, the order appealed from is affirmed.

SHIVERS and WENTWORTH, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    FLORIDA HEARING AID SOCIETY, INC., Carl Becker and Arnold S. White, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. YY-28.
    District Court of Appeal of Florida, First District.
    June 9, 1981.
    Rehearing Denied July 7, 1981.
    Jon D. Caminez, Tallahassee, for appellants.
    Steven W. Huss, Tallahassee, for appel-lee.
   PEARSON, TILLMAN (Retired), Associate Judge.

Appellants are two Florida licensed hearing aid specialists and a nonprofit corporation which represents hearing aid specialists in this state. They challenge a final order of the Department of Health and Rehabilitative Services prohibiting appellants from using the term “certified hearing audiologist” since use of that term is prohibited by Section 468.129 Florida Statutes (1979) and Section 468.142 Florida Statutes (1979). We affirm.

The hearing officer’s findings, which are not challenged on appeal, are as follows:

1. Prior to the regulation of hearing aid dispensers in Florida in 1967, the National Hearing Aid Society and its Florida chapter, the Florida Hearing Aid Society, were voluntary non-profit organizations established to provide information to, and establish certain standards for, its members.
2. In 1951 the National Hearing Aid Society inaugurated the title Certified Hearing Aid Audiologist and established certain criteria, for certification. These included two years’ experience dispensing hearing aids, a letter from a doctor of medicine that he had observed a fitting that had been done by the applicant, credit reference, complete the National Hearing Aid Society’s certified exam or its equivalent, and submit a fee to the National Hearing Aid Society. Subsequent to 1967, passing of the Florida exam for licensure as a hearing aid specialist was deemed equivalent to the National Hearing Aid Society’s exam.
3. The term Certified Hearing Aid Audiologist was patented by the National Hearing Aid Society in 1970.
4. These hearing aid dispensers certified by the National Hearing Aid Society (NHAS) were authorized by NHAS to advertise and hold themselves out at CHAA’s.
5. Webster’s New Collegiate Dictionary (1977) defines audiology as: A branch of science dealing with hearing; specif.: therapy of individuals having impaired hearing.
6. Audiologists are licensed in Florida pursuant to Section 468.139 et seq. Florida Statutes (1979) which requires formal education and training before the applicant for licensure becomes qualified to take the examination which must be passed before certification is granted.
7. Most audiologists are designated as clinical audiologists apparently because their testing and diagnosing of clients occurs in a clinic equipped with machines designed to test and diagnose hearing difficulties.
8. Many audiologists dispense and fit hearing aids as to some otologists. The latter are exempted from hearing aid regulation by Section 468.137(2), Florida Statutes.
9. The average person is unaware that a CHAA does not have equal (and some people believe greater) qualifications respecting hearing disorders than does an audiologist. Few people know there is any difference between the two. Even one of Petitioner’s witnesses acknowledged that a lot of physicians are confused about the term certified hearing aid audiologist. Accordingly, holding oneself out as a CHAA tends to mislead the general public when one so holding himself out is not, in fact, a qualified audiologist.

Appellants raise three points in their appeal. The first two points argue that they have a right to use the term “certified hearing aid audiologist” by reason of their usage of that term prior to passage of Section 468.120 et seq., Florida Statutes (1979), Fitting and Dispensing of Hearing Aids Act, and Section 468.139 et seq., Florida Statutes (1979), Speech Pathology and Audiology Act. They also argue that use of the term is not a misrepresentation to the public contrary to Section 468.130(5). Appellants, in their third point on appeal, urge the appropriation of the term “certified hearing aid audiologist” by the state is an unconstitutional taking of private property.

Section 468.142 Florida Statutes (1979), prohibits use of the term “audiologist” by any person who is not certified by the Department of Health and Rehabilitative Services as an audiologist. Appellants, Becker and White, are not certified by the Department of Health' and Rehabilitative Services as audiologists. Section 468.141(2) defines “audiologist” as follows:

“Audiologist” means any person who examines, tests, evaluates, treats or counsels, for which a fee may be charged, persons suffering, or suspected of suffering, from disorders or conditions affecting hearing or assists persons in the perceiving of sound or improving the senses by which noises and tones are received as stimuli to the auditory faculties. A person is deemed to be an audiologist if he offers such services to the public under any title incorporating the terms “audiology,” “audiologist,” “audiological,” “hearing clinic,” “hearing clinician,” “hearing therapy,” or “hearing therapist.”

Also Section 468.129(3) authorizes HRS to refuse to issue or renew or to suspend any certificate of registration for any fitter or dispenser of hearing aids for unethical conduct or for gross malpractice in the fitting and dispensing of hearing aids. Pursuant to Section 468.130(5), unethical conduct includes:

Representing that the professional services or advice of a physician or audiologist will be used or made available in the selling, fitting, adjustment, maintenance or repair of hearing aids when that is not true, or using the words, “doctor,” “clinic,” “clinical,” “medical, clinical or research audiologist,” “audiologic” or any other like words, abbreviations or symbols which tend to connote audiological or professional services when such use is not accurate.

We find use of the term “certified hearing aid audiologist” by persons not properly certified as audiologist by the Department of Health and Rehabilitative Services to be a violation of Section 468.129 and Section 468.142. Prior use of a term or a claimed proprietary right in the term may not be used as an excuse to violate the law of the state. See Florida Public Accountants Association v. Dandelake, 98 So.2d 323 (Fla.1957). We find no merit to appellants’ first two points on appeal.

As to appellants’ third point, reasonable restrictions upon the use of property to insure the public health are valid exercises of the state’s police power.

There is no doubt that the legislature may, if the public good is deemed to demand it, require property to be used by persons, as well as their businesses to be conducted, so as to prevent harm or injury to the public.
Rights of property are subject to such limitations as are demanded by the common welfare of society, and it is within the range and scope of legislative action to declare what general regulations shall be deemed expedient. State v. Rose, 122 So. 225 (Fla.1929).

Appellants do not argue that the statutes involved are not valid exercises of the state’s police power, and the record reflects an adequate basis for the legislative action. Appellants have put forth no reasonable basis for holding this exercise of legislative authority unconstitutional.

The order is affirmed.

MILLS, C. J. and SHAW, J., concur.


text:
    T. E. C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1180.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner and Elliott Scherker, Asst. Public Defenders.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Durcan v. State, 350 So.2d 525 (Fla.3d DCA 1977); Mills v. State, 280 So.2d 35 (Fla.3d DCA 1973).


text:
    Howard F. WILDS, Jr., Appellant, v. Virginia H. WILDS, Appellee.
    No. 80-1272.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Rehearing Denied July 6, 1981.
    Jepeway & Jepeway and Louis M. Jepe-way, Jr., Miami, for appellant.
    A. M. Schwitalla, Coral Gables, and James A. White, Miami, for appellee.
    Before BARKDULL and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

It is not necessary that one spouse be completely unable to pay attorney’s fees in order to require the other spouse to pay the fees. An award of attorney’s fees may be proper to avoid an inequitable diminution of other fiscal sums granted to the wife. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The record brought forward by the appellant is inadequate to demonstrate reversible error. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

Affirmed.


text:
    G. Edwin BRUCE, III and Thayer Corporation, Appellants, v. James Victor LOPEZ, Joseph A. Lopez, III, John A. Tripp, Richard J. Skrip, and American Development Corporation, a foreign corporation, Appellees.
    No. 80-1579.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Rehearing Denied July 8, 1981.
    Daniels & Hicks and Mark Hicks, Lees-field & Blackburn, Miami, for appellants.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellees.
    Before BASKIN and DANIEL S. PEARSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. McAllister Hotel, Inc. v. Porte, 98 So.2d 781 (Fla.1957); Wilder v. Burton, 317 So.2d 776 (Fla.3d DCA 1975).