text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant/Cross-Appellee, v. Joan McTIGUE, Appellee/Cross-Appellant.
    Nos. PP-195, PP-226.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.

      George L. Waas, Tallahassee, for appellant/cross-appellee.
    Catherine B. Tackney and John T. Chandler, Fort Pierce, for appellee/cross-appel-lant.
   LARRY G. SMITH, Judge.

This is an appeal and a cross-appeal from a final order entered by a hearing officer, Division of Administrative Services, holding that Rule 10D-36.21(2), Florida Administrative Code, is an invalid exercise of delegated legislative authority, and that Rule 10D-36.22(a)(l)2 constitutes a valid exercise of delegated legislative authority. We affirm the hearing officer’s invalidation of Rule 10D-36.21(2), requiring a lay midwife license applicant to furnish a written statement from a licensed Florida physician, as an unlawful exercise of delegated legislative authority. However, we disagree with and reverse the determination that Rule 10D-36.22(a)(l)2, requiring the applicant to furnish the name of patients whose deliveries have been previously attended, constitutes a valid exercise of delegated legislative authority.

An applicant for a license to practice midwifery must possess qualifications, under Section 485.031(4)(b), Florida Statutes (1977), including the requirement that the applicant

(b) Have attended under the supervision of a duly licensed and registered physician not less than 15 cases of labor and have had the care of at least 15 mothers and newborn infants during lying-in period of at least 10 days each; and shall possess a written statement from said physician that she has attended such cases in said 15 cases, with the date engaged and address of each; and that she is reasonably skilled and competent and establish the fact that she is reasonably skilled and competent to the satisfaction of the Department .

To implement the above statute, the Department enacted Rule 10D-36.21(2) by defining “physician” as “a person who shall have been duly licensed in Florida to practice medicine or osteopathy.” Appellee McTigue, who attended a two-year training program for physician’s assistant in the State University of New York in Stoney-brook, was unable to furnish a written statement from a physician duly licensed in Florida, because all of her training and experience occurred in New York under the supervision of a New York physician. In support of her application she furnished a statement by Dr. Reagan, licensed as a physician in New York, but not in Florida, certifying her compliance with the experience requirement of the statute.

We adopt the cogent reasoning and the law as applied by the hearing officer. The word “physician”, as used in the statute, has a plain and ordinary meaning usually denoting a practitioner of medicine, a person duly authorized or licensed to treat diseases (Black’s Law Dictionary, Third Edition); a person skilled in the art of healing; specifically, a doctor of medicine (Webster’s Seventh New Collegiate Dictionary). Applying the rule of statutory construction that words are to be given their plain and ordinary meaning, it is obvious that a “physician”, unless the wording of the statute or the context requires otherwise, could be a physician duly licensed under the laws of any state, not just Florida. By adding the requirement that the physician be a Florida physician the rule is an invalid exercise of delegated legislative authority because it modifies the statute by adding an additional criterion to be met by the applicant. State, Department of Transportation v. Pan American Construction Company, 338 So.2d 1291 (Fla. 1st DCA 1976). We find no indication from the statute that the supervising physician furnishing the written statement must be licensed in Florida. This requirement could easily have been imposed by simply adding the word “Florida” had the legislature so intended. We reject the Department’s contention that reference must be made to Chapter 458, Medical Practice Act, to determine the meaning of the word “physician”. Unless statutes have a common aim or purpose and scope, and relate to the same subject, object, thing or person, they are not in pari materia. Singleton v. Larson, 46 So.2d 186 (Fla.1950). We find no basis for such a reading of the two statutes here in question.

Turning to the challenge to Rule 10D-36.22(a)(l)2, raised by appellee’s cross-appeal, we have determined, much on the same reasoning as above, that the portion of the rule requiring the applicant to list the “patient’s name,” in addition to the “date engaged and address” of each delivery referred to in the experience requirement of the statute (Section 485.031(4)(b)), constitutes an invalid exercise of delegated authority and must be held invalid, contrary to the hearing officer’s decision.

The Department urges that its authority, under Section 485.051, Florida Statutes, to “. . . make such rules and regulations as it may deem necessary for regulating the practice of midwifery,” is authority for its rule requiring the applicant to furnish a list of the names of the patients attended by the applicant. We disagree, based upon the principle that, where there is in the same statute a specific provision, and also a general one that in its most comprehensive sense would include the matters embraced in the former, the particular provisions will nevertheless prevail and the general provision must be taken to affect only such cases as are not within the terms of the particular provision. 30 Fla.Jur. Statutes, § 121, p. 285; Bryan v. Landis, 106 Fla. 19, 142 So. 650 (1932); Department of Health and Rehabilitative Services v. Florida Psychiatric Society, 382 So.2d 1280 (Fla. 1st DCA 1979).

Subsections (a), (b) and (c) under Section 485.031(4) provide alternative qualifications to be met by applicants for a license. While there is obviously room for some rule-making and regulation by the Department in connection with each of the alternative subsections, the Department is not authorized to add to or modify those provisions which spell out with particularity the criteria which must be met in order to be eligible for a license. We hold, therefore, that the physician’s statement concerning births attended by the applicant is sufficient if it contains the “date engaged and address of each”, in accordance with the statute, without necessity for providing the name and address of the patient. The additional information called for by the Department is not required under the statute, and as a practical matter, since appellee’s experience and all of the deliveries which she attended occurred at the same address, the Nassau County Medical Center, East Meadow, New York, she had no record of. the names and home addresses of the patients whose births she attended. Appellee appropriately points out that the rule, as adopted by the Department, would operate to bar applicants such as appellee, trained in a modern educational facility, while admitting the more informally trained applicant. Although we do not base our decision upon the wisdom of the agency in adopting the rule, nor the merits or utility of the rule itself, we note appellee’s assertion that there are privacy interests which would be infringed upon by requiring compliance with the rule, instead of the statute; and while the addition of the patient’s name might well operate to facilitate the Department’s investigation or evaluation of license applications, we believe this to be an insufficient reason for overriding the specific statutory language, particularly in the absence of a showing that the skill, compe-' tence and fitness of an applicant cannot be determined by less intrusive means.

AFFIRMED in part and REVERSED in part.

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


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    Andrea WEISS and Dagmar Wurstl, Appellants, v. PRUDENTIAL ENTERPRISES, INC., a Florida Corporation, Appellee.
    No. SS-248.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.

      Joseph M. Ripley, Jr. of Ripley, Rich & Brim, Jacksonville, for appellants.
    Granvill C. Burgess of Jacobs, Burgess & Poole, Fernandina Beach, for appellee.
   McCORD, Judge.

Appellants seek review of a final summary judgment which upheld a tax sale of property previously owned by appellants and quieted title in appellee. The clear language of § 197.256(1), Fla.Stat., mandates reversal.

In 1971, appellants purchased the parcel of property in question which is in Nassau County, Florida. On the recorded conveyance, appellants’ address was shown as Schmeideweg 33, 3301 Mascherode, West Germany. Prior to the mailing of the 1972 tax bill, that address, which had been placed on the tax rolls for Nassau County, was changed on the tax rolls of the property appraiser to 3183 Fallersleben, Paullinck-. ester 30, West Germany. Taxes for the years 1971 through 1976 were paid on the property except for the 1974 and 1976 taxes. Certificates were issued for delinquent taxes for those years. In July 1977, the Nassau County Board of County Commissioners surrendered the 1974 certificate and made application for the issuance of a tax deed. The clerk of circuit court commenced the statutory procedures for sale of the outstanding certificate and issuance of the tax deed. As part of those procedures and pursuant to § 197.256(1), Fla.Stat., the clerk sent a notice of the tax deed application and a warning notice to appellants by registered U.S. Mail at the Paullinckester address, the address shown on the tax rolls. Appellants did. not receive the notices, which were returned undelivered to the clerk. The land was sold in October 1977 at public sale to appellee. In 1979, appellee instituted the instant action for the purpose of quieting title. Notice of this action in the form of a letter from appellee’s counsel to appellants was sent to the Paullinckester address and was received by appellants. Appellants do not dispute that the Paul-linckester address was their address from 1972 through 1977.

Appellants and appellee moved for summary judgment in the trial court. Appel-lee’s motion relates that the address on the tax roll was not changed from 1972 through the date of sale to appellee in 1977. The court granted appellee’s motion.

Section 197.256(1), Fla.Stat., requires that prior to holding a tax sale of property, the clerk of the circuit court shall notify, by certified mail with return receipt requested, the legal title holder and lienholders of record of the property. The notice, according to the statute, shall be sent to:

the address of the owner [which] appears on the record of the conveyance of the lands to the owner, or, if the address of the owner does not appear thereon, then the notice shall be mailed, by certified mail with return receipt requested, to the owner to whom the property was assessed on the tax roll for the year in which the property was last assessed, or, if the name and address of such person does not appear, thereon, then the notice shall be mailed, by certified mail with return receipt requested, to the person last paying taxes upon the lands.

As stated above, the record shows that the notice in this case was not sent to the address listed on the conveyance of the property even though that address was complete. The notice was sent to the address listed on the tax roll of the property appraiser’s office.

Because the address listed in the tax roll was undisputably the more current address of appellants, the decision rendered by the trial court reaches the best result in this case. However, the clear provisions of § 197.256(1), Fla.Stat., mandate that we reverse. That statute requires that notice be sent to the owner’s address listed on the deed if the address is listed. The statute directs that notice be sent to the address on the tax roll only when the address does not appear on the deed. The statute makes no provision for the clerk to depart from its instructions even when to do so would result in sending the notice to a correct address rather than an obsolete one. The Supreme Court and the various district courts of appeal have repeatedly held that strict adherence to the statutory notice requirements in relation to issuance of a tax deed is essential to the validity of the deed. See Montgomery v. Gipson, 69 So.2d 305 (Fla.1954); Stubbs v. Cummings, 336 So.2d 412 (Fla. 1st DCA 1976); Alper v. LaFrancis, 155 So.2d 405 (Fla. 2d DCA 1963); Edgewood Boys’ Ranch v. Ernst, 376 So.2d 30 (Fla. 3d DCA 1979); Mid-State Homes, Inc. v. Prosser, 196 So.2d 775 (Fla. 2d DCA 1967).

The clerk’s failure to comply strictly with the statutory notice requirements in this case renders the tax deed void.

The requirements of § 197.256(1), Fla. Stat., open the door for confusion and inequity. Until such time as this may be corrected by the legislature, we recommend that the clerks of the circuit courts send the notice to the most current address shown on the tax rolls in addition to the address shown on the conveyance.

REVERSED.

MILLS, C. J., and WENTWORTH, J., concur.


text:
    Jean B. SPEED, Appellant, v. FLORIDA DEPARTMENT OF LEGAL AFFAIRS, Appellee.
    No. KK-41.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1980.
    Rehearing Denied Sept. 16, 1980.
    Clinton H. Coulter, Jr., of Duvall & Coulter, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Christopher D. Rolle, Asst. Atty. Gen., for appellee.
   ORDER DISMISSING APPEAL

McCORD, Judge.

Appellant, on May 15, 1978, filed with the Career Service Commission of the State of Florida a notice of appeal to this Court of that Commission’s final order dated April 6,1978, and on the same date filed a notice of appeal with the Clerk of this Court. Having nothing in the record before us to show that the order was filed as required by the 1978 Florida Appellate Rules and thus being unable to determine the question of timeliness of the appeal, we remanded the cause for a determination as to whether or not the order sought to be reviewed was filed with the Clerk of the Career Service Commission and, if it was so filed, the date on which the filing occurred. Fla.R.App.P. 9.110 provides in pertinent part as follows:

(b) Commencement. Jurisdiction of the court under this rule shall be invoked by filing two copies of a notice, accompanied by filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.
(c) Exception; Administrative Action. In appeal of administrative action, the appellant shall pay the fee and file the second copy of the notice with the court.

Fla.R.App.P. 9.020(g) defines “rendition” as follows:

“(g) Rendition (of an order): the filing of a signed, written order with the clerk of the lower tribunal. * * * ”

As to the term “Clerk,” the committee notes to Rule 9.020 provide as follows:

The term “clerk” retains the substance of the term “clerk” defined in the former rules. This term includes the person who in fact maintains records of proceedings in the lower tribunal where no person is specifically and officially given that duty.

In response to our order, appellee filed a copy of the Career Service Commission order to which is attached a certificate of service certifying mailing of a copy thereof to appellant and to appellee on April 10, 1978, and moved to dismiss this appeal. (This certificate of service appears on the order contained in the record filed with this Court.) In addition, the copy of the order attached to appellee’s response and motion to dismiss contains the certificate of Dorothy B. Roberts, Appeals Coordinator, Career Service Commission, certifying as follows:

I HEREBY CERTIFY that the above and foregoing is a true and correct xerox copy of the original opinion and order filed in this office on April 10,1978, in the case of Jean Speed against Dismissal by the Department of Legal Affairs, Docket No. 77-71, which is under my control in the files of the Career Service Commission.

This certificate of the Appeals Coordinator, Career Service Commission, establishes April 10, 1978, as the date of rendition of the order. Appellant thereafter had 30 days within which to file her notice of appeal, but she failed to file until May 15— five days after the time for filing had expired. Because the notice was not filed within the 30-day period following rendition of the order, we do not have jurisdiction. Bank of Port St. Joe v. State, 362 So.2d 96 (Fla. 1st DCA 1978).

Appellant, in her response to appel-lee’s motion to dismiss the appeal contends that since the face of the administrative order as originally issued does not reflect a filing date or a rendition date but does bear a certificate that it was mailed on April 10, 1978, her time for filing of the notice of appeal began on April 10; that she had 30 days from that date plus five additional days under Fla.R.App.P 9.420(d) (which adds five days because of service by mail) with which the notice could be filed and thus the filing was timely. She cites Dubin v. Dept. of Business Regulation, 252 So.2d 290 (Fla. 1st DCA 1971). The ruling in Dubin, however, is no longer valid. It was decided prior to the adoption of the above-quoted rules of appellate procedure which now definitely establish the date of rendition of an administrative order as the date it is filed with the clerk of the lower tribunal, the lower tribunal being defined as “the court, agency, officer, board, commission or body whose order is to be reviewed” Fla.App.R. 9.020(d). As pointed out by the above quoted committee notes, the term “clerk” includes the person who, in fact, maintains records of proceedings in the lower tribunal where no person is specifically and officially given that duty. While it would be .extremely helpful to this Court and the litigants if administrative agencies would place on their orders a certificate showing the date of filing of same with the agency’s clerk, as was belatedly done in this case, we find no requirement in the appellate rules that such must be done. We strongly recommend such procedure as it would alleviate time-consuming work by this heavily-loaded Court as well as the Attorney General’s Office and the agency involved.

Appellee’s motion to dismiss is granted and this appeal is dismissed.

BOOTH and SHAW, JJ., concur.


text:
    Dorothy DUBOSE, as Personal Representative of the Estate of John Michael Wilson, and on behalf of the survivors of John Michael Wilson, deceased, Dorothy Dubose and John E. Wilson, Appellant, v. AUTO-OWNERS INSURANCE COMPANY, a Foreign Corporation and the School Board of Alachua County, Florida, a body corporate, Appellees.
    No. PP-54.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1980.
    Rehearing Denied Sept. 22, 1980.
    Craig F. Hall of Barton & Cox, Gaines-ville, for appellant.
    Richard T. Jones of Jones & Langdon, Gainesville, for appellees.
   McCORD, Judge.

Appellant appeals from the trial court’s dismissal of her wrongful death complaint with prejudice on the ground that the statute of limitations had run. Appellant, a survivor of a minor decedent who died on February 15, 1977, filed her complaint for wrongful death against appellee School Board of Alachua County and its insurer, appellee Auto Owners Insurance Company, on April 23,1979. Appellees filed a motion to dismiss alleging that appellant had not filed her wrongful death action within the two-year statute of limitations set forth in § 95.11(4)(d), Fla.Stat. Appellant asserted that the four-year limitation set forth in § 768.28, Fla.Stat., was the applicable statute of limitations in this case against Ala-chua County. The trial court granted the motion to dismiss, ruling § 95.11(4)(d) to be the applicable statute. We reverse.

Section 768.28, Fla.Stat., provides the waiver of sovereign immunity which allows appellant to bring suit against the School Board of Alachua County. The unambiguous language of that statute allows wrongful death actions to be brought against the state and its agencies or subdivisions subject to the limitations specified therein. See § 768.28(1). Section 768.28(11) establishes a four-year statute of limitations for such actions. It should further be noted that Chapter 95, Fla.Stat., which provides limitations of actions for various categories of actions and which sets forth a limitation of two years within which an action for wrongful death may be brought [§ 95.-ll(4)(d), Fla.Stat.], provides that if a different time is provided elsewhere in the statutes within which an action may be brought, the action must be brought “within the time prescribed elsewhere.” Section 95.011, Fla.Stat. Considering Chapter 95 in pari materia with § 768, it is obvious that the applicable statute of limitations for the present action is the four-year time period set forth in § 768.28(11), Fla.Stat.

Reversed.

MILLS, C. J., and WENTWORTH, J., concur.


author: BOOTH, Judge.

text:
    Wendell Rodney WINCHESTER and Jeffrey Allen Keck, Appellants, v. STATE of Florida, Appellee.
    Nos. NN-454 to NN-456.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1980.
    Rehearing Denied Sept. 24, 1980.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before us on an appeal from a final judgment finding appellants guilty of armed robbery. Appellants’ appeal, inter alia, the denial of their motion to suppress certain evidence found in a search of the apartment in which they were arrested. The apartment was owned by the girlfriend of one of the appellants, who gave police a written consent form authorizing the search. Appellants rely on Silva v. State, 344 So.2d 559 (Fla.1977). There, a woman who lived with the accused, though not married, consented to a search of a closet, which contained only belongings of the accused and which she only went into when cleaning. The Florida Supreme Court held that her consent did not give police authority to conduct a warrantless search over the accused’s objections. Here, the girlfriend told the officers that she was the owner of the apartment, signed a written consent form and directed the officers to the bedroom where the evidence was found. At hearing on motion to suppress, Winchester testified that his name was on the lease as co-tenant. No lease was put in evidence. Moreover, there was no showing that defendant, even if a co-tenant, had any expectation of privacy in the closet wherein the evidence was found.

We note that the United States Supreme Court has recently declared that defendants no longer are entitled to claim “automatic standing” to challenge the legality of a search without regard to whether they had an expectation of privacy in the premises searched. U. S. v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), overruling Jones v. U. S., 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The same day, the United States Supreme Court issued its opinion in Rawlings v. Kentucky, - U.S. -, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), holding that a defendant charged with drug violation had no expectation of privacy in a search of an acquaintance’s purse in which he had placed his own drugs. We find those decisions controlling.

Accordingly, the judgment below is affirmed.

ROBERT P. SMITH, Jr. and SHAW, JJ., concur.


author: PER CURIAM.

text:
    Samuel KING, Appellant, v. STATE of Florida, Appellee.
    No. OO-104.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1980.
    Rehearing Denied Sept. 22, 1980.
    William J. Sheppard and Stephen J. Weinbaum of Sheppard, Carithers & Weinbaum, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

King pleaded no contest to two counts of second-degree murder after the trial court found him mentally competent to stand trial on two first-degree murder charges. He reserved his right to appeal the competency question. We affirm.

Appellant first contends the evidence did not justify the trial judge’s ruling. A psychiatrist and a psychologist, provided by the defense, said King was incompetent. A court-appointed psychiatrist, however, believed otherwise.

The trial judge must be affirmed absent a showing he abused his discretion. Brown v. State, 69 So.2d 344 (Fla.1954). Given the conflicting expert testimony on competency, it was the court’s responsibility to resolve the disputed factual issue; the record does not reveal abuse of his discretion to weigh the evidence before him. Fowler v. State, 255 So.2d 513 (Fla.1971).

We need not decide whether our resolution of appellant’s first point would be different if the state had had the burden of showing competency. Appellant argued the state did have such a burden because he was declared legally incompetent in 1958, and his competency has never been judicially restored. In Florida, if a person is adjudicated to be mentally incompetent, it is presumed he continues to be so until it is shown his sanity has returned. Perkins v. Mayo, 92 So.2d 641 (Fla.1957). This presumption shifts the burden of proving competency to the state. Wells v. State, 98 So.2d 795 (Fla.1957).

We hold, however, that the burden did not shift to the state because appellant had not been previously declared incompetent. We adopt the trial judge's findings and conclusions with regard to the significance of the 1958 New York judge’s order:

The defense seeks to have the State be required to carry the burden of proof to show the defendant competent because of his hospitalization at the Creedmoor State Hospital of New York pursuant to an order dated the 3rd day of November 1958, entered by the Supreme Court of Kings County, New York. That order merely required the defendant to be admitted to the Creedmoor Hospital for observation and treatment as an alleged mentally ill person for a period not to exceed 60 days. If within that period the director of the hospital certifies that the alleged mentally ill patient is in need of continued care, the order becomes final. . The records of the Creedmoor State Hospital reflect that the director of said hospital did sign such a certificate on the defendant on December 16, 1958
* * * * * *
From the exhibits introduced into evidence, the Court makes a finding that the defendant was not heretofore declared incompetent in 1958, although he was involuntarily committed to the hospital for observation as an alleged mentally ill patient. The evidence submitted by the defendant adequately shows there was never an adjudication of incompetency in the specific findings of the hospital. The defendant never having been adjudicated incompetent negates this Court from requiring the State to carry the burden of proving his competency.
On that basis then, the defendant under the law has the burden of carrying the proof on the issues of his incompetency to stand trial before the Court.

AFFIRMED.

MILLS, C. J., and McCORD and WENT-WORTH, JJ., concur.


author: SHIVERS, Judge.

text:
    James W. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. OO-269.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1980.
    Rehearing Denied Sept. 24, 1980.

      W. Arvel Drury of McCormick, Reid & Drury, Jasper, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Appellant contends the trial court erred in denying his motion to suppress marijuana discovered as the result of a search by an agricultural inspection station inspector. Following evidentiary hearing on appellant’s pretrial motion to suppress, the trial court found that appellant had consented to the search. This finding is based on competent, substantial evidence. Accordingly, we affirm.

MILLS, C. J., and LARRY G. SMITH, J., concur.


author: MILLS, Chief Judge.

text:
    Miles Edward CARLYON, Appellant, v. Jean Wiggins WEEKS, Appellee.
    No. PP-99.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1980.
    Martin Sack, Jr., Jacksonville, for appellant.
    Gary A. Benson, Jacksonville, for appel-lee.
   MILLS, Chief Judge.

This is an appeal and cross-appeal from a final judgment entered in a paternity case after a jury trial. Carlyon challenges the trial court’s order requiring him to submit to blood testing and the evidentiary rulings permitting the publication of the doctor’s deposition and allowing into evidence the written report of the blood testing. We affirm.

Weeks brought suit against Carlyon to establish paternity of a child bom to her. She arranged to have blood tests performed at Shands Teaching Hospital in Gainesville at her expense and it appears that Carlyon agreed to undergo the blood tests. He failed to appear at the scheduled time and subsequently the court ordered him to submit to the blood testing. He did not object to the blood test. At the time the question of the blood testing was under consideration, Weeks submitted to the court a statement from Dr. Sally E. Ryden, Medical Director of the Blood Bank at Shands, concerning the particular new test which was to be used. This test was called Human Leukocyte Antigen (HLA) Testing. The statement asserted:

Paternity can be excluded with certainty in certain cases by blood testing, but it can never be proven with certainty. Using the methods described above, we can exclude paternity in 80-90% of cases where the putative father is indeed not the father. If paternity is not excluded, one can calculate a likelihood of paternity. However, any figure so calculated is approximate rather than exact, since it is derived from frequency statistics.

The motion for examination urged that the test was relevant and probative to the determination of paternity in the action. The court ordered the examination.

After the blood testing was carried out, Carlyon filed a motion in limine to exclude the report and deposition of Dr. Ryden. The trial court denied the motion. The objections to the report and deposition were renewed at trial and overruled.

Dr. Ryden testified that the traditional red blood cell tests could be used only to exclude paternity. They would exclude a wrongfully accused man 55-60% of the time. Unless there were a particularly rare red cell group involved, however, no meaningful probability of paternity could be established. In her opinion, as supported by cited medical authority, one would have to achieve a probability factor of 80% before it would be considered meaningful.

The HLA test is a new test which is performed on white blood cells. It is essentially a tissue-typing test which can be performed on, for example, lymph or spleen tissues as well as white blood cells. The HLA test was developed and used primarily in organ transplanting for purposes of determining if organs from a donor would be accepted or rejected by the possible recipient.

The accuracy of HLA testing alone for determining a probability of paternity generally is 78-80%. Used as it was here in conjunction with red blood cell testing, the level of accuracy is over 90%. The eight tests used in this case are the tests recommended by the Joint AMA-ABA Guidelines published in the Family Law Quarterly, Vol. X, No. 3 (Fall 1976).

Regarding the specific test results applicable to Carlyon, the report stated:

Miles Edward Carlyon ... is not excluded from paternity. . . . The odds that a random white man rather than Miles is the father of Ashton are 1194 to 1. Stated another way, the plausibility of paternity from Miles is 99.9%, making paternity “practically proved” in the terminology of Hummel.

In addition to the testimony and report of Dr. Ryden, Weeks submitted an appendix to her memorandum of law. It included, among other things, the following law review and journal articles for the judge’s consideration:

Shaw and Kass, “Illegitimacy, Child Support, and Paternity Testing,” 13 Houston L. Rev. 41 (1975).
Terasaki, “The Legal Implications of HLA Testing for Paternity” and a forward to “Resolution by HLA Testing of 1,000 Paternity Cases Not Excluded by ABO Testing,” 16 J. of Family Law 537, 543 (1977-78).
Terasaki, et al., “Twins with Two Different Fathers Identified by HLA,” 299 The New England J. Of Med. 590 (1978). Beautyman, “Paternity Actions — A Matter of Opinion Or a Trial of Blood?” 4 J. of Legal Med. 17 (1976).

Carlyon’s entire argument concerning the issues raised here rests on the case Simons v. Jorg, 375 So.2d 288 (Fla.2d DCA 1979). In that case, the Second DCA granted a petition for writ of certiorari and quashed a trial court order that the defendant in a paternity action submit to blood testing on the grounds that Rule 1.360, Fla.R.Civ.P., requires a showing of good cause before a party can be ordered to submit to physical examination. In making that ruling, the court stated in its original opinion that the results of blood grouping tests excluding paternity are admissible, but tests failing to exclude paternity are inadmissible, citing 4 Fla.Jur., Bastards, § 25, N. 14; 10 Am. Jur.2d Bastards, § 118.

Chief Judge Grimes specially concurred on the basis that he could envision a case where the blood type evidence might be admissible, but concurred because of the failure to show good cause for the testing. He noted that if the Human Leukocyte Antigen test is a new type of test to demonstrate the identity of the putative father, the respondent failed to submit any eviden-tiary support of that fact.

After the original opinion was issued, the Department of Health and Rehabilitative Services filed a motion for leave to appear as amicus curiae so that it could explain to the court information about the Human Leukocyte Antigen testing. The court denied the motion, stating:

Needless to say, we have no knowledge of the virtues of Human Leukocyte Antigen typing, and there was no evidence on this subject before the court below at the time its order requiring a blood test was entered. The holding expressed in our opinion is simply that no good cause was shown by respondent to compel the test. Our statements on the admissibility of evidence of blood tests reflect the current law applicable to the traditional blood grouping tests. Whether the Human Leukocyte Antigen test is so accurate as to be relevant evidence to prove paternity is not before us, and no purpose would be served to permit HRS to appear at this late stage in this certiorari proceeding. (375 So.2d at 290).

The ruling of the Second DCA is limited to a situation where no good cause is shown for an examination by blood testing. See Simons v. Jorg, 384 So.2d 1362 (Fla.2d DCA 1980) where the court denied a petition for writ of certiorari challenging a discovery order compelling the putative father to submit to the HLA blood test.

The record in this case comes to us in an entirely different posture than that in the 1979 Simon v. Jorg case. Carlyon has not preserved his challenge to the trial court’s order that he submit to the blood testing. He did not object to the order before, during, or after the trial. The court’s requirement that Carlyon submit to the blood testing was not cited as error in his motion for new trial. Since this point has not been preserved, we decline to rule on it.

The question of whether the deposition of the doctor who performed the blood testing and the written report of the blood testing should have been admitted as evidence at the trial where the testing involved included the Human Leukocyte Antigen test has not been decided in Florida. We recognize that the general rule in Florida has been, as noted above, that blood tests which exclude paternity are admissible but that blood tests cannot be used to establish paternity. That rule was developed and applied to the traditional red blood cell tests and was based on the relative accuracy of those tests.

The doors and minds of the courts need not be closed and remain closed to developing scientific and medical knowledge. See Yarmark v. Strickland, 193 So.2d 212 (Fla.3d DCA 1967). The likelihood of the admissibility of the HLA tests was discussed in a relatively recent Florida CLE publication, Ptomey and Carlton, “Paternity,” Adoption, Paternity and other Florida Family Practice 115 (The Florida Bar Continuing Legal Education (1979). The tests have been found admissible in California, Cramer v. Morrison, 88 Cal.App.3d 873, 153 Cal.Rptr. 865 (4th DCA 1979) and such tests have been compelled in a paternity dispute in New Jersey, Malvasi v. Malvasi, 167 N.J. Super. 513, 401 A.2d 279 (Ch. Div. 1979). A New York court has expressed concern that an HLA test, a “widely recognized scientific test” and a “competent scientific test,” would have to be ruled inadmissible because of a statutory exclusion. Goodrich v. Nor man, 100 Misc.2d 33, 421 N.Y.S.2d 285 (N.Y.Fam.Ct. 1979).

The predicate required by the trial court concerning the degree of reliability and validity of the blood tests performed was sufficient to establish that the results were probative on the issue of paternity. The rulings of the trial court on the admissibility of the report and deposition were within the trial court’s discretion.

Carlyon also challenges another eviden-tiary ruling which need not be discussed, for we find it to be without merit.

We reject Weeks’ challenge to the amount of the award of attorney’s fee which is authorized by Section 742.031, Florida Statutes (1973). We find that the factors considered by the judge were proper and the amount awarded was reasonable.

AFFIRMED.

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


author: BASKIN, Judge.

text:
    Dorothy McGLYNN and James McGlynn, Appellants, v. Steven M. ROSEN, Richard A. Katz, Herbert Rockwell and Connie Dinkier, Appellees.
    No. 79-2216.
    District Court of Appeal of Florida, Third District.
    Aug. 19, 1980.
    Richard W. Wasserman, Miami Beach, for appellants.
    Katz & Rosen and Steven M. Rosen, Miami, for appellees.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

The trial court dismissed the McGlynns’ amended complaint for damages on the ground that the suit was barred because the time for a dissolved corporation to seek redress in the courts had expired. We affirm.

The McGlynns were the sole stockholders of the 6410 Collins Avenue Corporation. On May 16,1974, the same day the corporation was dissolved, the McGlynns, as trustees of the corporation, executed an agreement to sell the property belonging to the corporation to appellee Rockwell. In May, 1978, the McGlynns, as individuals, filed suit alleging fraud and deceit by appellees in connection with the negotiation of the agreement and the sale of the corporate property, seeking damages and equitable relief.

In various motions to dismiss the cause, defendants claimed that the suit was not timely under either a general statute of limitations or the “winding up” statute which extends the life of a dissolved corporation for limited purposes. According to the trial court, the action could be brought only within three years of the date of dissolution. Since the complaint had been filed almost one year after the three-year extension of corporate existence expired, the action was barred by the operation of Section 607.297, Florida Statutes (1975).

The McGlynns now appeal this judgment of dismissal claiming that the four-year statute of limitations provided by Section 95.11(3)(j), Florida Statutes (Supp. 1974), governs the time for bringing the suit rather than the three-year statute regulating the dissolution of a corporation. We find no merit in appellants’ contentions. The three-year “winding up” statute extends the life of the corporate body and continues its capacity to sue. Once that period has elapsed, even if the general statute of limitations has not yet run on the claim, the corporation cannot initiate an action in court. See generally Advance Machine Co. v. Berry, 378 So.2d 26 (Fla. 3d DCA 1979).

In any event, the general statute of limitations relied upon by appellants would not alter the disposition of this cause. Section 95.11(3)(j), Florida Statutes (Supp. 1974), did not become effective until January 1,1975. As the supreme court recently held in Dade County v. Ferro, 384 So.2d 1283 (Fla.1980), when a cause of action arises from an occurrence which predates the effective date of a statute of limitations, that statute does not apply. Thus, the four-year statute relied upon by appellants is inapplicable. If this action were not barred by the expiration of the “winding up” period, then the general statute of limitations as codified by Section 95.-ll(5)(d), Florida Statutes (1973), would govern. The latter statute requires a suit based on fraud to be commenced within three years. The McGlynns’ complaint is therefore untimely under both the general statute of limitations for fraud as well as under the “winding up” statute. Since the amended complaint could not again be amended to state a cause of action, dismissal with prejudice was proper.

In reviewing plaintiffs request for equitable relief, we note that the corporation has long since been dissolved and neither the corporation nor its trustees may seek relief from the courts.

For the foregoing reasons, the judgment of the trial court is affirmed.

      . In the judgment of dismissal, the trial court noted that only the corporation or its trustees could be the proper party plaintiff, but held that, in any event, the action would be barred by the passage of time.

      . In passing, we note that the “winding up” statute in effect at the time the cause of action accrued was Section 608.30, Florida Statutes (1973). Since both this statute and the one referred to by the trial court provide for a three-year “winding up” period, the practical effect upon the case is the same.


author: FRANK D. UPCHURCH, Judge.

text:
    Linton S. WATERHOUSE, and Fidelity and Deposit Co., of Maryland, Appellants, v. McDEVITT AND STREET CO., Martin, Johnson and Walls, Inc., and Barnett Bank of Cocoa, N. A., Appellees.
    Nos. 78-2363/T4-277, 79-46/T4-277A and 79-72/T4-277B.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 1980.
    Rehearing Denied Sept. 11, 1980.
    John L. Sewell, Orlando, for appellant Fidelity & Deposit Co. of Maryland.

      Linton S. Waterhouse, Orlando, pro se.
    Elmo R. Hoffman, Orlando, for appellee McDevitt & Street Co.
    Robert T. Westman, Cocoa, for appellee Barnett Bank of Cocoa, N. A.
   FRANK D. UPCHURCH, Judge.

Three appeals, two from a final judgment of the Circuit Court for Orange County and one from the Circuit Court for Brevard County, have been consolidated for consideration.

Before these appeals arose, McDevitt & Street Company had sued Martin, Johnson & Walls, Inc. and its surety, Fidelity & Deposit Company. Martin counterclaimed. Fidelity cross claimed against Martin. Martin recovered a judgment against McDevitt; that judgment was appealed. McDevitt & St. Co. v. Martin, Johnson & Walls, 356 So.2d 1315 (Fla.4th DCA 1978). Fidelity’s claim against Martin was also reduced to judgment. On May 22, 1978, the court ordered McDevitt to pay the amount owed on the judgment against it, plus interest, into the registry of the court. The court then planned to determine the priorities among claimants.

To collect a judgment it held against Martin, appellee Barnett Bank of Cocoa obtained a writ of garnishment in the Circuit Court for Brevard County which was served on McDevitt. McDevitt and Barnett then moved in the Orange County proceeding to abate the order directing the funds to be paid into the registry of the Orange County Court. The court entered an order of abatement which directed any parties claiming priority to the fund to file their claims in the garnishment proceeding pending in Brevard County.

The priorities were established in the Brevard County proceeding and the Orange County Court then entered its final judgment and order for disbursement of funds based on those priorities.

The order distributed 50% of the fund, plus costs, to Waterhouse, conditioned upon his posting a bond to insure repayment of any sum determined upon appeal due Fidelity in the Brevard garnishment case.

A. Appellant, Fidelity and Deposit Company of Maryland, appeals the judgment of the Orange County Circuit Court contending that the court erred in deferring a determination of the priorities to the fund in its registry to the Circuit Court for Bre-vard County because that court lacked subject matter jurisdiction.

We disagree and affirm the order of the Circuit Court for Orange County.

Fidelity relied on the case of Pierce, Wulbern, Murphey Corp. v. Riverside Bank, 203 So.2d 177 (Fla.1st DCA 1967), which adopted the rule that where property or funds of the principal debtor in the hands of the garnishee are taken from him by legal process after service of the writ, he is not chargeable in garnishment proceedings therefor. In that case, the appellant had been served with a writ of garnishment. A few days later, one appellee served him with a writ of replevin and obtained possession of some stock certificates. The rule stated by the court was in response to appellant’s argument that he would be subjected to double liability if the appellee were able to replevy goods after appellant had been served with the writ of garnishment.

In the case before this court, the facts are unlike those present in an action of replevin where a person seeks recovery of his property. § 78.01, Fla.Stat. (1979). Here, the action of the court in requiring the payment of funds into its registry was similar to a protective order. Apparently the Circuit Court for Orange County was initially unaware of the garnishment proceedings in Brevard County. Upon learning they were in progress, it abated further action pending determination of priorities. The Orange County Court recognized the necessity of the determination of the priorities in the garnishment proceedings and, rather than transfer the funds, decided to retain control and disburse them in accordance with the findings of Brevard County. The mere deposit of funds in the Orange County Court Registry did not act to deprive the Brevard County Court of subject matter jurisdiction. All parties were before the Brevard County Court and presented their claims. While it may be the better practice in such cases to transfer the funds to the court determining priority, the Orange County Circuit Court did not err in accepting the determination of the Circuit Court for Brevard County and disbursing the funds accordingly.

B. Fidelity and Deposit Company of Maryland, appeals from the judgment of the Circuit Court for Brevard County and raises as error that the court incorrectly determined the priorities to the fund on deposit.

We disagree and affirm.

The trial court held that Fidelity could not have priority over Barnett because Barnett had perfected a security interest under the Uniform Commercial Code by filing a Financing Statement with the Secretary of State.

Fidelity contends that a surety’s equitable right to reimbursement for monies paid on behalf of its contractor arises by operation of law and is not dependent upon recording under the U.C.C. for priority. Fidelity’s claim was based upon its two contract bonds and the agreement of indemnity upon which it obtained its judgment in the Circuit Court for Orange County. Neither the bonds nor the agreement of indemnity were on record with the Secretary of State.

We question whether the doctrine of equitable subrogation ever came into play. This case does not involve the surety’s obligation to perform upon default of its principal and its concomitant right to subrogation. Rather, the right to reimbursement was based solely on Fidelity’s contract agreement with Martin. According to the agreement of indemnity between Martin and Fidelity, Fidelity was entitled to reimbursement for any payments made by it in the belief that Fidelity was required to pay such sums or that it was expedient to make such disbursements, regardless of whether any liability actually existed. Fidelity paid approximately $30,000.00 to complete the subcontract in the belief that it was necessary or expedient to do so.

The trial established that McDevitt, not Martin, was the party in default. However, Fidelity was entitled to indemnification pursuant to its contract with Martin for payments made in the belief that such were necessary or expedient. No equitable sub-rogation was involved because the principal was not in default. The only claim which Fidelity had was its right by contract to reimbursement for payments made in a good faith belief that they were necessary or expedient. Fidelity’s right to subrogation is a contract right controlled by the U.C.C. First Alabama Bank of Birmingham v. Hartford Accident & Indemnity Co., Inc., 430 F.Supp. 907 (N.D.Ala.1977). Therefore, the trial court was correct when it determined that the priority of Barnett which had perfected its security interest by recording was superior to the claim of Fidelity. We also note that the agreement defines itself as a security agreement.

C. The last point to be discussed is whether the Circuit Court for Orange County erred in requiring appellant Waterhouse to post a bond as a condition and prerequisite to disbursement from the fund in the registry of the court.

After priorities had been determined, the trial judge directed the clerk of the court to pay Waterhouse from the funds on deposit in its registry. The final judgment adjudicated distribution to Waterhouse of 50% of the fund plus $528.88 reimbursement for his costs and expenses, but required him to post a bond conditioned upon repayment of the sum or portion thereof that may be determined on appeal to be owed to Fidelity.

Waterhouse contends that this requirement has the effect of staying the appeal which Fidelity is not permitted to do under the applicable appellate rules.

Fidelity contends that the source of authority for the action is the court’s duty to protect funds held in its registry. In support of this position Fidelity cites Market St. Ry. Co. v. Railroad Commission, 28 Cal.2d 363, 171 P.2d 875 (1946), which held that the unrefunded excess fares should remain in the custody of the court pending determination of the validity of the Railroad Commissioner’s order reducing fares. See also United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939). In these cases, as opposed to the case sub judice, the legal right to the funds had not been established.

While we agree that it was the court’s duty to protect funds in its registry, this was true only until paid to the person whose right to them had been established. If Fidelity wanted to stay disbursement of the money to Waterhouse, the proper remedy was to require supersedeas on the part of Fidelity as provided in Florida Rules of Appellate Procedure 9.310(b)(1).

The judgments appealed are affirmed except as to the portion of the Orange County judgment requiring appellant Linton Waterhouse to post bond which is reversed.

Affirmed in part and reversed in part.

DAUKSCH, C. J., and COBB, J., concur.

      . Rule 9.310, Florida Rules of Appellate Procedure, states in part:
      (a) Application. Except as provided by general law and in section (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify or deny such relief. A stay pending review may be conditioned upon the posting of a good and sufficient bond, other conditions, or both.
      (b)(1) Money Judgments — When the order is solely for the payment of money, a stay pending review is automatic, without the necessity of motion or order, on posting of a good and sufficient bond equal to the amount ordered to be paid, plus 15% thereof.


author: ORFINGER, Judge.

text:
    STATE of Florida, Petitioner, v. Norman FISCHER, Respondent.
    No. 79-223.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for petitioner.
    Edward R. Kirkland, Orlando, for respondent.
   ORFINGER, Judge.

By a Petition for Writ of Certiorari, we are asked to review a ruling by the trial court granting a motion to suppress an in-court identification. The precise question presented here is apparently one of first impression in Florida, although variations of the problem have arisen before and will occur again.

D.R.S., a female clerk at a neighborhood convenience store (the victim), was seized from behind in the store after a bag was thrown over her head. The store was robbed and she was dragged to the back room where she was sexually assaulted. During the attack she was told, in a voice later described as being disguised, that her assailant had a knife and that she would be killed if she resisted. Following the assault in the store, she was dragged to an automobile and driven a short distance, taken into a building, and there, with her eyes still covered, she was again assaulted several times over a period of approximately four hours.

She later testified that over this prolonged period she was able to feel with her hands features of the attacker’s face and head, the shape and feel of his body; she gave a detailed description of all these features. After being released and reporting the incident and her observations to the police, she was shown a number of photographs and from these photographs she identified the defendant as her attacker. He was arrested the following day and thereafter was charged with one count of armed robbery and three counts of sexual battery.

Prior to trial, appellant’s counsel orally moved the court to suppress any in-court identification of appellant “. . . because the identification is tainted by pre-trial identification procedures or the in-court identification of defendant would be based on such highly speculative reasons that the witness, as a matter of law, should be prohibited from making any in-court identification.” There was no elaboration of the allegation of pre-trial taint, nor was any contention made to the trial court at the subsequent taking of testimony or argument that the photo-pack used by the police was illegally tainted or unduly suggestive.

The factual setting leading up to the trial court’s ruling is not in dispute. The victim never saw her attacker, so she could not identify him by sight. Neither could she identify his voice because she said it was disguised. She could identify her attacker only by her tactile impressions gained during the assault. As to these impressions, she testified:

Q: What, if anything, do you recall at this time about the hair of the person?
A: Kind of soft, stringy-type, short, above the ears, sort of sailor-type.
Q: And what, if anything, do you recall at this time about any facial hair or lack of it?
A: I remember the beard, the mustache, the beard extending from the lower lip to the chin, and the mustache was quite full.
Q: What, if anything, do you remember at this time about the composition of the face?
A: The features of the face, itself?
Q: Could you describe them?
A: Okay. He had fairly large eyes, rather small forehead and very high cheekbones.
Q: How about the eyebrows?
A: Very bushy.
Q: The skin?
A: Smooth.
Q: And do you feel at this time based upon that experience of touch that you would be able or would not be able to identify that person if you saw them again?
A: I would be able to.

She further said that based on these impressions she could testify that the defendant was her assailant.

At the conclusion of the hearing, the trial court granted the motion to suppress the in-court identification, and then sua sponte ruled that any testimony about the photographic identification would also be inadmissible because it, too, was based on tactile impressions rather than sight. The trial judge held that the victim would be able to testify to all her impressions, but that:

Under the circumstances, I guess, the Court is ruling as a matter of law that whatever contact she had with the alleged defendant by feel would not be sufficient or ample opportunity to come in and pick out a photograph and say, “That’s him,” or see him seated here in the courtroom and say, “By my feel I now use my eyes and say that is him.”

The narrow question before us is whether the trial court departed from the essential requirements of law in its pre-trial ruling that neither the in-court identification nor the out-of-court identification of defendant would be admissible because the identification is based on tactile impressions gained by the witness, rather than by sight.

Testimony as to identification is in the nature of opinion evidence and if based on the knowledge of the witness “. the opinion, belief, judgment or impression of an ordinary (non-expert) witness as to the identification of a person or an object is admissible in evidence.” Henderson v. State, 94 Fla. 318, 113 So. 689 (1927). Any fact which in the course of ordinary affairs tends to satisfy a person of average judgment as to the identity of an individual is admissible as evidence bearing on that issue, and evidence offered on issue of identification, in order to be admissible, need not in itself constitute clear or irrefutable proof. 29 Am.Jur.2d, Evidence, § 367. The admissibility of testimony does not depend upon its sufficiency, standing alone, to prove the issue. Henderson v. State, supra.

Many prior cases have held that identification testimony is admissible where the witness has not seen the attacker’s face. In Simon v. State, 209 So.2d 682 (Fla.3d DCA 1968), intruders into a home wore masks. Although never having seen his face, a witness was permitted to identify the defendant by his build, his walk, his posture, and the shape of his head. The court said:

A witness may give evidence as to a person’s identity from any facts that lead him to believe he knows the identity of the person in question and may base his conclusion on size, manner of walk, tone of voice or any mark or peculiarity of the person being identified. 209 So.2d at 683.

In Mack v. State, 54 Fla. 55, 44 So. 706 (1907), a rape victim was attacked from behind and never saw her attacker. She did hear his voice, however, and although she testified that she had never heard his voice prior to the assault, she was permitted to identify the defendant as her attacker after she heard his voice again, as being the same voice that she heard at the time of the attack. Here, too, the evidence was attacked as being too uncertain and unreliable, but the Supreme Court dismissed that objection on the ground that it was competent and admissible evidence, the probative force and value being a matter for the jury.

In Weinshenker v. State, 223 So.2d 561 (Fla.3d DCA 1969), the court recognized the principle that a person may be identified as the perpetrator of a crime solely by means of voice recognition. Relying on Mack v. State, supra, it held that a witness may be permitted to identify an accused solely from having heard his voice, and that such identification is direct and positive proof of a fact, the probative value of which was a question for the jury.

Thus, we observe that in mask cases where the facial features of the attacker are covered, and in voice identification cases where the witness never sees the attacker the witness is permitted, based on his or her observations or perception, to identify the alleged attacker.

It would thus appear that the testimony of the victim identifying her attacker would be admissible under the circumstances of this case. What probative value the testimony has is for the jury. We recognize the dangers inherent in eye-witness identification under even more favorable circumstances than we find here. The Supreme Court of the United States has pointedly called attention to problems inherent in such identifications, viz:

The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: “What is the worth of identification testimony even when uncontradict-ed? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent — not due to the brutalities of ancient criminal procedure. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, at 1933, 18 L.Ed.2d 1149.

In a case the following year, the United States Supreme Court discussed identification procedures and elaborated on the rules set forth in Wade and other cases, again recognizing that even in the most correct photographic identification procedure these is some danger that the witness may make an incorrect identification, but because this procedure is a widely used and effective tool in law enforcement,

We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, at 971, 19 L.Ed.2d 1247.

Except for the general allegation made in the trial court that the pre-trial identification procedure was tainted, a point which was never further discussed, there is no contention before us that the pre-trial identification was so suggestive as to present “a very substantial likelihood of irreparable misidentification,” Simmons v. United States, supra. Neither was this issue presented to or addressed by the trial court. The trial court ruled only that the victim’s tactile impressions could not be translated into visual observations which would permit the witness to point to the defendant as her attacker.

We see no difference between such identification in the instant case and in a case where the victim has only heard the attacker’s voice, and says at trial “That’s the man.” In either case, the witness expresses an admissible opinion based on personal perception. Without giving a witness this opportunity, the witness’ perceptions would hang in limbo. There would be no connection between those perceptions and the defendant by the only person who has that knowledge — the witness — and the jury would be left to guess at the connection.

In this case, the witness was no casual observer, but rather was the victim of one of the most personally humiliating of all crimes. In the nature of the crime, there are rarely witnesses to a rape other than the victim, who often has a limited opportunity for observation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. While the basis for the witness’ opinion is necessarily limited, it is not for that reason alone inadmissible.

This witness had ample opportunity to investigate the features of her attacker, as well as his general body build. The specificity and detail of her description point to a determined effort to gain perception as to her attacker’s identity. Upon confrontation with the defendant, the witness demonstrated a high level of certainty that he was the perpetrator, and her conviction has not wavered. Under these circumstances, her opinion should be offered to the jury to evaluate as they see fit. See Neil v. Biggers, 93 S.Ct. at 382.

This discussion applies both to the out-of-court identification and the in-court identification. In suppressing the proposed identification testimony of the victim, the trial court departed from the essential requirements of law, so the order is quashed and this cause is remanded to the trial court for further proceedings consistent herewith.

ORDER QUASHED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.

      . E. g., Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 16 L.Ed.2d 1014, which with Wade and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, had involved the basic issue of pre-trial identification of the defendant in the absence of counsel.


text:
    Lawrence K. SCHERTZ, Appellant, v. STATE of Florida, Appellee.
    No. 78-186.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Oct. 1, 1980.
    Richard L. Joranby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant was originally placed on probation for a term of five years, the maximum period allowable for the offense involved. After finding that the appellant had violated the terms of his probation the trial court continued the appellant on probation but added an extra year to the term of probation. The extra year exceeded the maximum legal term by one year. Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977). Accordingly, the order of probation is reversed with directions that the provision for serving the extra year on probation be stricken. The order is in all other respects affirmed.

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


author: BERANEK, Judge.

text:
    ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellant, v. The CITY OF BOCA RATON, etc., Appellees.
    No. 78-1962.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Paul M. Stokes of Smathers & Thompson, Miami, for appellant.
    Cormac C. Conahan of Tylander, deClaire & Van Kleeck, Chartered; and M. A. Galbraith, Jr., City Atty., Boca Raton, for ap-pellees.
   BERANEK, Judge.

This is an appeal by the plaintiff from an order dismissing plaintiff’s complaint with prejudice. The trial court concluded that the complaint did not state a cause of action. We affirm.

Allstate Insurance Company sued the City of Boca Raton in a five-count complaint. Generally, it was alleged that Allstate Insurance Company owned certain real property consisting of approximately 300 acres and sought to develop it into a community of approximately 1800 units. This property was located outside the boundaries of the defendant, City of Boca Raton, and Allstate had been unable to develop the property because of its inability to secure water and sewage service. All counts in the suit involved the City’s alleged improper refusal to supply water and sewer services to the Allstate property under a local Plan for Regional Water Supply promulgated by the Palm Beach County Regional Planning Board.

From the allegations of the complaint, it appears that the Palm Beach County Regional Planning Board was created by Special Act of the Legislature of the State of Florida in 1965, Laws of Florida, Chapter 65-2063. This Board formulated and issued “A Plan For Regional Water Supply, Treatment and Distribution and Regional Sewage Collection, Treatment and Disposal.” This Plan was designed to promote the growth and development of water and sewage facilities within the region covered by the Palm Beach County Regional Planning Board. Generally, the Plan had the stated objectives of establishing areas of responsibility for water supply and sewage disposal, minimizing the number of treatment and disposal facilities and providing flexibility so that the Plan would be adaptable to criteria established by a Water Pollution Abatement Study. The Plan was also designed to provide adequate and efficient service and fair distribution of benefits and costs. Under the Plan, Allstate’s property was within the Boca Raton Service Area and the City of Boca Raton was the “Designated Agent” within this area.

The basic problem in this case is that Allstate seeks water and sewer services from Boca Raton to commence development, but the City has refused to do so unless Allstate will comply with certain zoning and planning ordinances of the City. These include (1) restrictions on density, (2) capability of furnishing the service from Boca’s unused capacity or planned increased capacity, (3) prior assurance that public schools are available for development and (4) approval by the voters of Boca to provide services beyond the city limits. As a result, Allstate sued seeking a declaration that application of the ordinances was invalid and damages under the theory of inverse condemnation and breach of duty as agent under the Plan. Each count relied upon the duty allegedly created by the Plan. The trial court determined that the complaint did not state a cause of action and dismissed it with prejudice.

All parties concede that generally a municipal corporation has no duty or responsibility to supply services to areas outside its municipal boundaries. See Annot., 48 A.L.R.2d 1222 (1956). Here, appellant contends that the City of Boca Raton assumed the responsibility of furnishing water and sewage services to the “Boca Raton Service Area” by its approval of and participation in the Plan. Appellant also maintains that the City supplies water and sewage services to other developers without requiring compliance with City ordinance.

The Plan was adopted on March 9, 1972, and the City of Boca Raton accepted its designation as Agent for its particular service area on May 23, 1972. As previously indicated, the Plan was promulgated by the Palm Beach County Area Planning Board and the legislation (Section 20 of Chapter 65-2063, Laws of Florida), which created the Planning Board provides:

Section 20. Effect on local governmental units.
Nothing in this act shall be construed to diminish, supersede or change in any way, the powers, functions and jurisdiction of any local governmental unit.

Since the statute creating the Board contained this limitation, the Plan promulgated by the Board should not be construed to require the City to furnish these services outside its municipal boundaries. Clearly, the Board would not have had the authority to order Boca Raton to provide these services. Appellant seems to concede this and bases all claims for relief on the Plan to which the City was a party. The language of the Plan itself, however, is not phrased in any mandatory sense. Under the section entitled, “General Policies,” the Plan states as follows:

This Plan sjiall designate one agency in each service area to provide the service area sewage treatment facility. This agency shall make its facility available to any sub-agency in the service area under a mutually agreeable contract to provide additional treatment capacity to serve new and/or existing developments in the service area. . . . The designation as the agency or sub-agency for sewage may be withdrawn for noncompliance with the Plan. Nothing is stated or implied that the designated agency shall be required to provide collection or transmission facilities. (Emphasis supplied.)

The above makes it clear that even if the City of Boca Raton is in non-compliance with the Plan, the remedy is not to force compliance by requiring the City to provide water and sewage but instead to withdraw the agency designation from the City. Further, this provision obviously contemplates an agreement between the supplier (the Agency) and user (the sub-agency) prior to extension of service.

Under the section of the Plan specifically relating to the provision of water and sewer services to new developments in unincorporated areas, it is stated as follows:

Water and Sewage Treatment and Disposal for these New Developments shall be provided under one of the following methods listed in order of preference:
Option # 1 — By the Service Area Water and/or Sewage Treatment Facility-
Option # 2 — By an existing Interim-Sub-Agency Facility.
Option # 3 — By a new interim Sub-Agency Facility.

Under the stated options, Allstate is not precluded from obtaining water and sewage service merely because of its inability to presently obtain same from the City of Boca Raton. Allstate may seek the services from suppliers under the other two options.

The Plan is 16 pages long and we find little in it to support the 21 pages of the amended complaint. Generally, the Plan seems to be designed so that entities desiring water and sewer services will know which supplier to contact first in a specific service area. If the designated agent in a particular area cannot supply the services needed, then the entity seeking those services is free to obtain the services from a second or third option designated under the Plan. The Plan thus ranks the suppliers within the service areas setting priorities.

In addition, appellant has totally failed to even comment upon Part IV of the Plan entitled, “IMPLEMENTATION.” This portion of the Plan is as follows:

IV.
IMPLEMENTATION
THE DEPARTMENT OR THE DULY AUTHORIZED AND APPOINTED DESIGNEE OF THE DEPARTMENT ACTING IN BEHALF OF THE DEPARTMENT SHALL:
A) MAKE THE DETERMINATION AS TO WHICH OF THE OPTIONS AND/OR DESIGNATIONS CONTAINED HEREIN SHALL APPLY IN ANY GIVEN CIRCUMSTANCE.
B) MAKE SUCH RULES AND REGULATIONS, INCLUDING APPEALS THEREFROM TO THE DEPARTMENT AS NECESSARY TO IMPLEMENT THIS PLAN AND SUBSEQUENTLY ENFORCE THIS PLAN.
C) CONSULT WITH, AND REVIEW AND CONSIDER THE RECOMMENDATIONS OF THE COMMISSION, THE AGENCY, THE LOCAL HEALTH DEPARTMENT AND THE BOARD IN THE IMPLEMENTATION OF THIS PLAN AND THE WATER POLLUTION ABATEMENT STUDY. (Emphasis supplied).

The “Department” is defined by the Plan as the Florida Department of Pollution Control, a state agency. Under the Plan, this Department is to make the determination as to which of the various options shall apply in any given circumstance. In the instant case, the complaint failed to make any allegation that Allstate sought a determination from the Department as to which option should apply. Further, although not specifically addressed in the motion to dismiss, we note there is no allegation in the complaint as to the exhaustion of administrative remedies by an appeal pursuant to the implementation procedures quoted above.

We decide the trial court was correct in determining that the designation of the City of Boca Raton as an “Agent” under the Plan did not place an absolute duty upon the City of Boca Raton to supply water and sewage to landowners outside the boundaries of the City. The Plan clearly contemplated the possibility that such services would be supplied by the City but just as clearly the Plan anticipated that such services would only be supplied if mutually agreeable between the parties. Allstate argues it is illegal for the City to require an applicant for water and sewage to fulfill any conditions whatsoever and contends that City ordinances have no effect outside City boundaries and thus cannot affect this property. Allstate maintains that by becoming the designated Agent for the Boca Raton Service Area under the Plan, the City has assumed the absolute duty and responsibility of providing water and sewage services. We reject this position and find that the Plan attached to the plaintiff’s complaint as Exhibit A did not place a duty upon the City to supply water and sewage under the circumstances alleged.

The trial court thus correctly determined that the Plan in question did not place a mandatory duty on the part of the City to supply the requested services. Furthermore, the complaint does not allege that Allstate has complied with the Plan by seeking a determination from the Department of Pollution Control as to which option should apply.

Under the circumstances of this case, we conclude the complaint fails to state a cause of action and the dismissal with prejudice below is thus affirmed.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.

      .Allstate became the owner of the property by virtue of a quit claim deed given in lieu of foreclosure. The prior owner, a limited partnership, sought water/sewer confirmation from the City, which was refused. Because of this refusal, the limited partnership was unable to begin development and conveyed the property to Allstate in lieu of foreclosure in 1976.

      . This ordinance requiring voter approval was not passed till long after the City’s denial of appellant’s request and obviously played no part in that denial. We do not address the legality of this voter approval ordinance.

      . This allegation regarding other developers is not specific as to time. Reference to appellant’s brief leads us to conclude that appellant is not asserting the City is applying its ordinances only to Allstate while not applying these ordinances to other landowners whose applications for services occurred subsequent to the effective date of the ordinances. We construe this allegation as stating that the City is continuing services extended prior to the ordinances without requiring compliance in a retroactive fashion.

      . We are aware from the briefs of the parties of numerous cases dealing with the general issue of the extension of municipal services beyond the limits of municipal boundaries. In this respect, both parties have thoroughly discussed and relied upon Edris v. Sebring Utilities Corporation, 237 So.2d 585 (Fla.2d DCA 1970), cert. denied, 240 So.2d 643 (Fla.1970); Village of Virginia Gardens v. City of Miami Springs, 171 So.2d 199 (Fla.3d DCA 1965); City of Indian Harbour Beach v. City of Melbourne, 265 So.2d 422 (Fla.4th DCA 1972), and numerous other out of state cases, many of which are collected in Annot., 48 A.L.R.2d 1222 (1956). We have not relied upon these authorities because the complaint herein was based solely upon the specific Plan attached to the complaint.


author: HURLEY, Judge.

text:
    Joyce HITT, Appellant, v. NORTH BROWARD HOSPITAL DISTRICT d/b/a Broward General Medical Center, Appellee.
    No. 79-370.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.

      Philip J. Montante, Jr., Pompano Beach, for appellant.
    William Zei, Fort Lauderdale, for appel-lee.
   HURLEY, Judge.

Joyce Hitt, plaintiff below, appeals from the dismissal with prejudice of a pleading styled “Amended Petition for Declaratory and/or Injunctive and/or Other Relief.” Though the pleading is a jumble of allegations, we find the essentials for at least one cause of action and therefore reverse.

In taking this action we are obliged to express our empathy with the trial court for the difficult, frustrating task it was called upon to perform in this case. The trial court granted defendant’s first motion to dismiss and permitted plaintiff to amend. Her second effort, the subject of this appeal, shows minimal improvement. It is a one count, multi-paragraph litany of allegations, seemingly strung together without thoughtful consideration of an appropriate theory of recovery. Such stream-of-consciousness pleading does little to advance the client’s interests, adds immeasurably to the burdens of an already overtaxed trial court, and encourages the very error complained of.

Sorting through the complaint we find allegations that the plaintiff is a registered nurse who, as an independent contractor, has been individually retained by patients to perform private duty nursing services at the Broward General Medical Center for the past thirty-one years. The hospital, a tax supported institution, advised the plaintiff in February, 1978, that she could no longer practice private duty nursing on its premises. No explanation nor administrative due process accompanied the notice of expulsion. Plaintiff asserts this was a retaliatory action taken to punish her for posting fliers on hospital bulletin boards. The fliers contained membership information about a group known as the League of Independent Nurses of Florida. Plaintiff contends that the hospital’s action constitutes an impermissible abridgement of her First Amendment rights.

The appropriate standard to be utilized in considering a motion to dismiss was articulated by this court in Poulos v. Vordermeier, 327 So.2d 245, 246 (Fla. 4th DCA 1976):

[T]he function of a motion to dismiss a complaint is to raise a question of law as to the sufficiency of the facts alleged to state a cause of action. The motion admits as true all well pleaded facts as well as all reasonable inferences arising from those facts. The allegations must be construed in the light most favorable to plaintiffs and the trial court must not speculate what the true facts may be or what will be proved ultimately in trial of the cause. Further, the trial court’s gaze is limited to the four corners of the complaint. Finally, the motion must be decided on questions of law, only, and matters not shown on the face of the complaint can not properly be raised on a motion to dismiss.

Applying this standard to the case at bar, we must accept plaintiff’s allegations of retaliatory exclusion as true. Unfortunately, this contention was largely obscured in the trial court where priority was given to the fact that plaintiff was not a salaried employee of the hospital. Defendant argued that the absence of an employment contract rendered plaintiff’s relationship with the hospital terminable at will. Moreover, defendant asserted that termination of employment was legally insufficient to justify injunctive relief. Such arguments miss the mark when there are allegations of exclusion and blacklisting for a constitutionally impermissible reason.

It is well settled that a public authority may not deprive an individual of a state created status or benefit solely because of the exercise of First Amendment rights. Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970); Pred v. Board of Public Instruction, 415 F.2d 851 (5th Cir. 1969). The United States Supreme Court issued an authoritative pronouncement on this subject in Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697-2698, 33 L.Ed.2d 570 (1972):

For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” . Such interference with constitutional rights is impermissible.
* * * # # *
We have applied the principle regardless of the public employee’s contractual or other claim to a job. (Citations omitted; emphasis supplied.)

In the case at bar, the status or governmental benefit in question, for want of a better term, is that of “hospital privileges”—the right to perform private duty nursing within a public hospital. While in the first instance plaintiff may not have had a legally enforceable claim to this “right”, it is nonetheless a status which she has enjoyed for thirty-one years. It may not now be impaired or abrogated for a constitutionally impermissible reason.

In ruling upon a motion to dismiss a trial court is required to consider the exhibits which are attached to and incorporated in the complaint. Following this rule, our attention is drawn to an attached letter from the hospital’s director of nursing. It states in part:

As I indicated in our telephone conversation I have been presented with fliers which were posted by Mrs. Joyce Hitt on our floor bulletin boards relative to soliciting membership for the League of Independent Nurses of Florida. As I indicated to you it is not within our Hospital Policy to post notices on the bulletin boards unless they have permission from either the Administrators’ Office or the Nursing Department Office.

Reading the above policy in the light most favorable to the plaintiff, it appears that the hospital did not limit the use of its bulletin boards to administrative announcements, but permitted certain intra-staff communication as long as it was approved by either of the two mentioned departments.

Once it is established that the bulletin boards were available for some intra-staff communication, the burden shifts to the hospital administration, the public authority, to show that its rules as applied to the plaintiff’s fliers were not unreasonable. This accords with the preferred position afforded freedoms secured by the First Amendment, Thomas v. Collins, 323 U.S. 516, 529-530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945), and flows from the premise that the First Amendment “necessarily embraces pamphlets and leaflets.” Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). The appropriate formulation was put by Mr. Justice Harlan in his concurring opinion in Talley v. California, 362 U.S. 60, 66, 80 S.Ct. 536, 539, 4 L.Ed.2d 559 (1960): “state action impinging on free speech and association will not be sustained unless the governmental interest asserted to support such impingement is compelling.”

The extent to which these principles impact on the case at bar cannot be known without a full development of the facts. At this early stage in the proceedings it is impossible to determine conclusively whether plaintiff’s expressive conduct of posting fliers on the hospital’s bulletin boards is entitled to protection under the Free Speech Clause of the First Amendment to the United States Constitution, or under Article I, Section 4 of the Florida Constitution. We find, however, that plaintiff has established a prima facie case for injunctive relief, sufficient to withstand a motion to dismiss. We believe that the dismissal herein was premature and note our concurrence with the observation in Pred v. Board of Public Instruction, supra, that it is perilous to try

to resolve new, but serious questions of constitutional law on barebones pleadings. Courts ought not to be pulled into academic exercises on a case that factually may never be. Courts ordinarily should grapple with these problems on a factual record. 415 F.2d at 852 (citation omitted).

Interwoven in the complaint for in-junctive relief are allegations in support of and a prayer for declaratory relief. We have no difficulty in agreeing with the trial court that, as presently framed, plaintiff’s allegations are insufficient to support declaratory relief pursuant to Chapter 86, Florida Statutes (1979). However, since the case must be reversed for other reasons, we deem it appropriate to instruct the trial court on remand to permit the plaintiff to amend again. Though less than felicitously drawn, we perceive plaintiff’s allegations of long term practice in the hospital, coupled with her assertion of a right to an administrative hearing, as an effort to plead a factual basis to establish an actual or de facto “property interest” sufficient to require procedural due process. See Perry v. Sindermann, supra; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Bryant v. City of Lakeland, 158 Fla. 151, 28 So.2d 106 (1947); Mizell v. North Broward Hospital District, 175 So.2d 583 (Fla. 2d DCA 1965). If adequately pled, a property interest in continued hospital privileges would be sufficient to invoke Section 86.011 et seq., Florida Statutes (1979), enabling the court to declare the party’s rights, viz., her entitlement to procedural due process.

We therefore reverse and remand.

ANSTEAD and HERSEY, JJ., concur.

      . See Butler v. Lomelo, 355 So.2d 1208 (Fla. 4th DCA 1977); State, Dept. of Health and Rehab. Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977).

      . Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736 (Fla. 3d DCA), cert. denied, 252 So.2d 797 (Fla.1971); Rule 1.130(b) Fla.R. Civ.P.

      . The fact that plaintiff might pursue an action for tortious interference with a business or contractual relationship does not preclude her right to seek injunctive relief. The deprivation of personal rights is often equated with irreparable injury and serves as an appropriate predicate for injunctive relief. See, e.g., Branti v. Finkle, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) (injunctive relief to prevent dismissal from public employment because of political beliefs); Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979), affd, - U.S. -, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (injunctive relief to permit solicitation in shopping center); Bright v. Pittsburgh Musical Society, 379 Pa. 335, 108 A.2d 810 (1954) (injunctive relief to prevent blacklisting of entertainer); 17 Fla.Jur. Injunctions § 30; 43A C.J.S. Injunctions § 149; 14 C.J.S. Civil Rights Supp. § 94.


author: LETTS, Chief Judge.

text:
    In the Interest of G. T., a Child.
    No. 79-1372.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Robert C. Fallon, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

This is an appeal from a denial of a motion to suppress, the appellant claiming lack of founded suspicion to stop and no probable cause to frisk. We agree there was no probable cause to frisk and reverse.

There is no transcript of the hearing on the motion to suppress, but all parties, pursuant to Fla.R.App.P. 9.200(b)(3), have agreed to the factual setting reproduced in toto as follows:

Eleanor Obenshin, employee of Dick’s Florist was working alone in the shop on February 28, 1979. Two black males entered the fairly large store and began to look at the merchandise. When asked if she could help them, the males responded that they were just looking. Five to ten minutes later, Ms. Obenshin became apprehensive. She could not explain why; other than it was just a gut feeling she had. As a result, Ms. Obenshin summoned assistance.
Officers Sinnott and Albertas responded to the scene. Ms. Obenshin related her apprehensiveness to the police officers. Subsequently, Off. Sinnott asked the two black males if they were being helped. They responded that they were just looking. Officer Sinnott testified that one black male had his right hand in his pocket. As a result he asked the two black males to step outside; whereupon he conducted a pat down search of them. Officer Sinnott discovered that the same black male had a .22 calibre revolver in his right front pocket. The black male with the revolver was later identified as G.T., and his companion was B.H., both juveniles. Consequently, G.T. was arrested for carrying a concealed firearm as well as attempted robbery. Confessions were obtained from both juveniles.
B.H. testified that neither himself nor G.T. were acting in a suspicious manner while in the store. He testified that they were just looking around at the merchandise in the store both before and during the police officers arrival at the scene.

The result here hinges on Section 901.151, Florida Statutes (1979), our “Stop and Frisk Law.”

Initially we are concerned with whether there were circumstances which reasonably indicated that the two youths were about to commit a violation of the criminal laws of this State and we think there were. Judge Hurley, speaking for the Court, has recently exhaustively examined our current thinking on this subject, see In the Interest of G.A.R. II, a child, 387 So.2d 404 (Fla. 4th DCA 1980), and we do not propose to repeat it here. Suffice it to say that from the policeman’s viewpoint there existed founded suspicion under all the circumstances sufficient to satisfy the criteria reported in Lachs v. State, 366 So.2d 1223 (Fla. 4th DCA 1979).

The policemen were called to the flower shop by the apprehensive employee to investigate two teenagers who had been hanging around for up to ten minutes for no apparent reason. Teenagers may often hang around a drug store, but it is rare indeed to find them doing so in a flower shop where at best they are incongruous. True, they may have a logical explanation, such as wanting to buy a plant for mother’s birthday, but that does not negate a policeman’s right to stop, ask questions and temporarily detain. We, therefore, hold the stop to be proper.

’ As to the frisk we must come to a different conclusion. Section 901.151 requires that before a pat down for a weapon may be conducted, the officer must have probable cause to believe the suspect is armed. That is statutory law by which we are bound and there is simply nothing in the instant set of stipulated facts that gives rise to probable cause to believe the youth was armed and we have no other record to resort to, to discover it.

The sole evidence is that one of the youths had “his right hand in his pocket.” It may be that the policemen also saw a suspicious bulge, or that they thought the youth was armed because of the way he put his hand in his pocket, or something, or anything. Yet, if additional facts are in existence, the stipulated version does not provide them and we are totally unable to record approval of a pat down for weapons solely because citizens have their hands in their pockets, unless consent is first obtained during temporary detainment and questioning.

Accordingly, as we said in Isham v. State, 369 So.2d 103, 104 (Fla. 4th DCA 1979) the officer, under the stipulated facts presented, “moved too fast” and the search was illegal.

REVERSED AND REMANDED.

DOWNEY, J., and GEIGER, DWIGHT L., Associate Judge, concur.

      . We are of the view that questioning could have included asking why the youth had his hand in his pocket.