author: BOYD, Justice.

text:
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 177, etc., Appellant, v. JACKSONVILLE PORT AUTHORITY, etc., Appellee.
    No. 62934.
    Supreme Court of Florida.
    Dec. 21, 1982.
    John F. MacLennan of Kattman, Eshel-man & MacLennan, Jacksonville, for appellant.

      Robert M. Ervin and Thomas M. Ervin, Jr. of Ervin, Vam, Jacobs, Odom & Kitchen, Tallahassee, Courtney Wilder Stanton, Jacksonville, and Barry J. Miller, Detroit, Mich., for appellee.
   BOYD, Justice.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, validating bonds proposed for issuance by the Jacksonville Port Authority. We have jurisdiction of the appeal pursuant to article V, section 3(b)(2), Florida Constitution, and section 75.08, Florida Statutes (1981).

The Jacksonville Port Authority, an independent agency of local government authorized to issue industrial development revenue bonds, initiated this proceeding below by filing a complaint, pursuant to chapter 75, Florida Statutes (1981), for validation of bonds not exceeding $30,000,000 in aggregate principal amount. As described in the complaint and the bond issue resolution adopted by the Authority, the proceeds of the bond issue are to be used to finance the acquisition, construction, improvement, and installation of a floating drydock and associated mooring facilities, and the related costs of the capital project. The Authority plans to sell the project thus financed to Jacksonville Shipyards, Inc., a private corporation, pursuant to an installment sale contract. Thus the facilities to be financed will be operated, and eventually owned, by Jacksonville Shipyards, Inc.

Answers to the complaint were filed by the State of Florida and by the International Brotherhood of Electrical Workers, Local Union No. 177. After the hearing the court entered judgment validating the bonds and making detailed findings of fact. IBEW, Local No. 177 brought this appeal. The State did not appeal the judgment of validation.

According to the issuing Authority’s bond resolution, the complaint for validation, and the judgment of the circuit court, Jacksonville Shipyards, Inc., has entered into an installment purchase contract with the Authority whereby it will be obligated to make timely payments in amounts that will be sufficient to pay the principal, premium, and interest payable on the bonds as such amounts will become due. The trial court found that Jacksonville Shipyards will be able to make such payments and that the bonds will be paid solely with the revenues thus derived from the installment sale contract. Fruehauf Corporation, the parent company of Jacksonville Shipyards, Inc., has executed a guaranty of payment as further security for the installment sale contract, and the trial court relied in part on this guaranty in finding that there was adequate security for the purchaser’s obligation under the installment sale contract. The documents of record show that the Authority, as it receives payments from the purchaser, will in turn make payments to a trustee for the benefit of bondholders. The bond resolution states, the complaint alleged, and the trial court found that the payment obligation on the bonds shall not constitute a debt, liability, or obligation of the Jacksonville Port Authority, the City of Jacksonville, or the State of Florida or any agency or subdivision thereof.

In seeking validation of the proposed bonds, the Jacksonville Port Authority invokes the statutory authority granted to it by chapter 159, part II, Florida Statutes (1981), .the Florida Industrial Development Financing Act. By the judgment of validation, the court sustained the Authority’s allegation that the proposed project serves the purposes of and is authorized and permitted by the statute.

Appellant International Brotherhood of Electrical Workers, Local No. 177, contends that the judgment of validation is defective and must be reversed because of the lack of a finding that the project serves a paramount public purpose. This argument is without merit. We find that the constitution itself in effect declares that capital projects such as the one in question meet the constitutional public purpose requirement, and therefore judicial inquiry into the question is unnecessary.

Article VII, section 10 of the Florida Constitution prohibits the state and its subdivisions from becoming a joint owner with or stockholder of, or giving, lending, or using its taxing power or credit to aid any corporation, association, partnership, or person. Article VII, section 10 is the source of the requirement that capital projects financed through public bonds must serve a paramount public purpose. This constitutional requirement has been the subject of much discussion and interpretation in decisions of this Court. Whatever the judicial interpretation, however, certain kinds of capital projects are declared not to be within the prohibition embodied in article VII, section 10, for the provision goes on to provide in pertinent part:

but this shall not prohibit laws authorizing:
(c) the issuance and sale by any county, municipality, special district or other local governmental body of (1) revenue bonds to finance or refinance the cost of capital projects for airports or port facilities, or (2) revenue bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants to the extent that the interest thereon is exempt from income taxes under the then existing laws of the United States, when, in either case, the revenue bonds are payable solely from revenue derived from the sale, operation or leasing of the projects.

Section 159.26, Florida Statutes (1981), recites the legislative intent that the Florida Industrial Development Financing Act includes among its authorized projects those which are permitted pursuant to article VII, section 10(c). Since we find that the project in question falls within the exception for airports and ports under article VII, section 10(c)(1), we hold that it is conclusively established that the project is a constitutionally permissible one.

Appellant’s second argument is that there is an insufficient factual basis for the trial court’s conclusions that the project meets the statutory requirements. In addition to being constitutionally permitted, the proposed project must, as appellant correctly argues, satisfy the criteria established by the authorizing statute. The judgment of validation, however, comes to us with a presumption of correctness, and the burden is on the appellant to point out from the record the failure of the evidence to support the conclusions of the issuing authority and of the trial court.

The definition of the word “project” in section 159.27(5), Florida Statutes (1981), contains the essence of the authority conferred on the various local agencies that operate under the act. The definition reads in pertinent part:

“Project” means any capital project comprising ... an airport or port facility ... including one or more buildings and other structures, whether or not on the same site or sites; any rehabilitation, improvement, renovation, or enlargement of, or any addition to, any buildings or structures for use as ... an airport or port facility ... or other facilities for or used in connection with ... an airport or port facility ... and including also the sites thereof and other rights in land therefor whether improved or unimproved, machinery, equipment, site preparation and landscaping, and all appurtenances and facilities incidental thereto, such as warehouses, utilities, access roads, railroad sidings, truck docking and similar facilities, parking facilities, office or storage or training facilities, public lodging and restaurant facilities, dockage, wharfage, solar energy facilities, and other improvements necessary or convenient for any ... airport or port facility ... and any one or more combinations of the foregoing.

The numerous omissions indicated in the above-quoted statute are references to the various other kinds of facilities, not relevant to this case, encompassed in the definition of the term “project.”

Section 159.29, Florida Statutes (1981), sets out the criteria by which local agencies are to be guided in undertaking projects pursuant to the act. In essence, section 159.29 requires the local agency to conclude that the project will promote the economic well-being of the community served by the local agency; that the purchaser and operator of the project be financially responsible and able to fulfill its financial and managerial obligations; that the local agency will be able to cope satisfactorily with the impact of the project; that the operation, maintenance, and repair of the project be adequately provided for; and that the proceeds of the bond issue be expended on the costs of the project as statutorily defined.

In assessing appellant’s argument it is important to note that section 159.29 also provides: “[H]owever, the determination of the local agency as to compliance with such criteria and requirements shall be final and conclusive.” This provision placed the burden on the appellant to show before the trial court that the Authority’s findings were completely without foundation. At the hearing below, appellant made no such showing. To prevail on appeal, appellant must show that the trial court’s approval of the local agency’s action is completely erroneous. Appellant’s challenge, however, consists of mere conclusory statements, and fails to establish that the judgment is unsupported by evidence.

Moreover, we find that the record affirmatively supports the conclusion that the proposed project will serve the purposes and meet the criteria of the authorizing statute. The record shows that the new facilities will promote the economic growth and development of the Port of Jacksonville and thereby the economic well-being of the City of Jacksonville, the surrounding region, and the State of Florida. Documents in the record also show the financial soundness of the project, the ability of the purchaser to meet its obligations, the ability of the community to deal with the impact of the project, and that the bond proceeds will be devoted to the costs of the project as statutorily defined. See § 159.29, Fla.Stat. (1981).

The appellant also questions the necessity or propriety, under section 159.29, of certain decisions of the Authority pertaining to specific features of the port improvement project. Appellant suggests that the economic benefit of the project is called into question by the fact that the facilities to be installed are to be acquired from a foreign company. This suggestion is without merit. Appellant can present no legal basis for interference with the Authority’s exercise of discretion in this regard.

Appellant also raises a question about the sufficiency of the Authority’s showing with regard to the tax-exempt status of the interest paid on the bonds. Although we believe that the Authority’s allegation, and the trial court’s finding, on this matter are adequately documented based on opinions of bond counsel, we find appellant’s challenge to be without merit because article VII, section 10(c) only requires tax-exempt status in cases arising under clause (2) pertaining to industrial or manufacturing plants. Article VII, section 10(c)(1) does not demand that bonds for airports and ports be eligible for the tax exemption.

For the foregoing reasons, we find the appeal to be groundless. Therefore, the judgment of validation is affirmed. No petition for rehearing will be considered.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OVER-TON, McDonald and EHRLICH, JJ., concur.

      . See ch. 63-1447, Laws of Fla., as amended by ch. 73-452, Laws of Fla.

      . State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980); State v. Putnam County Development Authority, 249 So.2d 6 (Fla.1971).

      . See, e.g., State v. Leon County, 410 So.2d 1346 (Fla.1982); State v. Putnam County Development Authority, 249 So.2d 6 (Fla.1971); State v. Jacksonville Port Authority, 204 So.2d 881 (Fla.1967); Panama City v. State, 93 So.2d 608 (Fla.1957); Gate City Garage, Inc. v. City of Jacksonville, 66 So.2d 653 (Fla.1953).

        . State v. Leon County, 400 So.2d 949 (Fla.1981); Doane v. Lee County, 376 So.2d 852 (Fla.1979).

      . State v. Leon County, 410 So.2d 1346 (Fla.1982); State v. County of Dade, 250 So.2d 875 (Fla.1971).

      . State v. County of Dade, 250 So.2d 875 (Fla.1971).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Petitioner, v. Julio A. PASCUAL, Respondent.
    No. 61239.
    Supreme Court of Florida.
    Dec. 22, 1982.
    James C. Rinaman, Jr., President, Jacksonville, John F. Harkness, Jr., Executive Director and Anita F. Dahlquist, UPL Counsel, Tallahassee, and Charles W. Throckmorton of Mahoney, Hadlow & Valdes-Fauli, Miami, for The Florida Bar, petitioner.
    Robert D. Korner of Korner & Mclntrye, Coral Gables, for respondent.
   PER CURIAM.

We review the findings and recommendations of the referee relating to The Florida Bar’s petition against Julio A. Pascual’s unauthorized practice of law.

The Florida Bar, by petition, seeks to have Pascual held in contempt and enjoined from the unauthorized practice of law. The petition alleged:

Respondent has engaged in the unauthorized practice of law in Dade County, Florida by one or more of the following acts:
1. Andres Herrada retained the services of the employer of the respondent, Leonard J. Kalish, a certified Florida attorney, in the purchase of a restaurant.
Respondent, as a paralegal and President of Atlantic Title Corporation, which occupied the same suite of offices as attorney Kalish, represented Herrada in the purchase and at the closing of a restaurant from Carlos Torres without the supervision of attorney Kalish.
2. Respondent gave legal advice to Andres and Pedro Herrada in the presence of Carlos Torres and Torres’ attorney, Velio Veski, without attorney Kalish being present.
3. Respondent corresponded with attorney Velio Veski on attorney Kalish’s stationery and signed “For the Firm” without disclaimer of his non-attorney status.

The referee finds, and we agree, that Pascual engaged in the unauthorized practice of law and should be permanently enjoined from engaging in the unauthorized practice of law in this state.

Accordingly, Pascual is permanently enjoined from engaging in the practice of law in this state. In the event that he engages in any of the conduct enjoined, he will be found in indirect criminal contempt of this Court for the unauthorized practice of law in this state. He is also ordered to pay the costs of this proceeding.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OVER-TON, MCDONALD and EHRLICH, JJ., concur.

BOYD, J., dissents.


text:
    THE FLORIDA BAR. In re Oakley G. SMITH.
    No. 62022.
    Supreme Court of Florida.
    Dec. 22, 1982.
    William A. Meadows, Jr., South Miami, Philip T. Weinstein, Miami, and Paul A. Louis of Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, Miami, for petitioner.
    Paul Gross, Bar Counsel, Miami, for respondent.
   PER CURIAM.

Oakley G. Smith is petitioning for reinstatement as a member of the Florida Bar. The referee recommends that petitioner be reinstated. The board of governors has approved the report of the referee and, after reviewing the record, we agree with the referee and approve the reinstatement.

Petitioner is ordered to pay the costs of the proceedings.

It is so ordered.

ADKINS, Acting Chief Justice, and BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.


text:
    Phillip Thomas HICKS, Petitioner, v. STATE of Florida, Respondent.
    No. 62079.
    Supreme Court of Florida.
    Dec. 22, 1982.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Pursuant to article V, section 3(b)(4), Florida Constitution, the Fourth District Court of Appeal, in Hicks v. State, 411 So.2d 1040 (Fla. 4th DCA 1982), certified the following question as having great public importance:

May the harmless, error rule be applied where the only penalty instruction requested is for the main offense charged and the defendant is subsequently convicted of a lesser included offense?

We answer the question in the affirmative, on the basis of Lewis v. State, 419 So.2d 337 (Fla.1982), and approve the decision of the district court.

It is so ordered.

ADKINS, Acting C.J., and BOYD, OVERTON, McDonald and EHRLICH, JJ., concur.


author: PER CURIAM. SCHWARTZ, Judge

text:
    Theadores W. ROSS, Appellant, v. CHASE FEDERAL SAVINGS & LOAN ASSOCIATION, Luis Perez, and Gladys Perez, his wife, Appellees.
    No. 80-1213.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Decision Vacated and Dissenting Opinion Adopted on Rehearing En Banc Oct. 12, 1982.
    See 422 So.2d 911.
    Jerry B. Schreiber, Miami, for appellant.
    Therrel, Baisden, Stanton, Wood & Setlin and Frank R. Gramling, Miami Beach, John H. Duhig, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. See: Zaucha v. Town of Medley, 66 So.2d 238 (Fla.1953); Williamson v. Kirby, 379 So.2d 693 (Fla. 4th DCA 1980); Leffler v. Smith, 388 So.2d 261 (Fla. 5th DCA 1980).

SCHWARTZ, Judge

(dissenting).

A con man named Peter R. Cournoyer improperly induced Theadores W. Ross, an infirm lady who was almost 90 years of age, to transfer him title to her home on Miami Beach. She received no monetary consideration for the conveyance which was accomplished through a quit-claim deed, subsequently recorded, which recited on its face that

THIS QUIT CLAIM DEED IS BEING GIVEN WITH THE CONSIDERATION BEING LOVE AND AFFECTION.

Cournoyer then sold the property to Luis and Gladys Perez for $50,000, much of it supplied through a mortgage given by Chase Federal Savings & Loan Association. This appeal by Ms. Ross challenges the lower court’s determination, rendered after non-jury trial, which denied her claim for rescission of the deed to Cournoyer on the ground that the Perezes and Chase had, as bona fide purchasers, obtained interests in the property superior to hers. I cannot agree to the majority’s decision to affirm.

This court recently and squarely held in Florida National Bank and Trust Co. at Miami v. Havris, 366 So.2d 491 (Fla. 3d DCA 1979) that a deed given to a non-relative in return only for “love and affection” is “without consideration and ... invalid.” 366 So.2d at 496. Since Cournoyer was admittedly not related by blood or marriage to Ms. Ross, this principle is plainly applicable to this case. It is just as apparent that the Perezes and Chase were on implied or constructive notice of the resulting invalidity of the deed. The face of the recorded instrument itself shows that the only consideration was “love and affection” and did not affirmatively indicate any relationship between the grantor and grantee, who have different names. I think that these recitals clearly, and at the least, put subsequent purchasers to the minimal duty of inquiry as to whether such a relationship in fact existed. Lassiter v. Curtiss-Bright Co., 129 Fla. 728, 177 So. 201 (1937); Sapp v. Warner, 105 Fla. 245, 141 So. 124, 143 So. 648, 144 So. 481 (1932); First Federal Savings and Loan Ass’n of Miami v. Fisher, 60 So.2d 496 (Fla.1952); Leffler v. Smith, 388 So.2d 261, 263 (Fla. 5th DCA 1980). See, Delesdernier v. O’Rourke & Warren Co., 305 F.2d 929 (5th Cir.1962). Since it is undisputed both that such an investigation would have revealed that it did not and that no such investigation occurred, the cited cases require, in my view, that the judgment below be reversed.

      . The fact that no value was given was reflected also by the minimum amount of documentary tax stamps attached to the deed.

      . The Perezes did not have their own attorney, relying in effect on the mortgagee and its lawyers in closing the transaction.

      . In the light of the.well-known fact that Florida real estate practitioners are, to put it euphemistically, meticulous to a fault, it is simply incomprehensible that the reviewing attorney did not demand a “non-relative” affidavit of Ms. Ross to correct the glaring discrepancy which appeared on the face of the deed. Of course, the majority decision is essentially that such precautions were unnecessary, and will therefore have the unfortunate effect of precluding their being taken in the future, lest purchasers actually discover the invalidity of a previous instrument.

      . I find nothing in the decisions cited by the court which is contrary to this conclusion. Indeed, one of those cases, Zaucha v. Town of Medley, 66 So.2d 238 (Fla.1953), directly supports it.


author: SHAW, Judge. ERVIN, Judge. SHAW, Judge,

text:
    SENTRY INSURANCE, a mutual company, Appellant, v. Clyde R. BROWN, Appellee. Clyde R. BROWN, Appellant, v. SENTRY INSURANCE, a mutual company, Appellee.
    Nos. AC-366, AD-291.
    District Court of Appeal of Florida, First District.
    April 15, 1982.
    On Rehearing Oct. 19, 1982.
    Rehearing Denied Dec. 3, 1982.

      Thomas J. Guilday of Akerman, Senter-fitt & Eidson, Tallahassee, for appellant and appellee Sentry Ins., a mutual company.
    M. Stephen Turner and Jackson G. Beatty of Culpepper, Beatty & Turner, Tallahassee, for appellee and appellant Clyde R. Brown.
   SHAW, Judge.

Clyde Brown is seventy-four years of age and has carried automobile liability insurance with Sentry and its predecessor companies for forty-nine years. On May 9, 1978, he received a traffic citation for driving fifty-four miles per hour in a twenty miles per hour zone and paid a small fine without protest. On or about October 12, 1979, he received a letter from Sentry notifying him that his policy would terminate on December 1, 1979, and ■ would not be renewed because of the traffic violation conviction. A suit, filed by Brown for declaratory judgment against Sentry, was settled by Sentry’s agreement to reinstate Brown’s policy in light of his long tenure with the company and Brown’s agreement to dismiss the suit and his claim for attorney’s fees. On February 19, 1980, Brown was involved in an intersection accident in Dothan, Alabama. Although no official traffic citations were issued, it was noted on the accident report that Brown failed to yield the right of way. On or about October 10, 1980, Sentry advised Brown, by letter, that his policy would not be renewed, citing the 1978 speeding ticket and the 1980 accident. In the .latter part of October, 1980, Brown filed suit for declaratory judgment alleging that Sentry had acted arbitrarily and capriciously in refusing to renew his insurance. The trial judge found that Sentry had discriminated because of age and that the company’s second notice of nonrenewal was arbitrary, capricious, and in violation of applicable provisions of the Florida Insurance Code. Sentry was permanently enjoined from canceling or refusing to renew the policy for the reasons stated in its notice of nonrenewal. On May 15, 1981, an order was entered taxing costs in the amount of $1,154.14 and denying attorney’s fees.

The judgment of the trial court is predicated upon Section 627.728(4)(c), Florida Statutes (1979), which reads as follows:

(c) No insurer shall fail to renew a policy for reasons based entirely on the sex, occupation, marital status, race, color, creed, national origin, residence, military service, or age of the insured, or on the principal place of garaging the insured vehicle in this state, or for any other reason which is arbitrary or capricious.

In support of his complaint Brown introduced evidence of his nearly perfect driving record with the company for forty-nine years, the attempted nonrenewal of his policy after he reached the age of seventy, and Sentry’s recent sharp reduction in its percentage of elderly policyholders in Florida. Dr. Ray Solomon, Dean of the College of Business and Professor of Insurance, Florida State University, testified that there was no reasonable underwriting reason not to renew the policy in this instance.

In rebuttal, Sentry introduced evidence that it is a preferred. risk company and, under company policy, speeds in excess of thirty miles per hour over the posted speed limit are a major violation precluding renewal of a policy, regardless of the policyholder’s age. John Steven Meyer, Sentry’s underwriting manager, testified that in determining whether to underwrite renewals of preferred policyholders, the company considers accidents, traffic violations, frequency of loss, type of car, and past driving history. He testified that length of time with the company is a consideration, but it is secondary to the driving record during the five year period immediately preceding the underwriting analysis. Sentry recognizes a nexus between excessive speed and loss potential by placing speeds in excess of thirty miles per hour over the posted speed in the same category as DWI, reckless driving, and eluding a police officer.

The trial judge found that Sentry’s second notice of nonrenewal was arbitrary and capricious and patently discriminatory against appellant Brown because of his age. We disagree and REVERSE. Failure to yield right-of-way, resulting in an accident, and excessive speeds occurring within the most recent five year period are legitimate factors to be reviewed by a company in evaluating a policyholder’s risk potential. The evidence shows that Sentry elected not to renew Brown’s policy because of objective criteria applied uniformly by the company, irrespective of age. The trial court’s finding to the contrary is not supported by the record. We accordingly REVERSE the final judgment in AC-366, thereby mooting the issues raised in AD-291.

McCORD and ERVIN, JJ., concur.

ON MOTION FOR REHEARING

ERVIN, Judge.

After further considering appellee’s motion for rehearing, we now grant the motion and withdraw our opinion filed April 15, 1982, which reversed the lower court’s final judgment in Case No. AC-366, holding that Sentry’s second notice of nonrenewal of Brown’s automobile liability insurance policy was arbitrary and capricious and in violation of applicable provisions of the Florida Insurance Code. In our view there was both an evidentiary and a legal foundation for the decision reached, and it is accordingly affirmed. In Case No. AD-291, however, we reverse the court’s order denying appellee’s motion for attorney’s fees and remand the cause to the court for the determination of an appropriate amount to be assessed against the carrier.

We consider that there was competent and substantial evidence in Case No. AD-366 to sustain the lower court’s finding that Sentry’s notice of nonrenewal was arbitrary and capricious and in violation of applicable provisions of the Florida Insurance Code. It is our view that those provisions establish a statutory mandate that an insurer’s right to cancel or nonrenew a policy cannot be exercised by mere whim or caprice; that such right must be carried out in strict compliance with the statutory directions. It has been long recognized that the law of this state is a basic ingredient of every insurance contract. Board of Public Instruction v. Bay Harbor Islands, 81 So.2d 637 (Fla.1955); General Development Corp. v. Catlin, 139 So.2d 901, 903 (Fla. 3d DCA 1962); National Merchandise Co., Inc. v. United Service Automobile Association, 400 So.2d 526, 531 (Fla. 1st DCA 1981). In our view the legislature has clearly established its intent that an insurer shall not arbitrarily or capriciously refuse to renew an insured’s liability insurance policy, through its enactment of Section 627.728(4)(c), Florida Statutes (1979), providing:

No insurer shall fail to renew a policy for reasons based entirely on the sex, occupation, marital status, race, color, creed, national origin, residence, military service, or age of the insured or on the principal place of garaging the insured vehicle in this state, or for any other reason which is arbitrary or capricious.

(e.s.) This statute was first passed by the legislature during a special session conducted in January and February of 1971, see Chapter 71-7(B), Section 1, Laws of Florida, pursuant to a proclamation by Governor Askew, called for the “purpose of considering the adoption of legislation to assure that adequate automobile insurance protection be available to the citizens of Florida at reasonable prices.” 1 Laws of Florida 3 (1971). The statute, “restrictpng] insurance companies in cancelling or failing to renew existing policies, would call for a broad or liberal interpretation” favoring the insured. Hartford Accident & Indemnity Co. v. Sheffield, 375 So.2d 598, 600 n. 2 (Fla. 3d DCA 1979).

Given the above legislative history, we conclude that if a court were presented with evidence disclosing that an insurer had failed to comply with the pertinent statutes regulating its right to renew, the court could properly deem such action “arbitrary or capricious.” In 1977, the legislature enacted Section 626.9702, Florida Statutes (ch. 77-158, § 1, Laws of Florida), providing:

(1) No insurer shall impose or request an additional premium for automobile insurance, or refuse to renew a policy, solely because the insured or applicant was convicted of one or more traffic violations which do not involve an accident or do not cause revocation or suspension of the driving privileges of the insured, without adequate proof of a direct, demonstrable, objective relationship between the violation for which the surcharge was imposed and the increased risk of highway accidents.
(2) No insurer shall cancel or otherwise terminate any automobile insurance contract with an insured after the insured has paid the premiums on such policy for 5 years or more solely because the insured is involved in a single traffic accident.
(3) Any person or organization which violates any provision of this section shall be subject to the penalties provided in s. 627.381.

Applying Section 626.9702 to the situation before us, in which the insurer’s decision to nonrenew was based upon its insured’s involvement in one traffic violation and one accident, not resulting, however, in the insured’s driving privileges being either revoked or suspended, we construe the statute as authorizing the insurer to nonrenew a policy under two alternative conditions:

(1) If the insured was convicted of a traffic violation, not involving an accident, and there is adequate proof of a direct, demonstrable relationship between the violation and the increased risk of highway accidents.

(2) If the insured was convicted of a traffic violation, not involving an accident, and proof is lacking that there is any direct, demonstrable relationship between the violation and the increased risk of highway accidents, and if the insured, a policyholder for five or more years, has been involved in a single accident for which he is at fault.

We consider the court had before it competent and substantial evidence for it to find that the first prong.of Section 626.-9702 was not met for two reasons. First, the record discloses Sentry’s earlier, inconsistent decision to reinstate Brown’s insurance, notwithstanding his traffic citation for driving at speeds in an area in excess of 30 miles more than the speed posted. The lower court may, under the circumstances, have determined that Sentry had waived its right to rely upon the traffic violation as a reason for nonrenewing Brown’s liability insurance. Waiver is either an intentional or voluntary relinquishment of a known right, or conduct giving rise to an inference of the relinquishment of a known right. Fireman’s Fund Insurance Co. v. Vogel, 195 So.2d 20 (Fla. 2d DCA 1967). Moreover, if a party waives a right provided under a contract, it cannot, without the consent of its adversary, reclaim it. Thomas N. Carlton Estate, Inc. v. Keller, 52 So.2d 131 (Fla.1951). Finally, the question of waiver is usually one for the trier of the facts. Rutig v. Lake Jem Land Co., 155 Fla. 420, 20 So.2d 497 (1945); Davis v. Davis, 123 So.2d 377 (Fla. 1st DCA 1960). If the court considered the first statutory prong to have been waived, Sentry would have been precluded by Section 626.9702(2) from asserting Brown’s involvement in the accident as the sole basis for its refusal to renew.

Alternatively, the court, in considering the circumstances relating to the traffic citation, may have determined there was inadequate proof, as required by Section 626.9702(1), of a “direct, demonstrable, objective relationship between the violation ... and the increased risk of highway accidents.” If the court’s judgment implicitly so held, in our estimation it was supported by competent and substantial evidence. The only witness who offered testimony before the court as to the particulars of the violation was Brown, who stated that with the exception of the posted reduced speed during school hours, the permissible speed in the area was normally forty-five miles per hour; that the violation occurred on a four-lane highway, and at that time, school was apparently still in session because Brown saw no children in the vicinity.

If the court concluded that there was insubstantial proof of a relationship between the violation and the increased risk of an accident, it would have been necessary in our judgment for the insurer, pursuant to the provisions of Section 626.9702, to base its nonrenewal upon both the violation and the later accident. We consider, however, that an insured’s mere involvement in an accident does not provide justification under the provisions of Section 626.9702 for the insurer not to renew—there must also be evidence revealing that the company’s policyholder was to some extent at fault in causing the accident. This conclusion is made evident by reading the provisions of Section 626.9541(15)(c), Florida Statutes (1979), in pari materia with Section 626.9702(2).

The former section was first enacted in 1976 .as Section 626.954(15)(e) by Chapter 76-260, Section 9, Laws of Florida, effective June 28, 1976 (codified as Section 626.9541(15)(c), Florida Statutes (Supp.1976), and was applicable to the policy period of December 1, 1979-November 30, 1980. It provides in pertinent part that an insurer deals illegally in premiums if it refuses to renew a policy solely because the insured was involved in an automobile accident, causing a loss to the insured’s insurer under the policy, unless, among other things, “the insurer’s file shall contain sufficient proof of fault .... ” Reading further into Section 626.9541(15)(c), we are of the view that the statute clearly implies that a traffic citation should normally issue following an accident as a predicate to any assessment of fault in determining whether to renew a policy. Sub-paragraphs 5, 6 and 7 to subsection (15)(c) respectively require an insurer to reimburse an insured for any surcharge imposed if the insured demonstrates that he was not convicted of a moving traffic violation, adjudicated not to be liable by a court of competent jurisdiction, or in receipt of a traffic citation which was dismissed or nolle pressed.

Brown had never received any traffic citation as a result of the accident, and the sole source of the insurer’s information that Brown had failed to yield the right-of-way was the isolated statement in the traffic accident report to that effect. Only Brown testified as to the circumstances of the accident, and his testimony could hardly be viewed as tantamount to an admission that he was at fault. He stated that as he pulled up to a stop sign, he looked right, looked left, and seeing no one, proceeded across the street in a southerly direction, and, while in the middle of the intersection, was struck by the operator of another vehicle traveling in an easterly direction. He related that the second automobile was traveling approximately 50 miles per hour at the time, and that there were no skid marks or any other indications revealing that the vehicle’s occupant had applied the brakes before striking his car.

Given this testimony, and the fact that Section 316.066(4), Florida Statutes, precludes the use of accident reports “as evidence in any trial, civil or criminal, arising out of an accident ... ”, the court may well have considered the evidence was insufficient on the question of whether Brown was at fault.

In its determination that Sentry’s action was motivated by arbitrary or capricious considerations, the court could also properly consider the testimony of Dr. Ray Solomon, dean of the college of business at Florida State University, and a professor of insurance, who testified that he was familiar with generally used underwriting standards in the insurance industry. It was his opinion that a company’s decision to nonre-new an insured’s policy because of an accident and a speeding violation occurring within a two-year period, in disregard of an otherwise perfect driving record for 49 years, was a “purely random” selection, and that two such instances would not establish a pattern for poor driving. Solomon’s qualifications as an expert were not impeached. His opinion testimony was appropriately before the court, It, together with the evidence relating to the circumstances of the traffic violation and the accident, supplied a suitable foundation for the conclusion reached.

Accordingly, we grant the motion for rehearing in Case No. AC-366 and affirm the judgment of the trial court in its entirety.

As to Brown’s appeal in Case No. AD-291 from the order denying his motion for attorney’s fees on the ground that the provisions of Section 627.428, Florida Statutes, do not apply to a declaration of one’s rights of an insurance policy when a decision by the insurer is made to not renew the policy, but pertain only to the enforcement of an existing insurance contract, we reverse. The suit for declaratory judgment was brought before the expiration of the contract for the purpose of determining Brown’s rights of renewal under the existing policy. Brown prevailed in that suit. We consider the issue in this cause to be analogous to that in Stonewall Insurance Co. v. W.W. Gay Mechanical Contractor, 351 So.2d 403 (Fla. 1st DCA 1977), in which we held that an insured was entitled to a declaratory judgment on his right to coverage even though the insured’s liability to a third party had not yet been established, and, having prevailed on the declaratory judgment suit, the insured was entitled also to attorney’s fees under the statute.

The denial of attorney’s fees in Case No. AD-291 is reversed and the cause is remanded to the trial court with directions that it award a reasonable fee in favor of Brown to be assessed against Sentry.

McCORD, J., concurs.

SHAW, J., dissents.

SHAW, Judge,

dissenting.

I would deny the motion for rehearing for the reasons set forth in this Court’s original opinion.

      . Arbitrary is variously defined as “based on random or conventional selection of choice rather than reason; ... given to willful intentional choices and demands.” Webster’s Third International Dictionary (1981).

      . One commentator has offered the following reasons stimulating such legislation:
      Criticism has been leveled at the insurance industry regarding alleged arbitrary cancellation and nonrenewal practices particularly with drivers either elderly or under age twenty-five years. Criticism arises from practices of a comparatively few insurers, such as alleged unfair cancellation, nonrenewal, refusal to insure or they offer insurance only at increased rates.
      Studies of the problem conducted so far by state insurance departments indicate that the vast majority of automobile insurers exercise restraint in their cancellation practices and do not cancel insurance without justifiable cause.
      ♦ ‡ sfc * s(c
      The major trade associations have taken forthright action to correct the problem created by unfair and arbitrary action of companies representing a relatively small share of the total automobile insurance business.
      The American Mutual Insurance Alliance has commented that
      “These surveys and others which have been conducted in recent years support our belief that the public interest requires state action that will hold all auto insurers to the level of performance already being met by companies serving the majority of policyholders.”
      Cancellation is significant, since it appears that after cancellation industry practice makes it extremely difficult to obtain insurance with other insurers. Some will decline to consider an application for a period of three years after cancellation or will only issue a policy at substantially higher rates.
      2 Long, The Law of Liability Insurance, § 15.13 at 15-28 to 15-29 (rev. ed. 1981) (footnotes omitted).


author: PER CURIAM. PER CURIAM.

text:
    Robert F. VENEMA, Bonnie J. Venema, his wife, and Miami Springs Auto Service, Inc., Appellants, v. Hubert D. TOST and Marilyn N. Tost, his wife, individually and the Santiago Corporation, Appellees.
    Nos. 81-1653, 81-1979.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    As Modified on Rehearing Oct. 26, 1982.
    Rehearing Denied Jan. 10, 1983.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Gary Gerrard, Rubinstein & Komik and Jeffrey Rubinstein, Miami, for appellants.
    Dillon & Langer and Sharon L. Langer, Miami, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

We reverse the order of the trial court granting specific performance upon a holding that the contract upon which enforcement is sought does not sufficiently describe the real property in question and, thus, is not capable of specific performance. Florida Bank & Trust Co. at West Palm Beach v. Field, 157 Fla. 261, 25 So.2d 663 (1946); Fox v. Sails At Laguna Club Development Corp., 403 So.2d 456 (Fla. 3d DCA 1981); Hart v. Freeman & Sons, Inc., 226 So.2d 708 (Fla. 3d DCA 1969); see also Farrell v. Phillips, 414 So.2d 1119 (Fla. 4th DCA 1982); The Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So.2d 137 (Fla. 3d DCA 1974).

The use of parole evidence to remove a patent ambiguity with respect to a legal description in a conveyance is error. Connelly v. Smith, 97 So.2d 865 (Fla. 3d DCA 1957); see also Hunt v. First National Bank of Tampa, 381 So.2d 1194 (Fla. 2d DCA 1980).

The trial court erred in failing to apply laches as defense in this specific performance action. DeHuy v. Osborne, 96 Fla. 435, 118 So. 161 (1928). Our view is reinforced since the contract in this case contains a “time is of the essence” provision. Pattison v. Reid, 303 So.2d 40 (Fla. 3d DCA 1974).

Having concluded that specific performance will not lie, we remand to the trial court the breach of contract action which was not passed upon in the first instance. The judgment, in all other respects, is.affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings.

ON PETITION FOR REHEARING GRANTED

PER CURIAM.

The court’s opinion is modified by adding the following paragraph:

In view of the foregoing, we conclude that the existing lease between Venema and Miami Springs Auto Service, Inc., should not be cancelled.

Accordingly, paragraph two of the final judgment cancelling the lease is likewise reversed.

We otherwise adhere to our previously expressed views.