author: HENDRY, Judge.

text:
    Sherman NEALY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1253.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Rehearing Denied July 17, 1981.
    Flynn, Rubio & Tarkoff and Michael H. Tarkoff, Miami, for appellant.
    Jim Smith, Atty. Gen. and Susan C. Minor and Joel Rosenblatt, Asst. Attys. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   HENDRY, Judge.

Appellant Sherman Nealy seeks to overturn the trial court’s ruling which denied his motion to suppress evidence obtained by a police officer who was performing a so-called “inventory” of his automobile subsequent to his arrest on a charge of operating a motor vehicle with a suspended driver’s license. The trial court’s ruling was entered at a probation revocation hearing instituted as a result of an affidavit of violation of probation charging Nealy with: (1) operating a motor vehicle with a suspended license and (2) possession of a controlled substance, to-wit: cocaine. At the revocation hearing, the state stipulated to the dismissal of the driver’s license charge, and the court found Nealy in violation of probation on the possession of controlled substance charge, revoked probation, and sentenced him to four years in the state penitentiary. We have jurisdiction. Art. V, § 4{bXl), Fla.Const.

Upon a careful review of the record and the facts presented, we find that the war-rantless “inventory” search was unreasonable and the use against appellant of the fruits of the search violated his rights guaranteed by Article I, Section 12 of the Florida Constitution. We further determine that the application of the exclusionary rule is mandated in these proceedings, and requires reversal of the challenged ruling.

On March 31, 1980, at about mid-day, appellant was stopped for a traffic violation, making an illegal U-turn, in the City of Opa Locka. The police officer, checking his driver’s license, received information that the license was suspended, and informed appellant that he was placing him under arrest for this charge. The officer asked for proof of ownership of the automobile, and when appellant opened his glove compartment and produced the registration, the officer saw “a large amount of U.S. currency” inside. He then requested a back-up so that, as he said, he “would have a witness with him when he counted the money.” After placing appellant in the back of the police car, the officer asked him if he wanted his car towed or left on the scene, and appellant replied that he wanted it left. The officer nevertheless proceeded to “inventory” the contents of the car because, he testified, this was required by departmental policy, especially if there was a large amount of property in the vehicle. (He did not indicate that it would be necessary to impound the vehicle under after he had taken the “inventory”.) During the “inventory,” a small plastic container was discovered on top of the sun visor on the driver’s side of the vehicle. The officer was unable to determine its contents until he had opened it; he then saw that it contained a white powder, apparently cocaine. The container and its contents were impounded and appellant was further placed under arrest for this charge (possession of controlled substance). At some point during these occurrences (the record is unclear as to exactly when), appellant’s brother, who apparently lived nearby, came on the scene but was told to leave by the officers. Appellant was not allowed to speak to him, nor did the officers speak to him about his brother.

The question of the legality vel non of a police “inventory” of an arrestee’s vehicle has often been considered by our Florida courts in recent years and the criteria against which the police action is to be measured have been well defined in our Florida jurisprudence.

The proper test to apply initially in determining the validity of an inventory search of an arrestee’s vehicle in this state, and the one which we employ here, is set forth in the case of Altman v. State, 335 So.2d 626 (Fla. 2d DCA 1976):

Thus necessity has always been considered by this court to be a threshold requirement to validate a warrantless nonconsensual search of an automobile where the search was beyond that incident to a valid arrest and one not based upon probable cause.

335 So.2d at 628 (emphasis supplied).

Additionally, since an “inventory” is by definition a search performed in connection with lawful impoundment of a vehicle, the question of whether police custody of the vehicle was itself lawful (and necessary) must also be answered in the affirmative in order to uphold the instant inventory. See State v. Sanders, 387 So.2d 391 (Fla. 2d DCA 1980); Altman v. State, supra; Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976); Benton v. State, 329 So.2d 385 (Fla. 1st DCA 1976). Because the questions of necessity for the inventory and h wfulness or necessity for the impoundment are interrelated, we shall consider them together.

The following factors have been held to constitute necessity or otherwise provide support for an inventory and impoundment of an arrestee’s vehicle: (1) where the vehicle’s location is a hazard or nuisance to traffic, (2) where the vehicle is owned by someone other than the arrestee, to protect against claims of loss or damage by the true owner, and (3) where the vehicle is subject to forfeiture.

Sub judice there is no indication that appellant’s car was in any way a hazard to traffic. The fact that the officer asked whether appellant preferred to leave the car where it was or have it towed to the station necessarily implies that its location was not a factor in the inventory. Nor is there any support in the record for the existence of the latter two factors.

Another factor arguably in support of the need for inventory and im-poundment (and the one on which the state relies herein) is that of safeguarding an arrestee’s property against loss and/or the police against claims of loss. This factor has been strongly qualified by our Florida courts and although some weight has been given to the police officer’s good faith and intent in performing an inventory under this rationale, the prevailing view in Florida is that this “protective” factor, without more, is insufficient justification where the arrestee is willing to take responsibility for leaving his vehicle at the location of the stop, or where alternative means are available to accomplish the protective function. Miller v. State (Fla.1981) (Case No. 56,831, opinion filed May 28, 1981); Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976). Recognized alternative means include, for example, authorization by the arrestee for a friend who is present, or a towing service, to remove the vehicle to an appropriate location, Jones v. State, 345 So.2d 809 (Fla. 4th DCA 1977); Altman v. Stats, 335 So.2d 626 (Fla. 2d DCA 1976); Chuze, supra.

It appears from the instant facts that the police ignored the possibility that appellant’s brother may have been able to assist in removing the vehicle. Additional alternatives appropriate in light of appellant’s willingness to take responsibility for leaving his vehicle, were also apparently ignored, to-wit: simply locking and securing the vehicle, locking the money in the trunk of the vehicle, or removing the money to the police station for safekeeping. It thus appears that the most intrusive and, we find, unwarranted course of action was chosen, and the attempted justification of the search under the “protective” rationale simply will not suffice to remove the search from the recognized rule that “[a]n ‘inventory’ search will be unreasonable if it is utilized as a pretext to conduct an ‘exploratory’ search in order to hunt for incriminating evidence.” State v. Jenkins, 319 So.2d 91, 93 (Fla. 4th DCA 1975).

Because we find no justification to support the search here in question as a lawful inventory, [and it is not contended, nor could we so find, that this search falls within any of the other recognized exceptions to the warrant requirement], we now consider whether the exclusionary rule applies to prevent the use of the fruits of the illegal search against appellant in a probation revocation proceeding.

Florida law on this question has undergone a permutation in the last few years; the present view being that the exclusionary rule does so apply. Article I, Section 12 of the Florida Constitution provides that the fruits obtained in an illegal search “.. . shall not be admissible in evidence.” This provision has been interpreted as “an express constitutional exclusionary rule,” which should be applied in probation revocation proceedings as well as original criminal prosecutions. Grubbs v. State, 373 So.2d 905, 909 (Fla.1979); also see Huppertz v. State, 399 So.2d 992 (Fla. 3d DCA 1981); State v. Dodd, 396 So.2d 1205 (Fla. 3d DCA 1981) (Case Nos. 80-322, 80-499, opinion filed April 21, 1981); Ray v. State, 387 So.2d 995 (Fla. 4th DCA 1980). But see Croteau v. State, 334 So.2d 577 (Fla.1976).

Because we find both that the search of appellant’s automobile was an unreasonable one and that the exclusionary rule applies, reversal is required. Since our ruling on these points is determinative, there is no need to consider the other point raised on appeal, i. e., whether ownership of the contraband in question was properly attributed to appellant.

The order appealed is hereby

Reversed.

      . § 322.34 Fla.Stat. (1979).

      . § 893.03(2)(a)(4) Fla.Stat. (1979).

      . Appellant had originally been charged by information on June 26, 1976 with two counts of possession of controlled substances (heroin and cocaine) in violation of § 893.03 Fla.Stat. (1975), was later charged on October 27, 1977, with possession of unlawful sale of a controlled substance (heroin) in violation of § 893.03 Fla. Stat. (1977), and on February 13, 1978, was placed on five years’ probation with a special condition that he serve one year in the county stockade, which time he did serve.

      . State v. Sanders, supra; State v. Dearden, 347 So.2d 462 (Fla.2d DCA 1977).

      . Fields v. State, 369 So.2d 603 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1366 (Fla.1979); State v. Broomfield, 364 So.2d 863 (Fla.2d DCA 1978).

      . See, e. g, § 943.41-44, Fla.Stat. (1979).

      . We feel it necessary to distinguish in this connection the United States Supreme Court decision in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, (on remand) 247 N.W.2d 673 (S.D.1976) (reaching contrary result on different grounds), wherein the Court also considered an inventory performed under a “caretaking” rationale. The Court reversed the South Dakota Supreme Court’s decision that the inventory constituted a violation of the Fourth Amendment, and remanded. In upholding the impoundment, Chief Justice Burger, speaking for the majority, reasoned that:
      [t]he authority of the police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
      428 U.S. at 369, 96 S.Ct. at 3097.
      The opinion went on to enunciate the needs satisfied by a routine police practice of inventorying the contents of impounded vehicles:
      [1][T]he protection of the owner’s property while it remains in police custody,
      [2] the protection of the police against claims or disputes over lost or stolen property, and
      [3] the protection of the police from potential danger.
      428 U.S. at 369, 96 S.Ct. at 3097 (citations omitted).
      The salient facts of Opperman were that the vehicle had been impounded for illegal parking, the owner was not then present, and the inventory was carried out at the city impound lot, mainly for the purpose of “safekeeping,” because of numerous recent break-ins and thefts from vehicles in that lot.
      Whereas, sub judice, the claimed justification for the impoundment of appellant’s vehicle was not that it constituted any sort of impediment to traffic or threat to public safety, but rather the impoundment itself was said to have been carried out for a “protective” purpose. Our conclusion, infra, that the “protective” purpose does not suffice to sustain the impoundment under the facts before us thus serves to distinguish the lawful impoundment in Opperman from the unlawful or unnecessary impoundment in the instant case.
      It is further interesting to note that on remand the South Dakota Supreme Court concluded that its interpretation of the state constitutional search and seizure provision called for a higher standard of protection and that only “minimal interference” with an individual’s protected rights would be upheld absent a warrant, i. e., that:

        noninvestigative police inventory searches of automobiles without a warrant must be restricted to safeguarding those articles which are within plain view of the officer’s visionf,]
      [thus proscribing the search of the closed glove compartment where the contraband had been discovered].

        State v. Opperman, S.D., 247 N.W.2d 673, 675.
      We mention this latter disposition for its relevance to any question in the present case of whether or not the police officer may have been justified in seizing the container which, it seems, was not in his “plain view,” even from inside the vehicle, assuming arguendo that he had a right to be inside the vehicle conducting the search when he discovered it, which right we have negated by our finding of the unjustifiable nature of the impoundment and “inventory” of appellant’s vehicle here.

      . This court noted in In re 1972 Porsch 2 Dr., 307 So.2d 451 (Fla.3d DCA 1975), that a departmental policy of self-protection from claims of loss was legally insufficient to justify impoundment of that vehicle in a forfeiture proceeding. In Weed v. Wainwright, 325 So.2d 44 (Fla. 4th DCA 1975), the Fourth District held that the mere fact the vehicle would remain unattended (in a parking lot) was not sufficient to justify a search.

      . Of course, the converse is also true that when an arrestee is unable to accept responsibility for leaving the vehicle on the scene (the most frequent example being where the arrestee is very intoxicated), and no alternatives are available, inventorying and impoundment may be justified as good faith attempts to safeguard an arrestee’s property. Knight v. State, 398 So.2d 908 (Fla. 3d DCA 1981); State v. Sanders, 387 So.2d 391 (Fla. 2d DCA 1980); State v. Cook, 358 So.2d 42 (Fla. 2d DCA 1978); Mattson v. State, 328 So.2d 246 (Fla. 1st DCA 1976).

      . See for example, United States v. Prazak, 500 F.2d 1216 (9th Cir. 1974) (lock property in trunk of vehicle); State v. Tully, 348 A.2d 603 (Conn. 1974) (lock and leave, and removal of property in plain view to police station).

      . The federal rule is apparently contrary, the following cases having held the exclusionary rule inapplicable to probation (or parole) proceedings: United States v. Frederickson, 581 F.2d 711 (8th Cir. 1978); Latta v. Fitzharris, 521 F.2d 246 (9th Cir.), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975) (parole); United States v. Farmer, 512 F.2d 160 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305 (1975); United States v. Brown, 488 F.2d 94 (5th Cir. 1973); United States v. Hill, 447 F.2d 817 (7th Cir. 1971); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970) (parole); United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970), aff’d, 438 F.2d 1027 (5th Cir.), cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1971).


source: Caselaw Access Project

author: DOWNEY, Judge. HURLEY, Judge,

license: Public Domain

text:
    Arthur FARMER, Appellant, v. CITY OF FORT LAUDERDALE, Appellee.
    No. 80-326.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Rehearing Denied July 17, 1981.
    Bruce H. Little and Michael G. Widoff, Fort Lauderdale, for appellant.
    Donald R. Hall, City Atty. of the City of Fort Lauderdale and Larry H. Eaker, Asst. City Atty., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

This is an appeal from an order of the Circuit Court of the Seventeenth Judicial Circuit affirming an order of the Civil Service Board of the City of Fort Lauderdale which affirmed the action of the City of Fort Lauderdale in discharging Arthur Farmer from the City Police Department. The appeal will be treated as a petition for writ of certiorari pursuant to Florida Appellate Rule 9.030(b)(2)(B).

The underlying facts of this case are not in dispute. It appears that on April 28, 1978, Farmer was working special duty at the Southeast Bank of Broward County. One of his responsibilities was to wheel the portable bus vault from the teller’s window to the main vault. On the day in question approximately $10,000 was reported missing from one of the portable “bus” vaults. All bank employees having access to the vault were required to undergo polygraph testing and were cleared of suspicion as a result of the tests. Farmer, however, consistently refused to take a polygraph test.

The investigation, begun by the Federal Bureau of Investigation, was turned over to the Fort Lauderdale Police Department. In conjunction with this investigation the United States Attorney for the Southern District of Florida and the Sta-e Attorney for the Seventeenth Judicial Circuit promised Farmer that he would receive use immunity as to anything he said during the polygraph test if future criminal prosecution resulted. However, Farmer still refused to submit to a polygraph examination, and thus he was discharged.

The issue involved here is whether a police officer can be discharged from the police department for refusing to submit to a polygraph examination when ordered to do so by his superior officer so long as he is not required to waive immunity from a prosecution based on the results of the examination. The City, The Civil Service Board, and the circuit court held that he could be discharged. In State of Florida Department of Highway Safety and Motor Vehicles v. Zimmer, 398 So.2d 463, (Fla. 4th DCA 1981), we also approved the discharge of a police officer under similar circumstances.

Accordingly, on authority of State of Florida Department of Highway Safety and Motor Vehicles v. Zimmer, supra, the petition for certiorari is denied.

SHARP, G. KENDALL, Associate Judge, concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting:

I respectfully dissent and would adopt the rationale set forth by Judge Anstead in his dissenting opinion in State of Florida Department of Highway Safety and Motor Vehicles v. Zimmer, 398 So.2d 463 (Fla. 4th DCA, 1981).


author: NESBITT, Judge.

text:
    Kenneth WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-954.
    District Court of Appeal of Florida, Third District.
    June 10, 1981.

      Bennett H. Brummer, Public Defender and Nicholas J. Capuano, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   ON MOTION FOR REHEARING GRANTED

NESBITT, Judge.

The defendant appeals from the trial court’s denial of his motion to set aside and correct his sentence, pursuant to Florida Rule of Criminal Procedure 3.850. We recede from our initial affirmance of the order without opinion because, at the time of release, we had not been enlightened by the Supreme Court’s revised opinion in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980) (revised April 23, 1981).

In that regard, we commend the Attorney General who, in the noble tradition of his office as a quasi-judicial advocate, first brought to our attention that the Supreme Court’s revised decision in Villery now affords the defendant a measure of the relief sought.

Through a negotiated plea, the defendant was adjudicated on two counts: (1) commission of a robbery with a firearm, pursuant to Section 812.13, Florida Statutes (1977); and (2) unlawful possession of a firearm while engaged in the commission of a felony, pursuant to Section 790.07, Florida Statutes (1977). On his plea of guilty, the defendant received eight years probation with a special term and condition thereof that four years be served in the state penitentiary with appropriate credit for all time served. Following Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979), which held that a lengthy prison term under the guise of probation could not lawfully be imposed, the defendant filed a motion to correct or vacate the sentence. The motion was granted on November 19, 1979. By the corrected order, the defendant was sentenced to a term of eight years in the state penitentiary with the provision that after he had served four years incarceration the remaining four years would be stayed and he would be placed on probation.

At the time, the split sentence imposed was entirely correct under State v. Jones, 327 So.2d 18 (Fla.1976). However, in Villery, the Supreme Court expressly receded from that portion of State v. Jones, supra, which permitted incarceration in excess of one year as a condition of probation. In fairness to all concerned, there was simply no way to anticipate that the holding in Shead v. State, supra, would ultimately be adopted in Villery in such a way as to impact the split sentences as it most assuredly has. However, there is no doubt but that, under Villery, the sentence imposed upon the defendant constitutes fundamental error for which we must reverse and remand for correction and imposition of a proper sentence.

Since we have the case squarely before us, we now undertake, on our own initiative, to correct another sentencing error apparent on the face of the record. It is clear from a reading of the charging document that the defendant was adjudicated and sentenced for the offense of robbery with a firearm as well as possession and display of a firearm in the commission of a felony, which offenses arose out of the identical transaction. Davis v. State, 392 So.2d 947 (Fla. 3d DCA 1980) indicates that while it is perfectly proper for the defendant to be convicted of both offenses on a plea of guilty, such conviction will nonetheless not support a sentence on both offenses. Although this point seems to have been well established, it was never called to the attention of any of the trial judges responsible for the sentencing or re-sentencing of the defendant. Because of the fundamental nature of the error, we proceed to correct it upon our own initiative.

For the foregoing reasons, the order appealed from is reversed; the s ¿ntence imposed upon the defendant for unlawful possession and display of a firearm during the commission of a felony is vacated, with directions that the defendant be re-sentenced on his conviction for commission of a robbery with a firearm in accordance with Villery, supra.

Reversed and remanded with directions.


author: PER CURIAM.

text:
    Johnny Lee HALL, Appellant, v. STATE of Florida, Appellee.
    No. SS-447.
    District Court of Appeal of Florida, First District.
    June 16, 1981.

      Stephen M. Witt, Lake City, for appellant.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

This appeal is from appellant’s conviction of armed robbery, aggravated battery, and possession of a firearm by a convicted felon. Four points are raised by appellant, two requiring reversal.

As to point one, we sustain the lower court’s denial of the motion to suppress. The officers had, at the time of the stop of the vehicle in which appellant was an occupant, a founded suspicion for stopping it. Cf. State v. Webb, 398 So.2d 820 (Fla.1981). And, based upon the observations of the officers at the scene, and the activities of the occupants, the officers were then privileged to search and seize items within and beneath the car. Cf. Byrd v. State, 380 So.2d 457 (Fla.1st DCA 1980), cert. den., 398 So.2d 1352 (Fla.1981).

We also find appellant’s point relating to the insufficiency of the evidence without merit.

We agree, however, with appellant’s argument that the lower court erred in admitting into evidence an exhibit showing that appellant had previously been convicted of the felony of robbery, an offense for which appellant was then being tried. In order to establish that appellant had previously been convicted of a felony, the state, over objection, introduced into evidence a prior judgment and conviction of appellant for the crime of robbery. Disclosure of the nature of the prior conviction to the jury was unnecessary and undoubtedly prejudicial to the defendant. The state had introduced testimony of an attorney who had previously represented appellant on a felony charge. The attorney’s unrefuted testimony was that appellant had been convicted of a felony. If the state wished to corroborate that testimony by introducing the judgment and sentence, the nature of the crime should have been excised from the document. See Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979). The prejudicial impact of disclosing to the jury a prior conviction for robbery when appellant was then being tried for armed robbery requires reversal.

Additionally, it was error for the trial court to fail to instruct the jury on the crime of attempted possession of a firearm by a convicted felon. Attempted possession of a firearm by a convicted felon is an offense under the laws of Florida. Thorpe v. State, 377 So.2d 221 (Fla.1st DCA 1979). When an attempt to commit the crime charged constitutes an offense under Florida law the trial court must instruct the jury on the subject of attempt. Brown v. State, 206 So.2d 377 (Fla.1968).

Reversed and remanded for further proceedings consistent with this opinion.

ERVIN, SHAW and WENTWORTH, JJ., concur.


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

text:
    SCHOOL BOARD OF LEON COUNTY, Appellant, v. Mary E. HARGIS and Florida Commission On Human Relations, Appellees.
    No. WW-222.
    District Court of Appeal of Florida, First District.
    June 16, 1981.

      Charles A. Johnson, Tallahassee, for appellant.
    Aurelio Durana and Larry K. White, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

This is an appeal by the Leon County School Board from a final order of the Commission on Human Relations, following referral to the Division of Administrative Hearings for a hearing and recommended order, Section 120.57, in which the Commission ultimately finds that the Board illegally discriminated because of race against a black employee, Mary Hargis, by refusing to permit her to apply and be considered for a certain food service job in Fairview Middle School. Section 23.167(l)(a), Fla.Stat. (1979). We reverse the Commission’s order because it improperly substitutes the Commission’s view of disputed facts for that of the hearing officer who conducted the evi-dentiary hearing; but, finding in the Commission’s order and briefs a possible alternative ground for the Commission’s decision, involving questions of policy and procedure on which the Commission’s views are entitled to greater deference, we remand the case to give the Commission a further opportunity to enter an order s itisfactorily expounding those views on a proper record foundation.

The Human Rights Act of 1977, Section 23.161 et seq., prohibits unfair employment practices discriminating “with respect to compensation, terms, conditions, or privileges of employment, because of ... race, color, religion, sex, national origin, age, handicap, or marital status.” Section 23.-167(lXa). To remedy such discriminatory practices the Act creates the Florida Commission on Human Relations, a 12-member body appointed by the Governor and confirmed by the Senate, drawn from “various racial, religious, ethnic, social, economic, political, and professional groups within the state.” Section 23.163. The Commission is empowered to receive and consider complaints of discriminatory employment practices and, finding that such a practice has occurred, to “issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney’s fees.” Section 23.-167(13). The Commission’s actions are subject to the Administrative Procedure Act, Chapter 120.

At the time of the events giving rise to the complaint, Hargis was employed at Fairview School in a food service position identical to the one for which she made futile application in September 1978, except that the job she wanted offered five-and-a-half hours’ work each day and the job she held offered but three-and-a-half. In October 1977 a fellow worker in the five-and-a-half hour job at Fairview School was taken ill, and Hargis and other three-and-a-half hour workers were given an opportunity by the food service manager to speak for the extra-hours job on a temporary basis. Only Minnie Barfield, who is Caucasian, spoke for the extra work. Hargis declined due to a conflicting schedule for taking her children to school. Barfield therefore was given the extra two hours’ work on a temporary basis, pending the return of the incumbent, who was granted leave without pay. Then began a series of administrative misadventures. First, in January, School Board records unaccountably transferred Barfield permanently to the ill incumbent’s position for pay purposes, though the incumbent was not ousted. Then, when all “permanent” appointments expired at the end of the school year, the Board’s personnel mechanism routinely ground out invitations to all eligible “permanent” 1977-78 employees, calling for them to express interest in reappointment to their respective permanent positions for 1978-79. To this invitation Barfield said yes, and an appointment form was issued on August 3, 1978, duly approved by the School Board, appointing Barfield anew to the five-and-a-half hour permanent position for the 1978-79 school year.

On August 17, the former incumbent, who had been carried in leave-of-absence status for the last several months of the past school year, resigned. A vacant permanent position was thus at last created, which the Board’s personnel mechanism recognized as such. In due course the Board published and posted at Fairview School a job opportunity bulletin. The hearing officer found:

Respondent’s [School Board’s] personnel department issued a Job Opportunity Bulletin on September 5, 1978, announcing the vacancy which stated that anyone interested in being considered for the position should contact the personnel office before the application deadline of September 12, 1978.

At this point, events critical to the evaluation of this Human Rights Act complaint ensued. The union contract applicable to food service workers provided that employees applying for a vacancy must be considered before an employment decision is reached. And the School Board’s applicable employment directive provides that applicants for a position must file an application with the personnel department and that, after close of the advertising period, a list of qualified applicants is to be submitted to the school principal for interviews, followed by the principal’s recommendation to the personnel department, followed by the appointment. In practice the Fairview School food service manager rather than its principal conducts interviews and recommends food service appointments.

On about September 6, 1978, Hargis saw the Job Opportunity Bulletin posted in the School Board’s administration building and made inquiry concerning the advertised position at the office of the Board’s director of food service, who a month earlier had routinely recommended Board appointment of Barfield, as stated above. Upon inquiring, Hargis was advised by an employee in the office that the job had already been filled. Hargis went next to the Fairview School principal, who told her he would look into the matter. He did so and was advised by his school manager of food service “that she had not offered the job to [Hargis] because [Hargis] had previously declined the position in 1977.” Hargis then pursued the matter with her food service manager, who confirmed that Barfield would retain the position because she had worked in it the prior year. Neither Barfield nor Hargis ever filed a written application for the “permanent” 1978-79 appointment.

Hargis thereupon filed her complaint with the Commission on Human Relations. Although empowered by statute and its rules to hold factfinding hearings itself, the Commission assigned the case for hearing to DOAH, whose officer conducted a hearing and heard the witnesses. The hearing officer, after making appropriate findings of fact essentially as we have narrated the events above, announced as a “conclusion of law” that the School Board, was negligent in assuming the job was already properly filled when Hargis inquired about the opening and was negligent in failing to follow contractual hiring procedures, but that “no evidence was presented at the hearing from which it can be concluded or even inferred that [Hargis] was the subject of unlawful discrimination because of her race or color.” The hearing officer thus recommended that the Commission dismiss the complaint.

After a nonevidentiary hearing on the recommended order, the Commission issued a final order adopting the hearing officer’s findings of fact but substituting “conclusions of law” to the effect that the School Board’s nondiscriminatory explanation for its failure to hire Hargis — a claimed “lack of coordination and communication in advertising the vacancy” — was “merely a pretext for racial discrimination against Mrs. Hargis.” In reaching this conclusion the Commission emphasized Hargis’ qualifications for the job, including her seniority over Barfield; the informality of procedures by which Barfield was deemed selected for the position “prior to the proper posting of notices and without complying with [the School Board’s] collective bargaining agreement”; and, seemingly most important, the School Board’s failure to take corrective action to reopen the appointment when, in September 1978, both the Fairview principal and its food service manager were apprised that the selection process had excluded from consideration a qualified employee, the only black food service worker at Fairview. The Commission stated:

It can only be concluded that [the School Board] knew of the racially discriminatory impacts of its decision and that [the Board] intended the consequences of its acts.

Finally, the Commission stated it was “obvious that [the School Board] ... sought to cover up its unlawful activity by posting of vacancy announcements after the employment decision had been made.”

Obviously the Commission’s conclusions are in irreconcilable conflict with the hearing officer’s conclusion that

... no evidence was presented at the hearing from which it can be concluded or even inferred that [Hargis] was the subject of unlawful discrimination because of her race or color.

In determining the propriety of the Commission’s substitution of ultimate findings for those of the hearing officer, we give no great weight to the labeling of the conflicting findings as “conclusions of law” rather than “findings of fact.” Though the hearing officer’s labeling informs us that he properly sensed the presence of policy and legal considerations in the task of weighing the evidence of racial discrimination, and he chose not to mask his ultimate finding as wholly a finding of fact, we nevertheless give the hearing officer’s finding effect to the extent the issue was “simply the weight or credibility of testimony by witnesses,” or was determinable “by ordinary methods of proof,” or was in a factual realm concerning which “the agency may not rightfully claim special insight.” McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977). On the other hand, to the extent that “the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility,” we shall honor the Commission’s substituted findings.

As factual descriptions of the discernible motives of the actors in this controversy, most of whom were witnesses, the Commission’s findings of “pretext for racial discrimination” and “cover-up [for] unlawful activity” are highly problematic. Ordinarily those questions of credibility, motivation, and purpose are questions determinable by the factfinder. Indeed, the Commission itself recognized:

There is no direct evidence of discriminatory intent in the instant case, and such evidence is seldom present. Therefore, circumstantial evidence, or inferences, may be relied upon to establish discriminatory motive... . The ultimate inquiry, in examination of the issue of discriminatory intent, is whether the decision or action in question was racially premised ....

We cannot escape the conviction that the Commission, in characterizing the actors’ conduct as “racially premised,” improperly invaded the factfinding function of the hearing officer to whom, though it need not have, the Commission referred this matter for an evidentiary hearing. Given a neutral record such as this, on which a hearing officer could properly describe the case as one of administrative negligence or, at most, negligence plus obstinacy — those being human afflictions quite as authentic as racial bias — we cannot accept the Commission’s epithets “pretext” and “cover-up.” However keen is the Commission’s insight into the subtleties of racial discrimination within predominantly white institutions, we cannot permit the Commission to indulge itself within its own judgmental activity the same sinister habit it is the Commission’s task to uproot from the judgments of others: that of making unarticulated, speculative, and uncomplimentary assumptions about the purposes, motives, and abilities of persons unseen, unheard, and unknown. For this fault the Commission’s order must be vacated.

It does not follow, however, that Hargis’ complaint must be dismissed. Though the Commission is not permitted on a neutral record to attribute impermissible discriminatory motives to persons it has neither seen or heard, the Commission in its collective experience and expertise is enti-tied to make allowance for the fact that “direct evidence of discriminatory intent ... is seldom present,” and the Commission may adopt such standards of proof as are necessary to identify traces of racial discrimination either systemic or casual in conduct that superficially is explicable on other grounds.

To some extent in the Commission’s order, but more clearly in its brief defending that order, the Commission speaks of its ultimate conclusion — that the School Board unlawfully discriminated against Hargis because of race, Section 23.167(l)(a) — less as the Commission’s subjective assessment of the motives of the actors, which on this record we have disapproved, and more as a conclusion based on the School Board’s failure to meet Hargis’ prima facie case by proving a legitimate nondiscriminatory reason for its action. Invoking the proof standards made applicable to comparable federal legislation by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as recently further elaborated by unpublished orders of the United States District Court for the Northern District of Florida, the Commission’s brief reasons that Hargis’ prima facie case of racial discrimination — established, says the Commission, by proof of Hargis’ qualifications, her race or color, and her exclusion from meaningful consideration for the job — becomes conclusive when the employer’s explanation for its action, though nondiscriminatory, is illegitimate by other standards. Hargis was excluded from consideration by an administrative foulup, the Commission says, which the School Board refused to remedy in spite of its known racial impact.

The Commission’s order is insufficient to sustain this reasoning for two reasons: first, whether this proof standard is advanced here as a matter of statutory policy or as the Commission’s view of the applicable law, it is incompletely expounded in the Commission’s order, and we will not transfuse the order with argument from a lawyer’s brief; and second, if the Commission order is regarded as adopting such a standard of proof as a matter of nonrule policy, the announced policy must be supported by a record foundation tending to show its efficacy in fact. Because this deficiency may be remediable without retrying the issues that are factual in an episodic sense, they having already been determined, we elect to vacate the Commission’s erroneous order and to remand for further proceedings ending in a further order clarifying the Commission’s position and defending its assumptions. See Cenac v. Florida State Board of Accountancy, 399 So.2d 1013 (Fla. 1st DCA 1981) and cases cited.

Appropriate standards and burdens of proof in Commission proceedings on racial discrimination charges are susceptible of determination either as a matter of law or as a matter of policy deemed necessary to make the statute effective. See Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301 (1941); NLRB v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). We shall await guidance from the Commission’s further order before deciding how those questions will be determined, whether as law, policy, or some admixture.

Our reservation of this issue has obvious ramifications on the further Commission proceedings. If standards and burdens of proof in proceedings such as these should be determined wholly as a matter of law, and the Commission is content simply to incorporate in its order the standards judicially observed in enforcing similar federal legislation, see n. 2 supra, the judicial branch of this State, and this court as its present representative, will determine those standards as a matter of law, with due regard for judicial canons of statutory construction drawing upon the interpretations of similar federal legislation. In that event we shall also decide by conventional judicial methods whether a case of racial discrimination is made out by such proof as is contained in this record. But if after further Commission proceedings it appears that considerations of statutory policy should predominate in fixing proof standards and burdens in these administrative cases, our deference to the agency’s view will correspondingly increase, due to “its greater familiarity with the statutory scheme and its expertise in the field regulated.” Rice v. Dept. of Health and Rehab. Services, 386 So.2d 844, 850 (Fla. 1st DCA 1980). In that event, however, the Commission’s burden in the further proceedings now authorized goes beyond mere string-citing of federal judicial decisions; the Commission must provide both an exposition of the claimed correlation between racial discrimination and the administrative intransigence exhibited here, and a record foundation for that exposition. Cenac, supra; ABC Liquors, Inc. v. Dept. of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Anheuser-Busch, Inc. v. Dept. of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1980); Rice, supra.

The Commission did not err in permitting its Executive Director to achieve named party status by intervention, Section 120.-52(10)(b), Fla.Admin.Code R. 9D-8.13(1); nor by considering as evidence, for such limited corroborative value as it had, the hearsay-ladened “determination of cause” document by which the executive director found reasonable cause to believe a violation had occurred. Sections 120.58(l)(a); Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977).

Accordingly, the Commission is authorized to conduct further proceedings pursuant to Section 120.57(2), but the Commission is not authorized to adduce further evidence of the events described in the initial order or otherwise to revisit factual determinations already made. Should the Commission decide that this case does not lend itself to the task we have described, the Commission may conclude the matter by dismissing the charge. Upon entry of a new final order jurisdiction will revest in this court, the supplemental record will be filed, and counsel will apply for a briefing schedule.

REVERSED and REMANDED.

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

      . The Commission is empowered to “hold hearings to determine the facts about instances of discrimination....” Section 23.166(6), Fla. Stat. (1979). By rule, DOAH conducts the Commission’s hearings on petitions for relief from unlawful employment practices unless the Commission chair directs one member or the full Commission to conduct the hearing. Fla. Admin.Code Rule 9D-8.16(2).

      . Florida’s job discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The Supreme Court established the burden of proof that must be met by a Title VII plaintiff in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff has the initial burden of establishing a prima facie case by showing 1) that she belongs to a racial minority; 2) that she applied and was qualified for the job for which the employer was seeking applicants; 3) that she was rejected despite qualifications; and 4) that after rejection, the position remained open and the employer continued to seek applicants with plaintiff’s qualifications. If the plaintiff meets this initial burden, the burden shifts to the defendant employer to articulate some legitimate, non-discriminatory reason for rejecting the plaintiff. If the defendant carries this burden, the plaintiff must prove by preponderance that the reasons offered by the employer were a pretext for discrimination by showing, for instance, discriminatory intent. The employer may rebut the pretext charge by proof of absence of discriminatory motive. See also Chalk v. Secretary of Labor, U. S. Dept. of Labor, 565 F.2d 764, 766-67 (D.C.Cir.1977), cert. den., 435 U.S. 945, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978). When the burden shifts initially after plaintiff establishes a prima facie case, the employer need not prove that it was actually motivated by articulated non-discriminatory reasons or that the hired applicant was more qualified than plaintiff. Texas Dept. of Community Affairs v. Burdine, - U.S. -, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

      . In Parker v. Willis, Inc. of Carrabelle, Case No. TCA 78-0746, unpublished orders filed August 14, 1980 and January 9, 1981, the district court ruled that the fact that the defendant employer had lost the applications of qualified black applicants was not a legitimate non-discriminatory explanation for its failure to hire them, sufficient to rebut the applicants’ prima facie cases. To find otherwise, the court said, would permit employers to thwart congressional intent by deliberate destruction or “as in this case, by inept personnel practices free of discriminatory intent.”

      . Although the cited cases emphasize the degree of judicial deference due to administrative interpretation of statutory language, those decisions and the body of law and comment stemming from them are pertinent also in deciding what deference is due by a reviewing court to an agency’s formulation of proof standards in proceedings on the agency’s indigenous statute. See generally Note, The Administrative Interpretation of Statutes, 39 Geo.L.J. 244 (1951); Nathanson, Administrative Discretion in the Interpretation of Statutes, 3 Vand.L.Rev. 470 (1950); Comment, Administrative Tribunals— Judicial Review of Administrative Interpretations of Statutory Provisions — Recent Federal Developments, 47 Mich.L.Rev. 675 (1949).


text:
    CROWN TRADING COMPANY, Appellant, v. SYSTEMS FOR SECURITY, INC., Appellee.
    No. 80-677.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Rehearing Denied July 10, 1981.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Steven R. Berger, Miami, for appellant.
    George, Hartz & McNary and Scott McNary, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

We reverse on the ground that dismissal of the suit for failure of plaintiff’s counsel to proceed with trial at the scheduled time imposes too harsh a penalty upon the litigant where said counsel moved for a continuance on the basis of a conflicting trial, and the record lacks any evidence showing a willful or blatant disregard for the court’s authority. The court may, of course, discipline the offending attorney by contempt or other appropriate punishment. Catogas v. Sapp, 397 So.2d 1182 (Fla. 3d DCA 1981); Alter v. Editorial Planeta, S.A., 389 So.2d 321 (Fla. 3d DCA 1980).

Reversed and remanded.


author: GLICKSTEIN, Judge.

text:
    PALM BEACH TOWERS, INC., and Harry Helmsley, Appellants, v. George KORN, et al., Appellees.
    No. 78-2221.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.

      Walter H. Beckham, Jr., and Michael Olin of Podhurst, Orseck & Parks, P. A., Miami, for appellants.
    Gary S. Brooks of Williams, Salomon, Kanner, Damian, Weissler & Brooks, Miami, for appellees.
   GLICKSTEIN, Judge.

This is an interlocutory appeal by the developers of a condominium from an order of the trial court which found, as a matter of law, that the five named individual plaintiffs and the plaintiff condominium association, Palm Beach Towers Condominium Association, Inc., properly represent the class; and that, accordingly, the matter shall proceed as a class action. We have jurisdiction to review this non-final order, Kohl v. Bay Colony Club Condominium, Inc., 385 So.2d 1028, (Fla.4th DCA 1980), and affirm.

Two issues raised by appellants require consideration. The first is notice to the members of the class. Upon remand the trial court may order appellees to provide notice to all members of the class in order that each non-consenting member may have the opportunity to “opt out” of the suit. The Florida Bar, 353 So.2d 95 (Fla.1977). However, such notice is not necessary to satisfy procedural due process. Scott v. Walker, 378 So.2d 828 (Fla.2d DCA 1979).

The second concerns the question of authority and consent raised by appellants’ Amendment to Answer and Affirmative Defenses. It is the general law of this state that when a plaintiff institutes an action it subjects itself to the jurisdiction of the court and to such lawful orders which are thereafter entered with respect to the subject matter of the action. Glass v. Layton, 140 Fla. 522, 192 So. 330 (1937); Brasch v. Brasch, 109 So.2d 584 (Fla.3d DCA 1959), cert. dismissed sub nom. High v. Brasch, 114 So.2d 796 (Fla.1959). However, it is also recognized that when an issue of jurisdiction over the party arises, the trial court should investigate and determine whether such jurisdiction has been lawfully acquired. Speight v. Horne, 101 Fla. 101, 133 So. 574 (1931). Because of the manner in which it was raised in this case, the jurisdictional issue should be determined at trial.

The court does not encourage delay in raising such issue for so long a period that the trial court is now obliged to make its determination at the time of trial, rather than by appropriate motion at the earliest practicable date in the case. In this instance the original complaint was filed on August 25, 1975, and the Amendment to Answer and Affirmative Defenses was served on September 9, 1977.

Affirmed and remanded for further proceedings consistent with the views expressed herein.

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

      . Appellants’ argument that a class action is improper where the action is based upon alleged fraud against individual unit owners is not under consideration on this appeal. Their motion to dismiss the amended complaint was earlier denied by the trial court.


text:
    George COPPOLA, et al., Appellants, v. HOUSING INVESTMENT CORPORATION OF FLORIDA, et al., Appellees.
    Nos. 79-808, 79-862.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    Arthur C. Koski of Koski, Mateer & Gillespie, P.A., Boca Raton, for appellants.
    Vincent E. Damian, Jr. of Williams, Salo-mon, Kanner, Damian, Weissler & Brooks, Miami, for appellee, Housing Investment Corp. of Florida.
   GLICKSTEIN, Judge.

Appellants were initially defendants in an action to foreclose rental property brought by appellee. In that action a final judgment of foreclosure was entered in which appellants were found to owe appellee $1,813,420.76. On June 20, 1977, appellee purchased the rental property at foreclosure sale upon its bid of $450,000. No deficiency was sought at that time. In 1978 appellee brought the instant case against appellants for $1,350,920.60 which was the sum due pursuant to the foreclosure, plus costs of the sale, less the sum bid and additional monies turned over by receiver.

In the present action the trial court found the value of the property on the date of the foreclosure sale to be $1,300,000. The parties agree that value at the time of sale was the sole issue before the trial court. On appeal it is asserted that the court should have accepted appellants’ experts’ testimony of value rather than appellees’ expert’s lower valuation. A judgment in the sum of $1,813,320.76 less $1,300,000 or $513,320.76, plus interest, was entered. We affirm.

The non-jury trial of the case commenced with appellee’s proof that the bid price of the property was $450,000. Appellants then offered the testimony of two expert real estate appraisers. The first, Mr. Bondaren-ko, testified that he determined the market value of the subject property to be $1,700,-000 in May, 1977. He based his appraisal primarily on the income approach to value, but also applied the cost approach. The second, Mr. Calloway, had been instructed to appraise the property solely on the cost approach as of June 6,1977. In his opinion the value of the property was $1,812,000. Appellee called on rebuttal a third appraiser, Mr. Failla, who testified that he appraised the property by using all three recognized approaches — market data, income and cost. Mr. Failla opined that the value of the property was $1,260,000 based on the market data approach, $1,200,000 based on the income approach, and $1,600,000 based on the cost approach. He described the income approach as the most germane and said that the accuracy of the cost approach was highly suspect because of the difficulty of an appraiser who is not an engineer to determine the amount of depreciation without tearing down the walls to look at the plumbing, electrical and other components. Mr. Failla said that the discrepancy between his appraisal and that of Mr. Bondar-enko was the result of the use by the latter of a different capitalization rate and lower expense figure.

There was substantial testimony to establish the rundown condition of the property at the time of the foreclosure, the relatively high rate of vacancy and the questionable economic reliability of existing tenants. Mr. Blumenthal, appellee’s property manager, testified that it took six months to refurbish the property, commencing in July, 1977; and Mr. Diehl, appellee’s marketing officer, testified that appellee spent $123,-602.07, exclusive of debt service, the year following foreclosure when appellee had the property. Mr. Smith, vice president of ap-pellee, testified that in his opinion the value of the property on the date of foreclosure sale was between $1,100,000 and $1,200,000, and that the property was sold about July 1, 1978 for $1,550,000.

The principles governing this case are those stated in S/D Enterprises, Inc. v. Chase Manhattan Bank, 374 So.2d 1121, 1122 (Fla.3d DCA 1979):

The granting of a deficiency decree in a mortgage foreclosure action is a matter for the sound judicial discretion of the trial court. Generally, the granting of a deficiency judgment is the rule rather than the exception, unless there are facts and circumstances creating equitable considerations upon which a court should deny the deficiency decree in the exercise of its discretion. Thus, an exercise of sound judicial discretion consonant with equity in the light of the facts should not be disturbed on appeal unless there is a showing of a clear abuse of sound judicial discretion. (Citations omitted).

See also Carlson v. Becker, 45 So.2d 116 (Fla.1950); Flagship State Bank of Jacksonville v. Drew Equipment Co., 392 So.2d 609 (Fla. 5th DCA 1981); Vanguard Construction Co. v. Lewis State Bank, 348 So.2d 72 (Fla.1st DCA 1977); Sohn v. Cominole, 253 So.2d 898 (Fla.1st DCA 1971); and Section 702.06, Florida Statutes (1979).

Sub judice the foregoing evidence amply supports the trial court’s decision. Accordingly, the final judgment is affirmed.

AFFIRMED.

MOORE and BERANEK, JJ., concur.

      . There is discrepancy of $100 between the amount appellants owed appellees as recorded in the final judgment of foreclosure in the previous action and the figure the trial court sub judice used; i. e., the final judgment of foreclosure recites that $1,813,420.76 was owed to appellees, while the final judgment now on appeal states the figure to be $1,813,320.76. Since the parties have not raised this on appeal, we shall not disturb the clerical error.


author: DOWNEY, Judge.

text:
    FIRST & MID SOUTH ADVISORY COMPANY, Willie K. Davis, Franklin G. Clark, Michael G. Shears, John A. Thweatt, Richard H. Botts, David F. Clark, Dennis F. Clowers, David K. Ward, O. William Long and Glenn Eubanks, who among others are named as members of the C. D. Joint Venture, by and through their undersigned counsel, Appellants, v. ALEXANDER/DAVIS PROPERTIES, INC., et al., and David E. Graham, et ux., Appellees.
    Nos. 79-2206, 80-1014.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.

      Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, for appellants.
    Louis N. Scholnik of Graham, Hodge & Larson, P. A., Fort Lauderdale, for appellee David E. Graham.
    Terrence Russell of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauder-dale, for appellees Alexander/Davis Properties, Inc., Sally Alexander, as Executrix of the Estate of Charles F. Alexander, Deceased, and Dorothy Pearigen, as Executrix of the Estate of James Pearigen, Deceased.
   DOWNEY, Judge.

These consolidated appeals involve the validity of the award of an attorney’s fee as a sanction resulting from a motion to compel discovery.

Appellees obtained a substantial judgment against appellants. A petition for rehearing was denied and on plenary appeal the judgment for appellees was reversed.

Shortly after the judgment for appellees was entered appellees filed interrogatories in aid of execution. Appellants’ objections to interrogatories were denied which ruling was affirmed on interlocutory appeal. Thereafter, without answering any of the interrogatories or producing the material demanded as to which no objection was made, appellants filed a motion in the circuit court for clarification and protection. Thereupon, appellees moved for an order compelling discovery and for sanctions.

The circuit court partially granted appellants’ motion for clarification and directed appellants to comply with the discovery requests within thirty days of the order granting the motion for clarification. The court also reserved ruling on the motion for sanctions. In due course the court entered an order awarding appellees reasonable attorney’s fees of $750 pursuant to Florida Rule of Civil Procedure 1.380(a)(4). It is that order appellants seek to have reviewed.

Appellants contend the circuit court simply could not impose sanctions upon them for non-compliance with discovery because it entered an order allowing appellants thirty days to comply. Thus, it is contended that appellants had violated no court order. However, a court order is not a condition precedent to authorize imposition of sanctions. Rule 1.380(a)(4), Florida Rules of Civil Procedure. The matters raised by appellants in their motion for clarification and their response to request for production and interrogatories did not absolve appellants from answering interrogatories and producing material as to which they made no objection. Considering these defaults in the context of appellees’ effort to obtain discovery over a period of two years since entry of the final judgment, we cannot say the trial judge abused his discretion in entering this modest attorney’s fee as a sanction.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

LETTS, C. J., and MOORE, J., concur.

      . The final judgment was reversed by this court in Alexander/Davis Properties, Inc. v. Graham, 397 So.2d 699 (1981). However that reversal does not affect the validity of the order under review since the appellees were acting within their rights in seeking to execute the judgment.


author: BERANEK, Judge.

text:
    Guillermo DEL PRADO, et al., Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 79-2573.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    Edward A. Perse of Horton, Perse & Ginsberg, and R. K. Estes, Miami, for appellants.
    Magill & Reid, P. A., Palm Beach, and Edna L. Caruso, West Palm Beach, for ap-pellee.
   BERANEK, Judge.

Appellant was defendant below in a declaratory decree action brought by the plaintiff/insurance carrier on the issue of uninsured motorist coverage. After a non-jury trial, the court determined that no uninsured motorist coverage was provided by the policy. Defendant appeals and we affirm.

The facts are undisputed. Liberty Mutual Insurance Company issued a liability insurance policy to Talisman Sugar Company designed to cover various independent contractors who were contract haulers of sugar cane. These contract haulers, pursuant to a written agreement with Talisman, provided their own trucks and drivers and paid for insurance coverage on these trucks. In accordance with this agreement, Talisman was to procure the insurance coverage naming both the haulers and Talisman as insureds and the contract haulers paid for the coverage by a deduction plan. Talisman had such an agreement with Angel Ruiz for cane hauling. Mr. Ruiz hired Mr. Prado as his truck driver and on June 18, 1976, Mr. Prado was involved in an accident with an allegedly negligent uninsured motorist. Prado demanded arbitration of his claim for uninsured motorists benefits under the Liberty policy. Liberty Mutual in turn sued Prado for a declaratory decree seeking a declaration that the policy provided no uninsured motorists coverage. The trial court ruled for plaintiff finding no coverage and we affirm.

Prado did not file an answer to the complaint for declaratory decree until the day of trial. When the case was called, plaintiff moved for a default but the trial court allowed the case to proceed based upon the stipulation that the defendant’s answer constituted no more than a general denial and that there were no affirmative defenses to be tried. Prado presented no evidence other than cross-examination of plaintiff’s witnesses. Prado did not sue to enforce any contractual duties between Talisman and Ruiz, who were not parties to this litigation. Prado contends on appeal that Talisman had a contractual duty to provide uninsured motorist coverage but no suit or counterclaim to this effect was filed and we do not pass on the question herein.

Appellee, Liberty Mutual, presented testimony from two representatives of Talisman Sugar Company, one being an experienced insurance agent in its employ who worked directly in placing the coverage, and from one Liberty Mutual representative. All of the plaintiff’s evidence was to the effect that uninsured motorists coverage was not wanted by the insured, Talisman, and that said coverage was knowledgeably rejected. It is clear from the evidence adduced at trial that Talisman did not desire uninsured motorist coverage although, at the time of trial plaintiff did not produce evidence of a formal written rejection or any written memoranda supporting the fact of rejection of the coverage. On the basis of this evidence, the trial court concluded that uninsured motorist coverage had been rejected and entered judgment accordingly.

Defendant asserts a written rejection is an absolute necessity and that in the absence of such a document the policy must be held to provide uninsured motorist coverage as a matter of law. Under the circumstances of this case, we disagree. The named insured agrees with the insurance company that no uninsured motorist coverage existed here. The named insured did not want uninsured motorist coverage at the time of the issuance of the policy and steadfastly maintained its position that it did not desire such coverage at the time of trial nor in the future. The situation might be entirely different if the named insured, Talisman Sugar Company, was insisting upon its right to have rejected uninsured motorist coverage in writing. However, if there is a statutory or other administratively imposed obligation to secure a written rejection, certainly the named insured can waive this requirement which was designed for its protection. Statutory rights can be waived. Abell v. Boynton, 95 Fla. 984, 117 So. 507 (Fla.1928). If the named insured were here asserting the existence of coverage it might insist on its own written rejection. Here defendant was a stranger to the negotiations leading to the policy.

Appellant contends the absolute requirement of a written rejection is supported by Section 627.727(1), Florida Statutes (1971), and State Insurance Department Bulletin 586 as recently upheld in Harris v. United States Fidelity & Guaranty Company, 569 F.2d 850 (5th Cir. 1978). Appellant also relies upon Decker v. Great American Insurance Company, 392 So.2d 965 (Fla.2d DCA 1981). We are aware that the Florida courts differ on the necessity for a written rejection. See Decker, supra, at page 968, and cases there cited in support of an absolute written rejection requirement. On the other hand, Glover v. Aetna Insurance Company, 363 So.2d 12 (Fla. 1st DCA 1978), holds that an oral rejection of uninsured motorist coverage may be effective. In the instant case, there is no question that the named insured made an informed rejection of uninsured motorist coverage. Further, the person claiming coverage here was merely a permissive user of an insured vehicle, and we conclude that such a person cannot complain of technical deficiencies regarding the securing or retention of a written memorandum demonstrating the fact of rejection. We do not view the aforementioned Insurance Bulletin 586 as applicable or controlling under these circumstances where there is no dispute between the carrier and the contracting insured as to the absence of coverage. We conclude the trial court correctly held that plaintiff established an absence of coverage. The judgment below is therefore affirmed.

AFFIRMED.

LETTS, C. J., and MOORE, J., concur.


text:
    DEPENDABLE AIR CONDITIONING AND APPLIANCES, INC., Appellant, v. OFFICE OF TREASURER AND INSURANCE COMMISSIONER, Appellee.
    No. 80-707.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.

      Thomas J. McGovern, Fort Lauderdale, for appellant.
    Deborah A. Getzoff, Dept, of Insurance, Tallahassee, for appellee.
   DOWNEY, Judge.

This is an appeal from a final order of the Insurance Commissioner, which order adopted the findings of an administrative hearing officer and denied appellant Dependable Air Conditioning and Appliance’s petition for an order that Dependable was entitled to be licensed as a warrantor under Section 634.401(5), Florida Statutes (1979).

Dependable is a service warranty association licensed under Chapter 634, Florida Statutes (1979), and has been engaged in the sale of warranty contracts on major appliances since approximately 1970. In 1977 the Legislature enacted Chapter 77-339, Laws of Florida (codified as Chapter 634, Part II, Florida Statutes (1977)), requiring associations selling warranty contracts on major appliances to post bonds and furnish evidence of solvency. However, the law was so restrictive that few small operators could comply with its requirements. The Legislature therefore amended Chapter 634 in 1978, resulting in Dependable’s operation being removed from Part II of Chapter 634 to Part III thereof. After the amendment Part II regulated warranties on appliances sold in conjunction with the sale of realty (see Section 634.-301(3)), while Part III regulated the sale of warranties on consumer products primarily used for personal, family, or household purposes (see Section 634.401(4)). Sellers of service warranties must be licensed by the Department of Insurance. Section 634.403. A condition precedent to issuance of a license is the posting of a bond the amount of which depends upon whether the applicant is a warrantor or warranty seller. Section 634.405. A warrantor is a person engaged in the sale of service warranties deriving 50% or less of its gross income from the sale of service warranties. Section 634.401(5). A warranty seller is a person engaged in the sale of service warranties deriving more than 50% of its gross income from such sales. Section 634.401(6). A warrantor which has less than $300,000 of gross written premiums must post a bond equal to 50% of the gross premiums or $50,000, whichever is less. Section 634.-405(l)(a)2. A warranty seller (licensed under Part II prior to 1978) is required to post a bond of $75,000 by October 1, 1978, and $100,000 by October 1, 1979. Section 634.-405(l)(b).

Upon application for renewal of its license, the Department advised Dependable it would be required to post a bond in the amount of $100,000 because it derived more than 50% of its gross income from the sale of warranties on tangible personal property. However, Dependable contended that a large percentage of its warranties are on appliances which were no longer tangible personal property but rather were fixtures by virtue of attachment and incorporation into real property. Therefore, Dependable argued that the amount of the bond required of it was $50,000.

To resolve the conflicting positions of Dependable and the Department an administrative hearing was held before a hearing officer, who filed a recommended order finding in pertinent part that: (a) Dependable was a service warranty association; (b) the warranties sold by Dependable were not sold in connection with the sale of realty; (c) Dependable had less than $300,000 of gross income from the sale of all warranties in force; (d) more than 50% of Dependable’s gross income was from the sale of warranties; (e) most of the warranties sold by Dependable were for major appliances attached to realty; and (f) among the appliances for which warranties were sold by Dependable were air conditioning and heating systems, washers, dryers, refrigerators, stoves, and dishwashers. The hearing officer concluded that Dependable was a warranty seller within the meaning of Section 634.405 because the bulk of the appliances upon which Dependable sold warranties, while affixed to realty were not a part thereof under the law of fixtures, but rather were consumer products and were tangible personal property within the meaning of Chapter 634 and that Dependable was required to post a $100,000 deposit in order to obtain a license. The hearing officer’s recommended order was adopted by the Insurance Commissioner in a final order.

On appeal, Dependable contends that the Commissioner erred in confirming the hearing officer’s recommended order because 1) the statute classifying warrantors and warranty sellers differently is unreasonable; 2) major home appliances attached to the realty lose their character as personal property; and 3) the determination that appliances attached to realty are not fixtures constitutes the promulgation of an invalid administrative rule.

Dependable’s second point, having to do with the appliances as tangible personal property, will be treated first since it is the only point of consequence on this appeal.

The law of fixtures is somewhat amorphous. The attachment of a chattel to realty in one instance may result in its becoming a part thereof, yet in another situation it may retain its character as tangible personal property. The unsettled nature of fixtures is described thusly:

Fixtures are a species of property which lies along the dividing line between real and personal property. To decide on which side of the line certain items of property belong is often a difficult question. The term “fixtures” is generally used in reference to some originally personal chattel which has been actually or constructively affixed either to the soil itself or to some structure legally a part of such soil. It has been variously defined as denoting an article which was once chattel, but which, by being physically annexed or affixed to the realty by someone having an interest in the soil, has become accessory to it and a part and parcel of it; as signifying something so attached to the realty as to become, for the time being, a part of the freehold, as contradistinguished from a mere chattel; as something so annexed to the freehold that it cannot be removed without injury to the freehold. 14 Fla.Jur., Fixtures § 2, pp. 390-391; footnotes omitted.

The usual tests for determining whether a chattel has become a fixture are:

(1) annexation to the realty, either actual or constructive;
(2) adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated; and
(3) intention to make the article a permanent accession to the freehold. Id. at 391; footnote omitted.

Another factor which plays a significant role in this determination is whether an item can be removed without material or substantial injury to the freehold. Thus, there is a plethora of cases which hold for one reason or another that chattels attached to realty are not fixtures. For example, in White v. County Mortgagee Corp., 211 So.2d 254 (Fla. 3rd DCA 1968), the court held an elevator installed in a building retained its status as a chattel because it could be removed without damage to the premises. In GECC Leasing Corp. v. Berk shire Life Insurance Co., 226 So.2d 231 (Fla. 4th DCA 1969), air conditioning units affixed to a building were held not to be fixtures. Similarly, in First Federal Savings & Loan Association of Okaloosa County v. Stovall, 289 So.2d 32 (Fla. 1st DCA 1974), hot water heaters, sinks and plumbing attachments, a dishwasher and disposal unit, a range hood and drop-in range installed in mortgaged premises were personal property. Finally, Zimring-McKenzie Const. Co. v. City of Pinellas Park, 237 So.2d 576 (Fla. 2d DCA 1970), held underground water and sewer systems installed in a subdivision were personal property.

Unlike the situation in many of those cases, our determination whether the appliances for which Dependable sells warranties are fixtures or personal property should not turn on the intention of the parties to the sale thereof or to the ease with which they might be removed from the realty. Rather, we believe, the Legislative purpose in passing this remedial legislation should control our decision. The obvious purpose of Part III, Chapter 634, Florida Statutes (1979), is to protect from fly-by-night operators who will be unwilling or unable to respond under warranty contracts consumers who buy service warranties in conjunction with the purchase of major appliances. The evidence adduced before the hearing officer demonstrates clearly that those concerns precipitated the enactment of this law. The experience of those sponsoring the Act showed that those businesses in which the sale of warranties constituted a large portion of the gross income posed greater risks to the consumer than those businesses whose income was generated mostly by the sale of consumer goods.

For these reasons we believe the record fully supports the findings of the hearing officer; thus, the Commissioner’s adoption of those findings was correct.

Through its first point on appeal Dependable contends that the legislative classification of warrantors and warranty sellers contained in Section 634.405, Florida Statutes (1979), is arbitrary and unreasonable and denies Dependable equal protection. This issue was raised in the administrative proceedings below, but the hearing officer properly ruled that such a constitutional question could not be decided in an administrative proceeding. See Gulf Pines Memorial Park v. Oaklawn Memorial, 361 So.2d 695 (Fla.1978); Adams Packing Ass’n. v. Florida Dept. of Citrus, 352 So.2d 569 (Fla. 2d DCA 1977). This raises the question whether a district court of appeal is the appropriate forum for making an initial ruling on the constitutionality of a statute pertinent to an administrative proceeding when the final action in that proceeding is properly brought before that court for review. The Second District Court of Appeal has held that it is not (see Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979)), while the First District Court of Appeal has intimated that it is (see Rice v. Dept. of Health & Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). We agree with the Second District and rely upon the reasoning set forth in Coulter v. Davin, supra; cf. E. T. Legg & Co. v. Franza, 383 So.2d 962 (Fla. 4th DCA 1980).

Dependable contends in its final point that the Commissioner’s adoption of the hearing officer’s recommended order constitutes an invalid rule not properly promulgated pursuant to the Administrative Procedure Act. We reject that contention and adopt the Commission’s response thereto. The Commissioner points out that the hearing below constituted the first challenge to the meaning of Section 634.401(4), which the Department of Insurance had theretofore considered to be a clear expression of the legislative intent; the hearing officer in the proceeding below, by quoting the following language from McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977), properly recognized he was adjudicating an individual case that was refining incipient policy for the Department and not promulgating an administrative rule for the Department:

While the Florida APA .. . requires rulemaking for policy statements of general applicability, it also recognizes the inevitability and desirability of refining incipient agency policy through adjudication of individual cases. There are quantitative limits to the detail of policy that can effectively be promulgated as rules, or assimilated; and even the agency that knows its policy may wisely sharpen its purpose through adjudication before casting rules. (Footnote omitted.)

For the foregoing reasons the final order of Insurance Commissioner is affirmed.

HERSEY and HURLEY, JJ., concur.


author: HURLEY, Judge. LETTS, Chief Judge,

text:
    Alfred T. SCHMINKEY, Appellant, v. Ellen O. SCHMINKEY, Appellee.
    No. 80-1073.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    John D. DiChiara, of Digiulian, Spellacy & DiChara, Fort Lauderdale, for appellant.
    No appearance for appellee.
   HURLEY, Judge.

Appellant/former-husband challenges an order finding him in contempt for failure to repay a bank loan, the repayment of which was unconnected with alimony. We reverse.

At the time of his divorce, appellant/husband entered into a stipulation to convey certain real property to his wife in lieu of alimony. The provision was accentuated by the following colloquy between counsel:

HUSBAND’S COUNSEL: That is transferred to her in lieu of all forms of alimony, et cetera; correct?
WIFE’S COUNSEL: I said in lieu of alimony, that’s correct.
HUSBAND’S COUNSEL: All right.

The final judgment of dissolution incorporated the above stipulation by reference and expressly stated that the realty was being transferred to the wife “in lieu of alimony.”

The final judgment of dissolution further contained a provision that the husband make monthly loan repayments to the Century Bank of Broward County to satisfy a pre-existing obligation of both parties. The former husband failed to comply with this provision and the former wife instituted contempt proceedings which resulted in the order on appeal.

The stipulation of the parties and the final judgment of dissolution unequivocally establish that the requirement to repay the loan is not alimony. It is a decree to repay a debt due to a third party. As such, it may not be enforced through contempt proceedings since our constitution prohibits imprisonment for debt. Article I, Section 11, Florida Constitution. Accord, State ex rel Cahn v. Mason, 148 Fla. 263, 4 So.2d 255 (Fla.1941); State ex rel. Reno v. Richardson, 348 So.2d 62 (Fla. 1st DCA 1977); Corbin v. Etheridge, 296 So.2d 59 (Fla. 1st DCA 1974); State ex rel. Gillham v. Phillips, 193 So.2d 26 (Fla.2d DCA 1966). The order of contempt is quashed and the cause is reversed.

Although the cases cited are apropos especially Cahn v. Mason, supra, we cannot help but think that the result is totally out of step with the Supreme Court’s recent holdings which in effect authorize a trial judge to make a property settle ment agreement. Accordingly, deeming the matter to be of great public importance we certify to the Supreme Court of Florida the following question:

WHEN A PROVISION IN A FINAL JUDGMENT OF DISSOLUTION OBLIGATES A HUSBAND TO PAY A DEBT OWED TO A THIRD PARTY BY BOTH HUSBAND AND WIFE AND THE HUSBAND FAILS TO PAY, CAN HE BE HELD IN CONTEMPT?

MOORE, J., concurs.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Judge,

specially concurring:

Paragraph 3 of the Final Judgment sets forth a series of directions in lieu of alimony which were stipulated to in open court. There followed five more paragraphs, one of which read as follows:

4. The Respondent shall pay FOUR HUNDRED ($400.00) DOLLARS per month to the Century Bank of Broward, to reduce the interest and principal indebtedness on Loan Number 6322261662 in the amount of TWENTY THOUSAND ($20,000.00) DOLLARS, and on Loan Number 6322261661 in the amount of TWENTY THOUSAND ($20,000.00) DOLLARS. The first payment shall be due and payable on October 30, 1979, and thereafter on the 30th day of each and every month until the above loan obligations are paid in full. This Court specifically reserves jurisdiction to modify this provision after the above loans have been reduced by the payment from the sale of Apartment 205 referred to in the Stipulation between the parties, if the circumstances justify such an award.

It just should not be that this quoted paragraph in the Final Judgment, which even refers to the stipulation in the previous one, be scissored out and reduced to the mere level of a debt owed to a third party and the majority has obviously rewritten the trial judge’s clear intent. One wonders how we would deal with the other paragraphs of this final judgment in the event of a default and how we can explain the specific reservation of jurisdiction over “... this entire matter.” (emphasis supplied)

However, I do not dissent, for the obvious reason that the cases cited in the majority opinion are apropos.

      . However, where a requirement to pay a debt to a third party is a form of alimony or family support, it may be enforced through contempt proceedings. Everard v. Everard, 40 Fla.Supp. 74 (Fla. 15th Cir. Ct. 1974).


author: MOORE, Judge.

text:
    Mario Ruiz CAUDILLO, Appellant, v. STATE of Florida, Appellee.
    No. 80-1822.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.

      Donald P. Kohl and Gary S. Israel of Kohl, Springer & Springer, Pa’m Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

In 1979 the appellant was sentenced to four years of incarceration for the crime of burglary. At the completion of two years the remaining two years were to be suspended and the appellant was to be placed on probation for the remainder of the suspended sentence. In July of 1980 the appellant was charged with having violated his probation by committing the offense of escape from incarceration. He was found guilty of having violated his probation and appeals. We affirm.

Appellant contends that the trial court had no jurisdiction to revoke his probation because the probation period had not yet begun. We have previously ruled contrary to appellant’s contention. Bracey v. State, 381 So.2d 370 (Fla. 4th DCA 1980).

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


author: COBB, Judge.

text:
    Lionel E. LaGROW and Patricia A. LaGrow, his wife, Appellants, v. FLAGSHIP BANK OF ORLANDO, a Florida Banking corporation; William F. Ravenel, Jr., and Betty Sue Ravenel, his wife; Exxon Company, U.S.A.; Young, Turnbull & Linscott, P.A.; Financial Indemnity Company; Cadex Enterprises, Inc., a/k/a Grovigation, Inc.; and United States Department of the Treasury-Internal Revenue Service, Appellees.
    Nos. 80-1140, 80-1375.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.

      Lawrence G. Mathews, Jr. of Fawsett, Smith, Mackinnon & Mathews, P.A., Orlando, for appellants.
    Jack R. Leonard of Andrews, Smathers & Kemp, P.A., Orlando, for appellee Flagship Bank.
    No appearance for appellees Ravenel, et al.
   COBB, Judge.

Flagship Bank of Orlando filed a complaint to foreclose a mortgage on certain real property located in Orange County. The appellants, Lionel E. LaGrow and Patricia A. LaGrow, his wife, defendants below, raised affirmative defenses, and filed a counterclaim and cross-claim. In their pleadings, the LaGrows alleged that the property subject to the mortgage had been mortgaged by William Ravenel and his wife to Flagship Bank of Orlando at i time when the LaGrows owned one-half interest in the property, and that the bank was not a bona fide purchaser of the mortgage because it had failed to make a reasonable inquiry into the ownership of the real property; the LaGrows also defended on the ground that the mortgage was not supported by any valuable consideration.

The trial court found that the bank had given value and had made a diligent search into the ownership of the property and was without knowledge of the interest of the LaGrows in the property and, therefore, the bank was a bona fide purchaser that could foreclose upon the mortgage. It is this amended final judgment of foreclosure that the LaGrows are appealing.

The factual background preceding the foreclosure complaint, as revealed by the record before the trial court, shows that as of October 1, 1968, three persons — William Ravenel, George Black, and Lionel La-Grow — entered an agreement to become equal one-third owners of a corporation, Agricon, Inc. On July 11, 1969, the corporation filed a corporate report and tax return with the Secretary of State which listed the officers and directors of Agricon, Inc., as follows: George Black, president and director; William Ravenel, vice president and director; and B. S. Ravenel (William Ravenel’s wife), secretary-treasurer and director. William Ravenel was listed as resident agent.

On October 1, 1969, George Black resigned from Agricon, sold his stock shares back to the corporation, and moved from the Orlando area to Tampa. Thereafter, Agricon ceased doing business as an active corporation, owning only one asset: the subject realty on Oakridge Road in Orlando. This, in effect, left William Ravenel and Lionel LaGrow as equal half owners of this real property.

On July 11,1972, Agricon, Inc., was involuntarily dissolved by the Secretary of State for failure to pay its 1971 capital stock tax. In 1973, the LaGrows offered their one-half interest in the real property to Ravenel for $25,000, but no deal was consummated. In 1975, the LaGrows, who did not reside in the area, unsuccessfully asked Ravenel, who was occupying and using the realty in return for carrying the mortgage payments, for an accounting of the property.

In 1975, two unsecured loans that Flagship had made to two corporations owned and controlled by William Ravenel, who had personally guaranteed the loans, went into default. These aggregated some $90,000. Ravenel then proposed to the bank that they extend this indebtedness and consolidate these loans in his individual name in return for which he would give the bank security: a first mortgage lien on the Oak-ridge property in the amount of $100,000.

The bank realized that its unsecured loans to Ravenel’s corporations “looked very bleak,” according to the sworn testimony of their loan officer, one Robert Dotherow. It was also aware that Ravenel’s current business venture, a coal mine in Kentucky, was a “disaster,” that he was out of a job, involved in various lawsuits, was a candidate for imminent personal bankruptcy, and that he purposely clouded the title to the Oakridge property to deter judgment creditors. Realizing Ravenel’s desperate financial plight, and its own in respect to the money owed on the two loans, the bank leaped in to salvage what it could by closing the new collateralized loan with Ravenel without a title opinion on the property. It even paid for Ravenel’s air fare from Kentucky to consummate the closing of the mortgage, gave him additional cash of $765.00, and paid off the first mortgage lien of approximately $6,100. The mortgage loan was closed on September 8, 1975.

Some two weeks after closing the mortgage loan, the bank received a title opinion from its attorney warning it that the title was “subject to any claims of stockholders of Agricon, Inc., a dissolved Florida corporation, who may claim a stockholder interest in the subject property.” The bank never inquired as to the identity of these stockholders, either before or after acquiring the mortgage from the Ravenels, and it never contacted George Black, the listed director, hence trustee after dissolution, whom it could not locate. Moreover, the bank was aware, as of the September 8th closing, that the Orange County Circuit Court had enjoined the Ravenels from conveying or encumbering a portion of the subject property, but made no further inquiry in that regard prior to closing.

The bank relied solely on the last annual report of Agricon, Inc., from the Secretary of State, in conjunction with an affidavit from the Ravenels confirming the report. Based on this, the bank prepared and had the Ravenels execute a quit-claim deed as directors of the dissolved corporation conveying the Oakridge property to themselves individually.

In the last analysis, the bank’s claim to status as a bona fide mortgagee rests solely on the report from the Secretary of State showing the Ravenels and Black as the last officers and directors of Agricon, with no mention of the LaGrows or any shareholders. We do not believe the bank satisfied its duty of inquiry sufficiently to attain the status it claims. As stated by the Florida Supreme Court in Sickler v. Melbourne State Bank, 118 Fla. 468, 159 So. 678, 679 (1935):

It is too well-settled to require the citation of authorities that one who has either actual or constructive information and notice sufficient to put him on inquiry is bound, for his own protection, to make that inquiry which such information or notice appears to direct should be made, and, if he disregards that information or notice which is sufficient to put him on inquiry and fails to inquire and to learn that which he might reasonably be expected to learn upon making such inquiry, then he must suffer the consequences of his neglect.

See also Gabel v. Drewry’s Ltd. U.S.A., Inc., 68 So.2d 372 (Fla.1953).

In the instant case, there were abundant facts alerting the bank to the improprieties of William Ravenel which should have prompted it to further inquiry and investigation in regard to the true ownership of the Oakridge property. In view of our conclusion in regard to this point, we need not consider the appellants’ remaining point challenging the sufficiency of the bank’s consideration.

Accordingly, the judgment of the lower court, insofar as it relates to the one-half interest of the LaGrows in the Oakridge property, is reversed and this cause is remanded to allow foreclosure to proceed on the other one-half interest.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.

      . The deposition testimony of Lionel and Patricia LaGrow indicated that he was supposed to be listed as a director and she as treasurer; Black’s recollection was that each of the three shareholders was to be a director and one of the LaGrows was to have been treasurer.

      . In fact, Ravenel did declare bankruptcy some two months later.