text:
    Eileen MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 80-2001.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant, Eileen Martin, complains of improper impeachment during cross-examination. We agree and hold that the combination of prosecutorial and judicial error requires a reversal of her conviction and sentence.

Defendant was charged with sale of vali-um to Ronald Markowski, an undercover Boca Raton policeman. Ms. Martin testified in her own defense. During direct examination, defense counsel carefully elicited that she had been convicted of a crime on two prior occasions. Counsel stopped with that and moved on to other areas of inquiry. On cross-examination the following colloquy ensued between the prosecuting attorney and the defendant:

Q In essence, your testimony was that Officer Markowski wanted to frame you, is that right?
A Yes.
Q Why would Officer Markowski want to frame you?
A Why would he?
Q Yes.
A Well, for one thing, to my belief, they think that I was the person that was giving these people the drugs. That is why.
Q Why would they think—
A That is why they came to me, called me, followed me, stopped me all hours of the night, went to my jobs where I worked. They were constantly trying to see if they could get anything from me, and they never did.
Q Well, they never did?
A No.
Q At anytime?
A I never sold Ron — whatever his name is — anything.
Q Now, you have been convicted of two crimes, have you not?
A Yes, I have.
Q And what was one of those crimes?

Defense counsel objected and the jury was excused. The prosecutor then argued that the defendant’s response, “They were constantly trying to see if they could get anything from me, and they never did,” opened the door to further inquiry. The trial court did not rule on this assertion because of its view of the applicable law: “. . . I know you can’t impeach just on the basis of the prior crime. But you do have the right to ask if she has ever sold drugs before. I think you can ask that, if she elects to take the stand.” (Tr. 96). The court elaborated: “I think you have the right to pursue it. It is within two years of this transaction. I may be wrong but I think on the credibility, you have the right to explore it. I don’t think she is immunized with regard tó a similar crime, if she elects to take the stand.” (Tr. 97). Thus, the trial court overruled a defense objection and a motion for mistrial and permitted the prosecutor to ask the defendant if she had ever sold drugs before. She responded, “yes.”

This line of questioning was underscored during final argument when the prosecuting attorney stated:

“Eileen Martin did the same thing. This was absolutely crucial, she lied to you on the witness stand and she was caught. I asked her essentially, yesterday, “Why would the police frame you?” That was the essence of my question. “What is the reason?” She gave a long answer, and during the course of the answer was, she said, “I never sold drugs.” And I said, “Wait a minute, you never sold drugs to anybody?” She changed and caught herself—So, I asked, “Have you ever sold to anyone?” “Not to Ron.” She changed her story. And after you came back, I asked the question of the Defendant, “Have you ever sold drugs to anyone?” She said, “Yes.” She changed her testimony. She lied right before you on the witness stand.

Unfortunately, the trial court was mistaken in its view of the law. Putting aside the “Williams Rule” which is now codified as Section 90.404(2)(a), Fla.Stat. (1981) and which is generally utilized in the state’s case-in-chief, a prosecutor is not authorized to delve into a prior conviction simply because a defendant elects to take the witness stand in his own defense. This is true despite the proximity and similarity of the alleged subsequent offense to a prior conviction. The appropriate rule is found in Section 90.610, Florida Statutes (1979). It states:

(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:
(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.
(b) Evidence of juvenile adjudications are inadmissible under this subsection.
(2) The pendency of an appeal or the granting of a pardon relating to such crime does not render evidence of the conviction from which the appeal was taken or for which the pardon was granted inadmissible. Evidence of the penden-cy of the appeal is admissible.
(3) Nothing in this section affects the admissibility of evidence under s. 90.404 or s. 90.608.

Cf. Davis v. State, 397 So.2d 1005 (Fla. 1st DCA 1981).

The avowed purpose for such questioning is to test the credibility of the witness. Thus, as happened in the case at bar, when a defendant admits to prior convictions and accurately states their number, the questioning should cease unless the defendant has opened the door to further inquiry. This, of course, was the prosecutor’s contention here and since we are obliged to affirm the trial court if we can do so by any theory revealed by the record on appeal, Savage v. State, 156 So.2d 566 (Fla. 1st DCA), cert. denied, 158 So.2d 518 (Fla.1963), we turn to the prosecutor’s suggestion.

Essentially the prosecutor contended that the defendant opened the door to further inquiry when she stated, “They were constantly trying to see if they could get anything from me, and they never did.” The prosecutor argued that the defendant’s use of the plural form of the personal pronoun “they” inferred activity by the police in general. Furthermore, he claimed that the adverb “never” suggested an all-inclusive time frame. Accordingly, he sought the court’s permission to ask the defendant about a 1977 conviction for sale of PCP to a Boca Raton policeman. In fact, however, the prosecutor posed a broader question; he asked the defendant whethér she had ever sold drugs before.

If the prosecutor’s interpretation were correct, he would have been entitled to delve further. See, e.g., Davis v. State, 216 So.2d 87 (Fla. 2d DCA 1968); Dodson v. State, 356 So.2d 878 (Fla. 3d DCA), cert, denied, 360 So.2d 1248 (Fla.1978). However, we cannot agree with his analysis. To start with, a defendant’s statement cannot be evaluated in the abstract; it must be viewed in context. Here the record reflects that the prosecutor initiated the inquiry by asking for the defendant’s view of Officer Markowski’s motivation. In other words, the questioning centered on a single person. Yet in her response the defendant used the plural rather than the singular. Nonetheless, she immediately clarified her response by indicating that, “I never sold Ron— whatever his name is — anything.” Her switch back to the singular is not disposi-tive, however, for the issue remains whether the defendant, by volunteering an overly-broad response, created a false impression in the minds of the jurors. Again, we turn to the record and note that the testimony of both Officer Markowski and the defendant established that he was the only police officer involved with the defendant. Moreover, Officer Markowski testified that he performed the various activities referred to in the defendant’s answer, i.e., calling her, visiting her house and place of employment. Thus, it is reasonable to conclude that the defendant intended, and that the jury understood, her response to refer solely to Officer Markowski. Consequently, we hold that the defendant did not open the door to further inquiry regarding the specific nature of her prior convictions.

Finally, we are compelled to express our profound disapproval of what seems to have been a calculated effort to obtain a conviction based on guilt by association. At intervals throughout the brief cross-examination, the prosecutor asked the- following questions:

Q And Paula [the defendant’s sister] has been arrested by the Boca Raton Police, has she not? (Tr. 90).
Q Isn’t it a fact Butch Briggs [the defendant’s sister’s boy friend] pled guilty September 18th, of that very crime? (Tr. 91).
Q Isn’t it a fact at some point both of [the defendant’s] . . . brothers have been arrested numerous times? (Tr. 92).

Additionally, the prosecutor posed these questions:

Q So Daniel Garcia [the defendant’s alibi witness] is married to someone else, isn’t that right?
A Right.
Q And Mr. Garcia’s wife doesn’t really enjoy you going out with Mr. Garcia, does she? (Tr. 100).

The trial court properly sustained objections to all of these questions. They were irrelevant, inflammatory and prejudicial. They also represented a serious departure from acceptable prosecutorial conduct. In Salerno v. State, 347 So.2d 659, 661 (Fla. 4th DCA), cert. denied, 354 So.2d 985 (Fla.1977), we noted the prosecutor’s obligation to assure a defendant a fair trial. This was nothing more than a restatement of the well known principle that it is the duty of a prosecutor to seek justice, not merely to convict. We recognize that the tensions of the adversary process and the heat of trial can test an attorney to the limit. Nonetheless, it is imperative that prosecuting attorneys be ever mindful of their awesome power and concomitant responsibility. The tactics and trial strategy of the prosecutor must reflect a scrupulous adherence to the highest standards of professional conduct.

Accordingly, we reverse the defendant’s conviction and sentence and remand the cause for new trial.

ANSTEAD, BERANEK and HURLEY, JJ., concur.

      . ABA Standards for Criminal Justice, 3-1.1(c), (2d ed. 1980).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark Timothy ALBRIGHT, Appellant, v. Francis MERCER and Evelyn Dayton, Appellees.
    No. 81-101.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Arthur M. Wolff and Mary C. Breda, Fort Lauderdale, for appellant.
    Donald K. Corbin, Fort Lauderdale, for appellees.
   PER CURIAM.

Appellant brought an action which contained three counts. Count II alleged that appellee had slandered him. The trial court dismissed Count II with prejudice and transferred the action to the County Court for disposition of Counts I and III. We affirm the dismissal because Count II failed to allege publication sufficiently. See Campbell v. Jacksonville Kennel Club, 66 So.2d 495 (Fla.1953). However, we reverse that part of the order which dismisses the complaint with prejudice and transfers the cause, and we remand in order to provide appellant the opportunity to amend his complaint if he is able to do so.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


author: DELL, Judge.

text:
    Robert L. YOST, Appellant, v. Jean K. YOST, Appellee.
    No. 81-785.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Rehearing Denied May 12, 1982.
    Robert D. Halstead, Jr., of Bratten & Harris, P. A., West Palm Beach, for appellant.
    J. Reeve Bright of Hamilton, James, Mer-kle & Young, Delray Beach, for appellee.
   DELL, Judge.

The parties to this action were married on January 26, 1980 and divorced shortly thereafter, on April 23, 1981. In its final judgment granting the dissolution of marriage, the lower court granted the wife a special equity in the marital home which was therefore awarded wholly to her. Appellant, the husband, contends that such an award was erroneous in light of an ante-nuptial agreement entered into by the parties. We agree and reverse.

The house in question was purchased for $160,000 while the parties were married. A down payment of $110,000 had been drawn from the parties’ joint bank account. It is undisputed that the wife was the original source of these funds, and that thereafter, the wife paid the mortgage payments.

Were these the only considerations before the lower court we would waste no time in affirming its decision. However, prior to marriage the parties entered into a valid contract which is dispositive of this issue. This antenuptial agreement, in clear unequivocal language, leaves no doubt as to the husband’s entitlement to a one-half interest in the marital home.

Each party’s interest in the home (principal residence) is clearly classified as “Separate Property” by the agreement.

“Separate Property”. The Separate Property of each party shall encompass the property owned by such party immediately prior to the contemplated marriage, including all property, real and personal, tangible and intangible, and specifically including such party’s one-half interest in the Principal Residence as hereinafter defined. Such Separate Property shall not lose its character as such by sale, exchange or reinvestment to the extent that such property remains titled in the name of such party and is directly traceable to property owned by such party prior to the marriage. Separate Property shall not include property which the parties may convert to joint ownership as joint tenants, tenants in common, tenants by the entireties, or the like, (emphasis added).

Moreover, the principal residence is specifically excluded under that provision of the agreement defining “Marital Property.”

The wife’s contention that the husband violated the agreement by not contributing to the purchase of the house is without merit. Even though the $110,000 down payment was made with funds which emanated from the wife, the fact that such funds were drawn from a joint bank account is of crucial significance. The ante-nuptial agreement, again, specifically provides that “all property which the parties shall have converted to joint ownership” (excluding the principal residence) is to be considered “Marital Property.” Likewise, as quoted above, property which the parties convert to joint ownership is by definition, not “separate property.” Therefore, the wife cannot be heard to complain of the husband’s failure to contribute to their home’s purchase. The funds used for the down payment on the house, coming from a joint bank account, were, by the terms of their agreement, as much his as hers.

The agreement further contains a section entitled “Release of Marital Rights On Separation Or Termination Of Marriage.” This section reiterates the intent of the parties as evinced by the aforementioned provisions.

The parties agree that in such event, the Separate Property of each party shall be excluded from consideration in determining the rights of the parties in the Marital Property....

There is but one conclusion which can be drawn from the terms of the antenuptial agreement. This is simply that the parties clearly intended that each possess a full, vested, one-half ownership interest in the marital home. We realize that this result causes the wife a substantial financial loss from a marriage which lasted little more than one year. Yet, we cannot undo that which has been properly done. As we noted in Potter v. Collin, 321 So.2d 128 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 1180 (Fla.1976):

A prospective spouse has a right to freely choose to enter into an antenuptial agreement which may be improvident to him or her, and the agreement will be upheld if there has been a full disclosure of the other prospective spouse’s worth or knowledge of the latter’s estate.

The agreement signed by appellee could not have been more clear. We can only conclude that the terms of that agreement comported with the interests and desires of the wife when it was entered into. It should be noted that the wife is an astute businesswoman of substantial financial resources. Further, it is clear that the agreement was carefully drawn to clearly express the intentions of the parties. We reject any suggestion of fraud or non-disclosure on the part of appellant. The record does not support any such inference. See, Carnell v. Carnell, 398 So.2d 503 (Fla. 5th DCA 1981).

The decision of the lower court is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BERANEK and HERSEY, JJ., concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant/cross-appellee, v. James TAYLOR, Appellee/cross-appellant.
    No. 81-1080.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant/cross-appellee.
    Edward Brinson of Brinson, Smith, Heller & Smith, P. A., Kissimmee, for appel-lee/cross-appellant.
   DOWNEY, Judge.

Appellee James Taylor was found guilty in Okeechobee County of trafficking in cannabis in excess of 100 pounds in violation of Section 893.135(l)(a)l, Florida Statutes (Supp.1980). After a presentence investigation, which apparently showed that Taylor had a good reputation in Osceola County, where he lived, the trial court sentenced him to three years imprisonment and a fine of $25,000 in accordance with the mandatory provision of Section 893.135(l)(a). Then sua sponte the court mitigated the sentence so that Taylor would serve four months in the county jail and then be on probation for three years. The court left the $25,000 fine in effect. From that mitigated sentence the State has perfected this appeal and Taylor has cross-appealed. We have seriously considered all of the questions presented by the cross-appeal and find no reversible error shown in the trial of the case. The only error reflected in the record occurred in the sentencing process.

In enacting the trafficking statute, Section 893.135, the Legislature provided that for the various crimes included therein mandatory minimum prison sentences should be imposed. However, as part of the legislative scheme to stem trafficking in drugs the Legislature authorized trial courts to mitigate a mandatory sentence upon motion by the State Attorney if the convicted person provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals. § 893.135(3), Fla.Stat. (Supp.1980). No further authority is reposed in the trial court to mitigate a mandatory minimum sentence in trafficking cases.

In the present case the court mitigated the mandatory minimum sentence sua sponte. The record reflects no appropriate motion by the State Attorney.

Accordingly, we affirm the judgment of conviction involved in the cross-appeal and reverse the order mitigating appellee’s mandatory minimum sentence as originally imposed by the trial court, without prejudice upon remand to the filing of a proper motion to mitigate under Section 893.135(3), should the State Attorney be so disposed.

AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.

BERANEK and DELL, JJ., concur.


text:
    LAKE OSBORNE UTILITIES COMPANY, INC., a Florida corporation, Appellant, v. James C. SIMS, Imogene Sims, n/k/a Imogene S. Whitaker, Preston C. Rice, Jr., Constance E. Rice and Cynthia M. Rice, Appellees.
    No. 81-1218.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Mikel D. Greene of Farish, Farish & Ro-mani, West Palm Beach, for appellant.
    Eugene E. Shuey of McGee, Johnson, Jordan & Hutcheson, P. A., Lake Worth, for appellees James C. Sims and Imogene Whitaker.
    David L. Danielson of Brennan, McAliley, Hayskar & McAliley, P. A., West Palm Beach, for appellee Rice.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Plaintiffs amended complaint, alleging defendants’ unreasonable interference with the plaintiff’s utility easement, although held legally insufficient to state a cause of action, was not so utterly devoid of arguable merit as to be considered frivolous. On the authority of such cases as Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982), City of Deerfield Beach v. Oliver-Hoffman Corp. of Deerfield Beach, 396 So.2d 1187 (Fla. 4th DCA 1981), T. I. E. Communications v. Toyota Motors, 391 So.2d 697 (Fla. 3d DCA 1980) and Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980), the order assessing attorneys’ fees under Section 57.105, Florida Statutes (1979) is reversed.

REVERSED.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Dennis MAUCERI, Appellee.
    No. 81-2159.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Based upon the parties’ stipulation, the trial court’s order of dismissal is reversed and the cause remanded with directions to reinstate the charges against appellee and to conduct an evidentiary hearing on appel-lee’s motion to suppress.

DOWNEY, GLICKSTEIN and DELL, JJ., concur.


author: COBB, Judge.

text:
    Sarah Jane SEDDON, Appellant, v. Glenn Lee EDMONDSON and Helene Edmondson, his wife, and Fred M. Harpster and Doris Harpster, his wife, Appellees.
    No. 78-1874/T2-3.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.

      Mary M. McDaniel of Ford & Minkoff, P. A., Tavares, for appellant.
    W. C. Hutchison, Jr., of Hutchison & Má-mele, Sanford, for appellees.
   COBB, Judge.

The dispute eventuating in the present appeal originated in an ejectment action filed by Fred and Doris Harpster against the appellant, Sarah Jane Seddon, their neighbor to the east, and a consequent cross-claim filed by the latter against Glenn and Helene Edmondson, the neighbors to the east of her property.

The Harpsters claimed that, according to their survey, Seddon was encroaching upon the eastern portion of their property, rural land situate in the northwest quarter of Section 19, Township 17 South, Range 27 East, in Lake County, Florida. The basis of the Harpster argument was that the boundaries of Section 19 were east of the location previously understood by the various landowners in the area. The Harpsters owned only in the northwest quarter section of Section 19 (insofar as the dispute with the parties to this appeal is concerned). Seddon held record title to the west one-half of the northwest quarter of the northeast quarter of Section 19, while the Edmondsons held record title to the east half of the northwest quarter of the northeast quarter of Section 19. Thus, according to their respective legal descriptions, the north-south midsection line of Section 19 was the common boundary between the Harpster and Seddon properties.

The Harpsters, Edmondsons, and Seddon stipulated that trial of the Seddon cross-claim against the Edmondsons would be deferred until completion of the original ejectment action by the Harpsters against Seddon. Presumably, conclusion of that action in favor of Seddon — i.e., a judicial determination that Section 19 was in fact located as previously assumed — would have rendered moot the cross-claim against the Edmondsons. But that was not the outcome. The trial court held that Seddon was wrongfully occupying land belonging to the plaintiff Harpster, thereby placing the midsection line of Section 19 some 400 feet east of the line Seddon contended was her western boundary. That judgment was affirmed by the Second District Court of Appeal. Seddon v. Harpster, 369 So.2d 662 (Fla. 2d DCA 1979). On certification, the opinion of the district court was approved by the Florida Supreme Court. Seddon v. Harpster, 403 So.2d 409 (Fla. 1981).

Accordingly, the cross-claim by Seddon against the Edmondsons was then tried, and decided by the trial judge adversely to Seddon on defenses raised by the cross-defendants: “Estoppel, acquiescence and boundary by agreement.” The trial court recited in its final judgment that it was relying upon the principles enunciated in King v. Carden, 237 So.2d 26 (Fla. 1st DCA 1970), and Williams v. Johntry, 214 So.2d 62 (Fla. 1st DCA 1968). This appeal by Sarah Jane Seddon ensued.

At trial, the Edmondsons attempted to establish their defenses of boundary by agreement and boundary by acquiescence, each of which requires the existence of a boundary dispute between adjoining owners as a predicate, by the introduction of an exchange of letters between themselves and the cross-claimant’s father, William T. Sed-don, who had originally been the title holder to the Seddon property but was deceased at time of trial. It also should be noted that this trial occurred on September 13, 1978, prior to the effective date of the Florida Evidence Code. In re Florida Evidence Code, 376 So.2d 1161 (Fla.1979). The “dead man’s statute” then in effect, and applicable to these trial proceedings, was section 90.05, Florida Statutes (1977).

The disputed admission of Seddon’s letter is illustrated by the following portion of the trial transcript during the direct examination of Mrs. Edmondson:

Q. At the time the Seddons bought a portion of the property adjacent to your property, did you have occasion to have any correspondence with reference (sic) the boundary line?
A. Yes, sir. We received notification from the Court Clerk that the Seddons had purchased the adjacent property. One of the neighbors told us, in erecting his fence, Mr. Seddon may have gone over our boundary. We wanted to verify who owned the property and whether the boundary was as described.
* * * ^ * *
Q. And you had some doubt as to whether the fence was located on the property line?
A. Right. One of the neighbors told us someone had bought that property and had fenced it in our absence.
Q. Did you have any correspondence with the Seddons?
A. Yes.
Q. I hand you a copy of this letter, which purports to be under your husband’s signature' — can you identify that?
A. I typed it for his signature.
Q. Do you know as a matter of fact that he signed it?
A. Yes, sir.
Q. Do you know as a matter of fact that it was mailed?
A. Yes, sir.
Q. And that’s addressed to Mr. W. T. Seddon?
A. Right.
4c * Ht * * *
(EDMONDSON’S COUNSEL): Would like to offer this as cross defendant’s 3.
(SEDDON’S ATTORNEY): Object to this letter. It doesn’t appear to be an original, which would be the best evidence, and I have another copy of this letter that doesn’t appear to be the same as the letter being introduced. There is a signature on this letter that does not appear on my photocopy of the same letter provided me by [Edmondson’s counsel],
(EDMONDSON’S COUNSEL): Quite obviously we wouldn’t have the original, it was sent to Mr. W. T. Seddon. We allege certain affirmative -defenses, one of which necessitates the demonstration to this court that there was a question of where the property land was when they had communication relating to it, and that’s what this document is for.
THE COURT: Have you questioned your witness as to where the original is?
(EDMONDSON’S COUNSEL), continuing:
Q. Do you know where the original of the letter that I just showed you is?
A. No, I don’t but I got a reply to it.
Q. You know as a matter of fact it was mailed to Mr. W. T. Seddon?
A. Yes, and I did get a reply from him, responding to this letter.
Q. You don’t have the original in your possession?
A. It should be in their file.
THE COURT: Objection overruled.
(EDMONDSON’S COUNSEL), continuing:
Q. I hand you a second letter addressed to M/Sgt. Glenn L. Edmondson, can you identify that letter?
A. Yes I can.
Q. You know for a fact it was received? A. Yes, it has been in our file.
Q. You received it, you identified it, you read it?
A. Yes, sir.
Q. This is from William T. Seddon?
A. It is signed by him.
Q. Subsequent to that letter, did you have any conversation with Mr. Seddon relating to the contents of these letters and the fences and common boundary, etc., between your properties?
A. Yes.
Q. You know as a matter of fact that he wrote that letter?
(SEDDON’S ATTORNEY): Object, Hearsay Rule and Dead Man’s Statute. Mrs. Edmondson cannot testify as to what Mr. Seddon said and actually did tell her.
(EDMONDSON’S COUNSEL): I don’t know we elicited any statements as to what he said, but only to the degree this is identified as having been received, and subsequent conversations.
(SEDDON’S COUNSEL): It’s the subsequent conversations I object to. We have no way of cross-examining him or eliciting anything from him to find that out.
(EDMONDSON’S COUNSEL), continuing:
Q. You have identified the previous exhibit as the letter going to Mr. W. T. Seddon?
A. I have.
Q. This exhibit I have just furnished you, purporting to be a letter from Mr. W. T. Seddon — did you receive that?
A. Yes, in the mail.
* * * * * *
Q. The letter itself responds in kind to the same information contained in the previous letter mailed to Mr. Seddon, does it not?
A. Right.
(SEDDON’S ATTORNEY): Object to that last question, until it is admitted in evidence. I don’t believe the witness should be able to testify to what is not on the record.
THE COURT: Will admit into evidence.
(SEDDON’S ATTORNEY): Object to admitting it into evidence as hearsay and Dead Man’s Statute.
(EDMONDSON’S COUNSEL): Your Honor, I don’t believe the Dead Man’s Statute is applicable here, and even if it is, it does not apply to documentation. (Emphasis added.)

The letter from the deceased Seddon was admitted despite the objection based upon the Dead Man’s Statute. The exchange of letters between Edmondson and Seddon served as the basis for the implied finding by the trial court of the existence of a dispute in regard to the Seddon-Edmond-son boundary and an agreement resolving that dispute. The doctrines of “boundary by agreement” and “boundary by acquiescence” share a common element: the existence of uncertainty or dispute or doubt over the location of a common boundary. Kerrigan v. Thomas, 281 So.2d 410 (Fla. 1st DCA 1973); King, 237 So.2d at 28; Rei v. Myers, 222 So.2d 42 (Fla. 4th DCA 1969).

It is clear that Mrs. Edmondson was an “interested person” under the applicable statute, since she would gain or lose by direct legal operation and effect of the judgment. See Broward Nat’l. Bank of Ft. Lauderdale v. Bear, 125 So.2d 760 (Fla. 2d DCA 1961). The letter from Seddon was part of a “transaction or communication” between the witness and the deceased, and the objection was made on behalf of the decedent’s daughter, appellant herein, who was qualified under the statute to raise the objection as the next of kin, heir at law and devisee of the decedent. Hinson v. Hinson, 356 So.2d 372 (Fla. 4th DCA 1978). Therefore, it was error for the trial court to admit the Seddon letter over timely objection.

Moreover, even if the Seddon letter had been properly before the trial court, the evidence was insufficient to establish the requisite dispute or uncertainty between abutting owners. Mrs. Edmondson testified that neighbors had informed them (at the time the Edmondsons were living in Maryland) that Seddon had erected a fence which possibly encroached on their property. Mr. Edmondson wrote from Maryland to Seddon inquiring as to whether the fence was on Edmondson property. Nothing in the letter indicates any uncertainty or dispute as to the location of the boundary. Seddon replied that he had erected the fence within his own property line based upon his survey. The reply letter to Seddon from Edmondson was merely a thank-you letter of acknowledgment.

Neither party to this exchange recognized any doubt or dispute as to the location of the proper boundary, nor that Seddon’s fence was an intended compromise thereof, nor even that the Seddon fence was located on the boundary line between the two properties. Without such dispute or uncertainty, the defenses of boundary by agreement and boundary by acquiescence must fail. Holley v. May, 75 So.2d 696 (Fla.1954).

In order to establish a boundary by acquiescence, in addition to the necessity of showing a dispute or uncertainty, it must be shown that there was continued occupation and acquiescence in the line for a period of the statute of limitations. King, 237 So.2d at 28. Even if the court had had sufficient evidence from which to have found a disputed or uncertain boundary line, and the establishment of a fence purporting to be on the boundary line, the evidence in regard to continued occupation of the disputed property would not meet the time requirement applicable to establish a boundary by acquiescence. By Mrs. Ed-mondson’s own testimony, the longest that she and her husband could have claimed occupation was subsequent to 1973, some two years prior to the institution of suit.

The facts in the case of Florida Ranchettes, Inc. v. Hull, 331 So.2d 348 (Fla. 1st DCA 1976), are clearly distinguishable from the facts herein. In that case, Carpenter learned in 1953 that he had been mistaken about his true boundary line when he had constructed his fence six months earlier. However, he did nothing about it. Even when his neighbor, Florida Ranchettes, Inc., constructed a canal and road on his property, he did nothing. Sometime thereafter, he remarked to a Florida Ranchettes official that they could have his property as long as he could use the road. In 1968 his successor in interest took physical action claiming property to the true boundary. The court found a boundary had been established by acquiescence.

In the instant case, unlike the Hull ease, Seddon at no time agreed to give up land to the Edmondsons. Neither the appellant nor her predecessor in interest had knowledge of the encroachment by the Edmondsons until 1975, when suit for ejectment was immediately filed.

As for the reference in the judgment to the element of “estoppel,” thereby implying that such may be separate and discrete from the other doctrines referred to in the judgment, we agree with the analysis of the First District Court of Appeal enunciated in King:

In the absence of an instrument in writing, lands may sometimes be acquired through the acts and conduct of abutting property owners which require the application of an equitable estoppel. The general principles of law that have evolved under this doctrine have been characterized as (1) adverse possession, (2) boundary by agreement, and (3) boundary by acquiescence. The doctrine of adverse possession has not been invoked in the instant cause so it will not be considered. Boundary by agreement requires allegation and proof of three elements: 1. Uncertainty or dispute as to the true boundary, 2. An agreement that a certain line will be treated by the parties as the true line, and 3. Subsequent occupation by the parties in accordance with that agreement for a period of time sufficient to show a settled recognition of the line as the permanent boundary. Boundary by acquiescence involves at least two elements: 1. A dispute from which it can be implied that both parties are in doubt as to the boundary line, and 2. Continued occupation and acquiescence in a line other than the true boundary for a period of more than the statute of limitations. Therefore, a salient element that requires proof for either the doctrine of boundary by agreement or boundary by acquiescence is a dispute between the abutting property owners as to the boundary line. (Emphasis in original.)

237 So.2d at 28.

As in King, we find no evidence of a prior dispute that would satisfy the requirement for boundary by agreement or by acquiescence.

Accordingly, the judgment of the trial court is reversed, and this case is remanded for entry of a judgment in accordance with this opinion.

REVERSED and REMANDED.

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

      . This action was based upon a survey established in the Harpster v. Seddon action and indicated that the Edmondsons were encroaching upon the eastern portion of the Seddon property. Included in this encroachment area are improvements made by the Edmondsons in setting up a nursery valued at approximately $32,000.

      . Section 90.05 provided:
      No person, in any court, or before any officer acting judicially, shall be excluded from testi-tying as a witness by reason of his interest in the event of the action or proceeding, or because he is a party thereto; provided, however, that no party to such action or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party, or interested person, derives any interest or title, by assignment or otherwise, shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time of such examination deceased, insane or lunatic, against the executor, or administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or the assignee or committee of such insane person or lunatic; but this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor, or committeeman shall be examined on his own behalf, or as to which the testimony of such deceased person or lunatic shall be given in evidence.
      Unlike section 90.05, its replacement, section 90.602, Florida Statutes (1979), only excludes testimony concerning oral communications. Section 90.05 applies to the instant civil case since the cause of action accrued before July 1, 1979. See In Re Florida Evidence Code, 376 So.2d 1161 (Fla.1979).


author: COWART, Judge.

text:
    Edward STARCHK, Appellant, v. Nancy Kelley WITTENBERG, as Secretary of the Florida Department of Professional Regulation, Appellee.
    No. 80-1484.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.

      Richard J. R. Parkinson of Parkinson & Pyle, P. A., Orlando, for appellant.
    William M. Furlow, Dept, of Professional Regulation, Tallahassee, for appellee.
   COWART, Judge.

Appellant had been enjoined from engaging in certain activities, including the fitting and delivery of dentures to the general public. Appellee, through assistant general counsel for the Department of Professional Regulation, filed a request that the trial court issue an order directing appellant to show cause why he should not be held in contempt for violation of the trial court’s injunction. The request alleged various actions of appellant but was neither sworn to nor supported by affidavits. The trial court denied appellant’s motion to dismiss the court’s order to show cause and, after an evidentiary hearing, found appellant in contempt and sentenced him to 100 days in jail with no provision for purge and release. This appeal resulted.

Since the acts relied on as constituting a contempt were alleged to have been committed outside the presence of the court they would, if true, constitute an indirect contempt. Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977). Confinement without a provision for purge and release is proper only for a criminal contempt. Generally, an order to show cause concerning an alleged indirect criminal contempt must be based on sworn testimony of a person having personal knowledge of the essential facts. This requirement is part of our common law, and is provided for in Florida Rule of Criminal Procedure 3.840(a)(1). The essential sworn facts are usually provided by affidavit, but testimony given under oath before the issuing judge is sufficient. Croft v. Culbreath, 150 Fla. 60, 6 So.2d 638 (1942). The failure to base an order to show cause upon sworn facts has been held error so fundamental as to be reviewable on appeal, even where the failure was not raised at the trial bench. See, e.g., Deter v. Deter, 353 So.2d 614 (Fla. 4th DCA 1977).

There is one slight qualification to the requirement that an order to show cause must be based on an affidavit or sworn testimony of a person with personal knowledge of the material facts. Since a prosecuting attorney is allowed to verify an information on sworn facts given him by a person with personal knowledge, such verification has been held sufficient when the prosecuting attorney is charging a criminal contempt of court. See, e.g., Ex parte Maniscalco, 153 Fla. 666, 15 So.2d 445 (1943); Ex parte Crews, 127 Fla. 381, 173 So. 275 (1937); Vernell v. State ex rel. Gerstein, 212 So.2d 11 (Fla. 3d DCA 1968); Diebert v. State, 199 So.2d 288 (Fla. 3d DCA 1967).

Appellee’s reliance on Baumgartner v. Joughin, 107 Fla. 858, 143 So. 436 (1936), is misplaced. Baumgartner deals with the separate issue of the adequacy of a habeas corpus writ to attack the factual basis of an order adjudicating a party in contempt and therefore is not applicable to the instant facts. Dicta in that case, taken out of context, suggests that a judge’s commitment for contempt can be based on anything, but this language has not been given such a broad application as to allow an order to show cause to be issued on anything other than sworn allegations. See, e.g., Ex parte Maniscalco; Croft v. Culbreath; Ex parte Crews.

In this case the request for an order to show cause was not based on allegations either sworn to by a person having the requisite personal knowledge or vicariously verified by the state attorney, based on such sworn testimony given to him. The order was based only on an unverified pleading by an assistant general counsel for the Department of Professional Regulation. It was insufficient and the order upon which it was based should have been dismissed on appellant’s motion.

There is a more substantial infirmity in appellant’s conviction of indirect criminal contempt which relates to the sufficiency of the evidence. Appellee’s case for contempt was based on the testimony of only three witnesses. Mrs. Banks’ testimony was that appellant did not do any acts that violated the injunction. Mr. Scheidt, an investigator for appellee, merely testified that he observed appellant leave his office, pick up Mrs. Banks and take her to appellant’s office. Finally, Mrs. Edwards, another investigator for appellee, testified in substance that after Mrs. Banks’ visit to appellant’s office, Mrs. Banks had told Mrs. Edwards that appellant had done acts which did violate the injunction. Mrs. Edwards’ testimony was not admissible to impeach Mrs. Banks because Mrs. Banks could not be impeached by the Department of Professional Regulation which had called her as a witness. § 90.608, Fla.Stat. (1979). See also Gelabert v. State, 407 So.2d 1007 (Fla. 5th DCA 1981). Although Mrs. Banks, the declarant, testified at the hearing and was subject to cross-examination concerning her prior statement to Mrs. Edwards which statement was inconsistent with her testimony at the evidentiary hearing, Mrs. Edwards’ testimony as to Mrs. Banks’ prior statements was inadmissible as substantive evidence under section 90.801(2)(a), Florida Statutes (1981), because Mrs. Banks’ prior statement to Mrs. Edwards was not given under oath. Therefore the evidence against appellant was insufficient as a matter of law to prove, beyond a reasonable doubt, his alleged violation of the injunction and his guilt of indirect criminal contempt. As appellant cannot constitutionally be retried, Tibbs v. State, 397 So.2d 1120 (Fla.1981), this charge of indirect criminal contempt is dismissed and appellant is discharged. The adjudication and sentence herein is

REVERSED and appellant is DISCHARGED.

COBB and SHARP, JJ., concur.

      . As to differences between civil and criminal contempt see Carter v. State, 409 So.2d 127 (Fla. 5th DCA 1982).

      . See, e.g., Ex parte Biggers, 85 Fla. 322, 95 So. 763 (1923); Aiello v. State, 338 So.2d 1101 (Fla. 4th DCA 1976); Phillips v. State, 147 So.2d 163 (Fla. 3d DCA 1962).


text:
    Dean HARPER and James P. Jenkins, Appellants, v. CONTINENTAL CAN COMPANY, INC., Appellee.
    No. 81-4.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.

      Jed Berman of Felder & Berman, Winter Park, for appellants.
    Norman F. Burke of van den Berg, Gay & Burke, P.A., Orlando, for appellee.
   COWART, Judge.

Appellants, former employees of appellee, when discharged, instituted grievance proceedings against appellee under a collective bargaining agreement and, suffering an adverse result, appealed to arbitration as provided in the agreement. When the arbitrator upheld their discharge, appellants filed an action in the circuit court as third party beneficiaries of the master collective bargaining agreement between appellee and appellants’ union. They appeal from a summary judgment entered against them.

Section 13.10 of the master collective bargaining agreement, under which appellants sought review of the prior dispute settlement procedure, provides that the arbitrator’s decision will be binding on the parties. As third party beneficiaries of the agreement, appellants have the same rights with the same limitations as the promisee-union and, since the union could proceed in arbitration, including moving to set aside an arbitration decision, appellants, as employees and beneficiaries, could do likewise. Therefore, appellants’ action in the trial court was essentially a suit to set aside the arbitration award and not an action for damages for wrongful termination of employment.

The trial judge was correct in ruling that this action was time-barred, since it was not filed within the 90 day limitations period provided by section 682.13, Florida Statutes (1981), a provision of the Florida Arbitration Code relating to petitions to vacate arbitration awards, which statute more specifically applies to this action than the 5 year statute of limitation provided by section 95.11(2)(b), Florida Statutes (1981), relating to “a legal or equitable action on a contract, obligation, or liability founded on a written instrument.” Section 95.11(4)(c), Florida Statutes (1981), which imposes a 2 year limitation on “an action to recover wages or overtime or damages or penalties concerning payment of wages and overtime” does not apply, regardless of whether appellants were hourly employees paid with wages or salaried employees. This is not a suit for wages due, but an action to set aside an arbitration award, notwithstanding that, if the arbitration award was set aside and it was determined that appellants’ discharge was wrongful, appellants’ damages might be partially measured in terms of lost wages.

An employee’s complaint to set aside a binding arbitration award made pursuant to a collective bargaining agreement must allege that the employee was deprived of procedural due process in the arbitration proceeding through the union’s failure to fulfill its duty to safeguard the employee’s interest. Air Line Pilots Association International v. Eastern Airlines, Inc., 632 F.2d 1321 (5th Cir. 1980); New Orleans Steamship Association v. General Longshore Workers, 626 F.2d 455 (5th Cir. 1980); Smith v. Daws, 614 F.2d 1069 (5th Cir. 1980); International Brotherhood of Pulp, Sulphite and Papermill Workers v. St. Regis Paper Co., 362 F.2d 711 (5th Cir. 1966); National Airlines, Inc. v. Metcalf, 114 So.2d 229 (Fla. 3d DCA 1959).

Appellants’ complaint was fatally deficient in failing to allege that their union failed to perform its duty to protect the employees’ interest and the summary judgment was correctly entered because of this insufficiency of the pleading, as well as because the action alleged was time-barred. See Gordon v. City of Belle Glade, 132 So.2d 449 (Fla. 2d DCA 1961). Appellants made no motion for leave to amend the defective pleading. See Heinlein v. Metropolitan Dade County, 216 So.2d 473 (Fla. 3d DCA 1968).

The summary judgment is

AFFIRMED.

DAUKSCH, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: ORFINGER, Judge.

text:
    BUILDERS SHORING AND SCAFFOLDING EQUIPMENT COMPANY, INC., Appellant/Cross Appellee, v. Lewis SCHMIDT, Appellee/Cross Appellant, and Bil-Jax, Inc., Appellee. Lewis SCHMIDT, Appellant, v. BUILDERS SHORING AND SCAFFOLDING EQUIPMENT COMPANY, INC., et al, Appellees.
    Nos. 81-164, 81-253 and 81-207.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.

      Roy B. Dalton, Jr., of Dean, Ringers, Morgan & Lawton, Orlando, for appellant Builders.
    James C. Fisher, Altamonte Springs, for appellee/appellant/cross-appellant Schmidt.
    H. Joseph McGuire of Parker, Johnson, Owen & McGuire, Orlando, for appellee Bil-Jax, Inc.
   ORFINGER, Judge.

Appellee Schmidt was injured when he leaned or climbed on a scaffolding cross brace which detached from its frame, causing him to fall. He sued Bil-Jax, Inc., the manufacturer of the scaffolding, and Builders Shoring and Scaffolding Equipment Company, Inc., (Builders), who leased the scaffolding to his employer. Builders crossclaimed against Bil-Jax for indemnity.

Schmidt’s cause of action against both defendants was based on separate counts of negligence and strict liability as to each defendant. At the conclusion of the plaintiff’s case, Builders moved for a directed verdict on the issue of negligence, contending that no evidence had been submitted on which that count could be sustained against it. The motion was granted and judgment entered accordingly. The remaining counts went to the jury. The jury returned a special interrogatory verdict in which it found that:

I. There was no negligence on the part of Bil-Jax.
2. The scaffolding equipment was not defective when sold by Bil-Jax.
3. The scaffolding equipment was defective when leased by Builders, and this defect was a legal cause of plaintiff’s injury.

Based on the'jury verdict and their apportionment of fault between Schmidt and Builders, the court entered a final judgment in favor of Schmidt against Builders, a final judgment in favor of Bil-Jax on Schmidt’s claim, and a final judgment in favor of Bil-Jax on Builders’ claim for indemnity. Builders appeals the final judgment in favor of Schmidt; Schmidt cross appeals the directed verdict entered on the negligence count; and Builders appeals the final judgment in favor of Bil-Jax on the indemnity crossclaim. We have consolidated all these appeals. We affirm the directed verdict in favor of Builders on the negligence count, affirm the final judgment for Bil-Jax on the claim for indemnity, and reverse the final judgment in favor of Schmidt against Builders for entry of judgment in favor of Builders.

The scaffolding in question was composed of sections which were put together on the job by the employees using it. The sections were fastened together by a gravity drop level pin known as a “T-lock.” Builders had purchased the scaffolding from Bil-Jax at different times. The last delivery of T-lock scaffolding from Bil-Jax to Builders was in January, 1974, thus the scaffolding in question had been in use for a minimum of five years prior to plaintiff’s fall in March, 1979. The scaffolding had been in use at plaintiff’s job for three weeks. At the time of delivery to the job site and initial assembly, the scaffold locks worked properly; plaintiff himself checked the scaffold. The scaffold was taken apart and reassembled several times by employees during the three weeks prior to the accident.

The jury verdict completely exonerated Bil-Jax. Thus, the crossclaim for indemnity cannot be sustained on the theory that Bil-Jax was the active tort feasor, because the verdict says that it was not. Builders suggests that if it is correct in its assertion that it is entitled to a new trial, that we should also reverse the judgment in favor of Bil-Jax, but in view of our decision here, we need not address that question.

Schmidt’s contention that there was error in directing a verdict in favor of Builders on the negligence count cannot be sustained because no evidence of negligence was submitted which could sustain that count. During the dialogue between plaintiff’s attorney, Builders’ attorney and the court on the motion for directed verdict, plaintiff’s attorney conceded that no evidence had been submitted to support the negligence claim, and the court agreed. There was no error in that ruling.

This leaves us only with the discussion of the issue of the sufficiency of the evidence to sustain the strict liability count against Builders as raised by its motion for directed verdict and for new trial, both of which were denied.

The standard for strict liability in Florida, established by West v. Caterpillar Tractor Company, 336 So.2d 80 (Fla.1976), and recently recited in Ford Motor Co. v. Hill, 404 So.2d 1049 (Fla.1981), is:

Strict liability should be imposed only when a product the manufacturer places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. The user should be protected from unreasonably dangerous products or from a product fraught with unexpected dangers. In order to hold a manufacturer liable on the theory of strict liability in tort, the use must establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of the proximate causal connection between such condition and the user’s injuries or damages, (emphasis added).

336 So.2d at 86-87. The test of “unreasonable danger” is “whether a reasonable manufacturer would continue to market his product in the same condition as he sold it to plaintiff with knowledge of the potential dangerous consequences the trial just revealed.” Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167, 1170 (Fla.1979). To hold the manufacturer liable, plaintiff must demonstrate the alleged defect existed when the product left the hands of the manufacturer. West; § 402A Restatement of Torts 2d, comment g. Thus, a directed verdict for the manufacturer has been found proper where the defect causing injury is attributable to improper maintenance of the product, improper use, or a part, after many years, simply wearing out. The generally accepted definition of an “unreasonably dangerous” condition is one which an ordinary user would not expect; thus changes in a product over a period of time, and the necessity for reasonable maintenance, are not defects. In Savage v. Jacobson Mfg. Co., 396 So.2d 731 (Fla.2d DCA 1981), the Second District Court of Appeal affirmed a summary judgment for a manufacturer where non-skid paint on a mowing tractor had worn off after four years. The court said:

A manufacturer cannot be expected to design products with component parts which will never wear out, regardless of the nature of use or maintenance. A manufacturer is entitled to anticipate that a consumer purchasing its product will use reasonable care in maintaining it. The product in this case was a relatively simple piece of agricultural equipment for use by farmers or harvesters who generally have some degree of experience in the maintenance of agricultural equipment. All persons who dealt with this particular wagon testified they knew that cotter keys will wear out and need to be replaced periodically.
A product is defective when the risks are greater than a reasonable buyer would expect, (citation omitted). A reasonable buyer ... should expect [this] product to contain consumable parts which require inspection and maintenance.

Id. at 733, quoting Foster v. Marshall, 341 So.2d 1354, 1361 (La.App.1977). See generally, Annot, 13 ALR 3d 1057, § 6[e], Effect of defect or change occurring after product leaves defendant’s hands (1967).

Here, plaintiff’s expert testified that this type of locking device can jam when the hole into which the locking pin drops is not free from dust, cement and other debris of a construction job, and that a proper warning device should be attached to each section of the scaffold. However, the evidence is clear that the locking device worked perfectly well when Bil-Jax delivered it to Builders and that it worked equally well when Builders delivered it to the job site; and that the required warning device was affixed when the scaffolding left the manufacturer’s hands. There was no evidence that the warning device was not still affixed to the scaffold which collapsed when it was delivered to the job by Builders.

Thus it appears that no “defect” in the scaffold was the proximate cause of this accident. Everyone appears to admit that had the lock dropped properly, the brace could not have come loose. According to the evidence, industry standards require that the person putting the scaffold together must check to determine if the brace is secure. As plaintiff agrees, dirt and other debris is unavoidable on construction sites, and so it follows that it is the user’s job to test the brace before use to assure himself that this on-site condition has not jammed the hole. Failure to make the device foolproof does not in itself render the product “defective.”

In Kroon v. Beech Aircraft Corp., 628 F.2d 891 (5th Cir. 1980), an aircraft was equipped with a “gust-lock” system so that the movable airplane parts (rudder, etc.) would not be damaged by wind. The plane cannot take off with the gust-lock engaged, although it can maneuver on the ground. Release of the gust-lock is part of the pre-take off check. Kroon, the pilot, did not check the controls before attempting take off; he sued the plane manufacturer for design defect in not designing a “fail-safe” gust-lock, i.e., the manufacturer should have prevented the plane from moving with the gust-lock engaged.

The Fifth Circuit, based on Florida law, affirmed summary judgment for the plane manufacturer. It was Kroon’s responsibility to check the gust-lock; he was quite aware of it; “Kroon’s negligence was the sole proximate cause of the accident.” The situation is like a pilot taking off with only one gallon of fuel; “it strains reason to suggest that the failure to make the aircraft foolproof in that detail proximately causes the resulting disaster if an experienced pilot familiar with the particular aircraft were to take off without checking to see if he had sufficient fuel.” 628 F.2d at 893-94. See also Watson v. Lucerne Mach. & Equip., Inc., 347 So.2d 459 (Fla.2d DCA 1977). In sum, the scaffold lock, five years old, to be checked by the user, is not “dangerous to an extent beyond that which would be contemplated by the ordinary consumer . . ., with the ordinary knowledge common to the community as to its characteristics,” and is thus not “unreasonably dangerous” under § 402A, Restatement, Torts, 2d, comment i; accord, Savage v. Jacobsen Mfg. Co., 396 So.2d 731 (Fla.2d DCA 1981); Foster v. Marshall, 341 So.2d 1354 (La.App.1977).

We have considered the other issues asserted by the parties and find them without merit. The final judgment in favor of Schmidt and against Builders is reversed with directions to enter judgment for Builders. The other judgments appealed from are affirmed.

AFFIRMED in part, REVERSED in part, with directions.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . Rogers v. Unimac Co., Inc., 115 Ariz. 304, 565 P.2d 181 (1977) (automatic cut-off switch in commercial washer not maintained and not functioning; manufacturer not responsible to warn of dangers arising from improper maintenance).

      . Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197 (Ky.1976) (grinder not unreasonably dangerous when run at 6000 RPM; warnings affixed to product; grinder run at 9000 RPM).

      . Foster v. Marshall, 341 So.2d 1354 (La.App.1977) (“cotter pin” holding trailer to truck wears out after ten years).

      . See Auburn Machine Works v. Jones, 366 So.2d 1167 (Fla.1979).


text:
    THE FLORIDA COMPANIES, a Florida corporation, Appellant, v. ORANGE COUNTY, FLORIDA, Appellee.
    No. 81-450.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.

      Darryl M. Blood worth and Lynn James Hinson of Dean, Mead, Egerton, Blood-worth, Capouano & Bozarth, P. A., Orlando, for appellant.
    Karen A. Edwards, Asst. County Atty., Orange County Legal Dept., Orlando, for appellee.
   COWART, Judge.

Appellant, The Florida Companies, appeals from an order of the circuit court denying certiorari to review Orange County’s refusal to approve appellant’s subdivision plat. Appellant contends that the county’s refusal to approve the plan constitutes an unconstitutional taking of property, is barred by equitable estoppel and is an improper arbitrary and capricious exercise of the county’s police power.

This action involved the county’s disapproval of the plat for a subdivision known as “Greenhill Village.” The plat was first submitted to the county in 1973 and the developers obtained preliminary approval at that time. The subdivision contained 327 lots and sewage treatment was accomplished by an on-site plant. A substantial amount of work was done on the subdivision, including seventy percent completion of the sewage treatment plant and installation of lines servicing approximately one-half the lots. However, before final approval and sale of the lots took place, the project was halted because of a slump in the land sales market. On May 6, 1976, Guardian Mortgage Investors, the mortgage lender on the subdivision project, foreclosed its mortgage and became fee simple owner of the land.

At the time of preliminary approval, section 6.2.7 of the Orange County Code provided that the final subdivision plans were to be submitted within one year of the preliminary approval. The section further provided that “the Board may void the preliminary plans if substantial work has not been accomplished within one (1) year after approval of such preliminary plans.” On November 30, 1976, Hastings, the county “public works director,” sent a letter to Guardian citing this section and stating that, in accordance with this section, “the Engineering approval for the subject project is hereby cancelled. It will bé necessary for the plans to be resubmitted to this office for approval prior to commencing any construction on this project.” On April 30, 1980, Guardian resubmitted the plat for preliminary approval, with minor changes. At the time of both submissions, approximately one-half the property was zoned R-1A and one-half was zoned R-1AA, permitting single family dwellings on 7500 square foot and 10,000 square foot lots, respectively.

Between the first and second submissions, Orange County had passed its “growth management policy.” Section 3.1.1 of this policy provides that “Public or approved private central water and sewer systems should not be permitted in the Rural Service Area [including the property in question] until other appropriate urban services are available, or until the Board of County Commissioners determines that a public health hazard exists requiring a central water or sewer system.” Based on this policy, the county commission denied approval of the subdivision plat, stating that sewage in the subdivision would have to be handled by septic tanks, which meant that the lots would have to be a minimum of one acre and that some of the lots would require elevation because of the high water table.

Guardian sought review of the county’s decision by petition for certiorari, alleging that the county was equitably es-topped from denying Guardian use of the sewage treatment plant, since the plant had been erected in reliance on the county’s earlier approval and that the county’s decision was arbitrary, unreasonable and capricious. Appellant Florida Companies was substituted for Guardian. The circuit court denied certiorari, and Florida Companies appealed.

Appellant’s contention that the county’s refusal to approve a subdivision on its property only if septic tanks, rather than the existing treatment plant, are used constitutes a “taking” of its property by use of the police power without compensation and without due process of law was not raised in the appellant’s petition for writ of certio-rari in the circuit court. Consequently, this court cannot consider that issue.

Appellant’s petition for writ of certiorari did allege that approximately $251,000 was disbursed by it to the developer, in reliance upon the preliminary subdivision plat approval, to finance construction of the sewage treatment plant and service lines. Appellant now contends that the county’s 180 degree policy reversal would result in the complete loss of this investment and thus, since the investment was made in reliance upon the county’s approval, the county should be estopped from denying appellant the right to use the treatment plant.

The doctrine of equitable estoppel may be invoked against a governmental body as if it were an individual. Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976). This doctrine will preclude a municipality from exercising its police power to prohibit a particular use of land where:

[A] property owner (1) in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he acquired.

Hollywood Beach, 329 So.2d at 15-16.

Accord, Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla.1963); Jones v. First Virginia Mortgage and Real Estate Investment Trust, 399 So.2d 1068 (Fla.2d DCA 1981); Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla.2d DCA 1975). The facts of this case well demonstrate the elements of the doctrine as stated by the supreme court. The county preliminarily approved the subdivision plan, including the use of a package sewage treatment plant. In reliance on this approval, substantial expenditures were made in good faith to construct the plant and service lines.

The county argues that, since only preliminary approval of the subdivision plat was obtained, the developer was not justified in making expenditures until final approval had been obtained. Furthermore, it contends that preliminary approval was revoked under section 6.2.7 of the Orange County Code, providing that preliminary approval may be voided if substantial work has not been accomplished under the approval within one year. First, this alleged revocation cannot in itself affect the application of the doctrine of estoppel, because it occurred after the subject expenditures had been made. Second, the letter which allegedly revoked the preliminary subdivision approval was insufficient to do so because section 6.2.7 provides that preliminary approval can be voided by the board, while the letter was executed by the “public works director”; also, the letter only purports to cancel the “engineering approval” for the project.

The fact that the expenditures were made upon preliminary approval, rather than final approval, would likewise not affect the application of estoppel. In Sakol-sky, the supreme court approved the application of estoppel where expenditures had been made upon tentative approval of preliminary plans. Furthermore, in Town of Largo v. Imperial Homes, estoppel was applied even though no building permit had been issued and no physical changes had been made on the property. Application of equitable estoppel does not depend on absolute, binding, final approval from the governmental body:

Stripped of the legal jargon which lawyers and judges have obfuscated it with, the theory of estoppel amounts to nothing more than an application of the rules of fair play. One party will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced or permitted to stand thereon. A citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations, whether they be in the form of words or deeds... .
Imperial Homes, 309 So.2d at 573.

Several courts have held, in connection with the doctrine of equitable estoppel, that a landowner is entitled to proceed in good faith on a preliminary approval by a governmental body and is not required to take into account the fact that the “official mind” might change pending the issuance of final approval. Sakolsky v. City of Coral Gables, 151 So.2d at 435; Jones v. First Virginia Mortgage and Real Estate Investment Trust, 399 So.2d at 1074; Andover Development Corp. v. City of New Smyrna Beach, 328 So.2d 231 (Fla. 1st DCA 1976).

The county argues that “nothing can call forth the court of equity into activity but conscience, good faith and reasonable diligence,” citing Horowitz v. United National Corp., 324 So.2d 189 (Fla. 3d DCA 1975). The county contends that the developers did not act in good faith because no final plan was ever submitted. The expenditures upon which estoppel is predicated were made prior to the time that final approval was to be sought, and final approval was not sooner sought because of the financial status of the developers.

The county also challenges the appellant’s standing to raise the question of estoppel. Appellant was not the developer of the property; the expenditures were made by the original developer, and appellant was the lender for the project. Appellant ultimately obtained the project through foreclosure of its mortgage. The fact that one is a lienor or a successor in title under foreclosure has been held to make no difference as to that person’s ability to invoke the doctrine of equitable estop-pel against a governmental body, so long as that person has justifiably and in good faith suffered detriment in relying upon the governmental body’s official actions. Jones v. First Virginia Mortgage and Real Estate Investment Trust; Jones v. U. S. Steel Credit Corp., 382 So.2d 48 (Fla.2d DCA 1979). The county argues that in Jones v. First Virginia, the court held that the construction mortgage lender did not have standing. However, the record in that case showed that the lender did not disburse funds in reliance upon the zoning; the lender was not required to disburse any funds until final approval and building permits had been obtained. The lender, however, disbursed funds before such was obtained, thereby evidencing to the court his non-reliance upon the zoning status of the property. The instant case is more analogous to Jones v. U. S. Steel, in which the court allowed the lender to raise equitable estop-pel. The record in that case showed that the lender had made disbursements relying on the county’s zoning of the property. In the instant case, the appellant’s disbursements of funds were likewise made in reliance upon the city’s preliminary approval of the subdivision as including a package treatment plant.

The appellant’s petition for certiorari demonstrated that the county should be es-topped from denying appellants the right to develop their property in accordance with the plat preliminarily approved, since substantial expenditures had been made in reliance on the county’s approval of the plat. The circuit court should have granted the writ of certiorari on this ground.

The appellant also contends that the county’s disapproval of the plat based on its growth management- policy was an arbitrary and capricious exercise of the policy power. City of Boca Raton v. Boca Villas Corp., 371 So.2d 154 (Fla. 4th DCA 1979). But see Moviematic Industries Corp. v. Board of County Commissioners of Metropolitan Dade County, 349 So.2d 667 (Fla.3d DCA 1977). In light of our decision, we need not reach that issue.

In summary, the county is equitably estopped from denying approval of the subdivision plan after the developer made substantial expenditures in reliance upon the county’s preliminary approval of the project. The decision of the circuit court is reversed and the county’s disapproval of the plat is quashed. If the appellants have satisfied all the conditions within the preliminary approval, to which final approval was subject, they are entitled to final approval of the plat.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Appellant properly sought review of the county commission’s decision by petition for writ of certiorari filed in the circuit court. The circuit court has jurisdiction through certiorari to review quasi-judicial decisions of a county commission. G-W Development Corp. v. Village of North Palm Beach Zoning Board of Adjustment, 317 So.2d 828 (Fla. 4th DCA 1975); accord, City of Pompano Beach v. Daniels, 327 So.2d 849 (Fla. 4th DCA 1976). Since the circuit court was acting in review of administrative action, appellant had a right of appeal from the circuit court’s order denying certiorari to the district court of appeal. McCray v. County of Volusia, 400 So.2d 511 (Fla. 5th DCA 1981); Odham v. Petersen, 398 So.2d 875 (Fla. 5th DCA 1981); United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla.3d DCA 1979); contra, City of Deerfield Beach v. Vaillant, 399 So.2d 1045 (Fla. 4th DCA 1981). Since this court is acting on plenary appeal from denial of a writ of certiorari, its scope of review is identical to that of the circuit court, and is to determine whether the county acted within its jurisdiction, whether it departed from the essential requirements of law, and whether its decision was supported by substantial competent evidence. Odham; McCray.

      . This court, rather than reversing the circuit court’s order denying certiorari and remanding to the circuit court to have the circuit court grant the writ and quash the county’s decision, may itself exercise the circuit court’s appellate jurisdiction and quash the decision of the county. Art. V, § 4(b)(3), Fla.Const. (1972).


author: DAUKSCH, Chief Judge.

text:
    STATE of Florida, DEPARTMENT OF LEGAL AFFAIRS, etc.; Seminole Park & Fairgrounds, Inc., etc., Seminole Greyhound Park, Inc., etc., Appellants, v. SANFORD-ORLANDO KENNEL CLUB, INC., etc., Daytona Beach Kennel Club, Inc., etc., Appellees.
    No. 81-789.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.

      David U. Strawn, of Akerman, Senterfitt & Eidson, and Ernest R. Drosdick of Lowndes, Drosdick, Doster & Kantor, Or-eando, for appellants, and John J. Rimes, III, Dept, of Legal Affairs of the State of Florida, Division of Administrative Law, and Mitchell D. Franks, Dept, of Legal Affairs of the State of Florida, Civil Section, Tallahassee, for appellant, State of Florida, Department of Legal Affairs.
    Marvin E. Barkin and Anne Y. Swing, of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, P. A., Tampa, and Mack N. Cleveland, Jr., of Cleveland & Bridges, Sanford, for appellee, Sanford-Orlando Kennel Club, Inc.
    J. Kermit Coble, Noah C. McKinnon and John R. Godbee, Jr., of Coble, McKinnon, Rothert, Barkin, Clayton, Vukelja & God-bee, P. A., Daytona Beach, for appellee, Daytona Beach Kennel Club, Inc.
   DAUKSCH, Chief Judge.

This is an appeal from a final judgment of the trial court adjudging Section 3 of Chapter 80-88, Laws of Florida (1980) (hereinafter referred to as section 550.075, Florida Statutes) constitutionally invalid. The plaintiffs below, appellees Sanford-Orlando and Daytona Beach Kennel Clubs, sought declaratory relief in their complaint against appellant Seminole Park, attacking the constitutional validity of section 550.075 on ten grounds. In a carefully explained opinion the trial judge held section 550.075 unconstitutional and permanently enjoined Seminole Park from further operation of dograce meetings pursuant to the invalid statute.

The trial court found that: 1) section 550.075 is either a general law of local application or a special law enacted in the guise of a general law; 2) as a special law enacted in the guise of a general law the act is invalid because it fails to meet the requirements of Article III, Section 10, Florida Constitution; 3) as a general law of local application the act is invalid because the purported classification of tracks therein is arbitrary, and in reality a descriptive technique used to identify Seminole to the exclusion of other potential permittees; 4) as either a special law enacted in the guise of a general law, or a general law of local application, it is invalid as violating Article III, Section 11(a), (12) and (20) because it grants a privilege to Seminole, a private corporation, and purports to regulate an occupation already regulated by an agency and board operating under the Department of Business Regulation; and 5) the provisions of section 550.075(3), purporting to require issuance of an annual license in perpetuity and for a particular portion of each year is invalid as a denial of equal protection and due process of law.

When an appellate court has occasion to pass upon the validity of a statute after a trial court has found it to be unconstitutional, the statute is favored with a presumption of constitutionality. In re Estate of Caldwell, 247 So.2d 1 (Fla.1971). Legislative enactments are presumptively valid and, when reasonably possible, all doubts as to validity of a statute are to be resolved in favor of its constitutionality. State v. Cormier, 375 So.2d 852 (Fla.1979). If there is a reasonable interpretation that may be placed on the statute which would render it valid, a District Court of Appeal is bound to adopt such an interpretation. Perry v. City of Ft. Lauderdale, 387 So.2d 518 (Fla. 4th DCA 1980).

It appears that section 550.075 was enacted solely to enable Seminole to convert their harness racing permit to dogracing and to allow Seminole to conduct summer dograce meetings, a feat that could not be accomplished under existing law. Although enacted as a general law, we find section 550.075 to be in reality a special law or general law of local application and thus constitutionally invalid for failing to comply with Article III, Section 10 and Section 11, Florida Constitution.

I

A statute relating to subdivisions of the state or to subjects, persons or things of a class, based upon proper distinctions and differences that inhere in or are peculiar or appropriate to the class, is a general law. Carter v. Norman, 38 So.2d 30 (Fla.1948). General laws operate uniformly, not because they operate upon every person in the state, but because every person brought within the circumstances provided for is affected by the law. Laws are general and uniform in their operation upon all persons in like situation, and the fact of their being general and uniform is not affected by the number of persons within the scope of operation. Cesary v. Second National Bank of North Miami, 369 So.2d 917, 920 (Fla.1979).

A special law is a statute relating to particular persons or things or other particular subjects of a class; a local law is a statute relating to particular subdivisions or portions of the state or to particular places of classified locality. Local laws, often termed general laws of local application, use classification schemes to restrict application to particular localities. On occasion, the legislature has attempted to enact general laws under the guise of being general laws but which were operative as special or local laws, as determined from obvious purpose or legal effect as gathered from language or context. State ex rel. Baldwin v. Coleman, 148 Fla. 155, 3 So.2d 802, 803 (Fla.1941).

Section 550.075 was not enacted as a special law since it was not designed to become effective upon approval of the electors in the area affected. Proceeding on the premise that section 550.075 is thus a general law of local application, the act may be a valid general law only if 1) the classification scheme has a reasonable basis in the subject regulated and is not so designed as to fit some particular county or subject, and 2) the subject of regulation is not one of the 21 subjects proscribed by Article III, Section 11.

II

The trial court examined the classification scheme in section 550.075 and concluded the scheme was designed to fit a particular subject, namely, Seminole:

The purported classification of permit holders to which Chapter 80-88 applies is contained in Section (a) 1 and 2, and is similar in many respects to classification schemes contained in statutes construed by our Florida Supreme Court in two cases under the 1885 Florida Constitution. Though decided only 14 months apart, different results obtained. In West Flagler Kennel Club Inc. v. Florida State Racing Commission, 153 So.2d 5 (Fla.1963), Chapter 61-1940, Laws of Florida, was declared invalid. In Biscayne Kennel Club, Inc. v. Florida State Racing Commission, 165 So.2d 762 (Fla.1964) the validity of Chapter 63-130, Laws of Florida, was upheld. This court is unable to discern any reason for the conflicting results. But, though Biscayne is later in point of time, it is the opinion of this trial court that the West Flagler case more nearly comports with the result which should obtain in this cause using the 1968 Constitution as the standard. See Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, Inc., 245 So.2d 625 (Fla.1971) (discussion at page 629 concerning the Biscayne case).
The evidence in the case now before the court shows that when Chapter 80-88 was enacted there were only two holders of harness racing permits in Florida, Tourist Attractions, Inc., at Pompano Beach (hereinafter called “Pompano”) and Seminole (sometimes known as “Seminole Down”). Of the two only Seminole met the qualifications for conversion to a dog track because during the specified 10-year period it did not (1) have an average daily handle for any racing meet in excess of $125,000, and (2) yield gross revenue to the State in excess of $350,000 per year. The Pompano track could not qualify for at least another 10 years (based on official data through fiscal year ended June 30, 1979). Legislative staff analyses show that Section 3 of CS/HB 595, later enacted as Section 3 of Chapter 80-88, was intended to apply only to the “harness-to-dog permit conversion” in Seminole County and to Seminole Downs.

Appellants argue that section 550.075 is a general law operating uniformly since it is potentially applicable to every other harness track and does not prohibit harness tracks not yet in existence from converting to dogracing in the future. This contention can be dispensed with merely by reading section 550.075, since the statute clearly affects only Seminole, because: 1) only Seminole could qualify for the initial license to be issued for the 1980-81 season, and 2) that license is the only one capable of being renewed each season thereafter. The ten year requirement “immediately preceding application” mandates that any permit holder seeking conversion have a ten year history of revenue below the stated maximum. Appellees convincingly argue that the legislature probably did not intend for “instant conversion” whereby an entity requests a harness permit, the voters ratify that harness permit, and then shortly thereafter the entity “converts” (under section 550.075) the voter approved harness permit into a non-voter approved dog racing permit.

Ill

As either a special law or general law of local application, section 550.075 is invalid as violating Article III, section ll(a)(12) because it grants a privilege to a private corporation, Seminole. There was sufficient evidence that the only intent and purpose in enacting section 550.075 was to allow Seminole to convert from harness racing to dog racing.

Section 550.075 is also invalid as a special law or general law of local application because it violates Article III, section ll(a)(20). Quoting from the Final Judgment of the trial court:

That Section 3 usurps the authority and duties of state agencies charged with regulating pari-mutuel wagering is demonstrated by comparing its provisions with those of other statutes. Section 3 mandates that the Division of Pari-mutuel Wagering issue a dog racing permit merely for the asking. This is contrary to the regulatory scheme applicable to all others seeking racing permits. Section 550.02, Florida Statutes, requires such applicants fulfill and meet all requirements, conditions and qualifications to Chapter 550, Florida Statutes, as well as all rules and regulations (of uniform application and effect) adopted by the Division of Pari-mutuel Wagering.

The application process for a permit to conduct racing is as follows: Under section 550.02, Florida Statutes, the Division of Pari-mutuel Wagering is charged with issuing permits to conduct racing and to regulate all aspects of such racing. Section 550.02(6) authorizes the Division to grant the permit if the' applicant duly fulfills and meets all requirements, conditions and qualifications set forth in Chapter 550 and the rules and regulations of the Division. Section 550.05 gives the procedure for application for a permit; a permit is not effective to authorize racing until ratified by a majority of the electors pursuant to section 550.06. Once the permit is granted and ratified, the Division shall grant to the per-mittee a license to conduct racing, under section 550.07 which further requires that “all subsequent annual applications for a license by said ratified permit holder shall be accompanied by proof . . . that the ratified permit holder still possesses all the qualifications prescribed by this chapter . . . . ” Thus, the ratified permit holder must reapply annually for a license to conduct racing for that year.

Section 550.075 issues a license and dog-racing permit (via the conversion) to the applicant, with such permit not being subject to the regulatory procedure for all other permit applications. The ratified harness racing permit holder can switch to dogracing without meeting the requirements of section 550.02, section 550.05 and section 550.06.

The trial court also found that section 3 of the Act mandates that the Division annually issue to Seminole a license to conduct dogracing during the season beginning May 3, ending September 1, which in effect abrogates the Florida Pari-Mutuel Commission’s authority under section 20.16(4) and section 550.011(1). The Commission consists of four members appointed by the governor; it is within the Department of Business Regulation but it is not one of the five Divisions. The Division of Pari-Mutuel Wagering is charged with licensing, permitting, etc. under section 550.02; setting racing dates are not within the Division’s authority except to the extent allowed under section 20.16(5), whereby the Director of the Division has the authority only to approve minor changes in racing dates after the Commission has awarded dates, so long as there is no objection from any other permit holder or other affected party. If there is an objection, any date change must be approved by the Commission.

Under both section 20.16(4) and section 550.011(1), the Commission “shall not delegate this function to any subordinate officer or division of the Department of Business Regulation.”

IV

Section 550.075 amended section 550.-37(13), Florida Statutes (1979), which also provided for conversion of harness permits to dogracing permits. Under the prior statute, section 550.37(13), a racetrack owner could conduct dogracing after application if he met the requirements of subsection (a) and if the Department issued him a license for that year. The licenses were annually issued, provided that the threshold pool and revenue conditions of sub-sections (1) and (2) had been met at the time of the initial application. As amended,- however, the holder of a ratified permit can apply only in the 1980-1981 season for the conversion of the permit, and a license to conduct dograc-ing. Each year thereafter the holder of such a converted permit is entitled to have his license renewed. Under the prior statute, the permit was never converted; the regulatory body continued to exercise control by annually issuing a license to conduct dogracing. Since permits have to be ratified by the electorate, as required by law, section 550.075 provides a method for Seminole to permanently convert their horserac-ing permit to a dogracing permit without complying with the ratification requirement.

Section 550.075 conflicts with section 550.05(2) and section 550.06 which requires ratification by the electors before a permit is effectual to authorize a race. Section 550.075 is also in conflict with other existing laws. Section 550.05(2) provides that:

No permit shall be issued by the division nor voted upon in any county to conduct running horseraces, harness horseraces or dograces at a location within 100 miles of another location for which a permit has been issued and a racing plant located.."

And, section 550.04 provides that summer dog racetrack meetings shall not be held except in a certain geographical area, namely Flagler and Volusia Counties.

Courts must, if possible, avoid such construction as will place a particular statute in conflict with other apparently effective statutes covering the same general field. But courts are also to avoid an interpretation which would produce unreasonable consequences. Wakulla County v. Davis, 395 So.2d 540 (Fla.1981).

Section 550.075 is unconstitutional as it is in effect a special or local law enacted in the guise of a general law and thus invalid for failure to comply with Article III, Section 10, Florida Constitution. The purpose of the constitutional restrictions in Article III, Section 10 was explained in Milner v. Hatton, 100 Fla. 210, 129 So. 593, 596 (Fla.1930):

... It therefore fails to comply with the requirements of either the Constitution or the Statute, one of the purposes of both of which was to draw certain safeguards around the passage of local and special legislation by which the people of the locality to be affected would be given fair notice of the intention to get such legislation adopted, and of the substance thereof, and that the legislative journals should affirmatively show that such fair notice had been given as to the particular bill.

As a special or local law, section 550.075 is also unconstitutional as violative of Article III, Section 11(a), (12) and (20) in granting a privilege to Seminole and in usurping the duties and authority of both the Division and Commission on Pari-mutuel Wagering.

We have agreed in all respects with the well-reasoned judgment of the trial court in the particulars discussed above. We have not discussed his ruling that the statute in its effect violates constitutional rights of due process and equal protection because we deem it unnecessary to consider those findings.

AFFIRMED.

ORFINGER and COBB, JJ., concur.

      . Section 550.075, Florida Statutes (1980), reads:
      Conversion of ratified harness racing permit to dogracing license:
      (1)Any holder of a ratified permit to conduct harness racing under the laws of this state, which permit has not been revoked in a referendum election, is entitled to apply to the Division of Pari-mutuel Wagering of the Department of Business Regulation for a license to conduct dograce meetings at such track, in lieu of harness racing, for the same number of racing days each season to which dog racetracks in counties having more than one dogracing track are entitled by law, subject to all of the provisions of the law concerning pari-mutuel taxes paid by tracks conducting dogracing, provided the following conditions are met:
      (a) The average daily pari-mutuel handle in any racing meet conducted by the harness track during the 10 years preceding application to the Division of Pari-mutuel Wagering, as herein provided, has not exceeded $125,-000.
      (b) The gross revenue to the state for the operation of the harness track for the 10 years immediately preceding application to the Division of Pari-mutuel Wagering, as herein provided, does not exceed the sum of $350,000 per year.
      (2) The Division of Pari-mutuel Wagering, upon application of the holder of a ratified permit which meets the requirements of subsection (1), shall convert the permit and shall issue to the holder of the permit a license to conduct dograce meetings as set forth in subsection (1), provided the conditions stated herein are met at the time of the application to conduct dogracing, any provision of any law or rule in conflict herewith or to the contrary notwithstanding.
      (3) On and after June 11, 1980, and upon application of the holder of a ratified permit which meets the requirements of subsection (1), the Division of Pari-mutuel Wagering shall issue to the holder of such permit a license to conduct a dograce meeting, which shall end on September 1 during the 1980-1981 racing season; and each meeting thereafter, the division shall renew, as provided by law, such license for the period starting May 3 through and ending on September 1.

      .Pursuant to section 550.075, Seminole had obtained a greyhound racing permit for the 1980-81 summer season. The Division of Parimutuel Wagering granted the summer racing dates of May 3, 1981 through September 1, 1981 to Seminole. Appellee Daytona Beach Kennel Club had previously been granted summer racing dates of May 8, 1981 through September 12, 1981.

      . Article III, Section 10 of the Florida Constitution provides that:
      No special law shall be passed unless notice of intention to seek enactment thereof has been published in the manner provided by general law. Such notice shall not be necessary when the law, except the provision for referendum, is conditioned to become effective only upon approval by vote of the electors of the area affected.

      . Article III, section 11(a) of the Florida Constitution requires that there be no special law or general law of local application pertaining to:
      (12) private incorporation or grant of privilege to a private corporation;

      (20) regulation of occupations which are regulated by a state agency; ....

      . Chapter 61-1940 was drafted so that it applied only to Ponce de Leon Trotting Association, of St. Johns County. The law purported to validate all harness racing permits issued after January 1, 1964 under which racing had been conducted during the five-year period preceding enactment; under certain conditions the holders of such permits were permitted to conduct harness racing in Broward County. The court found the primary purpose of the act was to provide for harness racing in Broward County, that there was no reasonable relationship between the Act’s purpose and the criteria used for classification of permit holders described, and that the classification scheme was in reality a descriptive technique employed merely for identification of certain permit holders, thus making the Act arbitrary and unequal in the same sense as any law applicable only to specific persons or things.

      . Chapter 63-130 allowed the holders of all dog, winter horse and harness racing permits with average daily pari-mutuel pools of less than $20,000 for each of two years immediately preceding application to conduct harness racing during the winter horse racing season in any county that had by referendum approved pari-mutuel pools at race tracks two or more times, but only in counties having one licensed horse track the average daily pari-mutuel pool of which was $400,000 or more for each of the same two years. Only the holder of the Monroe County dog racing permit could qualify and only Broward County qualified as the county to which the permit could be transferred. The court apparently considered the purpose of the law to be that of increasing state revenues (which could be expected to result from the transfer). It discounted the improbability of other race tracks ever falling into the statutory classification, and held that it was the prospective application to future conditions that renders a classification constitutional if otherwise reasonable. It affirmed dismissal of the action by the trial court on findings that some counties might reasonably expect to come within the class covered, and that the Act was a general law of uniform operation.

      . Section 550.05, Florida Statutes, provides:
      ... no permit shall be effectual to authorize any race until ratified by a majority of the electors participating in said election, and in the county in which applicant proposes to conduct racing ....

      . The application made for conversion of the “hamess-to-dog racing permit” is not to be confused with the application of the permit holder for annual license to conduct racing. Documents appearing as a part of Plaintiff’s Exhibit #14 include the August 22, 1980 letter of the attorney for Seminole Park and Fairgrounds, Inc. requesting that the Director of the Division of Pari-mutuel Wagering “cause the Division ... to convert the existing harness racing permit to a permit for conducting dog race meetings, and issue to Seminole .. . the appropriate license for that purpose.” The Director’s response of August 27, 1980 states that “... the Division hereby confirms and ratifies your conversion of Seminole ... to a permit used for greyhounds under applicable Florida Statutes .... ” No formal application or other record of proceedings concerning conversion have been found.

      . Under section 20.16(4), the Commission only has the authority to:
      (a) Hear and approve the dates and changes of dates for racing and the dates within which any track or fronton may be operated as prescribed by Chapters 550 and 551, and it shall not delegate said function to any subordinate officer or division of said department.

      And under section 550.011(1), the Commission shall:
      . .. hear and approve the dates for racing in any county where one or more horse tracks or one or more dog tracks are seeking to race and hold ratified permits upon which any track can operate in any county, apportioning such dates to the several tracks in such counties as provided by law .... The Commissioner shall not delegate this function to any subordinate officer or division of the Department of Business Regulation.

      . Current geographical preemption is consistent with acknowledged legislative power to create, temporarily at least, monopoly franchises in area of dog and horseracing. Biscayne Kennel Club, Inc. v. Florida State Racing Commission, 165 So.2d 762 (Fla.1964).


text:
    William Robert RYAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-947.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.
    Michael H. Hatfield, Umatilla, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

See State ex rel. Reichle v. Edwards, 409 So.2d 1043 (Fla.1982).

AFFIRMED.

DAUKSCH, C. J., COBB and FRANK D. UPCHURCH, Jr., JJ., concur.