author: BASKIN, Judge.

text:
    MARRIOTT CORPORATION, a Delaware Corporation, Appellant, v. METROPOLITAN DADE COUNTY, etc., et al., Appellees.
    No. 79-1365.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Rehearing Denied June 4, 1980.

      Taylor, Brion, Buker & Greene and R. Bruce Wallace, Jr., Miami, for appellant.
    Robert Ginsburg, County Atty. and William W. Gibbs, Asst. County Atty., Shutts & Bowen and Eric B. Meyers, Miami, for ap-pellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

This appeal challenges a final declaratory judgment approving an award by the Dade County Board of County Commissioners of a contract to operate a bar at the Miami International Airport to Jerry’s, Inc. instead of to the Marriott Corporation. This court must decide whether the trial court committed error in approving the award to Jerry’s on the ground that it was a local firm, when Marriott’s bid returned a higher percentage of the gross revenues to Dade County. We find the trial court erred and reverse.

In 1978, Dade County published an invitation for proposals for competitive bids under an “Operational and Management Services Agreement” to sell alcoholic beverages in the new International Satellite facility at the Miami International Airport. The invitation was advertised pursuant to Section 125.012(17), Florida Statutes (1977) and Section 125.35, Florida Statutes (1977). Each bidder was required to post a guarantee deposit or bid bond in the amount of $25,000 at the time of submitting its proposal.

Compensation to the successful bidder was to be in the form of gross revenues retained from the sale of alcoholic beverages. The successful bidder was to retain 75% of the first $42,000 of monthly gross revenues and to retain the percentage of the monthly gross revenues in excess of $42,000 proposed by the bidder. The successful bid would be the lowest percentage of gross revenues in excess of $42,000 per month to be retained by the concessionaire. There was to be no competitive bidding on the first $42,000 of gross revenues per month, of which all bidders would retain 75% while remitting the remaining 25% to the county. The successful bidder would be responsible for maintenance repair and cleanliness of the third floor bar area and required to provide drinks and snacks to the third floor bar patrons as well as to employ those persons necessary to serve drinks and snacks and manage the bar. The proposed management services agreement was for a fixed term of three years commencing after the people-mover connecting the International Satellite Terminal becomes operational. The agreement was to be renewable at Dade County’s option for an additional seven years, subject to Dade County’s right to negotiate the modification of compensation.

Instructions to proposers also provided that the parties would be evaluated with respect to:

1. The net profit payment to County as contained in the Proposal Form [the percentage bid];
2. Depth of management, including training schools and programs for management;
3. Experience at other local, state and national locations and ability to provide experienced personnel capable of servicing international travelers;
4. Marketing and consumer research programs;
5. Prior experience in sales outlets of the kind anticipated herein;
6. Number of outlets and their most recent available average gross revenues, separately stated for the outlets for Dade County, the State of Florida, the United States, Central and South America and the Caribbean and Europe;
7. Other factors which will best serve the highest public interest.

Marriott’s bid proposed to retain 40% of the gross revenues generated by the franchise in excess of $42,000 per month and to remit to the county 60% of the gross revenues in excess of $42,000 per month. Jerry’s bid proposed to retain 50% of the gross revenues in excess of $42,000 per month and to remit 50% to the county. A selection committee interviewed both bidders and recommended that Marriott be awarded the contract. The committee determined that both Marriott and Jerry’s were “equally qualified to provide the services of the types and caliber required in this unique facility.” The committee letter went on to state: “Since the Marriott Corporation submitted a higher numerical value, the Committee recommends award of the agreement to the Marriott Corporation. It should be pointed out that there is some question as to whether such numerical difference would come into effect during the fixed term of the Agreement.”

The county manager recommended that Marriott be awarded the agreement. He stated in his memorandum to the Board of County Commissioners:

Regarding the Alcoholic Beverages Services Agreement, the Committee felt that both Marriott and Jerry’s were equally qualified to provide the services desired with a high level of quality. Therefore, the Committee recommended Marriott solely on the basis of the lesser percentage of gross revenues to be retained by them, in the event gross revenues exceed $504,000 per year. It is very doubtful that this factor will come into effect during the fixed term of the Concession Agreement.
The Aviation Director and this office concur in the Committee recommendation, however, if the Board of County Commissioners were to select Jerry’s, Inc. it would be equally acceptable.

At a meeting of the Board of County Commissioners, the agenda item was brought up by a member of the Board as follows:

On 6(b)(10), I understand from looking at this that we have two companies that bid it and reading that the difference in the bid is something that probably won’t ever come about; that what made one bidder lower was a better percentage on a figure that will probably never be obtained and the other firm that bid it is a local firm, and I’d like . .if there’s no objections, I’d like to move that that be awarded to Jerry’s.”

The motion was passed.

Marriott protested the award to Jerry’s and requested the Commission to reverse its decision. It declined to do so and awarded the agreement' to Jerry’s, Inc.. Marriott filed an action for declaratory judgment and other relief. The trial court found that Marriott’s projections were based upon erroneous assumptions and that Marriott had failed to sustain its burden of proof that Dade County acted arbitrarily with respect to the award of the contract. .

We disagree with the trial court’s conclusion that the Board of Commissioners acted within its lawful authority and discretion. We hold that the award to Jerry’s, Inc. constituted an abuse of discretion.

The parties have addressed two issues concerning the award of the contract; first, whether the county was obligated to follow competitive bidding standards requiring the award to be made to the lowest or best bidder, and second, whether the award to Jerry’s was within the discretion of the Board, taking into consideration that Marriott’s bid returned a higher percentage of gross revenues to Dade County.

1. Competitive Bidding.

Competitive bidding generally encompasses the submission of bids to complete a project and the award of the contract to the responsible bidder best able to complete the project in the manner financially most advantageous to the community. Robert G. Lassiter & Co. v. Taylor, 99 Fla. 819, 128 So. 14 (1930).

The purpose of competitive bidding has been stated in Hotel China & Glassware Co. v. Board of Public Instruction, 130 So.2d 78, 81 (Fla. 1st DCA 1961), as follows:

Competitive bidding statutes are enacted for the protection of the public. They create a system by which goods or services required by public authorities may be acquired at the lowest possible cost. The system confers upon both the contractor and the public authority reciprocal benefits, and exacts from each of them reciprocal obligations. The bidder is assured fair consideration of his offer, and is guaranteed the contract if his is the lowest and best bid received. The principal benefit flowing to the public authority is the opportunity of purchasing the goods and services required by it at the best price obtainable. Under this system, the public authority may not arbitrarily or capriciously discriminate between bidders, or make the award on the basis of personal preference, (emphasis added) (footnote omitted)

Competitive bidding statutes should be construed to advance their purpose and to avoid their being circumvented. Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931).

A public body is not required un-qualifiedly to award the contract to the lowest bidder unless there exists a statutory requirement. William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550 (Fla. 2d DCA 1960).

Dade County has authorized competitive bidding by resolutions expressing its policy. Dade County, Fla., Resolution 1586-72 (Oct. 19, 1972) provides that “whenever goods or services are to be obtained for or on behalf of the Dade County Port Authority, the competitive bidding process is to be used whenever possible.” A second resolution, set out in part below, specifies the procedure to be followed:

Whereas it is the consensus of this Board that it is to the best interest of the public that all franchises and concessions of a non-aeronautical nature, in, on, or in connection with any county airport facility or project, whether exclusive or nonexclusive, should be granted only after receipt of publicly solicited sealed, competitive bids in the manner prescribed by law and to that bidder whose bid will result in the greatest financial benefit to the Port Authority.
Now, therefore, be it resolved by the Board of County Commissioners of Dade County, Florida, acting as the Dade County Port Authority, that it is the poli-' cy of this Board that no franchise, whether exclusive or non-exclusive, for the operation of any non-aeronautical concession in, on, or in connection with any airport facility or project owned and operated by Dade County shall be granted unless sealed, competitive bids have been received therefor in the manner provided by law, and the award of such franchise shall be to that bidder whose bid, when accepted, will result in the greatest financial benefit to the Port Authority.

Dade County, Fla., Resolution 1587-72 (Oct. 19, 1972). These resolutions require the Board to submit the management and services contract under review to the competitive bidding process.

Appellees argue that a resolution is merely “temporary and ministerial in character” and cannot authorize competitive bidding. We disagree. Appellees have described only the nature and degree of formality of a resolution. A resolution is “an expression of a governing body concerning matters of administration, an expression of a temporary character, or a provision for the disposition of a particular item of the administrative business of the governing body.” § 166.041(1)(b), Fla.Stat. (1977).

A public body, however, “may, as incident to [its] general powers, transact business of a ministerial or temporary character by resolution.” City of Pensacola v. Southern Bell Telephone Co., 49 Fla. 161, 37 So. 820, 824 (1905); Certain Lots Upon Which Taxes Are Delinquent v. Town of Monticello, 159 Fla. 134, 31 So.2d 905 (1947).

To a large extent, the language of the charter of the municipality or, as in this case, the county, determines what action may be taken by resolution and what must be done by ordinance. The Dade County, Florida, Charter § 1.02(A) provides:

The Board shall . . . decide which actions of the Board shall be by ordinance or resolution, . . . except that any action . . . which provides for raising revenue, appropriating funds, or incurring indebtedness, or which provides a penalty or establishes a rule or regulations for the violation of which a penalty is imposed shall be by ordinance.

This charter section is implemented by the county code which allows the Board to perform any function (except those specifically set aside by the charter) by either a resolution or an ordinance. Dade County, Fla., Code § 1.21(d).

The broad language of the pertinent charter and code sections makes a resolution sufficient authorization for competitive bidding in this case. Accord, Ramsey v. City of Kissimmee, 139 Fla. 107, 190 So. 474 (1939) (noting that a contract may be adopted or ratified by a resolution). See City of Riviera Beach v. Witt, 286 So.2d 574 (Fla. 4th DCA 1973); 1977 Op. Att’y Gen. Fla. 077-140 (December 30, 1977); and McQuillan, Municipal Corporations, Vol. 10, § 29.-37, P.342. Cf. Brown v. City of St. Petersburg, 111 Fla. 718, 153 So. 140, 141 (1933) (where the city charter required similar action to be taken under the auspices of an ordinance).

Appellees argue that Resolutions 1586-72 and 1587-72 were implicitly overruled by the motion to award the contract to Jerry’s. We disagree. A duly approved resolution may not be ignored without an express intent to overturn its provisions. Appellees’ suggestion would render resolutions meaningless, ineffectual acts of government. “The Board, upon written recommendation of the Manager, may by resolution adopted by two-thirds vote of the members present waive competitive bidding when it finds this to be in the best interest of the county.” Dade County, Fla., Charter § 4.03(D). Since resolutions requiring competitive bidding were not waived, they were required to be followed.

Section 4.03(D) of the Dade County, Florida, Charter states:

Contracts for public improvements and purchases of supplies, materials, and services other than professional shall be made whenever practicable on the basis of specifications and competitive bids. Formal sealed bids shall be secured for all such contracts and purchases when the transaction involves the expenditure of $1,000 or more. The transaction shall be evidenced by written contract submitted and approved by the Board.

The contract under review is a contract for purchases of supplies, materials, and services other than professional. Appellees argue that this contract does not involve the expenditure by the county of $1,000 or more since the bids contemplate the retention of funds by the bidder and the submission of a portion of those funds to the county. Their theory removes only the requirement for formal sealed bids but does not negate competitive bidding requirements.

In addition to the resolutions, charter, and code, Sections 125.012(17) and 125.35, Florida Statutes (1977), discuss competitive bidding.

Appellees contend the contract under consideration is a non-exclusive, a non-aeronautical contract and that the provisions of Section 125.35, Florida Statutes (1977), are overridden by the subsequent passage of Section 125.012(17), Florida Statutes (1977), which imply that only exclusive franchises must be awarded by competitive bidding.

Because we cite the foregoing statutes for the sole purpose of illuminating a legislative awareness of competitive bidding policies, we do not decide the merit of that argument. Our decision is founded on the resolutions, charter, and public policy arguments.

2. Abuse of Discretion.

Under competitive bidding, the contract must be awarded as a function of the “reasonable exercise of power by municipal governmental authorities ... as a matter of public policy and fidelity to public trust.” Adolphus v. Baskin, 95 Fla. 603, 116 So. 225 (1928).

The standard to be applied in deciding whether the decision was exercised arbitrarily is delineated in City of Pensacola v. Kirby, 47 So.2d 533, 535-36 (Fla.1950):

While the law imposes no mandatory obligation upon a public agency in. respect to the letting of competitive contracts that will require the agency in every case to consider the lowest dollars and cents bid as being “the lowest responsible bid” to the exclusion of all other pertinent factors that may be taken into consideration, the law does require that where discretion is vested in a public agency with respect to letting public contracts on a competitive basis, the discretion may not be exercised arbitrarily or capriciously but must be based upon facts reasonably tending to support the conclusions reached by such agency. See Culpepper v. Moore, Fla., 40 So.2d 366; Willis v. Hathaway, 95 Fla. 608, 117 So. 89. The record reveals that the discretion exercised by the city council did not rest upon material facts reasonably tending to support the conclusions reached by such agency, (emphasis added)

What facts did the Dade County Board of Commissioners have before it upon which it exercised its discretion? The Board awarded the contract to Jerry’s because Jerry’s was a local firm. Nothing in the record, however, discloses that Jerry’s was a local firm. Furthermore, if the Board desired the services of a local concern, it should have given Marriott the same opportunity to show whether it could qualify. A decision cannot be based upon “ignorance through lack of inquiry.” William A. Berbusse, Jr., Inc. v. North Broward Hospital District, supra, at 551.

Residing in the area was rejected by the court as a basis for an award where the award had been made solely because “he is a local man, will use local contractors and local labor and will patronize local supply houses.” Adolphus v. Baskin, supra. The court found that the substantial rights of taxpayers would be materially affected by this exercise of authority, stating “unreasonable action taken under color of authority that materially affects substantial rights of persons and of taxpayers is contrary to the principles upon which our system of government is founded.” Adolphus v. Baskin, supra, at 226.

In evaluating Marriott’s and Jerry’s bids, the trial court found that ample evidence existed to show a basis for doubt. The doubt referred to was not directed to Marriott’s ability to perform its contract, nor with whether it was a responsible bidder, but only with whether it was a financially superior bidder. The trial judge did not, however, find Jerry’s bid to be more advantageous, nor did the trial court find that the bidders were equal. On the face of the bids, in the absence of any finding to the contrary by the court, Marriott remains the best bidder within the standards set by the Board when it elected to solicit competitive bids.

We find that the Board based its award of the contract on erroneous considerations beyond its authority constituting an abuse of discretion. The trial court erred in approving its award and in finding no abuse of discretion.

Since we hold that the Board exceeded its lawful authority and discretion, we hold that the contract award is invalid. On the basis of the bids submitted to the Board, the award must be made to Marriott as the numerically superior bidder.

For the- foregoing reasons, we reverse the decision of the trial court and award the contract to Marriott.

      . Section 125.012, Florida Statutes (1977), provides:
      Any county and the board of county commissioners thereof shall have the power, in'addition to the powers otherwise conferred:

      (17) To grant exclusive or nonexclusive franchises to persons, firms or corporations for the operating of restaurants, cafeterias, bars . and other concessions of a nonaero-nautical nature in, on and in connection with any project owned and operated by the county. However, no exclusive franchise shall be so granted unless the board of county commissioners of said county shall award such franchise following receipt of sealed, competitive bids in the manner prescribed by law, or cause to be published . notice of the fact that it intends to grant such exclusive franchise and will at a time certain to be fixed in said notice . . enter into negotiations with any interested parties as to the terms, conditions, and provisions of any such exclusive franchise.
      Section 125.35, Florida Statutes (1977), states:
      The board of county commissioners is expressly authorized to sell and convey any property, real or personal, and to lease real property, belonging to the county, . to the highest and best bidder for the particular use it deems to be the highest and best, or, alternatively, in the case of an airport operation or facility lease, after negotiation, for such length of term and such conditions as the governing body may in its discretion determine.


source: Caselaw Access Project

author: PER CURIAM. CROSS, Judge,

license: Public Domain

text:
    KAW VALLEY STATE BANK, Appellant, v. PAN AMERICAN BANK OF ORLANDO, N.A., Appellee.
    No. 78-2636/T4-324.
    District Court of Appeal of Florida, Fifth District.
    April 16, 1980.
    Rehearing Denied May 19, 1980.

      Arthur J. Ranson, III, and John Robertson of Robertson, Williams, Duane, Lewis, Briggs & Ranson, P. A., Orlando, for appellant.
    Harvey B. Hardy, Jr., of Gurney, Gurney & Handley, Orlando, for appellee.
   PER CURIAM.

Upon review of the evidence in this case, it is clear the trial court erred in finding no negligence on the part of Appellee in failing in a timely manner to perform its duty as a stock transfer agent. The judgment is reversed and this cause is remanded to the trial court to enter judgment for Appellant and to assess damages against Appellee for Appellant.

REVERSED AND REMANDED.

DAUKSCH, C. J., and UPCHURCH, J., concur.

CROSS, J., dissents with opinion.

CROSS, Judge,

dissenting.

I respectfully dissent.

On March 10, 1972, Kaw Valley State Bank delivered ten thousand, one hundred fifty-six shares of common stock, accompanied by a stock power executed in blank, to Pan American Bank of Orlando, N.A., the transfer agent for the stock, so that Pan American could transfer the shares into Kaw Valley’s name. Pan American failed to transfer the stock until June 1 of that year. In the meantime, on April. 26, trading in the stock was suspended by the Securities and Exchange Commission, making it impossible for Kaw Valley to dispose of the shares.

Kaw Valley brought suit against Pan American, alleging that Pan American had been negligent in failing to promptly transfer the stock, and that the negligence had prevented Kaw Valley from disposing of the stock before trading was suspended. The lower court entered final judgment for Pan American. The majority opinion reverses this judgment on the ground that Pan American’s negligence was clearly shown. I disagree with this result, and would affirm.

Section 678.401, Florida Statutes (1975) provides that, when a transfer agent unreasonably delays transferring stock, he will be liable only for whatever loss results from such delay. The stock certificates held by Kaw Valley were negotiable, and Kaw Valley could have transferred them at any time merely by delivering them and the blank stock power to the intended purchaser, regardless of whether the ownership of the shares had been transferred on the corporate books. §§ 678.308(1), 678.313(1)(a), Fla.Stat. (1975). Therefore, Pan American’s failure to promptly transfer the shares cannot be considered the legal cause of Kaw Valley’s loss. Accordingly, I would affirm the judgment for Pan American.


author: WATSON, Judge.

text:
    James E. WILSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. OO-294/T1-124.
    District Court of Appeal of Florida, Fifth District.
    April 16, 1980.
    Rehearing Denied May 21, 1980.
    John W. Tanner, P. A., Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   WATSON, Judge.

The defendant was charged with battery upon a law enforcement officer. Over defendant’s general objection, the court instructed the jury on the crime of assault upon a law enforcement officer. The defendant was convicted of an assault upon a law enforcement officer.

An assault upon a law enforcement officer is an offense which may or may not be included in an offense of battery upon a law enforcement officer, depending upon the wording of the charge and the evidence. Brown v. State, 206 So.2d 377 (Fla.1968). There was evidence of an assault upon a law enforcement officer in this case, but the information charging battery upon a law' enforcement officer did not include all of the elements of an assault. Therefore, it was error for the court to instruct the jury on the offense of assault upon a law enforcement officer.

Defendant can only assert the error on appeal if he made a timely objection to the instruction or if the error is fundamental error. Defendant’s objection was timely. He failed, however, to state the grounds of his objection as required by Rule 3.390(d), Florida Rules of Criminal Procedure. Defendant’s motion for new trial alleged the court had erred in instructing the jury on the offense of assault upon a law enforcement officer on the ground that the offense was not established by the evidence. At no time did defendant assert as a ground for his objection the failure of the state to allege the crime of which defendant was convicted. Therefore, though timely made, defendant’s objection was insufficient to preserve the point for review.

“ ‘Fundamental error,’ which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action. The Appellate Court should exercise its discretion under the doctrine of fundamental error very guardedly.” Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). It is a limited exception to the requirement that a trial judge must be given the opportunity to correct his or her errors. Castor v. State, 365 So.2d 701 (Fla.1978).

In Johnson v. State, 226 So.2d 884 (Fla.2d DCA 1969), Judge McNulty distinguished between a conviction of an offense included or includable in the offense charged and a conviction of an offense which is not, and cannot be, included in the offense charged. The latter is fundamental error; the former is not.

This Court held in Carter v. State, 380 So.2d 541 (Fla. 5th DCA 1980), that it was not fundamental error to instruct the jury on a Brown category four lesser offense even though the pleading did not allege the lesser offense.

Accordingly, the judgment is AFFIRMED.

ORFINGER and COBB, JJ., concur.


author: UPCHURCH, Judge.

text:
    The CITY OF ORMOND BEACH, Appellant, v. COUNTY OF VOLUSIA, Appellee.
    No. OO-487/T1-150.
    District Court of Appeal of Florida, Fifth District.
    April 16, 1980.
    Rehearing Denied May 19, 1980.

      Henry P. Duffett, Ormond Beach, for appellant.
    William K. Howell, Jr., Deland, for appel-lee.
   UPCHURCH, Judge.

Appellant, the City of Ormond Beach, appeals a final judgment of the Circuit Court for Volusia County which held that Volusia County could levy a library tax against property situate within the city boundaries.

We AFFIRM.

The points raised by the City may be summarized in the following question:

May the County levy a library tax on taxable properties within the boundaries of Ormond Beach when the City of Or-mond Beach operates its own library?

The City of Ormond Beach, together with other Volusia County municipalities and Volusia County, operated a federated county. system of libraries from 1965 to 1973. Under this arrangement, each city contracted to become a part of the federated system and operated their respective libraries with virtual autonomy. The County provided some technical and support services and funding.

In 1970, Volusia County adopted a Home Rule Charter granting to it all powers of local self-government not inconsistent with general law. In 1972, the County established a county-wide unified library system in which all cities then operating libraries joined, except Ormond Beach. The cities which joined lost their authority to manage the library function and to make financial decisions regarding library affairs.

The City contends that the Volusia County Charter, section 202.1, Chapter 70-966, Laws of Florida, prevents the County from assuming the library operation within Ormond Beach because the City performs that function and has not requested the County to assume it and therefore a county tax on city property is improper. It is the County’s position, and the trial court so found, that no transfer of powers was involved since both entities are exercising their respective powers within their respective jurisdictions and each is assessing taxes for different services.

Initially, both the City and County have cited Dressel v. Dade County, 219 So.2d 716 (Fla. 3d DCA 1969) wherein municipal taxpayers attempted to prevent the County from collecting taxes in any city in Dade County which furnished its own fire protection. There, as here, both the cities and the county were authorized to perform the service. The court stated that while some disparity in benefits existed, if the County Fire Department stood ready, willing and able to perform the service upon request to those municipalities with their own fire departments, then the tax would be proper. The decision of the trial court was affirmed. The court attached considerable significance to the County’s apparent willingness to provide fire protection services, wholly or partially, to any municipality that wanted them. The court stated that it was comparable to the situation where a taxpayer enrolls his child in a private school and then decides to send the child to a public school. Should the public school refuse to admit the child the taxpayer would have a legitimate grievance and a sound cause of action. Dressel implies that if Volusia County is ready, willing and able to provide library services to Ormond Beach, the instant tax would be valid.

As for section 202.1, a reasonable interpretation of it is that where a service is being performed by a city,, the county may not assume it unless requested. Here, the County has not assumed a city service because the City continues to operate its own system under authority of section 166.021, Florida Statutes, and the County operates its own system as authorized by article VIII, section 1(g), Florida Constitution, and section 125.01(1)(f), Florida Statutes.

The City also relies upon Sarasota County v. Town of Longboat Key, 355 So.2d 1197 (Fla.1978) which dealt with an attempted transfer of functions via amendment to the County Charter from municipalities to the County. Such a transfer would have divested the municipalities of any power over such functions and would have given the County absolute and exclusive power to exercise such functions. That is not the circumstance in the case before us.

Next the City contends that there is a conflict between city and county budget appropriation ordinances because both provide funds for library operations. If such a conflict exists, the city ordinance will prevail within the City because section 1305 of the Volusia County Charter provides:

Notwithstanding any further provisions of this Charter, any county ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict, regardless of whether such municipal ordinance was adopted or enacted before or after the county ordinance. ... In the event a county ordinance and a municipal ordinance shall cover the same subject matter, without conflict, then both the municipal ordinance and the county ordinance shall be effective, each being deemed supplemental to the other.

The. trial court correctly found that the budget ordinances are not in conflict, but rather cover the same or similar subject matter without conflict. In Other words, two assessments are being levied for two significantly different library functions, one serving the basic needs of Ormond Beach and the other serving the needs of the entire County, including Ormond Beach. Therefore, as the trial court reasoned, the ordinances are each effective and merely supplement each other within the City. The City failed to. establish a clear irreconcilability between the city and county appropriations.

The third contention of the City is based on article VIII, section 1(h), Florida. Constitution, which provides:

Property situate within municipalities shall not be subject to taxation for services rendered by the county exclusively for the benefit of the property or residents in unincorporated areas.

This provision developed out of the broad proposition that imposition of an ad valo-rem tax without any compensatory advantage to the taxpayer will invalidate such tax. State ex rel. Davis v. Stuart, 97 Fla. 69, 120 So. 335, 349 (1929).

The “exclusive benefit” language of article VIII, section 1(h), was examined in City of St. Petersburg v. Briley, Wild & Assoc., Inc., 239 So.2d 817, 822 (Fla.1970). The Florida Supreme Court held that section 1(h) prohibits ad valorem taxation , within a city for any services where no real or substantial benefit accrues to city property from such services. The court explained that it is sufficient if the benefits are found to be real and substantial and not merely illusory, ephemeral and inconsequential.

The trial court in Alsdorf v. Broward County, 373 So.2d 695 (Fla. 4th DCA 1979) applied the Briley test and determined that municipal residents gained real and substantial benefits from a county-wide library system. In affirming, the Fourth District Court of Appeal stated that just because a different system might be preferred as a matter of policy does not mean municipal residents do not receive real and substantial benefit.

Judge Nelson, in the case before us, ably and exhaustively reviewed the method of operation of Ormond Beach’s library and the County System. He carefully distinguished between a library established in an unincorporated area for the use and benefit of area residents which conceivably could result in an absence of real and substantial benefit to city residents and the instant situation where the county-wide system serves residents of municipalities and unincorporated areas alike. There are numerous instances where there is a disparity of services between one area of a county and another. Municipalities have their own police but city residents are also taxed for the services of the Sheriff. Cities maintain their own road system, but properties within the city can also be taxed for maintenance and installation of county roads outside of the city. Many residents may never use the services of the Sheriff or travel the county roads, but they are available for use by the city resident as well as those who live outside the city. In the case before us, the trial judge found the county library system was not a duplication of the city library, but in fact, offered many services which the City did not. He found that the county library, system rendered a real and substantial benefit to the residents of the City as well as to the County.

While the purpose of article VIII, section 1(h), Florida Constitution, is to prevent double taxation of municipally-situated property for a single benefit, see City of St. Petersburg v. Briley, Wild & Assoc., Inc. at p. 822, the trial court in the case at bar found no double taxation existed since the taxes assessed by the City and County were not for the same services.

There was competent and substantial evidence to support the findings of the trial court. They should not be disturbed on appeal. Alsdorf v. Broward County, 373 So.2d 695 (Fla. 4th DCA 1979).

AFFIRMED.

DAUKSCH, C. J., and CROSS, J., concur.

      . The Council shall by ordinance have the authority to assume and perform all functions and obligations now or hereinafter performed by any municipality, . . . whenever such municipality . . shall request the performance or transfer of the functions to the county.


author: ORFINGER, Judge.

text:
    Derrick Lamont ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 78-2299/T4-266.
    District Court of Appeal of Florida, Fifth District.
    April 16, 1980.
    Rehearing Denied May 23, 1980.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant appeals a sentence of imprisonment for ten years imposed by the trial court, consequent upon a finding of probation violation and the judgment revoking probation.

On July 20, 1976, appellant was convicted of a second degree felony and was placed on probation for fifteen years. On October 23, 1978, his probation was revoked based on a warrant issued on September 22, 1978, and alleging violations of probation occurring prior to that date. After revoking appellant’s probation, the court sentenced him to imprisonment for ten years. Appellant was seventeen years old when the crime was committed and was nineteen years old when his probation was revoked. He contends that the Florida Youthful Offender Act, Sec. 958.011, et seq., Fla.Stat. (1978) controls his sentencing and that the ten year sentence was contrary to law.

The Youthful Offender Act became effective October 1, 1978. After identifying youthful offenders, it provides for punishment of those offenders “ . . . in lieu of other criminal penalties authorized by law . . . ” The maximum term, of imprisonment for the commission of a second degree felony at the time of appellant’s conviction was fifteen years. It is clear that the statute in effect at the time an offense is committed controls the maximum penalty at sentencing. Ellis v. State, 298 So.2d 527 (Fla. 2d DCA 1974). It is also clear that if the Legislature, in enacting the Youthful Offender Act had purported to make its maximum punishment provisions apply retroactively to crimes committed pri- or to its effective date, it would have been unconstitutional. Article X, Section 9, Florida Constitution; Castle v. State, 330 So.2d 10 (Fla.1976).

This statute is not, as suggested by appellant, merely procedural so as to give it immediate effect, and reliance on cases such as Collins v. Wainright, 311 So.2d 787 (Fla. 4th DCA 1975) or Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979) is misplaced. In those situations the statutory directives prescribed a procedure to be followed prior to or at sentencing, but did not affect the ultimate punishment. Here the statute limits the maximum punishment for those persons who fall within its definitions, and as such it cannot be applied retroactively.

Appellant further raises the point that at the conclusion of the revocation hearing the trial judge announced that he was not satisfied that a violation of condition (11) of the probation order had occurred, yet the written order revoking his probation recites that appellant violated condition (11), in addition to those other allegations which the trial judge had found to be sustained. The order must be corrected to eliminate condition (11) as a violation.

The order is remanded for correction to eliminate condition (11) as a violation, but is otherwise affirmed. Appellant need not be present for that purpose.

AFFIRMED and REMANDED FOR CORRECTION.

COBB, and UPCHURCH, JJ., concur.

      . 958.04 Eligibility for youthful offender; classification.
      (1) The court may classify as a youthful offender any person:
      (a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39;
      (b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if such crime was committed before the defendant’s 21st birthday; and
      (c) Who has not previously been classified a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified a youthful offender under this act.

      . 958.05 Judicial disposition of youthful offenders. If the court classifies a person a youthful offender, in lieu of other criminal penalties authorized by law, the court shall dispose of the criminal case as follows:

      (2) The court may commit the youthful offender to the custody of the department for a period not to exceed 6 years. The sentence of the court shall specify a period of not more than the first 4 years to be served by imprisonment and a period of not more than 2 years to be served in a community control program. The defendant shall serve the sentence of the court unless sooner released as provided by law.

      . Art. X, Sec. 9: Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed. (Emphasis added.)

      . Where presentence investigation report was required after enactment of Rule 3.710, Fla.R. Crim.P., even though offense was committed prior to its enactment.

      . Where the court was required to follow the procedure outlined in Sec. 39.111(6), Fla.Stat. (1978 Supp.) in sentencing, where applicable.


text:
    In re ESTATE of Marie E. ALGAR, Deceased. Harold ALGAR, Appellant, v. Max KING, Eunice Lubinski, Charlie H. King, Hubert S. King and Elizabeth M. Patterson, Appellees.
    No. 79-149/T4-375.
    District Court of Appeal of Florida, Fifth District.
    April 16, 1980.
    Rehearing Denied May 19, 1980.

      Frank McMillan, Orlando, for appellant.
    Allen K. McCormick, Orlando, and John B. Ambrose, Redford, Mich., for appellees.
   ORFINGER, Judge.

The proponents of a 1955 will purportedly executed by decedent appeal a judgment of the trial court admitting to probate a 1968 will, denying probate of the 1955 will and denying any damages to the proponents of the earlier will because of an alleged contract not to revoke between decedent and her earlier deceased spouse.

Marie E. Algar and her deceased husband, George E. B. Algar, were married in 1943, each having been previously married and each having children by their prior marriages. In .1955, George and Marie purportedly executed separate but similar wills, essentially leaving their respective estates to each other and then to George’s two children following the death of both George and Marie. Each will contained the following language:

That in consideration of the execution of this will, a similar will on this date has been executed by my husband (wife) George E. B. Algar (Marie E. Algar) in substantially the same form and substance as contained herein, and we hereby agree that at no time can either of us change our said will without the written consent of the other..

George died in 1966 leaving Marie surviving. George’s will was never presented for probate, nor does it appear that there was ever any probate of his estate. In 1968 Marie executed a new will revoking all former wills and leaving her estate to her children. Marie died August 18, 1977, and the personal representative named in her 1968 will presented that will for probate. George’s children countered by attempting to prove and probate Marie’s 1955 will, claiming that it was the product of a contract not to revoke, that it could not be revoked, and that it was her valid will. Marie’s original 1955 will was not produced, nor was any testimony presented to explain the whereabouts of the original. Instead, a carbon copy of the bookstore form was presented, plainly marked “Copy”. Similarly, there was offered in evidence a carbon copy of George’s 1955 will, likewise marked “Copy”. William Algar, one of George’s children, testified that George had duplicates of both wills, that he gave the carbons to William and that time plainly marked “Copy” on both of them. The “originals” remained with George and Marie. On these facts, the trial judge admitted Marie’s 1968 will to probate, denied the probate of her 1955 will and found that appellants had proved no damage. We affirm.

On the question of the admissibility of the 1968 will, the trial judge was correct in admitting it to probate upon satisfactory proof of its proper execution. A will cannot be admitted to probate where it has been expressly revoked by a later will, even though the later will is executed in violation of a covenant not to revoke the earlier will. If a will is executed pursuant to a valid contract not to revoke it, such will, like any other will may be revoked, because wills are ambulatory and revocability is an essential element of a will. Keith v. Culp, 111 So.2d 278 (Fla. 1st DCA 1959). The breach of the contract not to revoke is then the basis for enforcement of a claim by the beneficiaries of a will improperly revoked. In re Shepherd’s Estate, 130 So.2d 888, (Fla. 2d DCA 1961). The 1968 will expressly revoked the 1955 will.

In the 1955 wills, George and Marie had each reserved the right to “change” the will with the written consent df the other. The right to change of necessity carried with it the right to revoke, and although they covenanted that the change could only be accomplished by written consent, they could make the change in whatever form they wished, so long as they both agreed. A contract can be modified or revoked by mutual agreement of the contracting parties. 7 Fla.Jur. Contracts, Sec. 170.

The trial judge correctly held that the 1955 wills were not valid and in existence at the time of George’s death. The original of his 1955 will was shown to have been in his possession, but was not to be found at the time of his death. Similarly, Marie’s 1955 will was not to be found at her death. In Florida there is a well-established rule that when a will has been lost or destroyed the presumption is that the testator destroyed it with the intention of revoking it, and the burden of proving the contrary is on the propounder of the will. In re Washington’s Estate, 56 So.2d 545 (Fla.1952). Upon a showing of a lost will which had been in the possession of the testator there is more than a permissible inference of revocation — such a showing requires a finding of revocation unless the proponent of the lost will comes forward with evidence of a competent and substantial nature that shows the will was not revoked. In re Estate of Baird, 343 So.2d 41 (Fla. 4th DCA 1977). No evidence at all was presented to the trial judge to counter this presumption. A finding is thus required that both George and Marie mutually revoked their 1955 wills, so any covenant not to revoke contained in those wills was similarly revoked.

In the light hereof, the correctness of the determination by the trial judge that no damages were proved by appellant need not be decided. The final judgment for appel-lees is

AFFIRMED.

COBB and UPCHURCH, JJ., concur.


text:
    DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. Harry SKOP and Frederica M. Skop, his wife, d/b/a Metro News, Appellees.
    No. 78-2663/T4-328.
    District Court of Appeal of Florida, Fifth District.
    April 16, 1980.
    Rehearing Denied May 19, 1980.

      Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for appellant.
    O. H. Eaton, Jr., of Massey, Alper, Wack & Eaton, Altamonte Springs, for appellees.
   ORFINGER, Judge.

We are asked to decide here if a weekly publication known as “Metro News” is exempt from sales tax under Section 212.-08(6), Florida Statutes (1977). This section exempts “newspapers” from the provisions of the sales tax statute, without defining the term. We must decide if the publication known as “Metro News” is a newspaper as contemplated by the statutory exemption.

The Department of Revenue, which is charged with the responsibility of administering the sales tax, has adopted regulations "governing exemptions, and those regulations provide us with the administrative definition of the term “newspaper”.

The parties stipulated to the facts of the case and those stipulated facts make it appear that the publication in question substantially met all the administrative criteria except two: (1) Subsection 3(d) in that it was not entered or qualified to be admitted and entered as second class mail matter at a post office in the county where published, and (2) Subsection (4) in that except for 250 copies which were mailed to subscribers, the balance of approximately 25,000 issues per week were distributed free of charge and not sold. Numerous copies of the publication selected at random were submitted to the trial judge for his review, along with copies of publications conceded to be “shoppers”. The trial court, based upon the stipulated facts and the exhibits in evidence, found the publication to be a “newspaper” and held it to be exempt from sales tax. The final judgment did not rule on the validity of the administrative regulations and specifically the two sections with which this publication did not comply, but since the publication obviously did not comply with these sections, implicit in the trial judge’s holding is a finding that these sections are invalid.

The contemporaneous administrative construction of a statute by those charged with its enforcement and interpretation is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized. Gay v. Canada Dry Bottling Co. of Florida, Inc., 59 So.2d 788 (Fla.1952). In adopting the administrative regulations, the Department of Revenue has determined that to qualify for exemption as a “newspaper”, the publication must be entered or be quali-fled to be entered as second class mailing matter in the United States Post Office, and must be sold rather than given away. Conversely, publications which do not have the second class mail permit or do not qualify for one and which are given away for advertising and public relations purposes are taxable under the regulations. We must therefore determine if the administrative construction of the statute is clearly erroneous or unauthorized, because if not, then this publication clearly does’ not qualify for the exemption and is taxable.

In Gasson v. Gay, 49 So.2d 525 (Fla.1950), our Supreme Court was asked to decide if magazines sold on a newsstand, such as Life, Time, Newsweek, U.S. News, and other similar periodicals, could be construed to be “newspapers” under the statute, so as to be exempt from sales tax. At that time, the two sections of the Administrative Code in issue here had not been adopted, although the remainder of the applicable regulation was in effect. The Court- said:

The provision in [the statute] exempting “newspapers” from the operation of said-chapter, had reference to the natural, plain and ordinary significance of the word newspaper — the understanding of the word newspaper in general and common usage — and did not refer to or comprehend magazines or periodicals. [Citations omitted.] Words of common usage, when used in a statute, should be construed in their plain and ordinary signification and not in a technical sense . . . . The said rule does not purport to contain all elements necessary to constitute a newspaper nor to embrace a complete, full and comprehensive definition of a newspaper. It simply provides specified minimum requirements and states, in effect, that in order for. a publication to constitute a newspaper the publication must embrace “at least” the stated elements.

The exemption was again considered by the Supreme Court in Green v. Home News Publishing Co., Inc., 90 So.2d 295 (Fla.1956). The Supreme Court noted that the publication known as the “Shopper Advertiser” was distributed free to the public by the publisher, had a third-class mailing privilege and was not authorized to carry legal advertising, that while it contained some news, household hints, recipes, advice to parents and other similar material, the large majority of the publication was devoted to advertising.

While it is -true that the “Shopper Advertiser” complies with the minimum requirement for a newspaper established by the comptroller in his Rules and Regulations under the Sales Tax Act, as contended by the publisher, this fact is not controlling on the question of whether a publication is, in fact, a “newspaper” within the meaning of the Act. See Gasson v. Gay, supra, 49 So.2d 525. The ‘Shopper Advertiser’ unquestionably has for its principal purpose the advertising of business concerns in the area and not the dissemination of news. It is, in practical effect, simply an advertising ‘giveaway’ even though a modicum of local news and other material found in newspapers is included.

A review of the publications submitted in evidence here make it difficult to find any distinction between the “Metro News” sub judice and the “Shopper Advertiser” in Green. Of the samples reviewed by this court, approximately 85% of the publication was devoted to advertising. Of the remaining approximately 15%, some of it was devoted to local news and some to recipes, horoscopes and the like. We must therefore hold, as did the Supreme Court in Green, that the Metro News unquestionably has for its principal purpose the advertising of business concerns in the area and not the dissemination of news. Although perhaps not called a “shopper”, it is in practical effect simply an advertising giveaway.

While doubtful language in taxing statutes should' be resolved in favor of the taxpayer, the reverse is true in the construction of exceptions and exemptions from taxation. U.S. Gypsum Co. v. Green, 110 So.2d 409 (Fla.1959). Tax exemptions must be strictly construed against the taxpayer. Wanda Marine Corp. v. State of Florida, Department of Revenue, 305 So.2d 65 (Fla. 1st DCA 1975). It is also settled law in this state that a construction placed on a statute by a state administrative officer is a persuasive force and influential with the courts when not in conflict with the Constitution or the plain intent of the statute. Volunteer State Life Insurance Company v. Larson, 147 Fla. 118, 2 So.2d 386; Green v. Home News Publishing Co., Inc., supra. In this light, we cannot find the two administrative regulations in question here to be unreasonable. Numerous statutory provisions require a publication to be sold and to have a second class mailing permit in order to qualify for certain privileges. For example, Section 50.011, Florida Statutes, (1977) provides that legal publications can be placed in a “newspaper printed and published periodically once a week or oftener . . . entered or qualified to be admitted or entered as second-class matter at a post office in the county where published, for sale to the public generally, available to the public generally . . . ” Sec. 165.031, Florida Statutes, (1977) defines “newspaper of general circulation” as those publications “ . . . which are readily available for purchase by all inhabitants in the area of circulation, but does not include ... a newspaper that is given away primarily to distribute advertising.” The excerpt of the postal service manual stipulated into evidence below, clearly shows that a publication which is given away and not sold does not qualify for second-class mailing privileges, neither can it qualify if more than 75% of its copy is devoted to advertising in more than one half of its issues during any twelve-month period. In the light of this generally accepted statutory recognition and because of the Supreme Court’s recognition of these criteria in Green as worthy of consideration, we cannot say that the administrative regulations in question here are either burdensome or unreasonable. That being so, the judgment of the trial court below was in error and is reversed with directions to enter judgment for appellant.

REVERSED.

DAUKSCH, C. J., and CROSS, J., concur.

      . Fla.Admin.Code Rule 12A-1.08:
      (3) In order to constitute a newspaper, the publication must contain at least the following elements:
      (a) It must be published at stated, short intervals (usually daily or weekly).
      (b) It must not, when successive issues are put together, constitute a book.
      (c) It must be intended for circulation among the general public.
      (d) It must have been entered or qualified to be admitted and entered as second class mail matter at a post office in the county where established.
      (e) It must contain matters of general interest and reports of current events. If the publication is devoted primarily to matters of specialized interests such as legal, mercantile, political, religious or sporting matters, and it contains in addition thereto general news of the day, information of current events and news of importance and of current interest to the general public, it is entitled to be classed as a newspaper.
      (4) To qualify for exemption as a newspaper, a publication must be sold, and not given to the reader free of charge. So-called newspapers which are given away for advertising and public relations purposes are taxable.


author: GRIMES, Chief Judge.

text:
    Derwin B. SMITH, II, Individually, etc., et al., Appellants, v. CITY OF CLEARWATER, Florida, et al., Appellees.
    No. 78-1501.
    District Court of Appeal of Florida, Second District.
    April 16, 1980.
    Rehearing Denied May 21, 1980.

      Joseph P. McNulty of McNulty, Moritz & Dickey, Largo, and John T. Allen, Jr., P. A., St. Petersburg, for appellants.
    Tom R. Moore, Clearwater, for appellee City of Clearwater.
    Andrew J. Rodnite, Asst. County Atty., Clearwater, for appellee Pinellas County Planning Council.
   GRIMES, Chief Judge.

This is an appeal from a judgment rejecting an attack by three property owners on certain amendments to the zoning ordinances of the City of Clearwater.

Appellants each own one of three contiguous parcels on a low-lying peninsula in upper Tampa Bay known as Cooper’s Point. The property lies on the eastern shore of the City of Clearwater and just north of the Courtney Campbell Causeway (State Road 60). Appellants or their families have owned the three parcels for many years. Prior to the amendments at issue in this case, the city had placed all of the land in a CG zone (general business district). This classification permitted single family or multiple dwelling uses with a density restriction which limited residential development to thirty-four units per acre.

During 1973 appellants combined their resources in order to develop the three parcels under a unified plan. They employed an architect and planner, Robert C. Wiel-age, to design the project, and on December 5, 1973, he first contacted city officials to advise them of the plan he had developed. He testified that he talked with City Planning Director Paul Bergman and had several discussions with him over the next two months during which they pledged each other full cooperation in the protection of the ecology and the interest of the landowners. Mr. Wielage said that these discussions gave him no reason to believe that the city would oppose the development provided there was adequate protection for the environment.

On April 11,1974, Mr. Wielage submitted an initial site plan to the city’s planning department. Further meetings ensued between Mr. Wielage and representatives of the planning department concerning certain mangrove areas and the precise locations of the high water mark since the city’s regulations required that developments be no less than thirty feet away from mangroves and begin at an elevation of not less than 1.65 feet above the mean high water mark. On June 19, 1974, Mr. Wielage tentatively submitted final plans to the city’s planning department which told him that he should make application to the state for a determination that the plan was not a “development of regional impact” (DRI). Mr. Wiel-age acceded to the city’s request and made an application to the Division of State Planning. The Division of State Planning initially determined that the proposal was a DRI and that this would require the property owners to formally comply with the provisions of Chapter 380, Florida Statutes (1973), relating to approval for such a development.

Appellants amended their proposal but the state advised them that the project continued to have DRI status. Appellants then made further changes to the proposal, and on January 9, 1975, the Division of State Planning ruled that the proposal as then constituted was not a development of regional impact.

In the meantime, the city had not processed the first applications for the development submitted on November 6, 1974, because of the position taken by the Division of State Planning. Also some of the personnel of the planning department were interested in stopping the project altogether. In fact, they encouraged the Division of State Planning to continue to declare the project to be a DRI. On December 9, 1974, the planning department recommended in writing to the city manager that the city commission downzone Cooper’s Point so that all upland area except the frontage on State Road 60 would fall in an RS-200 (single family residential) zone and that all non-upland areas would be classified as aquatic land. On January 6, 1975, the city commission expressed its approval of these recommendations and directed that the appropriate officials prepare ordinances to this effect.

On April 21, 1975, the city commission adopted ordinance 1561 which made its existing “aquatic lands” zoning applicable to four new wetlands areas around the city, including approximately ninety acres of Cooper’s Point or more than fifty percent of appellants’ property. The aquatic lands designation essentially limited use of the property placed in that zone to recreational pursuits. Then, on May 19, 1975, the commission enacted ordinance 1566 which directly affected only appellants’ property. This ordinance rezoned eight and one half acres near State Road 60 from CG to CP (Parkway Business District) which was a more restricted use than CG. It also rezoned the balance of the property from CG to RS-100 which restricted use of the land to single family residences with lots of not less than 10,000 square feet. The RS-100 zone was a less restrictive classification than the RS-200 zone which the planning department had earlier recommended. However, it should be noted that while up to 4.3 units per acre were permissible under RS-100, because of the peculiar geographic configuration of Cooper’s Point, not more than 2.2 units per acre were physically possible. Appellant’s problems were exacerbated by the fact that the Cooper’s Point area is in a “Flood Plain” so that federal regulations require all residences to have their first floor of living area not less than eleven feet above mean high water. The net effect of the two ordinances was that appellants could no longer build highrise units with parking below but could only construct a limited number of single family structures on stilts.

Appellants submit that Cooper’s Point is now, for all practical purposes, un-developable. Thus, they contend that the downzoning of their property to RS-100 was void as being capricious, arbitrary, unreasonable and confiscatory. The trial court ruled against appellants on this issue, and we find no reason to disturb its decision. There was sufficient evidence from which the court could find that the disputed ordinance did not have the effect of denying appellants the beneficial use of their property in violation of the state and federal constitutions. Cf. Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla.1st DCA 1979), in which the property owner lost essentially all practical use of his property. Moreover, we cannot say that the decision to subject Cooper’s Point to RS-100 zoning was not “fairly debatable” within the well-established rules for amendments to zoning ordinances. See e. g. Central Bank & Trust Co. v. Board of County Commissioners, 340 So.2d 503 (Fla.3d DCA 1976); Town of North Redington Beach v. Williams, 220 So.2d 22 (Fla.2d DCA 1969). In this connection it should be observed that the land on the mainland to the west of Cooper’s Point carried a residential zoning classification. The fact that Cooper’s Point is so low that the flood plain and setback requirements work against the economies of residential development does not mean that the City of Clearwater cannot zone the property for residential use. As a practical matter, municipalities cannot be required to adjust their ordinary residential zoning classifications to take into account every peculiar land elevation and configuration.

Appellants also argue that the ordinance which rezoned their wetlands as aquatic lands constituted a “taking” for public use, requiring an inverse condemnation remedy. Once again we believe the record supports the trial court’s conclusion. While there is no doubt that appellants will not be able to do much with their wetlands in the face of aquatic zoning, there wasn’t very much they could have done with this land without such zoning. Except for a thirty foot strip above the high water mark, all of the property involved was submerged land. There were no bulkhead lines, and the record reflects that it was most unlikely that appellants would have been able to obtain permission to fill the land. Also, as the trial court pointed out, there were serious environmental considerations which justified the placing of appellants’ wetlands within the aquatic lands zone.

Appellants’ third point requires more elaboration. They argue that because of the manner in which city officials dealt with them, the doctrine of equitable estop-pel should prevent the city from applying the amendments to its zoning ordinance to their property. In rejecting this claim, the trial court said:

From the outset the plaintiffs have complained that the city was estopped to deny to them the development of the peninsula to which they aspire. The plaintiffs complained that the old zoning, Commercial-General, would have allowed the full development of Cooper’s Point in accordance with their plans subject only to the final determination of the aquatic land boundaries. The plaintiffs also complained that throughout their official negotiations with the city they were lulled into a sense of security by the words and actions of the agents and employees of the city, who seemed to indicate acceptance of their plans subject only to a determination by the state' that their plans did not constitute a “development of regional impact.” The plaintiffs complained that as a direct result of the prior zoning of the peninsula and of the appar-. ent tentative approval by the city of their proposed development, they materially changed their position, to their detriment, in reliance thereon. However, at the end of the plaintiffs’ case in chief, this court granted the defendant city’s motion for directed verdict with regard to the plaintiffs’ allegations that the defendant should be estopped to deny to them the zoning which previously existed upon the peninsula. In our ruling, which we hereby reconfirm, we found that the optimistic interpretation by the plaintiffs of what can best be described as bare innuendo voiced by the employees and agents of the city did not give rise to a circumstance upon which the plaintiffs could legally rely. We also found and again state that the city spoke no word, committed no overt act or deed upon which the plaintiffs could have reasonably relied. Further, we found that the lack of discouragement on the part of the city did not equal the active official encouragement upon which the plaintiffs could have legally relied. Finally, it was the finding of this court that the city’s failure to preliminarily discourage a developer from a project which did not bask in the sunshine of city approval did not constitute, in the court’s mind, an official activity or indicia as could be legally relied upon by the plaintiffs. In substance, and as was stated before, we find there simply was no hard evidence to substantiate the plaintiffs’ allegations that the city should be estopped. Therefore, and again, the plaintiffs’ complaint for relief under the theory of estoppel, is denied.

The doctrine of equitable estoppel will limit a local government in the exercise of its zoning power when a property owner (1) relying in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or incurred such excessive obligations and expenses that it would be highly inequitable and unjust to destroy the rights he has acquired. Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla.2d DCA 1975); City of Hollywood v. Hollywood Beach Hotel Co., 283 So.2d 867 (Fla.4th DCA 1973). Measuring the facts of the present case against this standard, we cannot quarrel with the court’s conclusion that appellants did not present enough evidence to get past a motion for directed verdict (strictly speaking, a motion for involuntary dismissal). There simply was no showing that appellants substantially changed position or incurred large expenses in reliance upon an act or omission of the city. The most that the city did was to engage in some general “foot dragging.” While it is true that some members of the city planning department were working behind the scenes to thwart the project, their overt words and actions could not be said to have affirmatively misled appellants so as to cause them to incur the legal and architectural fees that would not have been required in any event. Although there was nothing in the city ordinances which required appellants to first obtain a determination that their project was not a development of regional impact, they cannot seriously contend that this was not a reasonable suggestion, and Mr. Wielage certainly acquiesced in it. Moreover, as originally conceived, the project was a DRI which would have required that appellants obtain approval under Chapter 380 before construction could begin. Hence, appellants did not prove the elements necessary for equitable estoppel.

Our inquiry cannot stop here, however, becadse there is a large body of law, closely related to the doctrine of equitable estop-pel, which deals with the question of whether a municipality may delay the issuance of a permit for an allowable use when it is lawfully applied for in order to gain the time necessary to enact an amendment to its zoning ordinance which would frustrate the applicant’s plans for developing his property. While often acknowledging the fact that a city should have issued a building permit when requested to do so, many courts apply the zoning as it exists at the time of their decision in determining whether the city should then be required to do so. Annot., 50 A.L.R.3d 596, 605 (1973); 4 R. Anderson, American Law of Zoning 309 (2d ed. 1977); 8 E. McQuillin, Municipal Corporations 455^456 (3d ed. 1976). Thus, in discussing delay or the refusal to issue a permit, Anderson states

The decisions relating to building permits and work commenced on the faith of such permits support the conclusion that nothing short of actual use of land, or a substantial change of position pursuant to a permit, prior to the enactment or effective date of a restrictive ordinance, will entitle á landowner to a nonconforming use. This premise has been challenged in cases involving administrative delay in the handling of permit applications. A typical dispute arises when a landowner applies for a permit to erect a building or commence a use which is authorized at the proposed site, but which is not acceptable to adjacent owners, or is not consistent with some feature of the community plan for the development of the area. While there is some authority for the denial of a permit where a pending amendment would render issuance unlawful, most courts say that a municipality is without authority to deny a permit for a currently legal use. Municipal officials can, and sometimes do, delay issuance of a permit until the zoning ordinance is amended to prohibit the proposed use, or a court orders issuance of a permit. This administrative procrastination, calculated to deny a property owner the right to use his land in a currently lawful manner, is supportable neither by law nor by sound and ethical practice. But its use is common enough to have provided the materials for a number- of judicial opinions.
Where a municipal corporation unlawfully withholds a permit, the applicant can by mandamus force the appropriate official to issue it. But the zoning power of the municipality is not suspended during the pendency of the permit application, or an action for a writ ordering issuance of the permit. This power may be employed to amend the zoning ordinance to outlaw the use. If it is so used, a court will not order a municipal official to issue the permit unless the applicant has established a right to nonconforming use of the land. This situation squarely presents the question whether such a vested right can be perfected by a timely application for a permit to establish a lawful use, followed by unwarranted administrative delay which prevents any actual use of the land prior to the restrictive ordinance. The courts have usually not upheld the applicant’s claim to a nonconforming use.

1 Anderson, supra, at 421-423 (footnotes omitted).

On the other hand, although a general rule is hard to determine, Florida has in the past been more sympathetic to the property owner in cases involving this issue. In two cases in which the facts only become apparent from reading the concurring and dissenting opinions, our supreme court ordered cities to issue building permits which were within existing zoning when the property owner applied for them but which failed to comply with a rezoning ordinance passed after the applicant had commenced legal proceedings. Broach v. Young, 100 So.2d 411 (Fla.1958); Aiken v. Davis, 106 Fla. 675, 143 So. 658 (1932). Our own court appeared to adopt this approach in City of Hollywood v. Pettersen, 178 So.2d 919 (Fla.2d DCA 1965). In Sharrow v. City of Dania, 83 So.2d 274 (Fla.1955), and Miami Shores Village v. Post No. 124 of American Legion, 156 Fla. 673, 24 So.2d 33 (Fla.1945), the supreme court did hold that a city could revoke a building permit already issued because the use did not comply with a new ordinance which was enacted after its issuance, but the court seems to have decided these cases on the premise that when the property owners obtained the permit, they knew of the likelihood that the city was about to amend the zoning ordinances. Yet, in City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428 (Fla.1954), the supreme court upheld the city’s right to prohibit the usage of property in violation of a zoning change which it had not adopted until after it had issued a permit, and the court made no reference to forewarnings to the property owner. The court said:

This Court has never gone so far as to hold that a City will be estopped to enforce an amendment to a zoning ordinance merely because a party detrimentally alters his position upon the chance and in the faith that no change in the zoning regulations will occur. It is our view that such a doctrine would be an unwise restraint upon the police power of the government. All that one who plans to use his property in accordance with existing zoning regulations is entitled to assume is that such regulations will not be altered to his detriment, unless the change bears a substantial relation to the health, morals, welfare or safety of the public. See author’s comments and cases cited in 138 A.L.R. 500 (II).

77 So.2d at 430.

City of Miami Beach v. Jonathon Corp., 238 So.2d 516 (Fla.3d DCA 1970), also suggests that the Florida courts are backing away from any absolute rule with respect to the status of the zoning which is existent at the time the property owner requests a permit. There, the city had refused the property owner a building permit which was within existing zoning. One day after the trial court had issued an alternative writ of mandamus, the city council passed a resolution authorizing eminent domain proceedings which were commenced nine days later. The court later entered a peremptory writ of mandamus upon summary judgment directing the city to issue the permit. While this case involved eminent domain, the appellate court applied the reasoning of those cases involving the retroactive effect of zoning ’ changes upon prior applications for building permits. Based upon these' authorities, the court concluded that there was a genuine issue of material fact as to whether the decision to institute eminent domain proceedings constituted either an arbitrary or a bad faith act of the • city.

There is an interplay between those situations in which the city is estopped because the property owner has spent large sums in reliance on the city’s original position and those in which, the city refuses to issue a permit for a use which is permissible under existing zoning. If the city has refused to issue the permit, the property owner often cannot run the risk of spending the money which might create the estoppel, because he is then on notice of the possibility that the city may take an adverse position. Carried to its extreme, a city could arbitrarily continue to refuse a permit and permanently deprive a property owner of the right to use his property according to existing zoning. The opinion in Naumovich v. Howarth, 92 Ill.App.2d 134, 234 N.E.2d 185 (1968), illustrates this anomaly:

Considerable difficulty is experienced in reconciling the rules announced in the authorities that, (a) rights are fixed at the time the application for a building permit is made; (b) no resolution suspending existing zoning ordinances is effective; (c) an applicant has no complaint regarding retroactive zoning unless he experienced a substantial change of position relying on existing zoning, and (d) where the City’s wrongful act prevents one from acquiring a vested right, the City cannot take advantage of a situation which it caused.
While the decided cases state that the rights of the parties are fixed at the time of the application for the building permit, that a municipality cannot suspend the operation of the existing law, and that the city may not take advantage of its own acts to'prevent the acquisition of a vested right, so that no actual change of position is necessary to enforce the right to the building permit, nevertheless, the opposite conclusion is reached by logically applying the principles that no one has a vested right in the continuance of a law and that the ordinance applicable at the time of the decision governs. Phillips Petroleum Co. v. City of Park Ridge, 16 Ill.App.2d 555 on 565, 149 N.E.2d 344.
It, therefore, appears that the principles are made workable by inquiry into such factors as, (1) a substantial change of position before an orderly change in the law, (2) a notice of likelihood of change in the law prior to change in position of the applicant, (3) the regularity of the proceeding of the municipality to make the change, and (4) the promptness with which the municipality takes action.

234 N.E.2d at 188.

After careful consideration, we believe that the better rule and one which is consistent with most if not all Florida decisions can be stated as follows. Where a property owner meets the requirements specified in Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla.2d DCA 1975), the municipality will be estopped from denying him a building permit on the grounds that his project constitutes a nonconforming use. However, even if he has not made the substantial expenditures in reliance upon the city’s position necessary to create an estoppel, he is still entitled to obtain a building permit which is within the provisions of existing zoning so long as the rezoning ordinance which would preclude the intended use is not pending at the time when a proper application is made. For a zoning change to be pending within this rule, it does not have to be before the city council, provided the appropriate administrative department of the city is actively pursuing it. Of course, mere thoughts or comments by city employees concerning the desirability of a change are not enough. There must be active and documented efforts on the part of those authorized to do the work which, in the normal course of municipal action, culminate in the requisite zoning change. The city council or the applicable city planning board must at least be aware that these efforts are going forward. For a zoning change to be pending, however, it is not essential that the property owner be advised of these activities, except that to the extent that he is unaware of them, he might justifiably continue to expend funds upon his project which, if the matter does not in due time become public, may result in the application of equitable estoppel. See Annot., 50 A.L.R.3d 596, 620-632 (1973), for cases discussing when a proposed change is deemed pending.

This rule would prevent a city from retroactively applying a zoning amendment to deny a building permit unless the amendment was pending at the time of the application for the permit. Thus, if a zoning change is deemed desirable, a city cannot wait to activate the machinery ultimately necessary to bring about the change until a property owner submits an application for a use which would only be precluded as a result of the change. This will encourage cities to keep their zoning current and at the same time provide property owners with a reasonable amount of stability upon which they can rely in making decisions concerning the use of their property.

Applying these principles to the cáse at hand, we think it is evident that the proposed changes in zoning were pending at the time the Division of State Planning notified appellants that their project was no longer considered a DRI. By that time the planning department had recommended the zoning changes, and the city commission had directed the department to go forward with the drafting of appropriate ordinances. Hence, the new ordinances were applicable to appellants’ property.

AFFIRMED.

SCHEB and CAMPBELL, JJ., concur.

      . A comprehensive plan prepared for the city in 1962 designated the property as low density residential, but the city never changed the official zoning classification to reflect this recommendation.

      . The year before, appellants had obtained the city’s support for their plan to ask the state to purchase the land as an area of critical state concern. Howéver, their efforts had been unavailing.

      . Appellants do not attack the CP rezoning in this appeal.

      . Appellants raise a fourth point concerning their claims against the Pinellas County Planning Council, but in view of our disposition of the case it is not necessary to discuss this point.

      . We shall assume for the purpose of our discussion that as of January 9, 1975, appellants’ application for its initial permit was in full compliance with existing regulations. Actually, this was not quite so because a topographical survey was still required. However, the city did not deny the permit for lack of a survey, and, presumably, with the cooperation of the city, appellants could have furnished one within a short time.

      . To the extent that it conflicts with these statements, we hereby recede from our opinion in City of Hollywood v. Pettersen.


author: PER CURIAM. MOORE, Judge,

text:
    Loretta E. TOWER and Clarence R. Tower, her husband, Appellants, v. JEFFERSON STORES, INC., a Foreign Corporation, Appellee.
    No. 78-518.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1980.
    Rehearing Denied June 4, 1980.

      Michael L. Gates of Kaplan & Jaffe, P. A., Hollywood, for appellants.
    Lawrence A. Fuller of Fuller, Feingold, Weil & Scheer, P. A., Miami Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment entered upon a directed verdict in a negligence action brought against the appellee by the appellants. There was uncontradict-ed evidence presented at trial that Loretta Tower was injured when a two way, manually operated door at the entrance to appel-lee’s retail store malfunctioned and struck Mrs. Tower. Prior to the accident store employees had noticed that all of the store doors, manual and automatic, had been blowing back into the store by the wind. Immediately after the accident it was determined that the door which struck Mrs. Tower continued to malfunction. On these facts the jury could have found that the appellee had breached its duty to provide Mrs. Tower with a safe means of exit from the store. Shields v. Food Fair Stores of Florida, 106 So.2d 90 (Fla.3d DCA 1958); Gaffron v. Prudential Life Insurance Co., 238 Mo.App. 749, 187 S.W.2d 41 (1945).

Accordingly, the judgment of the trial court is reversed with directions for further proceedings consistent herewith.

DOWNEY, C. J., and ANSTEAD, J., concur.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

I respectfully dissent.

The majority finds “uncontradicted evidence” that a manually operated door at the entrance to appellee’s store malfunctioned, thus causing an issue to be submitted to the jury. Having reviewed the entire transcript of the trial proceedings, I fail to find even a scintilla of evidence of malfunctioning of the door in question in this case.

The door, which allegedly struck the appellant, was a double-action, manually operated door; i. e. it could be pulled in or pushed out by one exiting the store. On the morning prior to the accident there had been severe, gusty winds which caused the doors to be blown open five to six inches when the wind would hit them. The store’s maintenance man checked all of the doors in the morning and found them to be operating correctly. There was no evidence of any mechanical malfunctioning or improper maintenance of the hydraulic doorstops. Likewise, there was no evidence that the doorstops could or should have been adjusted. Later that afternoon, the appellant was attempting to exit the store immediately behind another lady who pushed the door open, existed, and released the door for its return to a normal closed position. Because of the wind, the door “swung back into the store” striking the appellant on the head. The maintenance man again checked the operation of the door after the accident and found nothing wrong with its operation. The lady who had exited the store prior to the appellant witnessed this test and testified that the door came back into the store six, ten or twelve inches. There was testimony that the wind would cause the door to fall back hard to the threshold.

The duty of a landowner to an invitee is to use ordinary care to maintain the premises in a reasonably safe condition for use in a manner consistent with the invitation, and to warn of latent perils which are known, or should be known, to the owner, but which are not known to the invitee or which, by the exercise of due care, could not be known to him. Rice v. Florida Power and Light Company, 363 So.2d 834 (Fla. 3rd DCA 1978). As stated in Winn-Dixie Montgomery, Inc. v. Petterson, 291 So.2d 666 (Fla. 1st DCA 1974):

Liability for negligence in failing to maintain premises in a reasonably safe condition, or in failing to warn of existing dangers, must be predicated on the occupant’s superior knowledge or means of obtaining knowledge concerning the danger. In order to recover, a plaintiff must show either that the occupant or proprietor had- actual notice of the condition or that the dangerous condition existed for such a length of time that in the exercise of ordinary care the occupant should have known of it and taken action to remedy it or guard the plaintiff from harm therefrom. No liability-can attach where it is not shown that the owner or proprietor had actual or constructive notice of the dangerous condition.

It is unquestioned that an owner of a store has a duty to provide a reasonably safe method of ingress and egress to the premises. Thompson v. Ward Enterprises, 341 So.2d 837 (Fla. 3rd DCA 1977). However, providing a door that swings both in and out is not in itself an act of negligence. 62 Am.Jur.2d, Premises Liability, § 208.

I agree with the trial court, when, in ruling on the motion for directed verdict, he stated:

It appears to the court that the attempt here is to prove negligence by the occurrence of an accident or an incident or an injury. There has been no testimony that the door was improperly designed, improperly installed, improperly maintained, improperly inspected; just that the wind blew the door or a party who preceded ahead of the plaintiff in this case went through the door and let it swing back and in combination with its swinging back, together with perhaps some wind, that it came in contact with the plaintiff.

I would add that there was no testimony of knowledge on part of the appellee of a dangerous condition or that a dangerous condition existed for such a length of time that the appellee should have known of its existence.

Accordingly I would affirm the trial judgé.


author: ANSTEAD, Judge.

text:
    William NORRIS, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-2338, 79-584.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff and Gary S. Israel, Asst: Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

In these consolidated appeals, the appellant claims error by the trial court in denying motions to dismiss an information and an affidavit of violation of probation and in revoking his probation for an alleged violation of a term of his probation requiring him to live honorably.

Appellant was charged with maliciously punishing a child in violation of Section 827.03(3), Florida Statutes (1977). He contends that there was insufficient evidence of malice to sustain the charge. We have reviewed the record and the facts stipulated to by the parties and find no error by the trial court in denying the motion to dismiss.

After the denial of the motion to dismiss the appellant entered a plea of nolo conten-, dere and was placed on probation for a term of ten years. By the terms of his probation appellant was enjoined from violating any law and by a special condition was ordered to live honorably. Subsequently he was charged with violating the special condition requiring him to live honorably, by committing a battery upon his wife on two separate occasions. At the probation revocation hearing appellant moved to dismiss the two charges on the basis that the condition of probation requiring him to live honorably was too vague and uncertain to put him on reasonable notice of prohibited conduct. This was the first time the probationer had raised any objection to the condition. The trial court denied the motion; and after substantial proof of the alleged batteries was submitted, appellant’s probation was revoked.

In Hines v. State, 358 So.2d 183 (Fla.1978) revocation was upheld even though the charging affidavit merely alleged that the probationer had been arrested for a felony. At Hines’ revocation hearing it was actually proven that he had committed a burglary. The Supreme Court held that although probation could not be revoked merely upon a showing of an arrest, the probationer had been given sufficient notice of the actual misconduct charged, in that case a burglary, to comply with the minimum due process requirements for probation revocation proceedings. The fact that the charging affidavit alleged an arrest, rather than the actual misconduct involved, was found to constitute harmless error:

In the present case, the written factual allegations in the affidavit for violation of probation were insufficient to provide notice to the probationer with what criminal acts he was charged. In this case, however, we find this to be harmless error since the record shows that the probationer clearly had actual notice of the charges, that he was arrested near the scene of the crime shortly after its occurrence, and that he made a confession to his involvement. There was no violation of the probationer’s due process rights. Petitioner’s probation was revoked upon adequate proof of burglary for which he was arrested by Deputy Blosser on 3/13/76. The circumstances here are not comparable to those cases in which a person’s probation has been revoked based upon proof of charges other than those with which he was notified in the affidavit of violation, (footnote omitted)
Id. at 185-186

Similarly, here, the appellant was expressly charged with violating his probation by committing two successive batteries upon his wife. The details of the batteries were set out in the charging affidavit. One of the conditions of appellant’s probation specifically prohibited him from violating the law. Both the affidavits and proof showed that he had violated the law on two occasions and hence was in violation of his probation. No contention is made, nor is there any indication in the record, that appellant was prejudiced because, rather than the charging affidavit alleging that the misconduct in question constituted a violation of the condition of probation requiring the appellant to live within the law, the affidavit instead alleged that such conduct violated the condition requiring him to live honorably. We find that the appellant had specific notice of the actual misconduct charged. Accordingly, we find any error in denying the motion to dismiss to be harmless.

Although, under the circumstances of this case, we find no harmful error by the trial court in denying the appellant’s motion to dismiss and subsequently revoking the appellant’s probation, we agree that a condition of probation requiring a proba-, tioner to live honorably is too vague and uncertain to apprise him of the type of conduct which would give rise to a violation of his probation. Hence, if properly challenged, such a condition should be stricken.

In De Stefano v. State, 377 So.2d 751 (Fla. 4th DCA 1979), this writer expressed the view that a condition of probation requiring a probationer to live honorably was impermissibly vague and over-broad:

A probationer should be put on reasonable notice of any conduct prohibited during his term of probation. Almond v. State, 350 So.2d 810 (Fla. 4th DCA 1977); Morgan v. Foster, 208 Ga. 630, 68 S.E.2d 583 (1952). While I am in full agreement that everyone, generally, and probationers, in particular, should conduct themselves' honorably, I believe that such a requirement is too broad and ambiguous to establish a clear guideline for the appellant’s conduct during probation. In its other provisions prohibiting violations of the law, restricting residency, etc., the order of probation more than adequately sets objective standards of conduct for the probationer. In contrast, the special provision es nothing more than a vague catch-all which is subject to varying interpretations depending on the subjective moral code of the individual.
Id. at 752

For these reasons we now expressly disapprove such a condition of probation.

We do not believe the case of Sellers v. Bridges, 153 Fla. 586, 15 So.2d 693 (1943), cited by the state, conflicts with the decision we reach today. In that case there was no direct challenge made to the condition involved herein. Rather, by way of example, the opinion set out a lengthy list of the varying terms of parole generally agreed to by parolees. The issue actually resolved in Sellers had nothing to do with the validity of those conditions, but rather concerned the validity of the underlying information by which the defendant had originally been charged.

In accordance with the above, the judgment and sentence of the trial court are hereby affirmed.

DOWNEY, C. J., and MOORE, J., concur.

      . Fundamental fairness requires that a defendant be placed on notice as to what he must do or refrain from doing while on probation. Hines v. State, supra.