author: HOBSON, Acting Chief Judge.

text:
    AGRICO CHEMICAL COMPANY, Appellant, v. DEPARTMENT OF ENVIRONMENTAL REGULATION, Freeport Sulphur Company (a division of Freeport Minerals Company) and Sulphur Terminals Company, Inc., Appellees.
    No. 79-2029.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    Rehearing Denied Dec. 4, 1981.
    Edward P. de la Parte, Jr. and Louis de la Parte, Jr., of de la Parte & Butler, Tampa, and John T. Allen, Jr., St. Petersburg, for appellant. 4
    John C. Bottcher and Mary F. Clark, Dept, of Environmental Regulation, Tallahassee, for appellee, Department of Environmental Regulation.
    William L. Earl, Paul H. Amundsen and Richard M. Goldstein of Peeples, Earl, Smith, Moore & Blank, P. A., Miami, for appellees, Freeport Sulphur Co. and Sul-phur Terminals Co., Inc.
   HOBSON, Acting Chief Judge.

Petitioner Agrico Chemical Company (Agrico) seeks review of a final order of the Florida Environmental Regulation Commission (Commission) which affirmed an order of the Florida Department of Environmental Regulation (DER) denying Agrico a construction permit for solid sulphur-handling facilities. We reverse on the ground that Agrico’s business competitors were erroneously granted standing to interfere in DER’s permitting procedure.

Agrico mines phosphate and manufactures fertilizer in Florida. Sulphur constitutes approximately fifty per cent of the cost of making fertilizer. Agrico purchases molten sulphur from Freeport Sulphur Company (Freeport), a division of Freeport Minerals Company, Inc. Because of Florida’s large phosphate industry, Tampa is the largest single sulphur market in the world. Freeport delivered over one million tons of sulphur to the Tampa market in 1978. Sul-phur Terminals Company, Inc. (Sulphur Terminals) handles liquid sulphur at its Tampa facility.

Since the early 1960’s, sulphur has been delivered through the Port of Tampa in a molten state. This necessitates maintaining the sulphur at high temperatures from production until sale and conversion into sulphuric acid. Recently a new, less expensive, type of sulphur became available from a Canadian supplier. This form of sulphur is referred to as “prill” and is maintained in a solid, pellet form. Prill is cheaper than molten sulphur because it is produced, transported and maintained in a solid state which avoids the cost of keeping and transporting molten sulphur. The air pollution potential from prill is controlled by moisture. During off-loading at dockside, the prill is sprayed with water to prevent dusting.

Agrico initiated this proceeding by filing an application with DER pursuant to section 403.087, Florida Statutes (1977), for a construction permit to construct a terminal facility in Tampa to handle prill sulphur. Since the proposed terminal facility would constitute a potential pollution source under section 403.087, Agrico was required to comply with the procedure in chapter 17-4, Florida Administrative Code, which requires an applicant first to obtain a construction permit and then, after testing for compliance with pollution standards, an operation permit. Agrico applied for two construction permits, one for an air pollution source and one for a waste-water facility. DER issued the waste-water permit and a letter of intent to grant the air permit. Freeport and Sulphur Terminals filed petitions objecting to the issuance of Agrico’s permits. Standing to contest these permits was alleged on the basis of economic injury to petitioners.

DER transferred Freeport and Sulphur Terminals’ petitions to the Division of Administrative Hearings (DOAH) for hearing. The hearing officer recommended that DER and Agrico’s motions to dismiss the petitions challenging the water permit be granted, because DER had already issued the water permit. DER reviewed the hearing officer’s recommended order and determined that the legal issue to be resolved was whether Freeport and Sulphur Terminals had alleged grounds for standing as parties to a section 120.57 formal hearing. In making its final determination, DER took official recognition, pursuant to section 120.61, Florida Statutes, of Agrico’s air permit application case. Both the air and water permit cases were presided over by the same DOAH officer and included the same parties represented by the same attorneys. This action by DER allowed it to consider exhibits filed in the air permit case in order to make a determination in the water permit case.

In its findings on the water permit, DER stated that Freeport and Sulphur Terminals’ generalized claims of environmental pollution were not sufficient to establish standing since Freeport had established no nexus between Agrico’s proposed waste-water treatment system and harm to Free-port’s legitimate environmental interests. DER concluded that the nature of Free-port’s “substantial interest” was future adverse economic impact. These economic concerns were held not to be within the zone of interest protected by the environmental licensing provisions of chapter 403, Florida Statutes. DER’s final order modified the hearing officer’s recommended order and granted Agrico’s motion to dismiss the petition on the ground of lack of standing. The order confirmed the prior issuance of Agrico’s water permit.

After dismissal of their petition objecting to the water permit, Freeport and Sulphur Terminals amended their petition as to the air permit and alleged environmental injury which would result from Agrico’s proposed solid sulphur facility.

The hearing officer subsequently granted standing to Freeport and Sulphur Terminals in the air permit case on three grounds: 1) Freeport and Sulphur Terminals’ substantial interests [adverse economic impact] were affected; 2) DER’s act of forwarding the petitions to DOAH for hearing “allowed” Freeport and Sulphur Terminals to intervene pursuant to the definition of “party” under section 120.52(10)(c); and 3) Florida Administrative Code Rule 17-2.-03, the LRACT Rule, entitled Freeport and Sulphur Terminals to participate as parties pursuant to section 120.52(10)(b). The order recommended denial of the air permit.

DER adopted the hearing officer’s recommendation that the air permit be denied and affirmed Freeport and Sulphur Terminals’ standing solely on the basis of rule Í7-2.03, the LRACT Rule. DER specifically rejected the first two grounds set out by the hearing officer. The Commission of Environmental Regulation affirmed the final order.

PARTIES’ POSITIONS

Agrico contends, among other things, that Freeport and Sulphur Terminals do not have standing to contest its air pollution permit application because competitive economic injury alone is insufficient to afford standing to request a section 120.57 formal hearing under the Florida Administrative Procedure Act. Agrico argues that there is no statutory authority for making competitive economic injury a concern in the issuance of permits under chapter 403.

DER’s position, as stated in its final order, is that, while competitive economic injury is not sufficient to confer standing to seek a section 120.57 hearing in a chapter 403 permitting procedure, the LRACT Rule makes competitive economic injury a matter of agency concern and confers standing on Freeport and Sulphur Terminals pursuant to section 120.52(10)(b), Florida Statutes. DER claims the right to grant standing to economic competitors if it chooses to do so, even though its final decision to issue or deny a permit may not be based on the economic effect on an applicant’s competitor.

Freeport and Sulphur Terminals cross-appeal the narrow ground on which they were granted standing and contend that they have party status without regard to the provisions of the LRACT Rule. They argue that under section 120.52(10)(b) any person whose “substantial interest” will be affected by a proposed agency action is a “party.” As regulated members of the Florida sul-phur industry, Freeport and Sulphur Terminals claim standing as parties in any DER proceedings concerning changes in pollution control technology. Since the Administrative Procedure Act allows a regulated industry to initiate rule-making proceedings, Freeport and Sulphur Terminals argue that they have access, as parties, to any proceeding where emerging policy is formulated which will substantially affect their economic interest.

DISCUSSION

We hold that the Commission was in error when it affirmed DER’s order granting standing to Freeport and Sulphur Terminals and allowing them, as economic competitors, to participate in Agrico’s chapter 403 permitting process.

The portion of the Administrative Procedure Act defining “party” which is applicable to this appeal reads as follows: (10) ‘Party’ means:

(b) Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.

We agree with DER that the statute itself did not give the petitioners standing because they were unable to show that their environmental interests were substantially affected by the agency question. See Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury. While petitioners in the instant case were able to show a high degree of potential economic injury, they were wholly unable to show that the nature of the injury was one under the protection of chapter 403.

Chapter 403 simply was not meant to redress or prevent injuries to a competitor’s profit and loss statement. Third-party protestants in a chapter 403 permitting procedure who seek standing must frame their petition for a section 120.57 formal hearing in terms which clearly show injury in fact to interests protected by chapter 403. If their standing is challenged in that hearing by the permit applicant and the protestants are then unable to produce evidence to show that their substantial environmental interests will be affected by the permit grant, the agency must deny standing and proceed on the permit directly with the applicant.

DER granted party status to petitioners on the premise that one of its regulations “by reasonable inference” made potential competitive injury to petitioners a proper matter of concern in the agency action on Agrico’s application for a construction permit. DER’s final order, as approved by the Commission, stated:

[A]n agency may make potential competitive economic injury cognizable in its licensing proceedings. In this instance, the Department has done so.
In its licensing decision in this case, the Department was required to determine and apply the Latest Reasonably Available Control Technology (“LRACT”). Section 17-2.03(1)(A), Florida Administrative Code, provides, in pertinent part, as follows:
(A) Determination — the Department shall determine Latest Reasonably Available Control Technology.
(1) In making the determination the Department shall give due consideration to:
a. ...
b. ...
c. ...
d. the social and economic impact of the application of technology. . .
‘Economic impact’ is broad enough to reasonably include consideration of the potential economic impacts application of LRACT would have on competitors of the applicant.

We are not persuaded that the reference in section 17 — 2.03(1)(A) to “social and economic impact” can be reasonably read to include the economic impact on a business entity when a competitor is first on the market with a less expensive product. The LRACT Rule, read in the context of DER’s statutory framework, chapter 403, is clearly concerned with the economic effect of the application of new environmental technology on businesses which are or will be required to conform their technology to current standards. Subsection (l)(d) is a cost/benefit test; cost to the affected business as opposed to the benefit to environmental interests served by the new technology. This provision does not require DER to balance the cost of new technology to the affected business against possible economic losses to a business competitor. Thus, the LRACT Rule is not a “provision of agency regulation” which allows a competitor to object, solely on the basis of potential competitive economic injury, to the issuance of the permit under chapter 403.

In the instant case, DER had already reviewed Agrico’s application, found it to be adequate, and issued a letter of intent to grant the construction permit. We, therefore, grant Agrico’s petition for review, vacate the final order of the Commission, and direct DER to proceed with the issuance of the subject construction permit. We note that Agrico’s sulphur-handling facility, when and if constructed, will then be subject to rigorous testing before the operational permit can be issued.

Since the issue of standing is dispositive of this appeal, we do not address Agrico’s remaining arguments.

REVERSED.

GRIMES and RYDER, JJ., concur.

      . The applicable provision of Fla.Admin.Code Rule 17-2.03, known as the LRACT Rule, reads in part, as follows:
      (1)Latest Reasonably Available Control Technology.
      (A) Determination — The Department shall determine Latest Reasonably Available Control Technology.
      (1) In making the determination the Department shall give due consideration to:
      a. Environmental Protection Agency Determinations of Reasonably Available Control Technology pursuant to 40 C.F.R. Section 51.1(0) and 40 C.F.R., Part 51, Appendix B; and Environmental Protection Agency determinations of Standards of Performance for New Stationary Sources, pursuant to 40 C.F.R., Part 60.
      b. All scientific, engineering, and technical material, reports, publications, journals, and other competent relevant information made available to or known by the Department.
      c. Recommendations of any ad hoc technical advisory committee appointed pursuant to paragraph 3 of this subsection (17-2.-03(1 )(a)).
      d. The social and economic impact of the application of such technology including consideration of any useful life of presently installed control equipment and the amortization of the value of such equipment balanced with the cost and advantages of the new technology; public interest served by such equipment; and other appropriate factors, such as materials, manufacturing processes, all environmental impacts, control and treatment technology available, ability to construct, install, and operate the facility, energy requirements, and cost.
      (2) The Department shall specify and publish its determination of Latest Reasonably Available Control Technology by source or category of sources.
      (3) To assist the Department in making the determination of Latest Reasonably Available Control Technology, the Executive Director may appoint an ad hoc technical advisory committee of persons with expertise and knowledge in the particular matter under consideration. The committee shall be representative of scientific, affected industry, citizen and conservation interests. If an affected party so requests the committee shall be appointed.
      (4) Any citizen or affected party may, in accordance with the Florida Administrative Procedures Act, Chapter 120, Florida Statutes, request a determination of Latest Reasonably Available Control Technology for a source or category of sources.
      (5) The determination of Latest Reasonably Available Control Technology shall be made by the Board only after notice and public hearing is requested by an affected party.
      (6) Determinations of Latest Reasonably Available Control Technology shall be periodically reviewed by the Department, and shall be subject to revision in accordance with this Section 17-2.03(1), Florida Administrative Code, subsequent to such review if the Board determines, on the basis of competent substantial evidence, that different equipment, devices or processes will result in a reduction of emissions.
      (B) Application
      (1) If the application of the Latest Reasonably Available Control Technology to an air pollutant source will result in lower or improved air pollutant emissions, then the Department shall require that the Latest Reasonably Available Control Technology be applied. (emphasis ours)
      The LRACT Rule was repealed prior to final hearing in the instant case and replaced by Fla.Admin.Code Rule 17-2.03, entitled “Best Available Control Technology” (BACT). The BACT Rule states in subsection 3(b):
      Any pending petition or proceeding involving a determination of latest reasonably available control technology (LRACT) in process on the effective date of this subsection and any construction permit application or construction permit proceeding affected by such LRACT determination, petition or proceeding or relating to a category of sources encompassed by such proceeding shall be governed by the provisions of the LRACT rule ....
      Agrico’s air permit proceeding, was therefore, affected by standards determined under the guidelines of the LRACT Rule. The difficulty in applying this rule to Agrico’s permit application is that DER has never determined LRACT for sulphur-handling facilities.

      . The hearing officer conducted what the parties refer to as a “mini-trial” on the standing issue before taking testimony on the substantive technical issues.

      . The fact that DER recognized the error of granting standing on two of the three grounds stated by the hearing officer did not rectify the situation. The § 120.57 hearing should have terminated when the hearing officer became aware that Freeport and Sulphur Terminals could put forth no evidence that they would be injured environmentally from Agrico’s solid sulphur facility. The strongest environmental allegation contained in the petition was that solid sulphur was “environmentally regressive.” From that point on, environmental matters were relegated to the rear echelons of the “standing” battle. After the “mini-trial” on standing, the substantive portion of the hearing became a veritable maze of conflicting technical evidence which the hearing officer was required to resolve within the framework of nonexistent LRACT criteria for sulphur-handling facilities.

      . The petitioners did not seek to intervene under section 403.412(5) nor comply with its requirements, so we need not consider its applicability to this case.


source: Caselaw Access Project

author: COWART, Judge.

license: Public Domain

text:
    Stavros Samuel SINTROS and Lurline Sintros, his wife, Appellants, v. Robert C. LaVALLE, et al., Appellees. AVIS RENT-A-CAR SYSTEMS, INC., et al., Appellants, v. Sergeant Lawrence KERLY, et al., Appellees.
    Nos. 80-946, 80-1008.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 1981.
    Rehearing Denied Dec. 3, 1981.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, P.A., Orlando, for appellants Sintros.
    E. Peyton Hodges of Gosney, Cameron, Parsons & Marriott, P.A., Daytona Beach, for appellants Avis Rent-A-Car Systems, et al.

      Daniel E. Eckert, Asst. County Atty., De-Land, for appellees County of Volusia, Deputy Matusick, Corporal Mason, and Lieutenant Allen.
   COWART, Judge.

Appellant, Stavros Sin tros, was injured when the vehicle he occupied was struck in an accident caused by a vehicle owned by appellant Avis Rent-A-Car Systems, Inc., and operated by appellee LaValle. At the time of the accident, LaValle was being chased by a traffic control police officer of the sheriff’s department of the appellee Volusia County. Appellants’ second amended complaint against LaValle, Avis and Volusia County and Avis’ third party complaint against Volusia County both allege that Volusia County’s police officers were negligent in many enumerated aspects in and while pursuing LaValle under the circumstances and that such negligence contributed to, or caused, appellants’ injuries. The trial court dismissed both complaints as to Volusia County without specifying reasons. Since a cause of action against governmental agencies for the negligence of police officers under the circumstances well pleaded in both complaints has been recognized in Florida, and because of arguments made in support of the motions to dismiss and to strike the complaints, appellants assumed that the complaint was dismissed because the trial court held as a matter of law that the decision to pursue, and the manner in which it was done, were “planning or discretionary level” matters rather than “operational level” functions; the result being Volusia County had sovereign immunity from tort liability under Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), notwithstanding section 768.28(1), Florida Statutes (1979). We likewise assume that was the basis for the dismissals and reverse.

Without sophistry we hold that, without regard to the “planning or discretionary” level of the reason for the activity, the operation of a motor vehicle by a governmental employee within the scope of his governmental employment is an “operational level” activity and that a complaint properly alleging that such activity was negligently performed and that such negligence was the legal cause of plaintiff’s injuries states a cause of action for compensatory damages against a governmental agency as against the argument of sovereign immunity-

The order dismissing the second amended complaint and Avis’ third party complaint is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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

      . Mr. Sintros was joined by his wife, who as- ■ serfs a claim for loss of consortium.

      . City of Miami v. Horne, 198 So.2d 10 (Fla.1967); Reed v. City of Winter Park, 253 So.2d 475 (Fla. 4th DCA 1971); Evanoff v. City of St. Petersburg, 186 So.2d 68 (Fla. 2d DCA 1966); Town of Mt. Dora v. Bryant, 128 So.2d 4 (Fla. 2d DCA 1961).


author:
FRANK D. UPCHURCH, Jr., Judge.
      SHARP, Judge,

text:
    The SCHOOL BOARD OF SEMINOLE COUNTY, Florida, Appellant, v. Lynette T. CORNELISON and the Seminole Education Association, Appellees.
    No. 80-494.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.
    Rehearing Denied Dec. 2, 1981.

      Ned N. Julian, Jr., Stenstrom, McIntosh, Julian, Colbert & Whigham and Marcia K. Lippincott, Sanford, for appellant.
    John J. Chamblee, Jr., Frank, Chamblee & Kelly, P. A., Tampa, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals an order of the Circuit Court for Seminole County affirming an arbitration award. Appellee was initially employed by appellant on an annual contract as a media specialist for the 1973-74 school year. Her contract was renewed in 1974-75 and 1975-76 but in April of 1976, she was notified her contract would not be renewed. She was paid for the entire period of her contract.

Pursuant to the collective bargaining agreement, appellee filed a written grievance charging that Article XVIII, section B of the agreement had been violated because the school superintendent and other administrative personnel had failed to give her every reasonable opportunity to develop into a useful and productive teacher. She also alleged that she had not received a timely and adequate evaluation as required by the agreement. The grievance was denied.

Arbitration hearings occurred on June 23, 1977. The arbitrator found that the agreement had been violated by the school administrators’ failure to counsel appellee as to any weaknesses or deficiencies in her teaching that would preclude her from being recommended for a continuing contract and in failing to properly evaluate her.

The arbitrator ordered appellant to reinstate appellee on an annual contract and awarded back pay. The school board refused to comply and appellees filed an application with the circuit court to confirm the arbitration award. Upon confirmation, the school board took this appeal.

The question presented is whether an arbitrator may require the school board to reinstate a teacher on annual contract to another year’s term because of a breach of teacher evaluation procedures in a collective bargaining agreement, where the agreement does not provide a remedy for such violation.

The collective bargaining agreement in question defines the procedures to be followed in making teacher evaluations. It does not, however, specifically provide for reinstatement in annual contract status for breach of such procedures.

In Lake County Education Association v. School Board of Lake County, 360 So.2d 1280 (Fla. 2d DCA 1978), cert. denied, 366 So.2d 882 (Fla. 1978), the Second District Court of Appeal declared that it is the public policy of Florida, expressed through statute, that our elected school boards have the exclusive prerogative to decide whether to re-appoint non-tenured teachers. The court made this declaration in holding that a school board cannot enter into a collective bargaining agreement where its decision not to re-appoint a non-tenured teacher must be based upon proper cause. The court cited Florida statutory law which provides that the school board alone has the power and board alone has the power and duty to dismiss its employees. A “proper cause” provision regarding re-appointment of non-tenured teachers would obviously limit the exclusive authority vested in the board and, in effect, transfer it to an arbitrator.

The Lake County court noted in dictum that several of the opinions cited in support of its ruling were careful to point out that public policy does not prohibit a school board from entering into a collective bargaining agreement which defines procedures to be followed in making teacher evaluations which may lead to a decision not to re-appoint a non-tenured teacher. The court stated that where such an agreement is reached on procedures, the arbitrator’s decision granting a non-tenured teacher relief because of the failure to follow such procedures has been upheld.

While the cases cited by the Lake County court for this principle, Cohoes City School Dist. v. Cohoes Teachers’ Association, 40 N.Y.2d 774, 390 N.Y.S.2d 53, 358 N.E.2d 878 (N.Y.Ct.App.1976) and School Committee of West Bridgewater v. West Bridgewater Teachers’ Association, 372 Mass. 121, 360 N.E.2d 886 (1977) involved reinstatement, the Lake County court did not specifically declare what relief would be appropriate where evaluation procedures are violated.

Of even more significance is the fact that the Lake County court quoted from Wesclin Education Association v. Board of Education, 30 Ill.App.3d 67, 331 N.E.2d 335 (1975) regarding non-tenured teachers:

Such teachers are not in an “on the job training” status, but are employed as persons qualified by training and practice under the supervision, guidance and training furnished by other educational institutions. Since some of those so qualified may not be capable of serving the best interests of the school, the Legislature has seen fit to allow a broad discretion in termination of their employment, as being in the best interests of the school. Since they have not completed their probationary period they have no vested interest in their employment, of which they are deprived by compliance with the applicable provisions of the School Code in the termination of their employment.

331 N.E.2d at 342.

Wesclin involved a situation wherein probationary teachers were given notice of non-renewal of their contracts without compliance with evaluation procedures and they sought mandamus to prevent their termination. The court held that the board could not, via a collective bargaining agreement, destroy the flexibility which it possessed with respect to the dismissal of non-tenured teachers. The court made the following observation:

It is generally accepted that the purpose of our common school system is to furnish adequate educational facilities and education and training for the students enrolled. A school board is obligated to hire only properly trained, evaluated and qualified teachers. The purpose of our common school system is not to evaluate, train, supervise, guide, and advise teachers although such procedures may be involved incidentally in this development of an education system; but when so involved the purpose is to better the system for the benefit of the students, and not for the benefit of the teachers who may either by indifference or lack of ability display that their employment is not in the best interest of the school district, or is unsatisfactory.

331 N.E.2d at 341.

The opposing philosophy is illustrated by Board of Education v. Bellmore-Merrick, 39 N.Y.2d 167, 383 N.Y.S.2d 242, 347 N.E.2d 603 (N.Y. Ct.App. 1976) and School Committee of West Bridgewater. In these cases the courts, while recognizing that a school board may discharge a probationary teacher without explanation, held that this power may be limited by the terms of a collective bargaining agreement. In Bellmore-Mer-rick, the court declared:

[t]he evaluation provisions of the agreement were intended to benefit all probationary teachers. The Board’s power to dismiss without explanation should not be deemed a license to violate these bargained for rights.

347 N.E.2d at 606.

However, we believe the better view is that the board’s failure to follow assessment procedures does not create a remedial right to require the school board to re-employ ab initio, at least where the collective bargaining agreement is silent as to a remedy for such violation. We recognize that a school board might conceivably agree in the collective bargaining agreement to reinstatement where it fails to properly follow evaluation procedures. However, where such a provision is absent, to permit an arbitrator to require renewal of the annual contract would usurp the prerogative of the board to appoint instructional personnel and violate the public policy of this state. Lake County. See In the Matter of Arbitration Between Orange County Classroom Teachers’ Association and School Board of Orange County, Federal Mediation and Conciliation Service, File No. 79 K/2309 (May 1980), wherein the arbitrator held that the school board’s failure to follow teacher assessment procedures in not renewing an annual contract did not create remedial rights on the part of the affected teacher.

We are aware that a collective bargaining agreement should be broadly construed and all doubts resolved in favor of the arbitrator’s authority, but an arbitrator cannot rewrite the agreement and he is bound by it. Western Iowa Pork Co. v. National Packinghouse & Dairy Workers, 366 F.2d 275 (8th Cir. 1966); Cosmos Broadcasting v. New Orleans Local Am. etc., 455 F.Supp. 426 (E.D.La. 1978). An arbitrator lacks the authority to revise the agreement in a manner the parties did not contemplate and to which they did not assent. See United Steelworkers v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). This is especially true where the arbitrator’s action has the effect of depriving the school board of its sole prerogative, reserved to it by law, to determine whether the contract of a non-tenured employee will be renewed.

We therefore REVERSE.

COBB, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I respectfully dissent in this case. Enforcement of the arbitrator’s award would not deprive the Board of its prerogative in determining whether to renew the contract of a non-tenured teacher. The Board would retain that power, but it would be required to follow the teacher evaluation procedures which the Board agreed in its collective bargaining agreement to employ in making its decision to renew or not renew this teacher. The arbitrator determined that the Board failed to evaluate the teacher as provided in the collective bargaining agreement, and that reinstatement was a proper remedy in this case. I disagree that the arbitrator exceeded his authority in his decision awarding reinstatement regardless of whether or not the collective bargaining agreement specifically provided for this possible remedy for a breach.

In Lake County Education Association v. School Board of Lake County, 360 So.2d 1280 (Fla. 2d DCA), cert. denied, 366 So.2d 882 (Fla. 1978), the court recognized the distinction between agreeing not to dismiss a teacher without proper cause and agreeing to incorporate certain evaluation procedures in the retention decision process. Thus while a school board’s responsibility and discretion in the selection of teachers may not be completely usurped by an arbitrator, the method of exercising such power may be limited by the terms of a collective bargaining agreement. Board of Education v. Bellmore-Merrick United Secondary Teachers, Inc., 39 N.Y.2d 167, 383 N.Y.S.2d 242, 347 N.E.2d 603 (1976).

In Cohoes City School District v. Cohoes Teachers’ Association, 40 N.Y.2d 774, 390 N.Y.S.2d 53, 358 N.E.2d 878 (1976), the court held that the bargained-for right to supplemental procedural steps preliminary to the District’s final action granting or withholding tenure was not a nullity because of the District’s right to deny tenure without explanation. The court affirmed the order requiring reinstatement without tenure for one year, so that the District could evaluate the teacher’s performance according to the procedures set forth in the agreement.

Massachusetts has joined New York in approving reinstatement as a remedy under similar circumstances despite the school board’s exclusive prerogative (as in Florida) to grant tenure. In School Committee of West Bridgewater v. West Bridgewater Teachers’ Association, 372 Mass. 121, 360 N.E.2d 886 (1977), the Massachusetts Supreme Court explained how teacher evaluation procedures serve the public interest:

Teacher evaluation procedures, properly carried out, may assist the teacher in improving his or her capabilities to the benefit of the students. They may give the teacher an advance warning that he or she may not be granted continuing employment, thus permitting him or her to consider the necessity of seeking alternative employment. Such procedures may permit the teacher to meet and correct improper or incomplete information which otherwise could be relied upon by the school committee in making a decision concerning renewal of the teacher’s contract. Proper teacher evaluation processes, therefore, reasonably may be expected to improve the quality of teaching, to mitigate the harsh abruptness of the unexplained, last-minute negative renewal decision, and to enhance the quality of decisions concerning employment and tenure. [Emphasis supplied].

360 N.E.2d at 888.

Improving the quality of teaching, which results in benefit to the students, should be the primary consideration of a school board in determining which teachers to hire, retain, or dismiss. To paraphrase the majority’s quotation from Bellmore-Merrick, the Board’s wide discretion in these matters should not provide it with a license to violate bargained-for rights which are intended to benefit all probationary teachers and ultimately the students. The majority fails to strike a balance between the public employee bargaining rights, as manifested by the collective bargaining agreement, and the school system’s responsibility to terminate ineffective teachers.

In a case such as this, reinstatement would not afford the nontenured teacher automatic tenure, that being another decision within the Board’s control. See Co-hoes. Further, reinstatement would not disrupt the educational system, since the arbitrator made no such findings. Finally, where the time for evaluation has long passed (four years after the arbitrator’s award in this case), reinstatement may well be the only effective remedy for the Board’s violation of these provisions concerning teacher evaluations of the collective bargaining agreement. By virtue of this decision, these provisions have become so many empty words. The majority’s reversal gives the wronged teacher no relief and no prospect of any, and the Board no incentive to abide by its collective bargaining agreement.

As the majority points out, all doubts regarding collective bargaining agreements should be resolved in favor of the arbitrator’s authority. In another context, the First District Court of Appeal approved and upheld reinstatement as a proper remedy for a state employee who was terminated by the Department of Law Enforcement without the agency following the correct procedure of evaluation. Department of Law Enforcement v. Allen, 400 So.2d 777 (Fla. 1st DCA 1981). I do not believe reinstatement violates Florida’s public policy in the context of this case. Accordingly, I would affirm the lower court’s order which confirmed the arbitrator’s award.

      . While the order provided for the matter to be remanded to the arbitrator for a determination of back pay and other benefits, an order confirming an award made by an arbitrator is appealable, even if further action by the arbitrator is anticipated. State v. Pearson, 154 So.2d 833 (Fla. 1963).

      . Article XVIII, section B, provides: The Superintendent and all administrative personnel shall be charged with the obligation of giving all annual contract personnel every reasonable opportunity of developing into useful and productive teachers in the district.

      .Appellees sought to vacate the portion of the award which declined to require that Comeli-son be placed on continuing contract status. The trial court denied such relief and appellees do not seek review of that.

      . The agreement does provide for reinstatement where a teacher is unjustly discharged during the period of the annual contract. Art. VII, section D; Art. XVIII, sections D, E.

      . § 230.23(5), Fla.Stat. (1979).

      . The arbitrator speaks of reinstatement although he actually was renewing the contract for an additional year.

      . This should not be read, however, as indicating that a school board can waive its prerogative via a provision in a collective bargaining agreement. We do not reach the propriety of such a provision in this case.

      . Reinstatement has been recognized as an acceptable form of relief against an employer and an acceptable result of arbitration. See Cohoes City School Dist. v. Cohoes Teachers’ Ass’n, 40 N.Y.2d 774, 390 N.Y.S.2d 53, 358 N.E.2d 878 (1976); 48A Am.Jur.2d Labor and Labor Relations § 1995 (1979).

      . See § 230.23(5), Fla.Stat. (1979).

      . See School Committee of West Bridgewater v. West Bridgewater Teachers’ Ass’n, 372 Mass. 121, 360 N.E.2d 886, 890 (1977); cf. Seitz v. Duval County School Board, 366 So.2d 119 (Fla. 1st DCA), cert. denied, 375 So.2d 911 (Fla. 1979) (insubordination and absence from class justified dismissal and precluded remedy of reinstatement and back pay).

      . See Long Leaf Lumber, Inc. v. Svolos, 258 So.2d 121, 124 (La.Ct.App.2d Cir. 1972).


author: OTT, Judge.

text:
    Shem LEWIS, Appellant/Cross Appellee, v. Robert EVANS and Industrial Concrete Industries, Inc., a foreign corporation, Appellees/Cross Appellants.
    No. 80-95.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1981.
    Rehearing Denied Dec. 8, 1981.

      Otto E. Halboth, St. Petersburg, for appellant/cross appellee.
    Thomas H. McGowan, Gribbin, McGowan & Shoemaker, and Allen P. Allweiss, St. Petersburg, for appellees/cross appellants.
   OTT, Judge.

At the repeated urging of city officials, appellee finally identified appellant as the construction inspector rumored to be “on the take.” In this action for slander, the jury awarded appellant $12,000 compensatory damages and $28,000 punitive damages. The trial court cut the total judgment to $20,000 and denied appellee’s motion for a new trial. Appellant challenges the remit-titur and appellee attacks the judgment. We reverse the judgment and remand the case for a new trial.

Appellant correctly contends that a remittitur is error unless it is accompanied by an alternative grant of a new trial. The normal disposition on appeal, in such instance, would be to vacate the remittitur and let the original judgment stand. Dura Corp. v. Wallace, 297 So.2d 619 (Fla. 3d DCA 1974).

On his cross appeal, appellee argues that the judgment cannot stand because (1) he had a qualified privilege to make the statement concerning appellant, (2) appellant could overcome that privilege only by proving actual malice on appellee’s part, and (3) appellant did not sustain that burden.

The United States Supreme Court is the font for most of the rules governing civil and criminal penalties for defamation, since freedom of speech and freedom of the press, guaranteed by the Federal Constitution, are directly affected. However, that Court has thus far confined its edicts to situations involving matters of “public interest,” i. e., public officials, public figures, and reports of matters of public record. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 1043-1044[12-15], 43 L.Ed.2d 328 (1975).

The right to privacy, which has been given increased recognition in recent years, cuts across certain aspects of the law of defamation. Under statutory or constitutional provision in some states, truthful defamation may now be actionable, depending upon whether a “public interest” is involved. Cox Broadcasting, supra, 95 S.Ct. at 1043-1044. However, it seems firmly settled that where a defamatory statement is false, the states are free to fashion their own standards for liability, so long as there is proof of fault on the part of the libeler and competent evidence of damages. Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 969[25], 47 L.Ed.2d 154 (1976).

In Florida, a statement made by one having an interest or duty in the subject matter thereof, to another person having a corresponding interest or duty therein, is conditionally privileged, even though the statement may be false and otherwise actionable. Axelrod v. Califano, 357 So.2d 1048, 1051 (Fla. 1st DCA 1978). The nature of the duty or interest may be public, personal or private, either legal, judicial, political, moral, or social. It need not be one having the force of a legal obligation; it may be one of imperfect obligation. The interest may arise out of the relationship or status of the parties. Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942). It is called a qualified or conditional privilege, because the libelous statement must be made in good faith, that is, with a good motive, and not for the purpose of harming the subject of the defamation. Drennen v. Washington Electric Corp., 328 So.2d 52, 55 (Fla. 1st DCA 1976).

We agree that the circumstances under which the statement here was made were such that a qualified privilege could arise. Appellee was a contractor furnishing cement to a public works project. Appellant was the inspector charged with aecept-ing or rejecting the concrete on behalf of the city. The officials to whom and at whose request the statement was privately made were charged with responsibility by the municipality for investigating any such misconduct by city employees. The meeting at which the subject of the rumors concerning appellant was first broached was called by those officials to consider appellee’s work-related complaints. Those circumstances clearly brought the matter within the ambit of the privilege sometimes referred to as a “qualified business privilege.”

Where it has been established that defamation occurred on a privileged occasion, the claimant can recover only by sustaining the burden of proving that the libelous falsehood was uttered with malice. Alexrod v. Califano, 357 So.2d 1048, 1050[9] (Fla. 1st DCA 1978). In other words, the mere fact that a defamatory statement was made does not imply that the speaker was motivated by malice if the statement was made on a privileged occasion, and therefore malice will not be presumed as a matter of law, even though the statement charges the commission of a crime or is otherwise defamatory per se. Under such circumstances the claimant cannot rely on implied malice, but must prove that the speaker was in fact motivated by malice, which is termed “express malice” to distinguish it from “implied malice.”

Express malice, or malice in fact, as it is sometimes more aptly termed, traditionally has been defined as ill will, hostility, and an evil intention to defame and injure. Montgomery v. Knox, 23 Fla. 595, 3 So. 211, 217 (1887). In modern times, a rule announced in New York Times v. Sullivan 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), has resulted in some confusion in terminology. In that case the Supreme Court held that public officials can recover for defamation only if they prove “actual malice,” which the Court then proceeded to define as actual knowledge that the defamatory statement is false or a reckless disregard for whether it is false or not. Such “reckless disregard” is manifested by making a statement with “a high degree of awareness of probable falsity.” Holier v. WLCY-TV, Inc., 366 So.2d 445, 455 (Fla.2d DCA 1979).

Appellee lifts that rule from its “public offieial/figure” context and tries to engraft it into the qualified privilege concept. Thus, he argues that the instant judgment cannot stand because there was no evidence whatsoever that he knew the rumors about appellant were untrue, nor any evidence from which such conclusion could reasonably be inferred.

Appellee errs in assuming that the courts of this state, in considering the proof necessary to defeat a claim of qualified business privilege in an action involving only private individuals, must heed federal rules governing defamation of public figures. Just why the Supreme Court felt that those who defame public figures should be immune unless they know their publication is false probably involves first amendment considerations too intricate for mortal minds, we would venture an observation that the malicious publication of a falsehood is indefensible, and should be so regarded by the law, at least where privilege is not absolute. Proof that defamation is false, and was known to be such by the publisher, certainly establishes malice in fact, but that is by no means the only way to prove malice. Fortunately, however, we need not concern ourselves with such rarified constitutional considerations in the present case. Suffice it to say that we are not dealing here with public figures, but with private individuals, and therefore under the laws of this state appellant could defeat appellee’s claim to qualified privilege by proving malice in fact, that is, by presenting evidence from which the jury could reasonably infer that appellee was motivated by ill will and a desire to harm him.

Therefore, while we agree with ap-pellee that the record at bench contains little or no evidence of “actual malice,” as that term has been defined, we are unable to say that the record compels a finding of qualified privilege. There was evidence from which a properly instructed jury could have concluded that no privilege arose because appellee made the statement about appellant with an improper motive, i. e., to pay him back for repeatedly rejecting ap-pellee’s concrete, or to get rid of him and his interference with appellee’s business interests. If we were convinced that the jury made any such tacit finding, we would not hesitate to affirm their verdict. But the question whether a verdict implies a certain finding is usually resolved by examining the jury instructions, and we find certain instructions here to be so misleading and confusing that we cannot say in good conscience just what the verdict means.

Although there were some instructions that correctly delineated and explained certain facets of the law of defamation in Florida, we believe the following language may well have misguided the jury and permeated the other instructions with uncertainty:

If the plaintiff is a public employee, it is necessary to prove malice. If you find an allegation of a crime was published, the statement is malicious, per se. Although you find the statement was libelous, per se, you will determine, also, whether it was qualified privilege or not. For the plaintiff to prevail, the jury must find that the plaintiff proved the existence of malice. In connection with malice, to accuse another of a crime raises a presumption at law, of malice that they may be overcome by other evidence. Punitive damages, however, cannot be based upon this presumption.

Leaving aside the questionable reference to “public employees,” which we have already addressed, the instruction discusses malice without distinguishing between implied and express malice, uses the phrases “libelous per se” and “malicious per se” without defining them, talks about “qualified privilege” without saying what it is, and suggests (if not baldly states) that the “presumed malice” which arises from proof of an accusation of crime is sufficient to overcome a qualified privilege.

We think that under the particular facts of this case it was entirely proper for the court to let the jury determine whether appellee had a qualified privilege. However, we think that the jury should have been guided by a more informative instruction, perhaps along the following lines:

If you find that defendant made the alleged statement concerning plaintiff, and that the statement was false, then your verdict should be in favor of the plaintiff unless you find that the statement was privileged, in which case your verdict should be in favor of the defendant.
A statement made by a person having an interest in the subject matter thereof, or in reference to which such person has a duty, is conditionally privileged if made to another person having a corresponding interest or duty, even though the statement might prove to be false and would otherwise be actionable. The duty mentioned here may be legal, judicial, political, moral, or social. The condition of the privilege is that the statement must be made in good faith, that is, from a good motive, for the purpose of promoting or protecting the interest being discussed, and not for the malicious purpose of damaging the reputation of another.
A presumption of good faith arises when a statement is made under the described circumstances, but that presumption can be overcome if the plaintiff proves to your satisfaction that the statement was made with ill will, hostility, and an evil intention to defame and injure him.

We assume that at the retrial of this case the misunderstanding concerning “public employees” will not recur. Further, we see no reason to submit to the jury the question whether the statement was defamatory. It flatly accused appellant, a public servant, of taking bribes, which is a crime. § 838.016, Fla.Stat.

In suggesting such an instruction, we are not to be understood as limiting the trial court in its discretion and obligation to instruct the jury in accordance with the evidence which may be presented upon the retrial. We have no way of knowing what that will be, and thus we properly leave the matter of instructions to the discretion of the trial court. Our “suggestions” are simply and solely that.

In order to avoid misunderstanding at the retrial, we briefly address two other contentions urged by appellee. First, he makes a backup argument that in any event he couldn’t be liable because he proved that his statement was true, i. e., there indeed were rumors about appellant circulating in the public works department. In the first place, as already noted, truth is not always a sufficient defense in Florida. In the second place, it is well settled that repetition of libel per se is actionable, even though the libeler explicitly refuses to vouch personally for its verity. Layne v. Tribune Co., 108 Fla. 177, 146 So. 234 (1933). Naturally, the particulars of such rumors, and precisely how they came to appellee’s attention, would be admissible on the issue of his motive and good faith in repeating them.

Appellee also asserts that one who merely answers the questions of another interested party can never be liable for slander. We disagree. Initial reticence to name the person being maligned is a classic ploy, invariably overcome by the insistent importuning of the listeners. We are not saying that is what happened here, but the possibility precludes the hard and fast rule urged by appellee.

What we have already said is dispositive of this appeal. Accordingly, we need not discuss appellant’s violation of the prohibition against “golden rule” argument. We are confident it will not recur at the retrial.

The judgment is REVERSED and the case REMANDED for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.

      . Inexplicably, appellant conceded in the trial court that his position as a municipal employee subjected him to the burden of proof required of public officials, namely, that the defamation was uttered with “actual” malice. In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court expressly abstained from formulating criteria distinguishing public employees from public officials. Id., 84 S.Ct. at 727, n.23. Our own supreme court has said that public officers are those persons to whom a portion of the sovereign power has been delegated, whereas public employees neither hold nor are authorized to exercise in their own right any sovereign power or any prescribed independent authority of a governmental nature. State v. City of Miami, 153 Fla. 90, 13 So.2d 707 (1943). It is highly questionable whether a public works inspector, whose authority is limited to determining whether materials and services furnished the city meet certain prescribed minimum standards, could ever be classified as a public official.

      . In Florida, truth is not always an absolute defense to defamation. In order to avoid liability, a “good motive” must also be shown. Art. I, § 4, Florida Constitution. But see 16 Stanford Law Review 789, questioning the constitutional validity of such restrictions on the defense of truth in defamation cases.

      . At first blush it might seem that the one who claims qualified privilege would bear the burden of proving good faith, since that is the essential element needed to perfect the defense of privilege. The rationale, however, is that proof of privileged occasion, or prima facie proof of privilege, as it is sometimes called, raises a presumption of lack of malice and places upon the claimant the burden of proving malice in fact. Appell v. Dickinson, 73 So.2d 824 (Fla.1954).

      . Appellee seizes upon certain language in Cape Publications v. Adams, 336 So.2d 1197 (Fla. 4th DCA 1976) and asserts that proof of actual malice must have “convincing clarity.” We note that the author of Cape took that phrase from New York Times v. Sullivan, supra. We are satisfied that neither Cape nor New York Times intended to change the “preponderance of evidence” rule. Substantial evidence which convinces the trier of fact obviously has “convincing clarity.” There is no known requirement that appellate courts must also be convinced by the clarity of the evidence, so long as it is substantial, nor do we know of any rule requiring us to treat the sufficiency of evidence of malice any different from evidence presented on any other issue in a civil case.

      . The Florida Supreme Court Commission on Standard Jury Instructions recommends against the use of such terms. See Comment to MI 4.1, Florida Standard Jury Instructions.


author: PER CURIAM.

text:
    Jerome R. MARSHALL, Appellant, v. Renee Ann MARSHALL, Appellee.
    Nos. 80-1623, 80-2140.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Rehearing Denied Dec. 21, 1981.
    Eleanor Levingston Schockett, Joseph C. Segor, Miami, for appellant.
    Schwartz, Klein & Steinhardt and Norman S. Klein, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).


text:
    Bernard F. DeCASTRO, Petitioner, v. The STATE of Florida, Respondent.
    No. 81-1943.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Rehearing Denied Dec. 18, 1981.
    Bernard F. DeCastro, in pro. per.
    Jim Smith, Atty. Gen., for respondent.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The petition for writ of habeas corpus is denied. DeCastro claims that his appellate counsel’s failure to raise on appeal, see DeCastro v. State, 359 So.2d 551 (Fla. 3d DCA 1978), the trial court’s refusal to instruct the jury on the penalties for the offenses being tried, denied him effective assistance of counsel. This claim must fail because at the time of DeCastro’s 1976 trial it was not mandatory under the then Florida Rule of Criminal Procedure 3.390(a) for the trial court to instruct on penalties. See State v. Terry, 336 So.2d 65 (Fla.1976); Huckeba v. State, 322 So.2d 29 (Fla.1975); Lavatt v. State, 316 So.2d 261 (Fla.1975); Dorminey v. State, 314 So.2d 134 (Fla.1975); Johnson v. State, 308 So.2d 38 (Fla.1975); Golson v. State, 353 So.2d 195 (Fla. 3d DCA 1977). Since the instruction was not required when DeCastro was tried, it is obvious that we would have found no error in the trial court’s refusal to give it and, accordingly, can find no ineffectiveness in DeCastro’s counsel not raising this point on appeal. The Supreme Court’s decision in Tascano v. State, 393 So.2d 540 (Fla.1980), holding the penalty instruction mandatory is no help to DeCastro, because Tascano construed the 1977 amendment to Florida Rule of Criminal Procedure 3.390(a). Tas-ca no's retroactive application to those “who have preserved this point of appeal” is obviously limited to those defendants tried after the amendment.

Petition denied.


author: FRANK D. UPCHURCH, Jr., Judge. COWART, Judge,

text:
    Joan Claire Egan HOLLAND, Appellant, v. Eugene William HOLLAND, Appellee.
    No. 80-860.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 1981.
    Rehearing Denied Dec. 7, 1981.

      James F. Spindler, Jr., Crystal River, for appellant.
    Wayne L. Rubinas of Pattillo, MacKay & McKeever, P. A., Ocala, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final judgment of dissolution of marriage. In her petition for dissolution, appellant/wife asked the court to make a determination of the property rights of the parties. Apparently, appellant’s only major asset was her joint ownership of the parties’ condominium, the rest of the property being titled solely in the name of the appellee/husband.

In response, the husband contended that all property rights had been determined by the parties’ antenuptial agreement. The wife, however, argued that the agreement was void because it was improperly executed and the husband had failed to make a full disclosure of his assets. In resolving the issue of the agreement’s validity, the trial court did not make findings of fact but stated simply, “The court considered the pre-nuptial agreement in the making of this award, and has given it the weight it deserved.”

The antenuptial agreement provided as follows:

1. That the proposed marriage shall not constitute a revocation of any wills or codicils heretofore made by either of the parties hereto and any such wills which may have been made by the parties to this agreement shall continue in full force and effect notwithstanding the proposed marriage until altered, revoked or amended according to law.
2. Each of the parties hereto does 'hereby agree that he or she will make no claim against the estate of the other and each party hereto relinquishes any rights which he or she may have in the estate of the other either by intestacy, right of election or otherwise.
The agreement further stated that:
It is the intention of this instrument that the rights of each of the parties hereto to obtain, hold and dispose of real, personal and intangible property shall be the same as if each of the parties hereto had remained unmarried.

The court ordered that all property held in joint names remain as joint ownership and that all property in each individual name follow the title with no claim of the other party being recognized. This division seems to effectuate the intention of the agreement that the parties hold and dispose of property as though each had remained unmarried. Even though the final judgment appears to enforce the antenuptial agreement, we have concluded that the result would have been the same whether the agreement was valid or invalid.

Under our present laws, both the husband and wife are entitled to control and manage his or her separate property without joinder or consent of the spouse in all respects as if the parties were unmarried. See § 708.08, Florida Statutes (1979), providing for the right of married women to hold separate property. Property titled solely in the husband’s name or in the wife’s name remains unaffected by a dissolution of marriage unless awarded to the other spouse as lump sum alimony. See Harder v. Harder, 264 So.2d 476 (Fla.3d DCA 1972). Property held as tenants by the entirety is converted to a tenancy in common upon dissolution. § 689.15, Fla.Stat. (1979).

In the present case, the judgment merely followed the law. The parties’ condominium formerly held as a tenancy by the entirety was converted to a tenancy in common. Property titled solely in the husband’s name remained his separate property after the dissolution. Thus, regardless of the validity of the antenuptial agreement, the property disposition in the final judgment was proper.

The second question, whether the court’s granting of four years of rehabilitative alimony was an abuse of discretion, is more difficult.

For an award of rehabilitative alimony to be proper, the evidence must show a potential or actual capacity for self-support. See Wagner v. Wagner, 383 So.2d 987 (Fla. 4th DCA 1980); Yohem v. Yohem, 324 So.2d 160 (Fla. 4th DCA 1975); Schwartz v. Schwartz, 297 So.2d 117 (Fla. 2d DCA 1974); Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974).

The wife is forty-three years old and has a tenth grade education. Her only employment was as a telegram clerk prior to her marriage sixteen years ago. She possesses no marketable skills or talents. She is generally in good health but occasionally suffers lower back problems requiring medical care. She also has poor circulation in her legs which prevents her from standing for long periods. She also has the care and custody of the parties’ eleven year old daughter. There was no showing of any potential or actual capacity for self-support. Therefore, we conclude that it was error for the court to have awarded rehabilitative rather than permanent alimony. See Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981), G’Sell v. G’Sell, 390 So.2d 1196 (Fla. 5th DCA 1980) and Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980).

The disparity between the financial situation of appellant and appellee is marked. Appellant’s estate consists almost entirely of her interest in the jointly owned home and her personal effects. In contrast, ap-pellee has a substantial estate. According to his financial affidavit submitted for the dissolution proceedings, he has an estate valued at nearly one-half million dollars. A financial statement in support of a loan application one year earlier suggests that his estate may approach one million dollars in value. While we recognize an understandable tendency to exaggerate one’s assets when securing a loan and to minimize them when involved in a marital dispute over those assets, the discrepancy here is remarkable and warrants further inquiry. Appellee, whose present occupation is given as a charter boat captain, admits to income of only $26,000 per year. His employment history reflects varied entrepreneurial interests depicting a man of substantial skill and experience in business and financial circles. It seems that appellee could meet the reasonable needs of appellant with minimum impairment of his lifestyle.

We also note that the antenuptial agreement challenged by the wife does not in any way limit her right to claim alimony or even address the question. The court was thus not restricted by the agreement from awarding such alimony in the amount or type as may be appropriate.

Appellant, however, contends that rather than rehabilitative alimony the trial court should have awarded her lump sum alimony to effect an “equitable distribution” of the husband’s property. She suggests that a division of the “marital” property in which she receives approximately one-third of the husband’s estate is equitable and just as such an award would be comparable to her dower expectancy had she remained married. Appellant argues that Klaber v. Klaber, 133 So.2d 98 (Fla. 2d DCA 1961), indicates that appellate courts have equated the division of marital assets upon dissolution with the division of marital assets upon death of one of the parties. While that argument might be asserted in a proper case, such is not the case here. Clearly, the antenuptial agreement is sufficient to release any claim which appellant might have exerted against the estate of appellee upon his death had they remained married. Section 732.702, Florida Statutes (1979), provides that the rights of a surviving spouse may be waived by a “written contract, agreement, or waiver signed by the waiving party” and that no disclosure shall be required for an agreement, contract, or waiver executed before marriage. We therefore disagree with appellant’s contention that the trial court was empowered to divide the assets of the marriage in a similar fashion as they would have been divided had the marriage been terminated by the death of appellee rather than by dissolution of marriage.

We do not imply, however, that the trial court did not have authority to make an award of lump sum alimony. As was pointed out in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the trial court has broad discretion in granting lump sum alimony consistent with the statutory mandate of section 61.08, Florida Statutes (1979), to consider any factor necessary to do equity between the parties.

The third point raised by appellant was whether the trial court’s award of child support constituted an abuse of discretion.

We cannot say that the award was an abuse of discretion under the definition of judicial discretion given in Canakaris. Appellant contends that she had planned on a substantial award of appellee’s property from which she would derive sums to assist in her daughter’s care. Because this expectation was thwarted by the court, she asserts that the amount she asked for and was awarded is inadequate. Child support in the amount of $100 per week, medical and dental expenses, and the use of the marital home until the child is eighteen years were provided. In the absence of proof of a greater need, we cannot say this amount is inadequate. Should the needs of the child increase, appellant may petition the court at a later date to modify the award. See § 61.13, Fla.Stat. (1979).

We therefore AFFIRM as to the award of child support but REVERSE the award of periodic alimony and REMAND for hearing on the amount of permanent alimony to be awarded wife upon reexamination of the parties’ needs and abilities.

AFFIRMED in part and REVERSED in part. ‘

SHARP, J., concurs.

COWART, J., concurs in part and dissents in part with opinion.

COWART, Judge,

concurring in part and dissenting in part:

I agree with those portions of the majority opinion which affirm the trial judge and dissent from that portion that reverses. Specifically, I agree with the trial court’s award of child support and with its disposition of the property aspects of this dissolution of marriage as being consistent with the parties’ prenuptial agreement and the trial court’s discretion under Canakaris. I do not agree that the trial court abused the broad discretion he exercises, as recognized in Canakaris, by making an award of four years rehabilitative alimony rather than an award of permanent periodic alimony. Nor do I agree with the majority opinion’s suggestion that a lump sum alimony award would be appropriate in this case in view of the prenuptial property settlement agreement.

Canakaris, at page 1200, explains that in domestic relations law the term “special equity” properly refers only to some vested property title or lien interest existing in one spouse as against the other but that the term had in the past been misapplied and used to describe a distribution in the nature of a lump sum alimony award to avoid the statutory prohibition against awarding alimony to an adulterous wife. To avoid the confusion resulting from the use of the same term to denote two concepts Canakar-is suggests that the term “special equity” should not be used when considering lump sum alimony.

Before Canakaris, the term “lump sum alimony” had been generally used to describe only the single payment settlement of an alimony right and obligation. It related to alimony and support and was considered something like a lump sum payment settlement of a workers’ compensation claim and allowed only under special circumstances where it served a reasonable purpose. To justify a lump sum alimony award many cases required a positive showing of necessity as where the husband had no ability to pay periodic alimony. Cana-karis takes the name of this very useful concept and renders its duplicitous by additionally using it to describe' a tool with which to distribute and divide property rights, stating “a judge may award lump sum alimony to insure an equitable distribution of property acquired during the marriage . . . . ” Canakaris, 382 So.2d at 1201.

Alimony inherently refers to a support concept, which in turn normally contemplates the parties’ relative rights to income, such as that as would be shown in an income statement (profit and loss statement), while resolution of property rights in a dissolution can be likened to a partition of assets shown on a marital balance sheet. Disregarding these conceptual distinctions leads to confusion and error.

Here the majority opinion, after concluding that the prenuptial agreement was effective to prevent the trial judge from dividing the assets of the marriage (or that the legal result of the trial judge’s refusal to distribute the assets is consistent with the prenuptial agreement) suggests, however, that the trial judge could have considered appellee’s “substantial estate” and have made a Canakaris lump sum alimony award to divide the marital property. Since the Canakaris type lump sum alimony award is essentially a division and distribution of property, its use in this case would accomplish the same purpose — a distribution of assets — which the majority seems to hold is barred by the prenuptial agreement.

Furthermore, I disagree with the majority’s suggestion that, in a proper case, the amount of an equitable distribution of marital property should be determined with reference to the wife’s dower (elective share) expectancy. The case which the appellant relies on for this proposition, Klaber v. Klaber, 133 So.2d 98 (Fla. 2d DCA 1961), does not support her argument. In Klaber, the court approved the trial court’s division of the marital property, but noted in passing that the wife’s share was not clearly inadequate, since it roughly coincided with her dower expectancy, had she remained married. Klaber should not be read to hold that a trial judge must, as a maximum or minimum, award a share of marital property equal to the elective share. The amount of the elective share is irrelevant to the determination of alimony or an equitable property distribution, and thus should not be considered at all in a dissolution proceeding. See Ryan v. Ryan, 277 So.2d 266 (Fla.1973).

      . The question of restrictions on the convey-anee of homesteads is not involved in the case.

      . On appeal, the wife has claimed a special equity in her husband’s separate property; however, the record indicates that she neither alleged nor proved a special equity in the court below and thus this issue has been waived. See Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980).

      . But see Ryan v. Ryan, 277 So.2d 266, 269 (Fla.1973) wherein the court stated: “Dower is not a vested right. We have said that because of its defeasible nature dower is not to be given consideration in divorce or dissolution of marriage proceedings.”

      . See § 440.20(12), Fla.Stat. (1979).

      . For the general view, see the discussion of Lump Sum Alimony in The Florida Bar Continuing Legal Education Committee lecture outline entitled “Current Trends in the Alimony, Child Support and Property Issues in Dissolution Proceedings [etc.]” (copyrighted 1978).

      . See, e. g., Simpson v. Simpson, 372 So.2d 526 (Fla. 4th DCA 1979); Judge v. Judge, 370 So.2d 833 (Fla. 2d DCA 1979); Reid v. Reid, 365 So.2d 1050 (Fla. 4th DCA 1978); Meredith v. Meredith, 352 So.2d 72 (Fla. 4th DCA 1977), cert. granted 366 So.2d 425 (Fla. 1978).

      . Lee v. Lee, 365 So.2d 742 (Fla. 4th DCA 1978).


author: McCORD, Judge.

text:
    Mason E. MARVEL, Appellant, v. The DIVISION OF RETIREMENT OF the DEPARTMENT OF ADMINISTRATION of the State of Florida, Appellee.
    No. AB-133.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.
    Rehearing Denied Dec. 18, 1981.
    Steven H. Gray of Green, Simmons, Green, Hightower & Gray, Ocala, for appellant.
    Stanley M. Danek, Asst. Division Atty., Division of Retirement, Tallahassee, for ap-pellee.
   McCORD, Judge.

This appeal is from the Division of Retirement’s (Division) denial of appellant’s request to transfer with full credit time spent in the Florida Teacher Retirement System' (TRS) to the Florida Retirement System (FRS). We affirm.

Appellant was initially employed by the University of Florida in 1957 on a joint appointment with the University and the United States Department of Agriculture, as a cooperative extension employee. At that time, he was required to join and contribute to TRS and to the Federal Civil Service Retirement System (GSRS). In 1961, the Florida Legislature enacted what is now codified as § 238.13(2), which provides that employees covered by CSRS shall not be members of TRS except that those hired before 1961 may elect to remain participants in TRS. Appellant elected to continue to contribute to TRS as well as to CSRS which was still mandatory. In 1970, the Florida Legislature enacted Chapter 121, which established the Florida Retirement System. In 1973, the Legislature enacted § 121.051(7), which provides that personnel participating in CSRS are prohibited from participating in any retirement or social security program or act administered by the state “except those members covered under s. 238.13, as of November 30, 1970.” (Emphasis supplied.)

Appellant paid into CSRS until November 23, 1978, when he was forced to resign because he accepted a non-federal position. On November 28, 1978, he submitted a request to the Division seeking to transfer from TRS to FRS with full credit for time spent as a TRS participant, during which time he was also a CSRS participant. The Division denied the request. In November 1980, appellant petitioned the Division for a declaratory statement as to whether he should be allowed to transfer into FRS with full credit for time served in TRS. In its declaratory statement denying the request, the Division noted that it had been called upon to interpret §§ 121.051(7) and 238.-13(2), Florida Statutes, in In Re Petition of Gene Beem. In the Beem decision, the Division stated:

Section 121.051(7) was enacted to prohibit time served in the United States Civil Service from becoming creditable under any state retirement or social security program. The sole exception provided for continued participation in TRS by those cooperative extension personnel participating in that system by virtue of § 238.13. Allowing FRS credit for this service would defeat the specific prohibition against the use of time employed in the civil service under any state retirement program other than TRS. Section 121.051(7), Florida Statutes, prohibits petitioner from receiving credit under FRS for the time during which he held an appointment by the United States Department of Agriculture and was governed by the requirements of the Federal Civil Service.

That decision was upheld in Beem v. Division of Retirement of Department of Administration, 379 So.2d 214 (Fla. 2d DCA 1979).

In our view, § 238.13(2) merely allows employees hired before 1961 to maintain their memberships in TRS. Section 121.051(7) allows only one type of dual participation in CSRS and a state retirement program. That statute allows only those employees who were allowed pursuant to § 238.13(2) to continue to participate in TRS while contributing to CSRS to remain in that program. No statutory authority allows any broader participation.

Appellant also contends that prior to the enactment of § 121.051(7) he could have transferred from TRS to FRS and therefore he had acquired a vested contractual right to make that transfer and that right could not subsequently be revoked by the legislature; that § 121.051(7) relied upon by ap-pellee to prohibit his transfer in 1978 impairs his constitutional rights under Article I, § 2, Florida Constitution. We find this contention to be without merit. The only vested right appellant acquired in the absence of such a previous transfer to FRS was to retire under TRS as that is the system to which he was making contributions. Since appellant did not transfer during the period when he contends he could have done so, he acquired no rights under FRS and none of his rights under TRS were impaired.

AFFIRMED.

SHIVERS, J., and MASON, ERNEST E. (Retired), Associate Judge, concur.

      . We make no ruling here as to whether or not appellant could have made such a transfer pri- or to the enactment of § 121.051(7).


author: NESBITT, Judge.

text:
    Walter T. GRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 79-36.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Dec. 16, 1981.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender and William Liston, Legal Intern, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

Graham appeals from his judgment of conviction of robbery with a firearm and display of a firearm during the commission of a felony. Of the numerous errors complained of on appeal, only two require our attention.

The first basis relied upon for reversal was the failure of the trial court to charge on specific intent with respect to the offense of robbery. The principal defense at trial was that the defendant was voluntarily intoxicated. Indeed, he pressed that defense to the point that during closing argument his counsel in effect conceded that the defendant was the perpetrator of the robbery, but that his intoxicated state rendered him incapable of committing a robbery.

One of the requisite elements of the offense of robbery is specific intent to permanently deprive the owner of his property. Bell v. State, 394 So.2d 979 (Fla.1981). Voluntary intoxication is relevant with respect to the capacity or ability of the accused to perform with a specific intent. Cirack v. State, 201 So.2d 706, 709 (Fla.1967); Garner v. State, 28 Fla. 113, 9 So. 835, 845 (1891); Fouts v. State, 374 So.2d 22 (Fla.2d DCA 1979).

Graham concedes, as he must, that he did not request the trial court to charge specific intent as an essential element of robbery. He further concedes that he is not entitled to reversal unless the failure of the trial court to give such a jury instruction constituted fundamental error. In an extensive analysis of this issue, Judge Schwartz, speaking for the court in Williams v. State, 400 So.2d 542 (Fla.3d DCA 1981), concluded that the failure to charge on specific intent does not constitute fundamental error unless there was an issue injected at trial with respect to that particular element. In harmonizing the decisional law of this state, he concluded:

[Fundamental error occurs in such a situation only when the omission or error in the definition of a crime is pertinent or material to what must actually be considered by the jury in order to convict.

400 So.2d at 543.

Insofar as the defense’s position was primarily based on voluntary intoxication, which bears upon the capacity or ability of the accused to form and entertain the specific intent, it is undeniable that the defense made specific intent a material issue. Consequently, the failure to so instruct mandates the reversal of the defendant’s conviction.

The remaining argument which deserves attention is the alleged error in denying defendant’s motion to suppress tangible physical evidence. It was alleged that on March 20, 1978, the defendant drew a gun in a Miami bar and advised the barmaid to turn over all of the cash from the register. The barmaid as well as two of the customers gave police a description of the alleged robber. One of the bar patrons wrote down the Michigan license number of the defendant’s car and gave this information to the police. Officer Robert Love ran a teletype on the license number which gave him an address for the owner of the vehicle. The following day, the police checked this location and learned that the defendant was at a motel on Biscayne Boulevard. On March 23, three days after the incident, the police went to the motel and learned that the defendant had checked out on the previous day. Based on information which he received, Officer Love contacted the Deerfield Police Department to ascertain if the defendant and his vehicle were located at a certain motel and one-half hour later this was confirmed. Officer Love and a partner drove from Miami to the motel in Deerfield Beach, announced their presence, and attempted to break down the door. The defendant opened the door whereupon the officers discovered cash, clothing, and the keys to the automobile. They went outside to the car and, according to Officer Love’s testimony, inventoried the vehicle. In the trunk of the car, they found a suitcase which contained a handgun wrapped in a towel. Defendant’s motion to suppress the handgun and the cash was denied.

All searches without a warrant are per se unreasonable unless conducted within the framework of a few established exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The exception relied upon by the appellee was that a search of the motel room was made incident to a lawful arrest. We reject this contention.

The Fourth Amendment prohibits police officers from making a warrantless, nonconsensual entry into a suspect’s home to make a routine arrest absent exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). This is equally applicable to a guest in a motel room. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Sheff v. State, 329 So.2d 270 (Fla. 1976); Engle v. State, 391 So.2d 245 (Fla.5th DCA 1980). Under the facts of this case, no exigent circumstances existed to justify the warrantless arrest. There was a three-day interval between the alleged robbery and the arrest; and thus, the speed required when chasing a fleeing felon was not present. After discovering that the defendant was in Deerfield Beach, the Miami officers drove there in order to make the arrest. Had an urgency existed which would have required an arrest without a warrant, the Deerfield police would have made the arrest without waiting for the arrival of the officers from Miami. Eight Deerfield police officers were at the scene when the Miami police arrived, greatly reducing the risk that the defendant would escape. We find that no exigent circumstances existed and, consequently, the arrest of the defendant in his motel room was illegal. Engle v. State, supra.

Since we have made a determination that the arrest was illegal, it is clear that the items seized from the room subsequent to the illegal arrest were unlawfully obtained. State v. Thomas, supra; Brown v. State, 392 So.2d 280, 283 (Fla. 1st DCA 1981); Busch v. State, 392 So.2d 272 (Fla. 1st DCA 1981). The keys found as a result of the illegal search could not be used to obtain the handgun from the defendant’s car. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. State, supra; Busch v. State, supra.

In this particular ease, because the defendant practically admitted that he was the perpetrator of the robbery and his sole defense was that of voluntary intoxication, we might well have held the admission of the cash and handgun into evidence over his objection constituted harmless error. § 924.33, Fla.Stat. (1977). However, because we must reverse the defendant’s conviction for the failure of the trial court to charge specific intent with respect to the offense of robbery, we find no reason to apply the harmless error doctrine.

For the foregoing reasons, the defendant’s judgment of conviction is reversed and remanded with directions to award him a new trial.

      . This court has held that Payton shall be applied retrospectively. State v. Thomas, 405 So.2d 462 (Fla.3d DCA 1981).


text:
    Larry Dean PARRISH, Sr., Appellant, v. The STATE of Florida, Appellee.
    No. 80-609.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Dec. 21, 1981.

      Bennett H. Brummer, Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen. for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

The defendant appeals from a written order of modification of probation entered on February 7,1980. Defendant pled guilty to grand theft and was placed on eighteen months probation to be completed on August 26, 1979. However, six days prior to the termination of probation, an affidavit of probation violation was filed charging the defendant with failure to pay costs of supervision and failure to pay restitution. After a hearing at which the defendant was not represented by counsel, on September 18, 1979 the court modified the defendant’s probation by extending it for six months. On January 3, 1980, during this extended term of probation, a second affidavit of probation violation was filed. At the conclusion of the revocation hearing on February 7, 1980, the judge made limited and specific findings of violations. However, in his written order of revocation, additional violations were cited. The defendant contends that it was error to provide grounds for revocation of probation in the written order additional to those grounds stated at the hearing. He also contends that the court erred in not providing counsel at the first revocation hearing.

As to the first claim, we agree that the portions of the order finding the defendant guilty of violations upon which the court had not made specific limited findings of violation of probation were error. Clemons v. State, 338 So.2d 639 (Fla.2d DCA 1980); Burton v. State, 382 So.2d 835 (Fla. 4th DCA 1980). Consequently, all findings of probation violations in the written order of February 7, 1980 other than condition 2, failure to file probation reports, and condition 7, failure to communicate with his probation officer, are vacated.

We cannot reach the defendant’s contention concerning the court’s failure to afford counsel at the first revocation hearing because the order was not timely appealed. Perky v. Perky, 116 Fla. 117, 156 So. 308 (1934); Rodriguez v. Meeks, 260 So.2d 241 (Fla.2d DCA 1972). While an appeal was expressly authorized under Florida Rule of Appellate Procedure 9.140(b)(1)(C), the defendant failed to appeal the September 18, 1979 order within the time prescribed by Florida Rule of Appellate Procedure 9.140(b)(2). Instead, he appealed both orders within the time permitted to file an appeal as to the second order only. The affirmance of the instant probation order, as modified, is without prejudice to the defendant’s rights pursuant to Florida Rule of Criminal Procedure 3.850.

As modified, the order of revocation appealed from is affirmed.


author: BARKDULL, Judge.

text:
    AMERICAN REALEQUITIES, LTD., a Bahamian corporation, Appellant, v. ALM INVESTMENT CORPORATION, a Pan American corporation organized under the laws of the State of Florida to do business in the State of Florida, Appellee.
    No. 80-1548.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Hall & Hauser and Andrew C. Hall and Richard F. O’Brien, III, Miami, for appellant.
    William A. Meadows, Jr., and Lewis D. Milledge, Jr., South Miami, for appellee.
    Before BARKDULL and BASKIN and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

Defendant/counter-plaintiff, American Realequities, Ltd. (American), appeals from a final judgment denying its counterclaim for specific performance of a contract with plaintiff/counter-defendant, ALM Investment Corp. (ALM).

ALM and American entered into a contract under which ALM agreed to sell to American certain property for a purchase price of $530,000.00. American made a $25,000.00 deposit, which was placed in an escrow account with ALM’s attorney. Several months after this contract was entered into, ALM brought an action against American contending that American was in breach of the contract and seeking the forfeiture of the $25,000.00 deposit (as provided for under the forfeiture clause of the contract). American responded by counterclaiming against ALM, seeking a declaratory decree with regard to its rights under the contract. American contended that it was not in breach and that it was entitled to specific performance from ALM.

At the non-jury trial, three issues were in dispute: (1) Whether American was entitled to an adjustment of the purchase price by a reduction of $63,000.00 because the property conveyed was 4.41 acres in size, as opposed to the contract description of the property as “. . . consisting of approximately five acres more or less.” (2) Whether ALM was in breach of those paragraphs of the contract requiring there be “.. . no building moratorium of any kind affecting the subject property and there shall be no restriction as to the availability of building permits on the property.” (3) Whether ALM was guilty of fraud in connection with the non-disclosure of material information (concerning the need of a $150,000.00 lift station to provide adequate water and sewerage for the property).

In its final judgment, the trial court found that the sale was one “in gross” and not a “sale per acre”, and also that there was a non-disclosure by ALM of a material fact (with regard to the requirement of a lift station). The court went on to find that it would be inappropriate for it to order specific performance and to require either party to construct the lift station. Accordingly, the court refused to grant specific performance or, alternatively, damages. The court thereupon declared the contract null and void and directed ALM to return the $25,000.00 held in escrow to American. Finally, the court ordered each party to bear its own legal fees and costs. This appeal by American resulted.

We affirm as to the determination that the sale was in gross and not per acre. The contract indicated that it was five acres “more or less”. The testimony establishes that the purchaser was more interested in the number of units that could be constructed on the site than as to the gross acreage. Therefore, finding evidence to support the trial court’s determination that the sale was in gross it will not be disturbed. Manufacturers National Bank of Hialeah v. Canmont International, Inc., 322 So.2d 565 (Fla. 3d DCA 1975); Wilson v. Wilson, 210 So.2d 732 (Fla. 1st DCA 1968); Prudential Insurance Company of America v. Latham, 207 So.2d 733 (Fla. 3d DCA 1968); M. D. Barrineau v. B&F Auto Parts, Inc., 191 So.2d 53 (Fla. 1st DCA 1966).

We reverse the remainder of the final judgment, with directions as hereinafter set forth.

Notwithstanding the fact that there was a material misrepresentation (which was found by the trial court), the purchaser had a right to affirm the contract and take the property rather than seek a rescission. Black v. Clifton, 284 So.2d 465 (Fla. 4th DCA 1973); Firstbrook v. Buzbee, 101 Fla. 876, 132 So. 673 (1931); Triplett v. Brevard Properties, Inc., 94 Fla. 869, 115 So. 534 (1927). This was the relief sought and he should be accorded a decree requiring the seller to convey in accordance with the terms and conditions of the contract. The purchaser has a right, under the circumstances, to seek specific performance of a land contract and to seek damages for the material misrepresentation. Black v. Clifton, supra; Brown v. Griffin, 75 So.2d 781 (Fla.1954); Firstbrook v. Buzbee, supra; Williams v. McFadden, 23 Fla. 143, 1 So. 618 (1887). The contract provided that any party having to bring an action to enforce its provisions should be entitled to attorney’s fees and costs.

Upon remand, the trial court shall not only take evidence as to the amount of damages suffered by the purchaser because of the material misrepresentation and reduce the purchase price accordingly, but shall also receive evidence as to the amount of attorney’s fees which the purchaser should receive for representation both in the trial court and for services rendered in this court.

Reversed and remanded, with directions.

      . “P. Attorney Fees and Costs: In connection with any litigation arising out of this contract, the prevailing party shall be entitled to recover

      . The reduction should not be the entire cost of the lift station, but only a pro rata amount of the cost which would represent that portion to be used by the property. The balance of the cost will be recouped from other property serviced by the lift station.


author: FERGUSON, Judge.

text:
    Ottfried RIGHTER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2100.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Dec. 16, 1981.
    Stephen Cahen, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, and FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

There was no valid search and seizure claim as to search of a business premise where consent to search was given by a co-owner of the business and the search was a reasonable one conducted during business hours in an area open to the public. Cf. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). Rivers v. State, 226 So.2d 337 (Fla.1969). We find it unnecessary to reach the remaining issue in this appeal, i. e., whether Section 812.055, Florida Statutes (1979) which allows any law enforcement officer, without a warrant, to inspect a motor vehicle repair shop during normal business hours for the purpose of locating stolen vehicles violates constitutional safeguards against unreasonable searches.

Affirmed.


text:
    Juan Antonio CALIXTO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2211.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Dec. 16, 1981.
    Michael I. Libman, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON, and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Padilla, 235 So.2d 309 (Fla. 3d DCA 1970); Miranda v. State, 354 So.2d 411 (Fla. 3d DCA 1978).