text:
    Don JONES, G. Patrick Iley, Jeanne Malchon, Charles E. Rainey and Cliff Stephens, as members of and constituting the Board of County Commissioners of Pinellas County, Florida, Appellants, v. FIRST VIRGINIA MORTGAGE AND REAL ESTATE INVESTMENT TRUST, Appellee.
    No. 79-2276.
    District Court of Appeal of Florida, Second District.
    June 19, 1981.

      Andrew J. Rodnite, Asst. County Atty., Clearwater, for appellants.
    Thomas F. Icard, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee.
   PER CURIAM.

Pinellas County downzoned certain property while a developer was seeking approval of a preliminary site plan for a project exceeding the new density restrictions. Appellee, the financing institution which had supplied the funds with which the developer purchased the site, acquired the property by foreclosure when the developer defaulted on the loan. This action was then instituted to enjoin the county from enforcing the new zoning as to that site. The original complaint and a first amended complaint were dismissed for failure to state a cause of action, but appellants’ motion to dismiss the second amended complaint was denied on the ground that a cause of action for equitable estoppel had been stated. Ap-pellee then moved for summary judgment on the ground that the uncontradicted facts established equitable estoppel as a matter of law. Appellants countered with their own motion for summary judgment, on the ground that the facts established the absence of equitable estoppel, as a matter of law. Appellee’s motion was granted without explication of reason or ground. We reverse the summary judgment.

In 1973 Williams Development Corp. paid a $10,000 deposit on (1) a contract to purchase approximately 13'/2 acres out of a parcel of land situated in an area known as Coopers Point, and (2) an option to purchase the remainder of the parcel (approximately half) for $750,000 less any sums paid for the first half. The contract provided that the price was to be determined by the number of residential units that could be constructed on the land. The base price was set at $375,000 if 253 units could be constructed on the “Phase I” plot. The contract also provided:

4. This Agreement is subject to the Property being zoned to permit the construction of apartments and having a permissible density of not less than five hundred and six (506) units, and that said zoning and allotment of density requirements as hereinbefore mentioned be evidenced by an official letter from the proper zoning official of the County of Pinellas delivered to Buyer prior to closing. This Agreement is also subject to the issuance of building and use permits on the Property for two hundred fifty-three (253) units prior to the date of closing. If said permits have not been so obtained or said official letter is not so delivered, Buyer shall have the option to terminate this Agreement and have its deposit returned,' or to waive the requirements and close the sale.

Two months later Williams assigned the contract to Financial and Development Corporation of North America (hereinafter Financial Corp.) for $205,000. Shortly thereafter the owners of the property met with Charles Y. Zimmerman, a zoning technician in the Pinellas County Department of Planning, and requested confirmation that the property in question was zoned RPD-15. In response, Zimmerman sent them a letter on May 31, 1973, stating in part:

The Bay Harbor Residential Planned District, a 25-acre MOL tract ... has been approved for a total of 506 units. In accordance with the ... zoning regulations ... the Bay Harbor site would allow a five-story building elevation provided they are in compliance with the additional setbacks.
The final construction plan would require submittal to, and approval by, the Pinellas County Board of County Commissioners. Also this parcel ... has a minimum elevation requirement for the first floor living area of nine (9) feet above mean sea level.
Sincerely,
Charles V. Zimmerman
Zoning Technician

Financial Corp. then made arrangements to conclude the purchase of the first half of the tract and commence the construction of Phase I of a complex to be known as Sea Pines. Acquisition and construction money in the total sum of $5,000,000 was committed by appellee on several conditions, among them:

9. PURPOSE OF LOAN: The proceeds of the loan will be used to acquire fee simple title to a tract of land containing approximately 24.7 acres .. .; to develop for apartment use approximately 13.5 acres of said tract and to construct thereon a minimum of 253 garden and mid-rise apartment units; and to develop for apartment use the remaining portion of the security tract.
10. SECURITY: The loan will be secured by:
a. A first mortgage encumbering approximately 13.5 acres of the following-described tract of land [and encumbering the entire tract after the Phase II land is acquired].
11. DISBURSEMENTS:
a. Approximately $550,000 shall be disbursed at closing to pay the acquisition cost of Phase I land, costs incidental to closing, a portion of the loan brokerage fees and a portion of the additional interest on subject loan.
b. Approximately $375,000 shall be disbursed at the time the Phase II tract of land is acquired by borrower, at which time lender’s mortgage will be modified to include the Phase II tract in the land .encumbered thereby.
16. SUPPORTING DOCUMENTS: As soon as practicable, and in any event prior to the making of any disbursements for construction or development purposes, lender shall be furnished for approval with any of the following items it has not yet received:
a. Site Plan: A Site Plan for subject project, which plan if required by local law, must have been approved on its face by all of the appropriate public authorities.
b. Building Permits: Building permits from appropriate public officials.
17. SUPPORTING DOCUMENTS FOR CLOSING REQUIREMENTS: As soon as practicable, and in any event pri- or to closing, lender shall be furnished for approval with any of the following items it has not yet received:
f. Zoning: Evidence satisfactory to lender that the proposed project complies with the relevant building and zoning code including a copy of the relevant ordinances.

The loan escrow closed in July, 1973, and Financial Corp. completed the purchase of the Phase I plot. At no time, either prior or subsequent to the consummation of the purchase, did Financial Corp. obtain or even apply for any building permits. At that time any developer desiring building permits for a Pinellas County project first had to obtain approval by the Board of Commissioners of a preliminary site plan, then obtain approval of a final site plan, then obtain a land-use permit and then apply for a building permit. Assuming final approval of a site plan, building permits would automatically issue so long as consistent with such site plan AND prevailing building, electric and other such codes, together with elevation and setback requirements.

The mortgage executed by Financial Corp. in favor of appellee provided in part:

Mortgagor shall not initiate, join in or consent to any change in any private restrictive covenant, zoning ordinance or other public or private restrictions limiting or defining the uses which may be made of the premises or any part thereof.

Shortly after completing the purchase of the land, Financial Corp. submitted for the first time, a preliminary site plan to the County Department of Planning and requested that informal meetings of interested citizens in the neighborhood of the proposed Sea Pines subdivision be held in the recreation hall of an adjacent condominium complex. Opposition to the project was immediate and massive. The opponents organized and hired a lawyer. They attacked the proposed development on the grounds that (1) it would place 506 apartments squarely in the middle of a single family residential area, (2) existing school facilities were inadequate to handle such an influx into the neighborhood, (3) the streets in the area were inadequate to handle (4) the substantially increased traffic that would result, (5) the water supply in the area was inadequate to serve such an increase in population, and (6) the project would have a severe impact on various aspects of the local ecology.

The preliminary site plan was rejected because it did not comply with applicable county ordinances. It was revised by Financial Corp. and resubmitted, rejected again, revised again and resubmitted, and finally, on February 12, 1974, the planning department recommended to the Board of Commissioners that the latest revision of the preliminary site plan be approved. In the meantime, however, the opponents had been bringing extreme pressure to bear on the board to rezone the area back to single family and thus bar not only the Sea Pines project but all others like it in the future. Twice, on January 29 and February 12, 1974, the Sea Pines preliminary site plan was placed on the board’s agenda for consideration, and both times the matter was continued because of the heavy turnout of dissenting residents. Finally, on March 19, 1974, at a meeting attended by over 300 residents from the affected area, the board instructed the County Planning Department to study and prepare a proposal for the rezoning of not only the Sea Pines tract but several other plots near it as well, and requested the department to devise a master plan for the development of the entire area. The resultant proposed master plan included a recommendation from the planning department that various zoning changes, including the downzoning of the Sea Pines tract from RPD-15 to RPD-7.5, be made in order to implement the overall plan. After a publicly noticed and heavily attended hearing, the board on June 25, 1974, rezoned the area as recommended.

By that time Financial Corp. had spent some $73,000, including legal fees, in connection with preparing, revising and presenting the preliminary site plan. Thereafter Financial Corp. defaulted in payments on the $550,000 initially distributed to it by appellee and in 1976 appellee foreclosed its mortgage, thereby obtaining ownership of the Phase I land.

On this appeal the commissioners first challenge appellee’s standing to maintain this action, and then argue that in any event the evidence was clearly inadequate to establish an estoppel and, therefore, summary judgment should have been entered in their favor.

I

STANDING TO MAINTAIN ACTION

Appellants argue that if anyone sustained “special damages” from the rezoning it would have been Financial Corp., and not appellee. They point out that even if by funding the acquisition of the property ap-pellee qualified as a purchaser, that would not constitute an item of special damages because the mere purchase of land does not create a right to rely on existing zoning, and they cite our decisions in Pasco County v. Tampa Development Corp., 364 So.2d 850 (Fla. 2d DCA 1978) and Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla. 2d DCA 1975). Since the only other item of possible damage was the $73,000 spent by Financial Corp. in presenting the preliminary site plan, and Financial Corp. is not even a party to this proceeding, appellants argue that appellee sustained no special damage and therefore had no standing to challenge the rezoning, citing Skaggs-Albertson’s v. ABC Liquors Inc., 363 So.2d 1082 (Fla.1978) as authority for that assertion.

The flaw in appellants’ argument is that our supreme court made it quite clear in Skaggs that the “special damage” rule applies only where a litigant seeks to enforce an ordinance. Where an ordinance which has been validly enacted is attacked as an excess or abuse of police power, only a “legally recognizable interest” is required of the plaintiff. 363 So.2d at 1087. This court has held that one who finances a real estate development adversely affected by zoning enactments may have a legally recognizable interest in challenging the zoning ordinance, depending upon the circumstances of the case, and if such interest is found, then the doctrine of equitable estoppel may be available to the lender. Jones v. U. S. Steel Credit Corp., 382 So.2d 48 (Fla. 2d DCA 1979).

II

EQUITABLE ESTOPPEL

There is no question about the fact that the rezoning constituted a serious and perhaps fatal impediment to the Sea Pines project, or at least to the degree of financial success anticipated by the principals. Appellee, as previously noted had no interest in the profitability of the project except to the extent that repayment of its loan would be affected. For purposes of the present discussion, we will assume that ap-pellee advanced at least $550,000 to Financial Corp. under the loan commitment and that the land was not worth even $375,000 unless a density of 15 units per acre were permitted. With that assumption, the question then becomes whether the rezoning was inequitable.

That question cannot be answered by looking solely at the consequences of the rezoning insofar as Financial Corp. and ap-pellee were concerned. Quite obviously they sustained a distinct disadvantage. Notwithstanding the fact that they voluntarily proceeded into a known peril when they elected to consummate the purchase without having obtained the building permits specified by the purchase agreement, still no observer or reviewer of the situation could fail to sympathize with their present unfortunate plight.

The cold fact of the matter, however, is that at some juncture it becomes the unpleasant duty of someone to weigh the disadvantages of rezoning against the disadvantages of not rezoning. That is properly the function of the legislative body charged with responsibility for protecting and enhancing the health, welfare and safety of the public—in this case, the county commissioners. Once their difficult task has been completed, and a decision reached, no court should substitute its judgment for theirs, and their decision should not be overturned except upon a clear showing of either an abuse of discretion, some invalidating impropriety in procedure, or a failure to take proper cognizance of controlling law. Dade County v. Yumbo, S.A., 348 So.2d 392 (Fla. 3d DCA 1977).

There is nothing in the record before us to so much as suggest, let alone establish, that the rezoning in question was anything other than a proper, reasonable exercise of police power for the health, welfare and safety of the general public. Appellee commendably refrains from serious argument to the contrary. The conclusion, however, that the new ordinance is valid is not determinative of this appeal. The main thrust of appellee’s argument is that the ordinance, even though valid, should not be enforced as to the proposed site of the Sea Pines project. Unlike the question of whether to rezone, which required the legislative body to weigh individual and public equities, the question of whether to enjoin enforcement must be resolved by the courts, and requires a weighing of the inequity to the individual should the ordinance be enforced. Just as with the initial weighing, the decision of the trial court also should not be upset except where discretion has been abused. Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10, 15 (Fla.1976).

It is inevitable that legislation designed to promote the welfare of the public may seriously impair individual rights. It would be a rare occurrence indeed if the zoning of an area did not have financial disadvantages to someone within it. Yet if the police power could be wielded only if no one were affected adversely, the government would be impotent. The welfare of the many would be totally subordinate to the interests of a few.

In an effort to reconcile the conflicting interests, the courts have devised certain rules which protect the public and at the same time assure just treatment of truly deserving individuals. Some types of injury are declared insufficient to merit redress. Among them is the loss occasioned by a zoning or rezoning prohibiting a use which was permissible when the property was purchased, even though it may have been the use for which the property was specifically acquired. Pasco County v. Tampa Development Corp., supra; Town of Largo v. Imperial Homes Corp., supra. Our supreme court put it this way in City of Miami Beach v. 8701 Collins Avenue, 77 So.2d 428 (Fla.1954):

All that one who plans to use his property in accordance with existing zoning regulations is entitled to assume is that such regulations will not be altered to his detriment, unless the change bears a substantial relation to the health, morals, welfare or safety of the public.

Appellee does not quarrel with those principles, but claims that the commissioners are estopped to enforce the new zoning restrictions. It is true that sometimes the harsh consequences of an exercise of police power can be avoided by application of the doctrine of equitable estoppel, but the conditions which will trigger such relief are tightly circumscribed, lest an “unwise restraint [be placed] upon the police power of the government.” City of Miami Beach v. 8701 Collins Avenue, supra. Estoppel arises only where one with a legally recognizable interest in property (1) has made such a substantial change in his position, (2) in good faith reliance upon some act or omission of the government, that it would be highly inequitable and unjust to destroy (3) the rights he has acquired. Town of Largo v. Imperial Homes Corp., supra.

In the case of a lender, it might be said, as we did in Jones, that in one sense he “stands in the shoes” of the developer. Nevertheless, appellee has the burden of showing its own detrimental change of position if the protection of the estoppel doctrine is to be extended to it. A change of position by the developer or a detriment suffered by the developer, by itself, would not redound to a lender’s benefit.

The sole evidence that appellee did anything that might constitute a “change of position” was in lending the money to be used for the purchase of the property. Yet, even one who purchases property, much less the party who finances the purchase, has no legal right to assume that existing zoning may not change. Town of Largo v. Imperial Homes Corp., supra. Estoppel can come about only if the change of position is induced by an official act performed under circumstances giving rise to a reasonable conclusion that the government knew or should have known that its act would be relied upon in that very manner. Pasco County v. Tampa Development Corp., supra. For instance, in Jones, the county reaffirmed its upzoning of the property with the knowledge that the lender intended to make its loan in reliance upon that zoning.

We can find nothing in the facts of this case that would satisfy that requirement. At the outset, the fact that Financial Corp. elected to close the purchase and appellee chose to make the loan without first requiring the issuance of the site plan and building permits specified in the purchase agreement flies in the face of the contention that there was a bona fide change of position in reliance that the permits would be issued. Appellee relies heavily (almost solely) on the Zimmerman letter, but even were we to accept, for purposes of argument, appellee’s assertion that a zoning technician is an official possessing authority to bind the county, the fatal fact remains that the letter did nothing more than state what zoning restrictions were then in effect. The letter was purely informative, as the trial court specifically ruled. Moreover, Zimmerman expressly warned the owners of the property that approval of the Sea Pines project would have to be obtained from the commissioners. Zimmerman properly refrained from so much as hinting at what the board might or might not do regarding either the planned project or the existing zoning. The only information he gave could have been obtained as easily from the county librarian, or anyone else with access to the county ordinances.

Thus, we conclude that the doctrine of equitable estoppel did not apply here, and the judgment of the trial court is erroneous if predicated upon that ground.

Appellee argues that even if the trial court committed (more aptly, was led into) error in that regard, still the judgment should be affirmed if it is right for any reason. That is a correct statement of a basic principle of appellate review, but it doesn’t help appellee, which mistakes certain statements in our opinion in Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980), as support for its present position. In that case we held that even in the absence of estoppel, a property owner is entitled to receive a building permit which is within the provisions of existing zoning so long as there is no rezoning ordinance pending at the time of the application which would prohibit the intended use. That case involved the direct relationship between the owner of property and the governmental authority seeking to restrict the use of his property through zoning. We did not intend that a third party lender could claim the benefit of this principle.

The appellant, rather than the appellee, should have been granted the summary judgment.

REVERSED.

SCHEB, C. J., and GRIMES and OTT, JJ., concur.

      . We cannot fathom the mathematics involved here. A project covering 25 acres, and built to a density of 15 units per acre, would total 375 units rather than 506 units. However, neither side questions those figures and the case is in no way dependent upon that point, so we will assume that there is some explanation.

      . In Barefield v. Davis, 251 So.2d 699 (Fla. 1st DCA 1971), the court held that a promise by a member of the board of commissioners did not give rise to an estoppel.


source: Caselaw Access Project

author: CAMPBELL, Judge.

license: Public Domain

text:
    CITY OF PLANT CITY, Appellant, v. DEPARTMENT OF TRANSPORTATION and Seaboard Coast Line Railroad Company, Appellees.
    No. 80-1980.
    District Court of Appeal of Florida, Second District.
    June 19, 1981.
    Paul S. Buchman and J. Miles Buchman of Buchman & Buchman, Plant City, for appellant.
    Margaret-Ray Kemper, Charles G. Gardner, H. Reynolds Sampson and Alan E. DeSerio, Tallahassee, for appellee Dept, of Transp.
    Ronae B. Reiser, Jacksonville, for appel-lee Seaboard Coast Line R. Co.
   CAMPBELL, Judge.

Plant City appeals an order issued by the State Department of Transportation (DOT) which closed two city streets that crossed the Seaboard Coast Line Railroad. On a cross-appeal, Seaboard seeks review of DOT’s order leaving a third crossing open. The City argues that DOT lacks authority to close a railroad crossing that is within a city’s street system, absent the city’s approval. Seaboard contends there was not sufficient competent evidence to support that part of the order at issue in its cross-appeal. We find both of these arguments to be without merit and affirm the order.

DOT initiated the proceeding to close three railroad crossings located within the Plant City limits, pursuant to section 338.-21(3), Florida Statutes (1979), and Florida Administrative Code Rule 14-46.03(2). Subsequently, Seaboard filed its own applications to close the three crossings. Both DOT and Seaboard acknowledged that these streets were within the City’s jurisdiction.

Public hearings were held at which time the City moved to dismiss the petitions challenging DOT’s authority to close a railroad crossing of a city street. The motion was denied and the administrative hearing officer recommended closing two crossings and leaving the third open. DOT adopted the hearing officer's recommended order.

Section 338.21(3), Florida Statutes (1979), states succinctly: “The department shall have regulatory authority over all public railroad crossings in the state, including the authority to issue a permit for the opening and closing of such crossings.” Such clear and unequivocal language can only be construed to mean that the legislature intended to grant DOT the exclusive authority to issue crossing permits without requiring additional approval from municipalities. It would have been easy for the legislature to have provided an exception for municipalities and yet it did not.

We note that section 357.01, Florida Statutes (1979), provides that a city may require a railroad company to construct a crossing when a railroad crosses a city street. However, as that section was originally enacted in 1911 and section 338.21(3) dates back only to 1955, we must defer to the latest legislation to the extent that a conflict exists in the law.

Upon review of Seaboard’s cross-appeal, we find there was sufficient competent evidence to support the DOT order leaving the one railroad crossing open. DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957).

AFFIRMED.

SCHEB, C. J., and GRIMES, J., concur.

      . Fla.Admin.Code Rule 14-46.03(2):
      Opening and Closing Public At-Grade Crossings.
      The Department of Transportation will accept the applications for opening and closing of public railroad crossings from the governing body that has jurisdiction over the public street or highway; the corporation that has jurisdiction over the operation of the trains through the crossing; or any other applicant for a public at-grade crossing, provided that there is in existence an agreement with the governing body to assume jurisdiction as a public crossing. Authorization for such opening or closing will be a permit based on the order issued by the Secretary of Transportation subsequent to public hearing conducted pursuant to Chapter 120, Florida Statutes.


author: PER CURIAM.

text:
    Grover Louis TURNER, Appellant, v. STATE of Florida, Appellee.
    No. AB-435.
    District Court of Appeal of Florida, First District.
    June 19, 1981.
    Grover Louis Turner, in pro. per.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from an order denying post-conviction relief. In July 1978, the appellant was adjudicated guilty of second degree murder, and he was sentenced to fifteen years imprisonment. The trial court ordered him to serve five years of this prison sentence, and the balance of the sentence was suspended, with the appellant to be placed on probation for ten years. The appellant later filed a motion for post-con-vietion relief pursuant to Fla.R.Crim.P. 3.850, and this motion was denied without an evidentiary hearing.

Subsequent to the trial court’s denial of the appellant’s motion, the Florida Supreme Court issued its opinion in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). In Villery, the court held that:

incarceration, pursuant to the split sentence alternatives found in sections 948.-01(4) and 948.03(2), which equals or exceeds one year is invalid. This applies to incarceration as a condition of probation as well as to incarceration followed by a specified period of* probation. ... this decision applies retroactively.

Id. at 1111. In view of this language, the trial court’s order is reversed, and this cause is remanded for resentencing pursuant to the guidelines set forth in Villery. See 396 So.2d at 1111-12.

SHAW, WENTWORTH, and THOMPSON, JJ., concur.


text:
    Hugh HARDAGE, Appellant, v. CITY OF JACKSONVILLE BEACH, Paul Brown and Dale Carson, Appellees.
    No. WW-406.
    District Court of Appeal of Florida, First District.
    June 19, 1981.

      Hugh A. Carithers, Jr., of Sheppard & Carithers, P. A., Jacksonville, for appellant.
    Stephen Stratford, of Stratford & Booth, P. A., Jacksonville, for appellees.
   PER CURIAM.

Appellant owns a licensed liquor establishment, the Mai Kai Lounge, in Jacksonville Beach, Florida. He challenges a City of Jacksonville Beach ordinance which bans the sale of alcoholic beverages on Sunday with certain exceptions. The exceptions allow hotels and motels with 100 or more guest rooms, restaurants receiving the majority of their gross annual income from the sale of food, and private clubs to sell alcoholic beverages on Sunday for consumption on premises only. Appellant admits he does not fit within one of the exceptions to the ordinance.

He challenges the ordinance on two grounds. First, the ordinance is overbroad because there is no valid legislative distinction between his place of business and those businesses allowed to sell liquor on Sundays. Second, the City does not have the power to regulate the manner of sale (restrict consumption to on premises only) because the laws of Florida allow a city to regulate only the hours, location, and sanitary conditions of establishments licensed to sell liquor. We affirm.

The Florida Legislature has empowered the cities to regulate the location of liquor establishments, the hours the establishments may stay open, and the sanitary conditions of these establishments. Section 562.45(2), Fla.Stat. (1979). Under the power to regulate “location” of liquor establishments, municipalities may permit one or more types of sale in a designated area without being required to permit all other modes of sale therein. Gross v. City of Miami, 62 So.2d 418 (Fla.1953). In City of Miami Beach v. State, 129 So.2d 696 (Fla. 3rd DCA 1961), the court cited with approval Gross v. City of Miami, supra, in upholding an ordinance which excluded certain types of liquor establishments within certain zones of the city. In Casey v. City of Miami Beach, 141 Fla. 793, 193 So. 827 (Fla.1940), an ordinance was upheld which restricted liquor vendors to being open nineteen hours per day while allowing “night clubs” to remain open twenty-four hours per day. Furthermore, in State v. Noel, 124 Fla. 852, 169 So. 549 (Fla.1936), the Florida Supreme Court upheld an ordinance which prohibited the sale of liquor between the hours of 10:00 p. m. and 6:00 a. m. However, hotels having 100 or more guest rooms were allowed to sell liquor between 10:00 p. m. and midnight on week days.

Based on the above authority, the City of Jacksonville Beach was acting within its statutory power in restricting the Sunday sale of liquor in the ordinance challenged below.

It is well-settled in this jurisdiction that in the exercise of its police power a municipality may regulate and restrict liquor vendors in the operation of their businesses. In so doing the municipality has a wide discretion in classifying such liquor vendors and may enact restrictions and regulations to that end, so long as such restrictions and regulations are on a reasonable and practicable basis as to each classification sought to be regulated.

City of Miami Beach v. Cohen, 47 So.2d 565 (Fla.1950). Since there is a rational basis for the city’s ordinance restricting liquor sales on Sunday to hotels, motels, restaurants, and private clubs, we affirm the trial judge’s order holding this ordinance constitutional.

Appellant failed to meet his burden of demonstrating no rational basis for the legislative distinctions in the ordinance. When reviewing a city ordinance “the motives of the commission and the reasons for which it induced passage of the ordinance are irrelevant.” City of Pompano Beach v. Big Daddy’s, Inc., 375 So.2d 281 (Fla.1979). All presumptions are in favor of an ordinance’s validity and all ordinances will be construed, if possible, to give a result which renders them constitutionally valid. High Ridge Management Corp. v. State of Florida, 354 So.2d 377 (Fla.1977). If reasonable argument exists on the question of whether an ordinance is arbitrary or unreasonable, the legislative will must prevail. City of Miami Beach v. Cayfetz, 92 So.2d 798 (Fla.1957).

As to appellant’s second point on appeal, we hold he has no standing to challenge that portion of the ordinance which restricts liquor sales to consumption on premises only. Appellant is in that group of liquor vendors who are not allowed to sell liquor on Sunday. Therefore, he is not affected by that portion of the ordinance which restricts those establishments allowed to sell liquor on Sunday to sales for consumption on premises only. To have standing to challenge a portion of an ordinance, appellant must be affected by that portion he seeks to attack. 10 Fla.Jur.2d Constitutional Law § 62.

One cannot raise an objection to the constitutionality of a part of a statute, unless his rights are in some way injuriously affected thereby, ...

State ex rel. Clarkson v. Phillips, 70 Fla. 340, 70 So. 367 (Fla.1915). Since appellant is not affected by that portion of the ordinance he challenges in his second point on appeal, he has no standing to raise his second point on appeal.

Accordingly, the trial court’s order is AFFIRMED,

McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A., (Retired) Associated Judge, concur,


text:
    Ike FARHUD, Petitioner, v. The Honorable Harold R. CLARK, Circuit Court Judge, Division A, Duval County, Florida, Respondent.
    No. AB-423.
    District Court of Appeal of Florida, First District.
    June 22, 1981.

      Louis O. Frost, Jr., Public Defender, William P. White, Chief Asst. Public Defender, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

This petition for writ of certiorari seeks review of an order of the circuit court entered in its appellate capacity. The order for which review is sought affirmed the county court conviction of petitioner on a charge of intentional evasion of payment of sales tax, Section 212.12(2), Florida Statutes (1975), following his plea of nolo contendere which reserved the right to appeal the denial of a motion to dismiss premised upon petitioner’s assertion that the statute of limitations had expired prior to the date prosecution was commenced. Since we find a material fundamental error in application of the law which constitutes a departure from the essential requirements of law, we grant the petition for writ of certiorari.

An information was filed January 26, 1979, charging petitioner with evading payment of sales tax. Between August 1,1973, and July 31, 1976, petitioner, owner of a food market, filed monthly state sales tax returns. August 27, 1976, following an audit, the Department of Revenue tendered a notice of assessment against petitioner alleging unpaid taxes, delinquent penalties and interest for the period August 1, 1973, through July 31,1976. Petitioner instituted Chapter 120 proceedings to contest the assessment. On January 3, 1978, a proposed order was promulgated and on February 7, 1978, the order assessing $2,238.92 became final. In his motion to dismiss, petitioner contended the statute of limitations had expired prior to January 26, 1979. Following the county court’s denial of the motion and petitioner’s plea of nolo contendere, petitioner appealed his conviction to the circuit court. The circuit court affirmed the conviction adopting the state’s argument that the statute of limitations for the offense did not commence until the time had passed for appeal from the order of final assessment entered by the Department of Revenue, March 9, 1978.

The offense proscribed by Section 212.-12(2) is a misdemeanor of the second degree. Since no specific limitation period is set out in Chapter 212 for this offense, the general time limitations are applicable. Section 775.15, Florida Statutes (1975), provides:

******
(2) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:
* * * * * #
(d) A prosecution for a misdemeanor of the second degree ... must be commenced within 1 year after it is committed.
* * * * * sft
(4) An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated. Time starts to run on the day after the offense is committed.

To determine whether the one year limitation period had expired prior to prosecution, it is necessary to resolve the issue of when the offense of evasion of payment of sales tax is committed. Taxes levied upon sales of tangible personal property are due and payable monthly on the first day of each month. § 212.11(1), Fla.Stat. (1975). Dealers must file a return with the department on or before the twentieth day of the month showing the gross sales taxable during the preceding calendar month. Id. Sales taxes for each month are due to the department on the first day of the succeeding month and are considered delinquent on the twenty-first day of such month. § 212.-15(2), Fla.Stat. (1975). We conclude the offense of evasion of payment of sales tax was committed when petitioner was required to pay the sales tax, i. e., no later than the twenty-first day of the month succeeding the month for which the taxes were collected.

Our conclusion that the crime was committed at the time petitioner failed to report or remit his taxes as they became due and owing is consistent with federal law regarding the statute of limitations for prosecution for filing a false return and is buttressed by decisions from other jurisdictions. It has been held that the period of limitations prescribed by 26 U.S.C.A., § 6531, for a criminal prosecution under 26 U.S.C.A., § 7201, for the offense of attempting to evade or defeat income tax by filing a false income tax return, commences to run from the date of actual filing of the return, where extensions of time have been granted, or from the due date, whichever is later. United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968); United States v. Silverman, 449 F.2d 1341 (2nd Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 943, 30 L.Ed.2d 788 (1972). See also, United States v. Zudick, 523 F.2d 848 (3rd Cir. 1975). In Bunge v. State, 149 Ga.App. 712, 256 S.E.2d 23 (Ga.1979), the court held that liability for a willful failure to pay sales tax in violation at the Georgia Retailers’ and Consumers’ Sales and Use Tax Act attached at the time Bunge failed to report or remit his taxes at the time such taxes were due. In reaching this conclusion, the court rejected the assertion that liability for the payment of delinquent sales taxes did not attach until notice and demand was given by the tax commissioner or his delegate. Similarly, in Commonwealth v. Bender, 251 Pa. Super. 454, 380 A.2d 868 (1977), the court held that the offense of willful failure or refusal to remit sales tax was completed the day following the date payment of the tax was due.

Respondent asserts that by seeking review of the alleged deficiency under Chapter 120, petitioner basically sought an extension of time before paying the tax due. We reject this position. Section 212.-12(5), Florida Statutes (1975) authorizes the department, upon written request, to extend for up to thirty days the time for making returns. No such extension was granted here. Further, petitioner was not charged with attempting to evade payment of the deficiency assessment, but rather was charged due to his failure to remit taxes when due. We similarly reject respondent’s assertion that the pendency of administrative proceedings challenging the assessment precluded criminal prosecution. No provision in Chapter 120 or in Chapter 212 prevents a criminal prosecution during disposition of administrative remedies.

Accordingly, we find that the statute of limitations had expired prior to commencement of prosecution herein. The circuit court departed from the essential requirements of law by affirming petitioner’s conviction when the county court had no jurisdiction of the matter due to expiration of the statute of limitations. The petition for writ of certiorari is granted and the cause is remanded to the circuit court with instructions to vacate the judgment and sentence imposed by the county court.

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.

      . § 212.15(3), Fla.Stat. (1979), provides that prosecution of the misdemeanor of theft of state funds, § 212.15(2), Fla.Stat. (1979), shall be commenced no later than two years from the date of the offense. However, this section did not become effective until July 1, 1979. Ch. 79-359, § 5, Laws of Florida.


text:
    Randy YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. AB-278.
    District Court of Appeal of Florida, First District.
    June 22, 1981.
    Randy Young, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

This appeal seeks review of an order which denied without hearing appellant’s Rule 3.850 motion for post-conviction relief. We reverse and remand for an evidentiary hearing.

Appellant’s motion alleged that upon his conviction on a charge of involuntary sexual battery, he was sentenced to one year in jail and six years on probation; that a condition of probation was that he make restitution to his victim and pay a monthly supervision cost of $10.00; that while on probation he was arrested for violation of the above condition; that he was indigent and without funds to make the payments required as a condition of probation; that the court appointed the public defender to represent him at the revocation proceeding, but the public defender neither contacted him nor appeared at his revocation hearing: that at the revocation hearing the trial court made no finding of fact as to his ability to make the payments required as a condition of probation, the determination of which is required for a finding of violation based solely on the nonpayment of costs; and that he did not willfully avoid such payment.

An indigent probationer is entitled to counsel at a hearing on revocation of probation. Gargan v. State, 217 So.2d 578 (Fla. 4th DCA 1969). Presumably, counsel would have known that probation cannot be revoked solely for violation of a condition requiring payment without a factual determination by the court that the probationer was in fact able to make payments. Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978), reh. denied; Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975).

The motion for post-conviction relief was sufficient on its face, and in the absence of a copy of that portion of the files and records conclusively showing that the movant is entitled to no relief, an evidentia-ry hearing is required. Barfield v. State, 348 So.2d 621 (Fla. 4th DCA 1977); Martin v. State, 349 So.2d 226 (Fla. 4th DCA 1977); Fla.R.App.P. 9.140(g).

Depending upon the outcome of such hearing, and a further determination by the court as to whether appellant’s probation was properly revoked, the trial court will have the opportunity to review the sentence imposed upon appellant in light of the Supreme Court’s opinion and decision in the case of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. Opinion 1980), reh. denied (Revised Opinion filed April 23, 1981).

The court’s order dated January 27,1981, denying appellant’s motion for post-conviction relief is reversed and this cause remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

SHAW and WENTWORTH, JJ., concur.


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

text:
    Marsha Clare BROWN, Appellant, v. Kermit Marlin BROWN, Appellee.
    No. XX-65.
    District Court of Appeal of Florida, First District.
    June 22, 1981.

      John Paul Howard, Jacksonville, for appellant.
    Robert I. Scanlan, Tallahassee, for appel-lee.
   ROBERT P. SMITH, Judge.

We find no error in the circuit court’s rulings on appellant’s “petition for judgment of contempt and motion for modification of final judgment of divorce.” The facts of the case are as stated in Judge Wentworth’s concurring and dissenting opinion, although we should note that appellant made no application to reduce the alleged arrearages to judgment except by an order of contempt, which the full panel agrees the circuit court properly denied. If the record contained a proper demand for a judgment of arrearages, we should be obliged to sustain the circuit court’s denial of that relief because of the undisputed testimony that appellant bargained for and agreed to the termination of child support payments, during the period in question, in exchange for appellee’s agreement to “stop calling and stop bothering her about seeing the child.” See Phillips v. Adams, 339 So.2d 665 (Fla.4th DCA 1976). Nor do we think the court can be held to have erred in granting appellee’s motion to dismiss the petition for modification and increase of the resumed child support payments, after appellant rested her case on that issue without any effort to prove the child’s increased need and appellee’s increased ability to pay. Section 61.14(1), Florida Statutes (1979). The trial court was required to rule on the issues as they were presented by counsel; and, having correctly ruled that the evidence in support of modification was insufficient at the close of appellant’s case, the court cannot be held in error for declining to reopen that issue based on evidence later received on the contempt issue.

AFFIRMED.

MILLS, C. J., concurs.

WENTWORTH, J., concurs and dissents, with opinion.

WENTWORTH, Judge,

concurring in part, dissenting in part.

While I recognize the great discretion vested in trial judges in matters of this nature, I would conclude in the circumstances of this case that the court abused its discretion in denying payment of delinquent child support based on alleged agreement of the appellant mother, and in rejecting reconsideration of the modification motion without regard to evidence submitted on the contempt petition heard simultaneously.

When the parties were divorced in 1971, Mr. Brown’s income was about $500.00 per month and he was ordered to pay $70.00 per month for child support. In 1980, Ms. Brown filed a motion for modification and a petition for judgment of contempt, requesting an increase in the child support and alleging that Mr. Brown was in arrears $5,690.00. At the hearing on these motions she introduced into evidence her current financial affidavit and a printout from the sheriff’s office showing the arrearage, then rested. At that point the court granted Mr. Brown’s motion to dismiss the modification claim but decided to hear further evidence on the petition for contempt. Mr. Brown testified that shortly after the divorce, Ms. Brown agreed he could stop the support payments if he would give up visitation. In 1973 Ms. Brown moved to Texas, and from 1973 through 1978 Mr. Brown made only three payments of support on the specific request of Ms. Brown. He resumed regular payments in 1978 after Ms. Brown filed a URESA action against him.

During his testimony, Mr. Brown referred to his financial affidavit and it was introduced in evidence on motion of Ms. Brown, without objection. The affidavit showed a substantial increase in Brown’s income: from $500 to $1,028.71 a month. When Mr. Brown rested, Ms. Brown asked for reconsideration of the ruling on modification. The court refused, denied the motion for modification, denied the petition for contempt and denied Ms. Brown’s request for attorney’s fees.

The court may modify a support order or agreement if “the circumstances or the financial ability of either party has changed.” (e.s.) § 61.14(1), Florida Statutes (1979). A showing that the paying parent has had a substantial increase in income is sufficient to justify an increase in the amount of child support. Lamar v. Lamar, 266 So.2d 376 (Fla.4th DCA 1972); Sherman v. Sherman, 279 So.2d 887 (Fla.3d DCA 1973); Meltzer v. Meltzer, 356 So.2d 1263 (Fla.3d DCA 1978); Lenton v. Lenton, 370 So.2d 30 (Fla.2d DCA 1979). Clearly such a showing was made here by introduction of Mr. Brown’s financial affidavit and his testimony as to his prior earnings. This evidence was brought before the court immediately after it had dismissed the motion for modification, and the request for reconsideration based on all the evidence should have been granted to prevent elevation of form over substance in light of the statutory prescription that the court shall “make orders as equity requires, with due regard to the changed . .. financial ability .... ” § 61.-14(1), supra.

Although I agree with the majority that the record supports the ruling on contempt, the alleged agreement between the parties does not in my opinion permit denial of an order for payment of the arrearage.

On a motion for contempt, our courts have not required a specific plea for reduction to judgment or for enforcement by other means. Taylor v. Taylor, 97 So.2d 35 (Fla.2d DCA 1957). Feder v. Feder, 291 So.2d 641 (Fla.2d DCA 1974), involved a petition “seeking to have the husband held in contempt for alleged failure to comply with the judgment’s requirement .... ” In reversing the lower court’s failure to order payment, the appellate court stated:

While it was within the discretion of the judge to refrain from holding the husband in contempt therefor, the wife is entitled to enforcement of payment of the same by . legal process and by such equitable remedies as the trial court may determine to be appropriate or necessary to that end.

Id. at 642-43. See also Ginsberg v. Ginsberg, 123 So.2d 57 (Fla.3d DCA 1960), and Williams v. Williams, 277 So.2d 542 (Fla.2d DCA 1973). I would accordingly conclude that the trial court abused its discretion by failing to order payment of arrearage which was adequately proven.

Clearly a parent may not contract away the right of a child to receive support. Gammon v. Cobb, 335 So.2d 261 (Fla.1976); Lang v. Lang, 252 So.2d 809 (Fla.4th DCA 1971); Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979); Melvin v. Melvin, 391 So.2d 691, (Fla.1st DCA 1980). Unpaid installments of child support constitute a vested property right, Smithwick v. Smithwick, 343 So.2d 945 (Fla.3d DCA 1977), and the cause of action for enforcing this right is not barred by the statute of limitations since these are equitable proceedings. Armour v. Allen. Although laches or other exceptional circumstances may bar such claims, I find no predicate for that doctrine in this case. Compare Mendel v. Mendel, 257 So.2d 293 (Fla.3d DCA 1972); Patterson v. Patterson, 348 So.2d 592 (Fla.1st DCA 1977) with Craig v. Craig, 157 Fla. 710, 26 So.2d 881 (1946), and Brown v. Brown, 108 So.2d 492 (Fla.2d DCA 1959). In order to invoke laches, prejudice must, of course, have resulted from the delay. Bethea v. Langford, 45 So.2d 496 (Fla.1949). The only prejudice alleged by Mr. Brown is that for the time in question he gave up his right to visit his child. The result would appear to be economic benefit instead of detriment, and no evidence was presented of other prejudicial effect. I would conclude that temporary voluntary relinquishment of parental visits in these circumstances does not support an inference of the character of prejudice contemplated by the doctrine of laches. See Bethea v. Langford.

Phillips v. Adams, cited by the majority, holds only that on a rule to show cause, the husband must be allowed to present any legal deferises he has. In Phillips the husband alleged that the wife had denied him visitation with the parties’ minor child, had acquiesced in the nonpayment of child support and was guilty of laches so as to bar the contempt proceedings. The court ruled that the husband should have been allowed to present evidence in support of the defenses of “appellee’s refusal to allow visitation privileges and her laches in instituting the contempt proceedings.” In discussing laches, the court noted that such a defense is predicated upon the father showing that the mother’s delay under all of the circumstances resulted in injury or prejudice to him. Significantly, the court failed to acknowledge the agreement as a defense. While such an agreement may be part of the circumstances giving rise to laches, I find no authority or persuasive rationale for concluding the agreement alleged here was effective to nullify the child’s previously adjudicated right to support payments.

I would reverse because the appellant wife was entitled to reconsideration of modification based on all evidence and to judgment for the arrearage, and the court should have enforced its prior order by whatever equitable remedies it deemed appropriate. Feder v. Feder, supra.

The record indicates that the trial court did not abuse its discretion in denying an award of attorney’s fees to Ms. Brown. Patterson v. Patterson, 348 So.2d 592 (Fla.1st DCA 1977). I therefore concur in this portion of the majority’s ruling as well as that relating to contempt.


text:
    Claude Edward BILLIONS, Appellant, v. STATE of Florida, Appellee.
    No. WW-17.
    District Court of Appeal of Florida, First District.
    June 22, 1981.

      Michael Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Carolyn Snur-kowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appellant presents the following points on this appeal: (1) that the trial court erred by failing to make a sufficient inquiry into his decision to represent himself and waive his right to counsel at trial; (2) that the trial court erred by adjudicating him guilty and sentencing him without first renewing an offer of assistance of counsel; and (3) that the trial court erred by adjudicating him guilty of using a firearm during the commission of a felony. We affirm as to the first issue; however, we find merit in the latter two arguments.

Before his trial, the appellant was offered the assistance of counsel, and this offer was refused. We have determined that the court made an adequate inquiry regarding this voluntary decision by the appellant. After this decision was made, the appellant was tried on four counts of an information. Count I alleged that the appellant kidnapped an individual for ransom, and in the course of this offense utilized a firearm, contrary to §§ 775.087 and 787.01, Fla.Stat. (1979). Counts II and III charged the appellant with the same offenses perpetrated upon two other individuals. The fourth count charged the appellant with using a firearm during the commission of a felony. See § 790.07(2), Fla.Stat. (1979). A jury returned verdicts finding the appellant guilty of Counts I and IV as charged. As to Counts II and III, the jury found the appellant guilty of kidnapping for ransom without the use of a weapon or firearm. At a separate sentencing proceeding at which the trial court did not renew the offer of assistance of counsel, the appellant was adjudicated guilty of all four offenses but was not sentenced on Count IV.

Fla.R.Crim.P. 3.111(d) provides in part that:

The failure of a defendant to request appointment of counsel or his announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any stage of the proceedings.
* ‡ ‡ $ 9k *
(5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the trial court at each subsequent stage of the proceedings at which the defendant appears without counsel, (emphasis supplied)

At the sentencing hearing, the trial court did not inquire as to whether the defendant desired counsel. Since the preceding language clearly mandates that the trial court renew its offer to appoint counsel at the sentencing stage of the trial, we are compelled to vacate the sentences imposed and remand this cause to the trial court for resentencing, prior to which an offer of assistance of counsel shall be made by the trial judge.

Further, since Count IV of the information is clearly a lesser-included offense of Count I (see Brown v. State, 206 So.2d 377 (Fla.1968); § 775.021(4), Fla.Stat.), double jeopardy considerations prevent the appellant from being adjudged guilty of, or being sentenced for, Count IV. See Hegstrom v. State, 388 So.2d 1308 (Fla.3d DCA 1980), review granted (Case No. 59,893 (Fla. 1981); State v. Pinder, 375 So.2d 836 (Fla. 1979). Whether an act constitutes two separates offenses or only one offense is a question governed by the formula articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. Accord, Albernaz v. United States, -U.S.-, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Under the Blockburger test, the lesser-included offense must fall because it is encompassed in and does not require proof of any fact which was not also required to establish the elements of Count I. Accordingly, we vacate the adjudication of guilt for Count IV.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for proceedings consistent with this opinion.

ERVIN and THOMPSON, JJ., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


author: McCORD, Judge.

text:
    James HAWTHORNE, Appellant, v. The STATE of Florida, Appellee.
    No. SS-275.
    District Court of Appeal of Florida, First District.
    June 22, 1981.

      Dennis K. Larry, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and Miguel Olivel-la, Jr., Asst. Atty. Gen., for appellee,
   McCORD, Judge.

This is an appeal from a judgment and sentence finding appellant guilty of first-degree murder and armed robbery and sentencing him to two consecutive life imprisonment terms. We affirm.

Appellant first contends that the trial judge abused his discretion when he denied appellant’s challenge of juror Tha-deus Grant for cause. The court ruled at the outset that the voir dire examination would be by individual examination of each prospective juror. Grant was the first jur- or called to the box, and after his examination, the attorneys announced their acceptance of him. He was then excused and was not called back to the jury box until approximately 10:00 the next morning, during which time other prospective jurors were examined until a complete jury had been selected. The court then inquired of the jurors as to whether any of them had become so irritated with the delays imposed during the voir dire examination that they could not render a fair verdict in the case. Mr. Grant expressed some irritation and attributed it to defense counsel although he had previously answered “no” to a question by the court as to whether or not he was upset by the delay and would hold this against the court or the parties. At a later point on a question by the court as to whether he was irritated enough that it might influence him in the case, he replied: “It’s hard to say, Judge.” After further questions and answers relative to the delay, however, Mr. Grant stated that if he was retained on the jury, “I will do my duty the best I can.” Thereafter, he was asked the following question:

Q Do you have any reason to believe in your mind that you would not be a fair juror?
A No. I have decided many times what will happen to people.

Then defense counsel asked the following question: “Mr. Grant, one last question. Will you do your best to overlook the delay and take the case?” To which Mr. Grant responded: “I said that.” Defense counsel then asked him to repeat his answer and he said: “I’ll do my best.”

The Supreme Court in Singer v. State, 109 So.2d 7 (Fla.1959), stated the test in such cases as follows:

We think the true test to be applied should be not whether the juror will yield his opinion, bias or prejudice to the evidence, but should be that whether he is free of such opinion, prejudice or bias or, whether he is infected by opinion, bias or prejudice, he will, nevertheless, be able to put such completely out of his mind and base his verdict only upon evidence given at the trial.

Whether or not a prospective juror will be dismissed for cause is a mixed question of law and fact within the discretion of the trial judge, and his ruling will not be set aside unless error is manifest. Singer v. State, supra. Here, the trial court observed Mr. Grant and his demeanor during the course of the examination and evidently concluded that Grant would not let any irritation which he had developed toward defense counsel influence him in rendering his verdict. We find no abuse of discretion.

Appellant next contends that the prosecutor’s conduct during closing argument resulted in prejudice to him and constituted reversible error. The remarks made by the prosecutor relative to defense counsel appear to have been an overreaction to critical remarks made by the defense counsel in his opening argument. Looking at the record as a whole, we do not find that the remarks constitute reversible error.

Appellant next contends that the trial court erred in allowing witness Ne-chetsky to testify from certain records. Appellant put on an alibi defense testifying that he was in Kokoma, Indiana, at the time of the robbery on April 7, 1978; that he had departed from Mobile, Alabama, early in the morning on April 4, 1978, on a Trailways bus to Indianapolis, Indiana, thereafter taking a local busline to Koko-ma. In rebuttal of appellant’s alibi, the State called as a witness Mr. Nechetsky, manager of the Mobile, Alabama, Trailways bus terminal, who had been employed by Trailways for approximately 27 years prior to the trial. Nechetsky testified that he kept a daily record of every ticket sold in the terminal showing the destination and ticket number; that this record was made in the regular course of business on the morning following the day the tickets were sold. He testified from these records that no Trailways bus ticket had been sold during the month of April to any person for passage from Mobile, Alabama, to Indianapolis, Indiana. Appellant’s counsel objected to Nechetsky’s testimony from the report and requested that the original tickets, carbons of those tickets or stubs of those tickets be produced so that he could check the accuracy of the reports. He also objected to Nechetsky’s testimony on the ground that the record was not made at or near the time of the act, condition or event.

Nechetsky testified that the audit stubs (ticket stubs) from which his record is made are destroyed after a period of time and that he did not know whether or not the ones covering the period in question were then in existence; that if a salesman that issued a ticket threw away the ticket carbon and the audit stub, he would find it to be missing in his audit of tickets for that day from the ticket sequence numbers. The trial court ruled that the testimony was admissible, under the Florida rules of evidence. The pertinent portion of the Florida Evidence Code, § 90.803, Florida Statutes (1979), states as follows:

Hearsay exceptions; availability of de-clara nt immaterial. — The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(1) * * *
(2) * * *
(3) * * *
(4) * * *
(5) * * *
(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.—
(a) A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
******

We find the trial court did not err in its ruling. The record fits the above statute. Contrary to appellant’s objection, witness Netchetsky’s testimony shows that the record was made at or near of the time of the act, condition, or event.

We have considered appellant’s remaining point and find it to be without merit.

MILLS, C. J., and THOMPSON, J., concur.


text:
    STATE of Florida, Appellant, v. Alfred GRIZZELL, Appellee.
    No. XX-350.
    District Court of Appeal of Florida, First District.
    June 23, 1981.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellant.
    Michael J. Minerva, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

The issue here is whether, under the unique facts of this case, the “anti-shuttling” provision of the Interstate Agreement on Detainers effectively bars the State of Florida from delivering temporary custody of Alfred Eugene Grizzell to the State of Tennessee for the purpose of there standing trial on outstanding criminal indictments. Answering that question in the negative, we reverse the order and final judgment of the trial court which granted writ of habeas corpus and permanently enjoined the State of Florida from delivering temporary custody of Mr. Grizzell to the Tennessee authorities.

In February, 1975, Alfred Eugene Griz-zell, appellee, escaped from the Florida correctional system and while at large allegedly committed the crimes of armed robbery and kidnapping in the State of Tennessee. Appellee was subsequently captured in Ohio in July, 1975, and returned to Florida. In April, 1976, appellee was indicted in Tennessee for armed robbery and kidnapping. Tennessee authorities instituted appropriate proceedings under Section 4 of the interstate agreement, as a result of which the State of Florida relinquished temporary custody of appellee to Tennessee in April, 1977. On June 10,1977, a hearing was held in Tennessee on appellee’s motion to dismiss the indictments for a violation of the speedy trial provisions of the act. The Tennessee trial court granted appellee’s motion and ordered his return to the State of Florida. Tennessee appealed the trial court’s order of dismissal, but being unsuccessful in its efforts to obtain a stay pending appeal, Tennessee was required to return appellee to the State of Florida correctional system.

In February, 1979, the Tennessee Court of Criminal Appeals reversed the trial court’s order dismissing the indictments, and remanded the case to the trial court for further proceedings. In August, 1979, the State of Tennessee again requested Florida to deliver temporary custody of appellee for the purpose of bringing him to trial in Tennessee on the charges alleged in the indictments. Appellee then filed in the Circuit Court of Union County, Florida, a petition for writ of habeas corpus seeking to enjoin Florida officials from releasing him to the Tennessee authorities. The trial court granted the petition and permanently enjoined the State of Florida from delivering custody of appellee to the Tennessee authorities on the grounds that the “anti-shuttling” provision of the interstate act, Section 941.45(4)(e), Florida Statutes, rendered the Tennessee indictments invalid because appellee had been returned to the original place of imprisonment before being tried upon those indictments.

The rights afforded a prisoner under the Interstate Agreement on Detainers do not rise to the level of constitutionally guaranteed rights, Jones v. State, 386 So.2d 804 (Fla. 1st DCA 1980), and can be waived. Gray v. Benson, 608 F.2d 825 (10th Cir. 1979); United States v. Black, 609 F.2d 1330 (9th Cir. 1979); United States v. Eaddy, 595 F.2d 341 (6th Cir. 1979); United States v. Ford, 550 F.2d 732 (2d Cir. 1977), aff’d. sub nom. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); United States v. Scallion, 548 F.2d 1168 (5th Cir. 1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978). The common factor in the waiver cases, and the one most heavily relied upon by the courts, is the prisoner’s request to be returned to the original place of imprisonment prior to being tried in the receiving state. While there is nothing in the record to show that after appellee had successfully obtained the erroneous dismissal of the indictments against him in Tennessee, he expressly requested that he be returned to the Florida correctional system, the record clearly implies that he made such a request. Without question, he successfully resisted the efforts of Tennessee officials to obtain a stay of the order requiring his return to Florida. No other reasonable construction can be put on that conduct than that he sought to be returned to the original place of imprisonment. We hold that under the facts of this case and in accord with the rationale of the above-cited cases, appellee, by his conduct, waived the protection of the anti-shuttling provisions of the act.

While our decision is grounded solely on the basis of waiver, without more, it is certainly bolstered by two other important considerations.

First, the return of appellee to the State of Florida pending resolution of the appeal taken to the Tennessee Court of Criminal Appeals was in furtherance of the stated purpose of the act to “prevent excessive interference with the prisoner’s rehabilitation in a state prison system.” See Jones v. State, supra; Neville v. Friedman, 367 N.E.2d 1341 (Ill.1977). The appeal took nearly twenty months to be resolved, during which time, had appellee remained in the State of Tennessee, such extended stay would clearly have been excessive interference with his rehabilitation in the Florida prison system.

Second, pragmatically,' a prisoner should not have the benefit of the anti-shuttling provision where he seeks and obtains dismissal of the indictment, information or complaint on grounds which are subsequently overturned on appeal. Otherwise, the appeal, though successful, would be purely academic if upon remand the indictment must again suffer dismissal, this time due to the effect of the anti-shuttling provision.

Our decision is on the appellate issue as phrased in the initial paragraph. We do not intend for this decision to be precedent on the separate issue of whether the receiving state (rather than the sending state) is the proper forum in which to utilize the anti-shuttling provision to attack the validity of the indictment, information or complaint, a question neither raised by the parties nor decided by us.

REVERSED AND REMANDED.

SHIVERS and WENTWORTH, JJ., concur.

      . §§ 941.45 et seq., F.S.

      . § 941.45(4), F.S.

      . § 941.45(4)(e):
      “If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to paragraph (e) of subsection (5), such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

      . Unless, pending the appeal and completion of the subsequent trial, the prisoner was not returned to the sending state.


author: LARRY G. SMITH, Judge.

text:
    ALPHA RENT A CAR and Lynn Underwriters, Appellants, v. Hanns Peter ZOLLIKOFER, Appellee.
    No. WW-72.
    District Court of Appeal of Florida, First District.
    June 23, 1981.
    Bradley P. Goodman, of Vernis, Bowling, West, Montalto & Goodman, Fort Lauder-dale, for appellants.
    Peter Schwedock, Miami, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier appeal a worker’s compensation award, contending that the Deputy Commissioner erred in determining average weekly wage based upon the assumption that claimant had concurrent employment at two different jobs. We reverse.

Claimant, while employed with Aircraft Service International as a fueler, was suspended because he accidentally drove his truck from the fueling facility without disconnecting the hoses. He was instructed by his supervisor to return to work in six days. However, in the meantime, the claimant obtained a job from the appellant-employer, Alpha Rent A Car, and two days later, he was injured in a compensable accident. As a result of these injuries, he could not return to work with Aircraft Service International on the appointed date as instructed by his supervisor. The claimant did report to his boss with Aircraft Service International on the last day of the six-day period, and he was instructed to come back when his injuries were healed. He never returned to work with Aircraft Service International, but proceeded with his claim for compensation as a result of his accident while employed by Alpha Rent A Car, in which he maintained that he was entitled to computation of his average weekly wage by combining his earnings with Alpha Rent A Car, as well as his former earnings at Aircraft Service International, since he “intended” to work two jobs.

Appellants contend that Section 440.14, Florida Statutes (1979) does not contemplate the calculation of average weekly wage based upon a claimant’s mere intention to work at two jobs. They contend that the claimant has not demonstrated a wage earning capacity in excess of the amount that he earned at any one employment. They point out that as a result of the award the claimant has obtained a “windfall” because his compensation rate, as determined by the Deputy Commissioner, is $44.00 per week more than he was actually earning at any material time prior to the accident.

We agree with appellants’ contentions under the circumstances presented in this case. In American Uniform and Rental Service v. Trainer, 262 So.2d 193 (Fla.1972), it was determined that a claimant accustomed to full earnings from two dissimilar jobs could not be denied benefits based upon his average weekly wage from concurrent employment simply because of the dissimilarity of the two jobs. In contrast to Trainer, the claimant here has demonstrated no history of working at two jobs. There is no evidence that the claimant has ever worked even one day for both of the employers involved.

We recognize that the distinction between “suspension” and “termination” may become critical in determining whether the claimant was employed by a second employer at the time of his injury, as indicated in D. G. Security Inc. v. Kosk, IRC Order 2-2941 (March 25, 1976). In that case the Industrial Relations Commission denied compensation based upon combined wages to a claimant who had been “terminated” from his full-time employment prior to his injury which occurred during his subsequent part-time employment. In the present case, even though there is eviden-tiary support for the Deputy Commissioner’s finding that the claimant “would have been returned to his employment” after his suspension from Aircraft Service International, there is no evidentiary support for a finding that this employment would have been available concurrently with his full-time employment by Alpha Rent A Car. The record is clear that the claimant was hired on a full-time (40-hour week) basis by Alpha, and there is no basis for claimant’s claim of dual employment other than his testimony of an intent to work in the mornings for Aircraft International and in the evenings for Alpha. Whether or not the claimant’s intention to hold two full-time jobs would ever have materialized is a matter of pure speculation. This is made rather obvious by the claimant’s own testimony that he had made no effort to work at two jobs prior to the accident because he wanted to “really get the hang of things” and make sure he had the concrete ability to perform that job, and “was in good standing with the company” before he decided to go out and try to find a second job elsewhere. Thus, although concurrent jobs might have been a possibility, it was certainly not a fait accompli.

REVERSED and REMANDED for entry of an order consistent with this opinion.

McCORD, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    Odessa W. LLOYD, Appellant, v. Frank T. CANNON, Appellee.
    No. UU-139.
    District Court of Appeal of Florida, First District.
    June 23, 1981.
    Harris Ball, Jacksonville, for appellant.
    Emmanuel J. Johnson, III, of Ripley, Rich & Brim, P.A., Jacksonville, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Appellant, a mortgagee, seeks review of an order denying a deficiency judgment following foreclosure of the mortgage and sale of the property to a third party for an amount less than the amount of the debt. The issue is whether the trial court abused its discretion in denying a deficiency judgment. We conclude that it did and reverse.

In 1978 appellant sold the property, a duplex, to appellee for $15,000.00, with no down payment, appellant taking a purchase money mortgage for the full purchase price, payable at the rate of $150.00 per month including interest at 10% on the unpaid principal balance. At that time the property was rented producing a gross income of $300.00 per month. Appellee commenced making certain improvements to the property, but within a matter of months abandoned the project and discontinued payments on the mortgage. Appellant’s foreclosure action resulted in a final judgment awarding appellant a total of $16,790.00 including principal, interest, costs and attorney’s fees. At the subsequent foreclosure sale, the property was sold to an utter stranger for the sum of $9,000.00.

A hearing was held on appellant’s motion for a deficiency judgment. As a result of that hearing the court found (1) that there was no evidence as to the value of the property at the time of the sale to appellee, (2) that appellant’s cost basis in the property was $7,000.00 six years prior to the sale to appellee, (3) that there had been no substantial change in the neighborhood which would vary the value of the property, and (4) that the condition of the property at the time of the foreclosure sale was substantially the same as when appellee purchased it. On these findings, and without further explanation, the court ruled that the motion for deficiency judgment should be denied.

While the grant or denial of a deficiency decree is a matter within the sound judicial discretion of the trial court, such discretion is not absolute and unbridled, Carlson v. Becker, 45 So.2d 116 (Fla. 1950), and where the exercise of such discretion results in denial of a deficiency decree, it must be supported by disclosed equitable considerations which constitute sound and sufficient reasons for such action. Larsen v. Allocca, 187 So.2d 903 (Fla.3d DCA 1966), cert. denied, 195 So.2d 566 (Fla.1966). Absent such equitable considerations, the granting of a deficiency judgment is the rule rather than the exception. S/D Enterprises, Inc. v. Chase Manhattan Bank, 374 So.2d 1121 (Fla.3d DCA 1979).

The “equitable considerations” specifically stated by the court as its basis for denying the motion for deficiency judgment (and the record discloses no others) seem to say that the deficiency was denied because (1) the property was worth at the time of foreclosure sale the amount that it was worth at the time appellant sold it to appel-lee, and (2) appellant apparently recovered at least the amount of her cost basis in the property. These findings were apparently intended to point to a line of cases in which deficiency judgments have been denied in foreclosure of purchase money mortgages, where the purchase money mortgagee is also the purchaser of the property at the foreclosure sale and the property, at the time of sale, has a value equal to or in excess of the amount of the mortgage debt. See, e. g., Hamilton Investment Trust v. Escambia Developers, Inc., 352 So.2d 883 (Fla. 1st DCA 1977); Larsen v. Allocca, supra. While the mortgage here was, indeed, a purchase money mortgage, the all important distinction is that here the purchaser at the foreclosure sale was not the mortgagee, but one who was an utter stranger to the parties.

Appellee was indebted to appellant in the amount of $16,790.00. The foreclosure sale of the mortgaged property to a third person produced the sum of $9,000.00, leaving a deficiency of $7,790.00. Since we conclude that neither the trial court’s findings recited above nor the record show equitable considerations constituting sound and sufficient reasons for denying appellant’s motion for deficiency and depriving her of the benefit of her contract, we also conclude, on the established principles set forth above, that the trial court abused its discretion in so doing.

The order denying the deficiency judgment is reversed and this cause is remanded for entry of an order granting a deficiency judgment in the amount of $7,790.00.

REVERSED AND REMANDED.

BOOTH, J., concurs.

LARRY G. SMITH, J., dissents without opinion.

      . We deem it important to note that there is not in the record the slightest implication that the purchaser at the foreclosure sale was agent for, or alter ego of, appellant.


text:
    Alonzo COZART, Appellant, v. STATE of Florida, Appellee.
    No. SS-180.
    District Court of Appeal of Florida, First District.
    June 23, 1981.
    Michael Allen Quincy and Randolph P. Murrell, Asst. Public Defender, and Anthony L. Bajoczky, of Barrett & Bajoczky, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Cozart appeals his conviction and sentence for kidnapping with intent to commit sexual battery, sexual battery and aggravated assault. He contends the evidence presented at trial raised a reasonable doubt as to his sanity at the time of the offense which the state failed to rebut, and therefore he was entitled to a judgment of acquittal by reason of insanity. We affirm.

There was testimony from lay witnesses at the trial which supported Cozart’s sanity. The victim of the sexual battery testified that Cozart acted like a “normal everyday person.” She also related that Cozart offered her a ring and bracelet for sex and when she refused, Cozart told her, “Well, you know, I can make you do it .... ” Though her testimony was somewhat contradictory, the other victim did testify that she thought Cozart “knew what he was doing.” Further, the opinions of the psychiatrists, who testified that Cozart was legally insane under the M’Naghten test, were cast in doubt by their cross-examination testimony. For instance, several of the psychiatrists who opined that Cozart was insane testified on cross that he knew what he was doing. One of the psychiatrists additionally testified that Cozart knew his conduct violated the law, knew it was legally wrong and that he would be arrested for it, and knew that he was forcing himself on the girls. There was also testimony that Cozart knew it was wrong to have a gun.

In sum, we conclude that the matter was properly submitted to the jury and cite Byrd v. State, 297 So.2d 22 (Fla.1974), McClain v. State, 327 So.2d 106 (Fla. 1st DCA 1976). Accordingly, Cozart’s judgment and sentence is affirmed.

BOOTH, LARRY G. SMITH and THOMPSON, JJ., concur.


text:
    Michael PAGE, Appellant, v. STATE of Florida, Appellee.
    Nos. 00-358, 00-362.
    District Court of Appeal of Florida, First District.
    June 23, 1981.

      John G. Stinson, Asst. Public Defender, Stark, for appellant.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. See State v. Luke, 382 So.2d 1265 (Fla. 1st DCA 1980).

McCORD, BOOTH, and SHIVERS, JJ., concur.


text:
    Donald Rex BLAIR, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1541.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Bennett H. Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Beck, 390 So.2d 748 (Fla. 3d DCA 1980).


author: SCHWARTZ, Judge.

text:
    Toby HYMAN, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    No. 80-1969.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.

      Levine & Green and Bruce David Green, Fort Lauderdale, Wolfson, Appel & Brown, Miami, for appellant.
    Mary Jo M. Gallay and David Maloney, Tallahassee, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The appellant Hyman is the owner of a horse named Classy State which won the seventh race at Calder Race Course on October 28, 1978. Almost a year later, on October 23, 1979, he received an ex parte order of the Division of Pari-Mutuel Wagering which for the first time informed him of its allegation that Classy State had run under the influence of a drug. On this basis, the division, pursuant to its then-existing Rule 7E-1.06(13), Florida Administrative Code, the so-called “purse redistribution rule,” sought to require Hyman to return the winner’s purse of $5,400 to Calder. Hyman requested a hearing, which was conducted by and before the director of the division on April 23, 1980. 170 days later, on October 10, 1980, he rendered a final order finding that the horse had indeed been drugged and ordering the refund of the purse. Hyman appeals.

It is undisputed that the 170 day post-hearing delay before the rendition of the final order, which is neither explained nor even sought to be excused, was in clear violation of the terms of Section 120.-59(l)(a), Florida Statutes (1979), which provides:

120.59 ORDERS.—
(1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within 90 days:
(a) After the hearing is concluded, if conducted by the agency. [emphasis supplied]

Because we hold that a violation of this mandatory requirement per se renders unenforceable an agency order in a proceeding in which the agency is the protagonist, the order below is reversed.

There is no question either of the purpose or the meaning of the statute in question. It was obviously designed to keep within reasonable bounds the delay in the adjudication of rights and privileges which has infected legal proceedings in general, and, as a matter of common and often-commented-upon notoriety, administrative ones in particular. See 1 K. Davis, Administrative Law Treatise § 8.08 (1958). And, in the most mandatory expression available, Section 120.59(1) unequivocally states that the time limits it contains “shall” be observed. See Tascano v. State, 393 So.2d 540 (Fla.1980). Notwithstanding the clarity which thus surrounds the statute, sharply differing views have been expressed as to the consequences of an agency violation of its terms. In Financial Marketing Group, Inc. v. State, Department of Banking and Finance, Division of Securities, 352 So.2d 524 (Fla.3d DCA 1977), this court indicated, in language which is admittedly dicta but which is also unmistakable in tone, that it strongly inclined to the view that an unexcused and unwaived violation of Section 120.59(1) would in and of itself result in reversal. At 352 So.2d 525, it was said:

As to the first alleged error, we agree that the language of the statute is mandatory and the respondent should have rendered its final order within 90 days after the recommended order was submitted by the hearings examiner. The statute does not provide a penalty for violation of this section, and the petitioners urge that the penalty should be that the licenses, as required by the petitioners, should issue. We certainly agree that the State agencies should follow mandates of the Legislature. We further observe that the regulatory agencies should not frustrate a citizen’s attempt to secure a license to pursue a vocation or profession by inaction. In there were no other basis to reverse the agency’s action under review, we might adopt the penalty suggested by the petitioners and require the issuance of the licenses because of the failure of the respondent to follow the mandatory provisions of Section 120.-59, Florida Statutes.

Subsequently, however, the first district took quite another tack in G & B of Jacksonville, Inc. v. State, Department of Business Regulation, Division of Beverage, 362 So.2d 951 (Fla. 1st DCA 1978), appeal dismissed, 372 So.2d 468 (Fla.1979). While paying lip service to the mandatory nature of the statute, G & B held that a departure from Section 120.59(a) would not cause reversal unless the delay resulted in an impairment of “either the fairness of the proceedings or the correctness of the action” as provided by Section 120.68(8), Fla.Stat. (1979). While we think it clear that no such showing has been made in this case, we cannot agree with this approach to the issue before us. In the first place, the violation of the express statutory command was, in our view, far more than the “error in procedure or a failure to follow prescribed procedure” referred to in Section 120.68(8). The interest in the timely disposition of actions which is expressed in Section 120.59(1), and is reflected in various other legal contexts, see, e. g., Fla.R.Jud. Admin. 2.050(f), Fla.R.Crim.P. 3.191, is certainly of sufficient independent significance to justify enforcement by the courts even if the fairness of the proceedings or the correctness of the result is not otherwise implicated. More important, the G & B rule does not effect, in any meaningful way, the clearly expressed legislative intent to eliminate the mischief created by delay beyond the statutory period. See FlaJur. Statutes §§ 77, 106 (1974). Unless Section 120.59(1) is enforced according to its terms in a prophylactic manner and with some adverse consequence to the agency which inexcusably ignores it, its command will become a meaningless hortatory homily which may be ignored with impunity, as it was in this very case. In this connection, we reject the statement in G & B at 362 So.2d 955 that

[i]t hardly seems appropriate to interpret the rule differently depending upon whether the parties are an agency and a private citizen or whether conflicting interests of multiple private parties are involved. For example, what would be the consequences of a violation of the 90-day rule were the Public Employees Relations Commission to enter an untimely order in a dispute between an employer and a labor union?

It seems clear that this distinction is a significant, indeed, a decisive one. While it would be unjust to visit an agency’s derelictions upon contending private parties who appear before it in its quasi-judicial capacity, it is entirely appropriate to apply the statute, as it were, against the agency when, as here (and in G & B) it acts also as a quasi-executive in the enforcement of the regulatory laws within its jurisdiction. In such a case we know of no better way — in fact, of no other way — to serve the legisla-five intent than to put the agency at the certain risk of losing its own case if it fails to comply.

The two agency-vs.-private parties cases which have been decided since G&B are in accordance with the per se rule we foreshadowed in Financial Marketing and expressly apply here. The first district in City of Panama City v. PERC, 364 So.2d 109 (Fla. 1st DCA 1978), and the second district in Pinellas County v. PERC, 379 So.2d 985 (Fla. 2d DCA 1980) each reversed agency action solely because of a violation of Section 120.59(1), even though both opinions show — and Judge Smith’s dissent in City of Panama City specifically points out — that there was no prejudice or other adverse effect which resulted from the delay. While we may dispute the precise mode of reasoning employed by these decisions, see note 5, supra, they lend clear support for our present holding.

In sum, we consider that the issue is controlled not, as G&B suggests, by Section 120.68(8), but by Section 120.68(9). In the light of our conclusion that the decision under review erroneously interprets Section 120.59(1) to permit the efficaciousness of an untimely decision and that a “correct interpretation [of the statute] compels” the granting of this relief, we are authorized by Section 120.68(9)(a) to set aside the order below with directions to dismiss the proceedings. We do.

Reversed.

      . The entire subsection provides:
      120.59 Orders.—
      (1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within 90 days:
      (a)After the hearing is concluded if conducted by the agency,
      (b) After a recommended order is submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer, or
      (c) After the agency has received the written and oral material it has authorized to be submitted, if there has been no hearing. The 90-day period may be waived or extended with the consent of all parties.

      . “(8) The court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure. Failure of any agency to comply with s. 120.53 shall be presumed to be a material error in procedure.”

      . Hyman was surely not prejudiced by the delay; indeed, by being able to retain the proceeds and earn interest on them for a longer period, he was aided by it.

      . City of Panama City v. PERC, 364 So.2d 109 (Fla. 1st DCA 1978) and Pinellas County v. PERC, 379 So.2d 985 (Fla. 2d DCA 1980), discussed infra, applied Section 120.68(8) to reverse untimely agency action violative of Section 120.59(1), apparently on the theory that the delay necessarily adversely affected the “fairness” of the proceedings. See, e. g., City of Panama City v. PERC, supra, at 364 So.2d 113. While we realize that the end result of this reasoning is the same as ours, we do not think that it can correctly be said that delay invariably reflects upon “fairness.” We regard that term as referring to the evenhandedness and lack of bias or prejudice with which all proceedings must be and must be seen to be conducted. The fact is, however, that interminably delayed action may be entirely fair, and that instant action may be completely the opposite. The reasons for expeditiously concluding and for fairly conducting proceedings are both of vital importance, but they are different reasons. We prefer to base our decision on the separate, statutorily-required demand that administrative justice not be delayed, rather than upon the roundabout and intellectually unsatisfactory method of assuming that such delay ipso facto results in unfairness.

      . We observe that if the legislature intended the G&B result, it would have simply required decisions “within a reasonable time” after hearing. The G&B decision effectively reads out of the statute the specific 90-day provision which was chosen instead.

      . In City of Panama City v. PERC, 363 So.2d 135 (Fla. 1st DCA 1978), the court answered its own question by concluding — correctly, as we view it, see note 6, infra — that reversal was not required if the delay did not impair the fairness or correctness of PERC’s disposition of the case between the two disputing parties.

      . As was true in City of Panama City v. PERC, supra, note 6, and the rate case of Lomelo v. Mayo, 204 So.2d 550 (Fla. 1st DCA 1967), cited in G&B.

      .
      “(9) If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:
      (a) Set aside or modify the agency action, or
      (b) Remand the case to the agency for further action under a correct interpretation of the provision of law.”

      . This conclusion makes it unnecessary to consider the other grounds advanced for reversal, including the very substantial one that, at the time in question, the “purse redistribution rule” was invalid as providing for the imposition of a penalty by an administrative agency without a then-existing statutory authorization, contrary to Article I, Section 18, Florida Constitution (1968). Compare the later-enacted Section 550.241(3)(a), Fla.Stat. (1980 Supp.)


text:
    Jack O. CRUM, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1891.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Jack 0. Crum, Jr., in pro. per.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S: PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Ersek v. State, 238 So.2d 481 (Fla. 3d DCA 1970).


text:
    CORAL ISLE WEST CONDOMINIUM, Appellant, v. Arthur I. SNYDER, as Trustee, et al., Appellees.
    No. 80-2474.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Martin L. Carlin and Gerald Forman, Miami, for appellant.
    Lapidus & Stettin and Herbert Stettin, Miami, for appellees.
    Before BARKDULL, HENDRY and PEARSON, DANIEL S., JJ.
   PER CURIAM.

Reversed on the authority of Coral Isle East Condominium v. Snyder, 395 So.2d 1204 (Fla.3d DCA 1981), cert. pending, No. 60-608 (Fla., filed May 11, 1981).