text:
    MORGAN WALTON PROPERTIES, INC., et al., Appellants, v. INTERNATIONAL CITY BANK & TRUST CO., etc., et al., Appellees. Joseph F. MORGAN and Johnnie Mae Morgan, Appellants, v. INTERNATIONAL CITY BANK & TRUST CO., etc., et al., Appellees.
    No. 58879.
    Supreme Court of Florida.
    Oct. 8, 1981.

      Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellants.
    James M. Weber of Beggs & Lane, Pensacola, for appellees.
   BOYD, Justice.

This cause is before the Court for decision of a question certified by the United States Court of Appeals for the Fifth Circuit. International City Bank & Trust Co. v. Morgan Walton Properties, Inc., 612 F.2d 227 (5th Cir. 1980).

Appellee International City Bank and Trust Company, a Louisiana banking corporation, now dissolved, brought two mortgage foreclosure actions in the United States District Court for the Northern District of Florida, one of them (Fifth Circuit case no. 77-3255) against two Florida corporations, a partnership, and several individuals, and the other (Fifth Circuit case no. 77-3256) against two individuals.

In case no. 77-3255, the plaintiff bank sought foreclosure of a mortgage on real property located in Walton County, Florida, given to secure two promissory notes executed and delivered by the corporate defendants in New Orleans on December 29, 1973 and April 25, 1974. The individual defendants guaranteed the notes. In case no. 77-3256, the plaintiff sought foreclosure on a separate Walton County parcel, mortgaged to secure a separate note executed and delivered in New Orleans on January 11, 1974 by Joseph F. and Johnnie Mae Morgan. According to the facts as stated by the Court of Appeals: “The notes in both cases were made payable at International City in New Orleans, and were secured by mortgages on real estate located in Walton County, Florida. The notes in case no. 77-3255 provided they should be construed according to the laws of the State of Louisiana.” Id., 612 F.2d at 228.

The Federal Deposit Insurance Corporation was added as a plaintiff in both actions when it acceded to ownership of the bank’s assets. The United States District Court consolidated the two cases.

The defendants-appellants raised the defense of usury. They alleged that the bank had charged them interest in excess of 25% per annum, which is criminally usurious in Florida and renders the entire obligation unenforceable in Florida courts. § 687.-071(2), (7), Fla.Stat. (1973). They asserted that the notes and mortgages were unenforceable because they were against public policy in Florida.

On motion of all parties for summary judgment, the district court held that the notes were to be governed by Louisiana law. Finding that in Louisiana there is no limit on the interest that may be charged a corporate borrower, the district court held for the plaintiffs in case no. 77-3255. The bank conceded that the interest charged the individual borrowers in case no. 77-3256 was usurious under Louisiana law and that this required forfeiture of the interest. The Court of Appeals framed the certified question as follows:

Are notes executed and payable in a state other than Florida, secured by a mortgage on Florida real estate, providing for interest legal where made, but usurious under Florida law, unenforceable in Florida courts due to Florida’s usury statute, public policy or otherwise, where (a) the interest charged or paid exceeds 25 percent and (b) where the interest charged does not exceed 25 percent, but exceeds the maximum interest rate allowed by law?

612 F.2d at 229.

The certified question reflects that there has been no finding of fact as to what interest rates the obligations actually carried, since the Court of Appeals wants to know the consequences both in cases of usurious rates of interest and criminally usurious rates of interest. If the loan to the individual borrowers bore interest in excess of 10% but less than 25%, then the interest would be forfeited under Florida law. As noted above, the bank conceded that the loan was usurious under Louisiana law and that the consequence under that law was forfeiture of interest. If the interest was, as alleged by defendants-appellants, in excess of 25%, then the principal amount, still an enforceable obligation in Louisiana (we assume from the facts as stated by the Fifth Circuit), would be unenforceable in Florida.

With regard to the loans to the corporate borrowers, if the interest was more than 15% but less than 25%, then the interest would be forfeited under Florida law. If the interest was more than 25%, then the principal would be unenforceable as well. In Louisiana, there is no limit on the rate of interest that may be charged corporate borrowers.

Therefore, with regard to the individuals, we have a situation where under Florida law, either the debt is unenforceable or the interest must be forfeited, depending on what the interest rate actually was, while under Louisiana law the interest must be forfeited but the principal is enforceable. With regard to the corporate borrowers, under Florida law either the debt is unenforceable or the interest must be forfeited, depending on the actual interest rate. Under Louisiana law principal and interest are enforceable regardless of the interest rate.

Florida’s established rule for choice of law governing the validity and interpretation of contracts looks to the law of the place of contracting and the law of the place of performance. E. g., Brown v. Case, 80 Fla. 703, 86 So. 684 (1920); Thompson v. Kyle, 39 Fla. 582, 23 So. 12 (1897); Perry v. Lewis, 6 Fla. 555 (1856).

‘The general principle [adopted] by civilized nations is, that the nature, validity, and interpretation of contracts are to be governed by the laws of the country where the contracts are made or are to be performed, but the remedies are to be governed by the laws of the country where the suit is brought, or as it is compendiously expressed, by the lex fori.’ 8 Peter’s S.C.Rep. 361.

Perry v. Lewis, 6 Fla. at 560. In Thompson v. Kyle, the Court said:

The authorities are not entirely unanimous on this point, but we think the weight of them, supported by principle, sustains the proposition that a note executed and payable in one State, though secured by a mortgage on lands in another, will be governed as to the rate of interest it shall bear, by the laws of the former ....

39 Fla. at 596-97, 23 So. at 17.

The certified question asks whether Florida’s legislation on usurious interest establishes a public policy that prevents the application of the traditional choice of law rules to these contracts executed and to be performed in Louisiana.

Under the traditional Florida choice of law rules for contracts cases, the law of Louisiana would apply, since both the place of execution and the place of performance of the agreements was Louisiana, and the parties expressed no intent that the law of any place other than Louisiana should apply. See Goodman v. Olsen, 305 So.2d 753 (Fla.1974), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 (1975). This Court has recently observed, however, that the traditional test of place of execution and place of performance “is today of little practical value since these contacts are so easily manipulated in our mobile society.” Continental Mortgage Investors v. Sailboat Key, Inc., 395 So.2d 507, 510 (Fla.1981).

In Continental Mortgage Investors v. Sailboat Key, Inc., 354 So.2d 67 (Fla.3d DCA 1977), the district court of appeal held that Florida’s usury law was applicable to a financing agreement between a Florida corporation and a Massachusetts business trust, even though the contract designated Massachusetts law as controlling, on the grounds that the agreement violated Florida’s public policy regarding usurious contracts, Massachusetts had no real connection with the transaction, and the designation of Massachusetts law was a scheme to evade Florida’s usury law. Appellants would have us reach similar conclusions regarding this case.

On review of the Continental Mortgage case by this Court, it was held that since (contrary to the conclusion reached by the district court of appeal) Massachusetts had a normal and reasonable relation to the contract, the designation of Massachusetts law would be enforced. The “public policy” against usury, we said, was not so strong as to overcome the policy in favor of giving effect to the expressed intentions of contracting parties, even though as a factual matter the designation may indeed have been motivated by a desire to “evade” Florida’s usury law.

Although a few jurisdictions do attach such a public policy to their usury laws, it is generally held that usury laws are not so distinctive a part of a forum’s public policy that a court, for public policy reasons, will not look to another jurisdiction’s law which is sufficiently connected with the contract and will uphold the contract .... We do not think the mere fact that there exists in Florida a usury statute which prohibits certain interest rates establishes a strong public policy against such conduct in this state where interstate loans are concerned.
Finding no real support in our case law for the use of a public policy exception under the circumstances, and in view of the pervasive exceptions to the usury laws and the actual operation of these laws, we are unable, particularly in the commercial setting of this case, to glean any overriding public policy against usury qua usury in a choice of law situation.

Continental Mortgage Investors v. Sailboat Key, Inc., 395 So.2d at 509-10.

Although the fact is not mentioned in the certified question, we observe from the opinion of the Court of Appeals that the notes in case no. 77-3255 contained a stipulation that Louisiana law would apply. Louisiana was not only the place of contracting and the place of performance, but was also the state of the lender’s domicile. The borrowers travelled there in search of financing. Since the agreements had a normal and reasonable relation to Louisiana, the stipulation of Louisiana law as controlling should be honored, even if the parties’ purpose in making it was to avoid the restrictive effects of Florida’s usury law. Seeman v. Philadelphia Warehouse Co., 274 U.S. 403, 47 S.Ct. 626, 71 L.Ed. 1123 (1927); Continental Mortgage Investors v. Sailboat Key, Inc., 395 So.2d 507 (Fla.1981).

The note in case no. 77-3256 did not contain a designation of controlling law. In a situation where, under the law of one state with a relation to the transaction, it is void, while under the law of the other state with a relation, the interest is forfeited but principal is an enforceable debt, the law construes the parties’ intent to be that the latter law should apply. The law that partly invalidates the transaction is preferred over the law that wholly invalidates it, where both states have a normal and reasonable relation to the transaction. Seeman v. Philadelphia Warehouse Co.; Continental Mortgage Investors v. Sailboat Key, Inc.

In response to the certified question, .then, we hold that notes executed and payable in Louisiana, secured by mortgages on Florida real property, providing for interest legal where made but usurious under Florida’s statute, are enforceable in Florida courts, since the transactions had a normal and reasonable relation to Louisiana, and either the express or constructive intent of the parties was that Louisiana law should apply.

With this opinion as our answer to the certified question, we return the record of this cause to the United States Court of Appeals for the Fifth Circuit.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.

      . Interest charged an individual on an obligation less than $500,000 in excess of 10%, or, on an obligation more than $500,000, in excess of 15%, is usurious and in such cases all interest is forfeited but the principal amount of the obligation is enforceable. Interest charged a corporation in excess of 15% is usurious and must be forfeited. §§ 687.02, 687.03, 687.04, Fla.Stat. (1973). There are numerous exceptions to these provisions.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Vernon Wayne BEASLEY, Appellee.
    No. 59085.
    Supreme Court of Florida.
    Oct. 8, 1981.
    Jim Smith, Atty. Gen., and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    W. C. McLain of Smith, Carta & Rings-muth, Fort Myers, and Samuel Robert Man-delbaum, Appellate Div. Chief, Asst. Public Defender, Tampa, for appellee.
   ADKINS, Justice.

The District Court of Appeal, Second District, has certified to this Court that its decision reported at 382 So.2d 47 is one which involves a question of great public interest. We have jurisdiction. Art. V, § 3(bX4), Fla.Const. (1980).

On the basis of our decision in Parker v. State, No. 59,674 (Oct. 8, 1981), we find that under the provisions of section 893.13, Florida Statutes (1977), the possession of over 100 pounds of cannabis constituted a felony of the second degree.

We therefore quash the district court’s decision in this cause and remand the same for resolution consistent herewith.

SUNDBERG, C. J., and BOYD, OVER-TON, ALDERMAN, and McDONALD, JJ., concur.


author: PER CURIAM.

text:
    Michael CHESNUT, et al., Petitioner, v. STATE of Florida, Respondent.
    No. 59345.
    Supreme Court of Florida.
    Oct. 8, 1981.
    William C. Owen, Jr. of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, Marsha Madorsky, Miami, and Sandstrom & Haddad, Fort Laud-erdale, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

By petition for certiorari, we have for review a decision by the District Court of Appeal, Fourth District (Chesnut v. State, 382 So.2d 1349 (Fla. 4th DCA 1980)), which directly conflicts with decisions of the District Court of Appeal, First District (Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978)), and the District Court of Appeal, Second District (Beasley v. State, 382 So.2d 47 (Fla. 2d DCA 1979)). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Petitioners were the only persons aboard a boat to which an auxiliary coast guard craft gave tow. On the way to port, the captain of the towing vessel radioed the Martin County Sheriff’s Department and requested that officers meet the boats at the docks, as he had certain suspicions regarding the towed boat.

Upon arrival at port, petitioners began refueling their boat and the coast guard captain conferred with the waiting deputies regarding his suspicions. According to the deputies’ testimony, they then approached petitioners’ craft and, upon requesting permission to board, were told to “be my guest”. As one of the officers approached the boat’s cabin, the windows of which were taped over and the door of which was wired shut, he was told “You don’t have to look, it s loaded. ’ The officer then opened the cabin, which was filled with marijuana.

Before their trial on charges of possessing over 100 pounds of cannabis, petitioners filed a motion to suppress evidence, which the trial court denied. They were then tried before a jury, found guilty of the charges, and sentenced to fifteen years imprisonment.

On appeal, the fourth district court affirmed petitioners’ convictions, noting first, that petitioners gave their consent to the search and second, that even had no consent been given, probable cause existed to search the boat and exigent circumstances justified the failure to obtain a warrant. Petitioners argue that even if the statement “be my guest” constituted consent to board the boat, the subsequent statement, “You don’t have to look, it’s loaded”, was not consent but, rather, was a specific refusal of permission to search the cabin.

We need not address the issues, raised by petitioners, of whether there was probable cause to board the boat and whether there were exigent circumstances justifying the warrantless search, as the matter can be resolved on the basis of the consent given the deputies to search the boat. The trial court, after considering the relevant circumstances, found that petitioners consented to the search. Such finding was within that court’s domain, for, as the United States Supreme Court has observed:

[T]he question of whether a consent to search was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.

Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973).

Petitioners argue that while consent is a matter to be determined by the trial judge, Mack v. State, 298 So.2d 509 (Fla. 2d DCA 1974), and State v. Hysell, 281 So.2d 417 (Fla. 2d DCA 1973), the record here is not sufficient as a matter of law to support the trial court’s finding thereof. We have reviewed the testimony at the hearing on petitioners’ motion to suppress evidence, and are of the opinion that while there may be room for difference regarding the conclusion to be drawn, the evidence was sufficient for the trial court to find that there was consent to board and search the boat in question. We will not, therefore, interfere with said finding, and do affirm that part of the district court’s opinion affirming the trial court’s denial of petitioners’ motion to suppress.

Relying upon Aylin v. State, petitioners also argue, as an issue on appeal, that an information under section 893.13, Florida Statutes (1977), charging simple possession of over 100 pounds of cannabis, as theirs did, and not alleging that such possession was with intent to sell, manufacture or deliver the cannabis, charges one with a third rather than a second-degree felony. In light of our recent decision in Parker v. State, No. 59,674 (Oct. 8, 1981), overruling Aylin v. State, we disagree and find that petitioners’ fifteen-year sentences are legal, inasmuch as both were charged with and found guilty of a second-degree felony.

In light of the foregoing, the decision of the district court upholding petitioners’ convictions and sentences is affirmed.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


text:
    CITY OF MIAMI BEACH, Appellant, v. ROCIO CORP., a Florida Corporation, and Rida Corp., a Florida Corp., and Carriage House Associates, a California General Partnership, consisting of Harvey Rosen, David Rosen, Lawrence Kates and Arthur Burdorf, Appellees.
    No. 80-626.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    John A. Ritter, City Atty., and Thomas M. Pflaum and Karen Alternan, Asst. City Attys., for appellant.
    Lincoln Diaz-Balarat, Miami Shores, Legal Services of Greater Miami, Inc., for the City of Miami Beach as amicus curiae.
    Nancy A. Cousins, City Atty., and Leonard Lubart, Asst. City Atty., for the City of Hollywood as amicus curiae.
    Young, Stern & Tannenbaum and Norman Malinski, N. Miami Beach, for appel-lees.
    Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Cognizant of hardships endured by Miami Beach apartment residents when landlords repeatedly converted rental units into condominiums without regard to the growing apartment shortage, the City of Miami Beach enacted emergency ordinances designed to forestall the crisis it perceived as inevitable if landlords were permitted to convert their remaining apartments. The ordinances delayed conversions by extending leases and by creating a ninety-day moratorium on conversions. In this appeal by the City from a trial court order enjoining the City from enforcing the ordinances, we address the preliminary issues considered by the trial court upon stipulation of the parties: first, whether the subject of condominium conversion was preempted by the Florida Condominium Act, chapter 718, Florida Statutes (1979); and second, whether the ordinances conflict with the Florida Condominium Act. Either preemption of the subject by the state or conflict with state law would invalidate the ordinances. The trial court found that both preemption and conflict existed. Upon consideration of both issues, we hold that the state did not expressly preempt the subject of condominium conversion; we hold, however, that the City was properly enjoined from enforcing the ordinances because they conflict with state law. We affirm on that ground.

Ordinance No. 79-2169 provides that a developer may convert a rental unit into a condominium provided that each tenant shall have the right to extend an expiring lease for a period up to eighteen months. In the ordinance, the city commission declares that leases allowing landlords or developers at their option to terminate leases upon less than eighteen months notice to the tenant are against public policy. Ordinance No. 80-2197 prohibits an owner of multi-family housing units from converting rental housing to condominium units for a period of ninety days from the date of the ordinance. Ordinance No. 80-2201 corrects scrivener errors in Ordinance No. 80-2197.

First, the City of Miami Beach contends that the legislature did not expressly preempt the subject of condominium conversion and that absent express preemption to the state, the City is free to enact ordinances restricting condominium conversion under the authority it derives from the Municipal Home Rule Powers Act, chapter 166, Florida Statutes (1979).

Next, the City argues that the ordinances in question are not in conflict with state law, but instead impose restrictions on activity already regulated by the state. It contends, therefore, that the ordinances supplement rather than conflict with state restrictions and are permissible municipal enactments. On this point we disagree.

1. Preemption.

Municipalities derive their powers from the Florida Constitution. Article VIII, Section 2(b), Florida Constitution (1968) provides:

Powers. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law.

The extent of municipal power or home rule has been questioned in the courts. In City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 (Fla.1972), the supreme court held that the constitutionally provided powers were insufficient to permit a municipality to enact a rent control ordinance absent enabling legislation. In apparent response to City of Miami Beach v. Fleetwood Hotel, Inc., supra, the Florida Legislature, in 1973, clarified the scope of municipal home rule and expressed a legislative purpose to remove limitations on the exercise of home rule powers by enacting the Municipal Home Rule Powers Act, ch. 73-129, Laws of Fla. (codified at ch. 166, Fla.Stat. (1973)). It acknowledged that municipalities may enact legislation on any subject upon which the state legislature may act unless expressly prohibited by law.

166.021 Powers.—

(1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.
(2) “Municipal purpose” means any activity or power which may be exercised by the state or its political subdivisions.

The legislature recognized certain exceptions:

(3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(a) The subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2(c), Art. VIII of the State Constitution;
(b) Any subject expressly prohibited by the Constitution;
(c) Any subject expressly preempted to state or county government by the Constitution or by general law; and
(d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1(g), 3, and 6(e), Art. VIII of the State Constitution.
(4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the Constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the Constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited.

§ 166.021, Fla.Stat. (1979).

The City of Miami Beach then enacted another rent control ordinance under the expanded authority afforded by section 166.021(1). In an action challenging the new ordinance, the supreme court in City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764 (Fla.1974), ruled that municipalities now possessed the power to enact such ordinances except when expressly prohibited by law, stating:

Ch. 73-129 is a broad grant of power to municipalities in recognition and implementation of the provisions of Art. VIII, § 2(b), Fla.Const.1 It should be so construed as to effectuate that purpose where possible.2 It provides, in new F.S. § 166.021(1), that municipalities shall have the governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services; it further enables them to exercise any power for municipal services, except when expressly prohibited by law.

305 So.2d at 766 (footnotes omitted); see Juergensmeyer and Gragg, Limiting Population Growth in Florida and the Nation: The Constitutional Issues, 26 U.Fla.L.Rev. 758, 764 (1974).

In light of these developments, we must decide whether condominium conversion is a subject “expressly preempted to state . . . government” and therefore excepted from the City’s powers under section 166.-021(3)(c). See also City of Temple Terrace v. Hillsborough Association for Retarded Citizens, Inc., 322 So.2d 571 (Fla. 2d DCA 1975), aff’d, 332 So.2d 610 (Fla.1976); City of Miami Beach v. Forte Towers, Inc., supra. The Florida legislature has spoken on the subject of condominium conversion in Chapter 718, Florida Statutes (1979), which defines as its purpose:

(1) To give statutory recognition to the condominium form of ownership of real property.
(2) To establish procedures for the creation, sale, and operation of condominiums.
Every condominium created and existing in this state shall be subject to the provisions of this chapter.

§ 718.102(1), (2), Fla.Stat. (1979). Nowhere, either in its statements of purpose or other provisions, does chapter 718 expressly preempt the subject to the state.

Appellees argue that section 718.507, which prohibits laws concerning use, location, placement and construction of buildings, subject to the condominium form of ownership, preempts the subject. We disagree. The language of that section when read as a whole, Florida, Jai Alai, Inc. V. Lake Howell Water & Reclamation District, 274 So.2d 522 (Fla.1973), is clearly not a statement of preemption, but is instead a prohibition against condominium discrimination. The plain language of a statute must be read to mean what it says. Carson v. Miller, 370 So.2d 10 (Fla.1979); Phil’s Yellow Taxi Co. v. Carter, 134 So.2d 230 (Fla.1961).

We conclude that the legislature has expressed its purpose to afford municipalities home rule with the exception of preempted subjects. We find no preemption of the subject of condominium conversion. The City is therefore permitted to exercise its power on that subject unless otherwise precluded.

2. Conflict.

One impediment to constitutionally derived legislative powers of municipalities occurs when the municipality enacts ordinances which conflict with state law. City of Miami Beach v. Fleetwood Hotel, Inc., supra; see Fla.St.U.L.Rev. 137, 148 — 49 (1975); cf. City of Miami Beach v. Frankel, 363 So.2d 555 (Fla.1978) (Authority granted by general law can be restricted by general law). Municipal ordinances are inferior to state law and must fail when conflict arises. Rinzler v. Carson, 262 So.2d 661 (Fla.1972); City of Miami Beach v. Fleetwood Hotel, Inc., supra; City of Wilton Manors v. Starling, 121 So.2d 172 (Fla. 2d DCA 1960); 1979 Op.Att’y Gen.Fla. 079-71 (August 10, 1979); 1975 Op.Att’y Gen.Fla. 075-164 (June, 9, 1975); 3 Fla.St.U.L.Rev. 137, 148-49 (1975). Contra 1976 Op.Att’y Gen.Fla. 076-212 (November 10, 1976).

In Rinzler v. Carson, supra, the court declared:

Municipal ordinances are inferior in stature and subordinate to the laws of the state. Accordingly, an ordinance must not conflict with any controlling provision of a state statute, and if any doubt exists as to the extent of a power attempted to be exercised which may affect the operation of a state statute, the doubt is to be resolved against the ordinance and in favor of the statute. A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden. 23 Fla.Jur., Municipal Corporations, Section 93, p. 116; State ex rel. Baker v. McCarthy (1936) 122 Fla. 749, 166 So. 280; Wilton Manors v. Starling (1960, Fla.App.), 121 So.2d 172; Baltimore v. Sitnick, 254 Md. 303, 255 A.2d 376. In order for a municipal ordinance to prohibit that which is allowed by the general laws of the state there must be an express legislative grant by the state to the municipality authorizing such prohibition. McQuillin, Municipal Corporations, Vol. 5, Section 15.20.

262 So.2d at 668. The City maintains, however, that Rinzler v. Carson, supra, and City of Miami Beach v. Fleetwood Hotel, Inc., supra, which provide for resolution of conflict questions by favoring state law over municipal ordinances, no longer have vitality. The City argues that the passage in 1973 of chapter 166, Florida Statutes, Municipal Home Rule Powers Act, and the opinion of the court in City of Miami Beach v. Forte Towers, Inc., supra, provide municipalities with formerly absent power.

Although the legislature has extended municipal powers in the Municipal Home Rule Powers Act, the issue of conflict with state law has not been addressed. In City of Miami Beach v. Forte Towers, Inc., supra, the court overruled Fleetwood only with regard to the derivation of powers. The principle that a municipal ordinance is inferior to state law remains undisturbed. Although legislation may be concurrent, enacted by both state and local governments in areas not preempted by the state, concurrent legislation enacted by municipalities may not conflict with state law. If conflict arises, state law prevails. Cf. Board of County Commissioners of Dade County v. Wilson, 386 So.2d 556 (Fla.1980) (the enabling constitutional language of the Dade County Home Rule Charter provides that in the event of a conflict between a county ordinance and the Florida Constitution or general law, general law prevails). An ordinance which supplements a statute’s restriction of rights may coexist with that statute, Eliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970); Jordan Chapel Freewill Baptist Church v. Dade County, 334 So.2d 661 (Fla. 3d DCA 1976), whereas an ordinance which countermands rights provided by statute must fail. Scavella v. Fernandez, 371 So.2d 535 (Fla. 3d DCA 1979).

Do the ordinances in question conflict with state law? The final judgment permanently enjoining the enforcement of the subject ordinances specified that conflict existed between the ordinances and sections 718.105, 718.107, 718.402, 718.501, 718.502, 718.503, 718.504, and 718.507 of the Condominium Act. The purpose of the Condominium Act, Section 718.102(1), is “to give statutory recognition to the condominium form of ownership of real property and to establish procedures for the creation, sale, and operation of condominiums.” The statute does not restrict rights, but instead provides rights.

A comparison of the Condominium Act and the ordinances in question reveals apparent conflict:

A.§718.105: Recording of Declaration. (1) When executed as required by § 718.104, a declaration together with all exhibits and all amendments is entitled to recordation as an agreement relating to the conveyance of land.

B.Section 718.107 pertains to "Re- ■ straints upon separation and partition of common elements."

C.Section 718.402 permits "conversion of existing improvements to condominium."

Section 718.402(2)(a) permits a tenancy to expire no later than 180 days from date of notice to the tenant of the intended conversion.

Section 718.402 (3) (a) prohibits cancellations of leases upon less than 120 days notice (with some exceptions).

Ordinance No. 80-2197 (as amended) prohibits filing of Declaration of Condominium for conversion for 90 days.

Ordinance No. 80-2197, §3 (as amended) prohibits as unlawful the converting of rental apartments for 90 days.

Ordinance No. 79-2169, §17A-29 provides that a tenancy can expire no later than 18 months after notice to the tenant.

Ordinance No. 79-2169, §17A-30 prohibits cancellation of leases upon less than 18 months notice.

D. Section 718.501 delegates the power to enforce the provisions of chapter 718 to the Division of Florida Land Sales and Condominiums.'

E. Section 718.502 requires filing with the Division of Florida Land Sales and Condominiums prior to sale or lease.

F. Section 718.503 provides disclosure requirements prior to sale.

G. Section 718.504 regulates the prospectus or offering circular.

H.Section 718.507 prohibits any law, ordinance or regulation which establishes any requirement concerning the use, location, placement or construction of buildings or other improvements which are or may be used as condominiums.

Ordinance No. 80-2197, §5 (as amended) gives the city power to enforce the prohibition against creating condominiums.

Ordinance No. 80-2197, §3 (as amended) prohibits filing of Declaration as unlawful for 90 days.

Ordinance No. 80-2197, §3 (as amended) prohibits sale or conversion for 90 days.

Ordinance No. 80-2197, §3 (as amended) prohibits sale or conversion for 90 days.

Ordinance Nos.80-2197 (as amended) and 79-2169 regulate' buildings which are or may ' be used as condominiums. •

Appellant’s contention that the Condominium Act merely regulates and therefore permits the City to impose a supplementary burden consistent with statutory purposes, see Scavella v. Fernandez, supra, is without merit. When conduct permitted by state law is prohibited by local ordinance, citizens become hopelessly entangled in a web of government. Under the circumstances presented in this case, the local ordinances must yield to state statutes if stability in government is to prevail.

In conclusion, we hold that the subject of condominium conversion has not been expressly preempted by the state. The City of Miami Beach has been authorized to enact ordinances relating to condominium conversion provided they do not conflict with state law. Because the challenged ordinances conflict with state law, the trial court correctly enjoined their enforcement.

Affirmed.

      . The Florida Legislature recently recognized the problem and enacted the Roth Act, ch. 80-3, Laws of Fla., which amends the Condominium Act by permitting renters to extend leases for a prescribed number of days. The new legislation authorizes counties to permit additional extensions by ordinance under certain circumstances.

      .The problem exists not only in Miami Beach but throughout the state as well. The City of Hollywood, Florida and Legal Services of Greater Miami, Inc. have filed amicus-curiae briefs in support of the position advanced by the City of Miami Beach.

      . Other issues were reserved for future determination.

      . The injunction refers to Ordinance No. 80-2220. The parties have stipulated that 80-2201 is the correct number.

      . We are aware that preemption may be implied from comprehensive state coverage of the subject. 6 E. McQuillin, The Law of Municipal Corporations § 21.34, at 250 (3d ed. 1980). Chapter 166, however, requires “express preemption”.

      . See generally Deal, Post-Mortem-Home Rule, Fla.Municipal Rec., Nov. 1980, at 2.


text:
    ORKIN EXTERMINATING COMPANY and R. P. Hewitt & Associates, Appellants, v. Douglas C. LEWIS, Appellee.
    No. XX-154.
    District Court of Appeal of Florida, First District.
    May 29, 1981.
    Rehearing Denied June 26, 1981.
    Robert W. Elton of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellants.
    S. Peter Capua and Fred 0. Pasternack, Miami, for appellee.
   PER CURIAM.

AFFIRMED. This Court finds that the record contained competent, substantial evidence to support the deputy commissioner’s order.

MILLS, C. J., and SHAW and JOANOS, JJ., concur.


author: SCHWARTZ, Judge.

text:
    Rodney WOOTEN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1622.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Bennett H. Brummer, Public Defender and Ronald A. Dion, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   SCHWARTZ, Judge.

The defendant was charged with the armed robbery of Charles Philp and, under Section 790.07(2), Florida Statutes (1975), with the separate crime of the possession of a firearm in the commission of that robbery. The jury found him guilty of petty larceny, a misdemeanor, as a lesser included offense of the robbery count, and guilty as charged on the possession count. In this appeal Wooten contends that the latter adjudication and five-year sentence cannot stand. Because of the supreme court’s decision in Mahaun v. State, 377 So.2d 1158 (Fla.1979), we are compelled to agree.

In Mahaun, the court held that a verdict of guilty of the lesser included misdemean- or of culpable negligence, reflecting an acquittal of the underlying felony of aggravated child abuse as charged, also required the vacating of a guilty verdict on a third degree murder charge based on that felony. At 377 So.2d 1161, it was stated that,

Mrs. Mahaun’s conviction for culpable negligence effectively holds her innocent of the aggravated child abuse charge. Because the aggravated child abuse felony was an essential element of the felony murder, we hold that Mrs. Mahaun cannot be guilty of third-degree felony murder. [emphasis supplied]

This determination directly controls this case. By finding Wooten guilty only of a lesser included misdemeanor, the jury found him not guilty of the higher offenses of robbery, as charged in that count, and attempted robbery, concerning which it was also instructed. West v. State, 53 Fla. 77, 43 So. 445 (1907); Fla.R.Crim.P. 3.640(a). This was plainly inconsistent with a violation of Section 790.07(2), Florida Statutes (1975), of which an essential element was the commission or attempted commission of that very felony. Mahaun holds that in the event of a conflict of this kind between verdicts in a single case, the legally inconsistent guilty verdict must be set aside. Whatever our misgivings about that conclusion, we are required to follow it., Accordingly, we reverse and vacate the judgment and sentence for possession of a firearm in the commission of a felony. The convictions for uttering, forgery and petty larceny are affirmed.

Affirmed in part, reversed in part.

      . In the same trial, he was found guilty of six counts of forgery and uttering a forged instrument. No error is asserted as to the resulting judgments and sentences, and they are therefore affirmed.

      . We disagree with the alternative rationales advanced by Wooten to support this result. His claim that he may not be convicted of more than one crime merely because they occurred during the same criminal transaction has been foreclosed by Damon v. State, 397 So.2d 1224 (Fla. 3d DCA 1981). (In any event, acceptance of this position would result only in vacating the judgment and 60-day sentence for petty larceny, as the lesser of the two offenses. See, State v. Pinder, 375 So.2d 836 (Fla.1979); Jenrette v. State, 390 So.2d 781 (Fla. 3d DCA 1980).)
      Relying on Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), Wooten also contends, as a matter of statutory interpretation, that since the punishment for robbery — as in the case of such other felonies as sexual battery, Sec. 794.011(3), Fla.Stat. (1975), and burglary, Sec. 810.02(2)(b), Fla. Stat. (1975) — is specifically enhanced by Sec. 812.13(2)(a), Fla.Stat. (1975) if the offender carries a firearm, there is no longer a separate statutory offense of possession of a firearm in the commission of that felony. We reject this contention because the legislature has evinced quite the opposite intent by enacting Sec. 775.-021(4), Fla.Stat. (1977), providing that “[w]ho-ever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode.... ” See generally, Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981).
      We are constrained to point out, however, that the application of two presently-extant decisions of the supreme court has the same practical, if anomalous, effect of completely eliminating the firearm possession offense as a viable separate charge. If the defendant is found guilty of committing the underlying felony with a firearm, State v. Pinder, supra, precludes the entry of an additional adjudication or sentence on the possession charge. Cases collected, Damon v. State, supra, at note 8. But cf. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Damon v. State, supra, note 9; Monroe v. State, 396 So.2d 241 (Fla. 3d DCA 1981). On the other hand, if, as here, the defendant is acquitted of the felony — even if this occurs because of a jury pardon or otherwise — the “legally inconsistent verdict” theory of Mahaun likewise requires that a guilty verdict for possession be set aside. Contra, Redondo v. State, 380 So.2d 1107 (Fla. 3d DCA 1980), review granted, Fla. Case no. 59,302 (1981); Frazier v. State, 294 So.2d 691 (Fla. 1st DCA 1974), cert. denied, 307 So.2d 185 (Fla. 1975); but cf., Reeder v. State, 399 So.2d 445 (Fla. 5th DCA 1981). Thus, notwithstanding the clearly-expressed contrary intent of the legislature, and, in many cases, of the jury as well, § 790.07 has judicially been rendered entirely ineffective.

      .This case is thus entirely distinguishable from McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981). There, verdicts of not guilty of the underlying felony of aggravated assault and guilty of violating § 790.07(2) were held not inconsistent because the latter conviction could have been based on an attempted aggravated assault and the jury was not charged on attempt as a lesser offense of the substantive charge. McCray, supra, at note 3. Since the jury was so instructed in the present instance, it is, in contrast, impossible to reconcile the two verdicts returned below.

      . “(2) Whoever, while committing or attempting to commit any felony . . . displays, uses, threatens, or attempts to use any firearm . . . is guilty of a felony in the second degree-”

      . See note 2, supra; Damon v. State, supra, note 10; McCray v. State, supra, note 2; Reeder v. State, supra (“[T]his case illustrates that when criminal procedure directs the jury to concern itself with both the truth of the charges and the consequences of its verdict, its findings as to guilt and its findings relating to matters that legally require a consequence deemed by the jury undesirable, may naturally be inconsistent. Such inconsistency is the price of a ‘jury pardon’ philosophy.”)

      . While our contrary decision in Redondo, supra, was rendered subsequent to Mahaun, neither party called Mahaun to our attention before the opinion was released and there was no motion for rehearing afterwards.

      . We do, however, to permit invocation of the jurisdiction of the supreme court pursuant to Fla.R.App.P. 9.030(a)(2)(A)(vi) and Art. V, § 3(b)(3), Fla.Const. (1981), certify that this decision, while in accord with Mahaun, is in direct conflict with Frazier v. State, 294 So.2d 691 (Fla. 1st DCA 1974), cert. denied, 307 So.2d 185 (Fla.1975). Frazier, which we followed in Redondo, but which is not discussed in Ma-haun, holds that the jury’s failure to find guilt as to the underlying felony does not preclude conviction of the possession of a firearm while committing that felony, because any inconsistency is immaterial.

      . See note 1, supra.


author: FERGUSON, Judge.

text:
    Barry Eugene SESSUMS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-1274, 80-1331.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Nov. 4, 1981.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   FERGUSON, Judge.

The sole issue on this appeal by Barry Sessums from orders revoking probation and adjudication and sentencing on a substantive charge, is whether Sessums effectively waived trial by jury. The specific issue is whether record evidence showing an information signed by defendant and stamped with “waived trial by jury” and record evidence that defense counsel orally waived jury trial in open court in the presence of the defendant and without objection by the defendant is sufficient to find that the defendant freely and voluntarily waived his right to trial by jury.

The record in this case indicates the following colloquy between the court and the counsel:

THE COURT: What is the State’s position? Is there going to be a waiver of jury trial?
MR. GUTIERREZ: Yes. There is a waiver of jury trial. We can do both at the same time.
MS. LORTS: I will need an hour to get my lab man over here.
THE COURT: Well, do you want to waive a jury trial? We will hear the jury and the probation matter simultaneously. If not, I will go ahead and hear the probation matter.
MR. GUTIERREZ: The defendant waives jury, Your Honor.
[The case was passed and a short time later returned as follows]
THE COURT: All right. Do you agree to waive jury trial?
MS. LORTS: No.
MR. GUTIERREZ: It has already been waived.
THE COURT: What do the rules say? They require both parties_
MS. LORTS: That’s correct.
******
THE COURT: Here’s what we are going to do: This will make everybody a little bit happy.
I am going to put the thing over. I will try it non-jury a week from today at 10:00. I will try it non-jury and the probation simultaneously.
THE COURT: See you then.
Does the State agree to waive the jury trial under those circumstances?
MS. LORTS: Sure.
MR. GUTIERREZ: It has already been executed.
THE COURT: That will dispose of it.
******
THE COURT: Mr. Sessums, come up here for a minute.
Mr. Sessums, I am going to advise you that I want you here at 2:00 next Monday.
THE DEFENDANT: Yes, sir.
THE COURT: If you can work out a plea, great. If you can’t, I’m here to try this case.. . .
******
THE COURT: Both sides stipulated to hearing probation hearing and trial at the same time and both sides waived jury trial.

A criminal defendant is guaranteed the right to trial by jury by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 22, of the Florida Constitution. A defendant may not be deprived of this right without an intelligent, voluntary and knowing waiver of that right. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

Though the better practice is for a trial court to interrogate a defendant so as to satisfy itself that the defendant is fully apprised of his right to a jury trial and that the waiver of that right is made intelligently and voluntarily, Viggiani v. State, 390 So.2d 147 (Fla.3d DCA 1980), rev. granted, 402 So.2d 613 (Fla.1981); Quartz v. State, 258 So.2d 283 (Fla.3d DCA 1972), cert. denied, 263 So.2d 825 (Fla.1972), the only requirements of Florida Rule of Criminal Procedure 3.260 providing for waiver of jury trial, are that a waiver of a jury trial be in writing, see Powers v. State, 370 So.2d 854 (Fla.3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1979); Tosta v. State, 352 So.2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So.2d 885 (Fla.1978); Molfetas v. State, 323 So.2d 598 (Fla.3d DCA 1975), and that the State consent, see State ex rel. Gerstein v. Baker, 339 So.2d 271 (Fla.3d DCA 1976). Florida, unlike some jurisdictions, has never required by-statute, rule, or case law that the court itself inform the defendant of this right or make direct inquiry of the defendant as to the voluntariness of his waiver.

Under Florida law a waiver will be effective when there is consent of the parties and a defendant has either signed a written waiver in court which is made part of the record, Durcan v. State, 383 So.2d 248 (Fla. 3d DCA 1980); Russell v. State, 342 So.2d 96 (Fla. 3d DCA 1977), Kinser v. State, 291 So.2d 80 (Fla. 3d DCA 1974), cert. denied, 297 So.2d 832 (Fla.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975), or has previously signed a written waiver which is made part of the record and, in addition, either personally or through his counsel orally waives a jury trial in open court. Quartz v. State, supra. We find this case to fall within these minimal requirements for effective waiver and hold that by signing the waiver and by failing to object to waiver of jury made by his counsel, in his presence and in open court, Sessums effectively waived his right to a jury trial. Quartz v. State, supra.

Affirmed.

      . See, e. g., Arizona, R.Crim.P. 18.1(b) (court shall address defendant personally); California, Art. I, § 16, Cal.Const. (amended 1974) (a jury may be waived in a criminal trial by the consent of both parties expressed in open court by the defendant and the defendant’s counsel); Michigan, Stat. § 763.3 (waiver must be signed by defendant and made part of record in open court after arraignment), People v. Blackmon, 95 Mich.App. 462, 291 N.W.2d 82 (Mich.App.1980) (reference by defense counsel insufficient); Maryland Rule, 735(d) (requires inquiry of defendant on the record and that court inform defendant of this right), Dortch v. State, 428 A.2d 1220 (Md.App.1981); Spector v. State, 289 Md. 407, 425 A.2d 197 (Md.App.1981); Pennsylvania, R.Crim.P. 1101 (requires an on-the-record colloquy with defendant), Commonwealth v. Candia, - Pa.Super. -, 428 A.2d 993 (1981). Commonwealth v. Phillips, 285 Pa.Super. 485, 427 A.2d 1391 (1981); Commonwealth v. Baxter, 282 Pa.Super. 467, 422 A.2d 1388 (1980).

        See also Alaska, R.Crim.P. 23(a) and (b) (cases required to be tried by jury [of 12] shall be so tried unless the defendant waives a jury trial [of 12] in writing with the approval of the court and the consent of the state); Walker v. State, 578 P.2d 1388 (Alaska 1978) (the court must personally address defendant to inquire whether the waiver is voluntary and knowing; failure to do so is error per se).

      . Compare Florida law, supra, with Illinois law, Chapter 38, section 103-6, Laws of Illinois, (every person accused of offense has right to trial by jury unless understandingly waived by defendant in open court). Illinois cases hold that waiver of right to jury trial is valid where the accused permits his attorney in his presence and without objection to expressly advise the court of that choice. People v. Spain, 91 Ill.App.3d 900, 47 Ill.Dec. 451, 415 N.E.2d 456 (Ill.1980); People v. Rynberk, 92 lll.App.3d 112, 47 Ill.Dec. 774, 415 N.E.2d 1087 (Ill.1980); People v. Williams, 47 Ill.App.3d 798, 8 Ill.Dec. 177, 365 N.E.2d 415 (1977) and Hawaii law, § 806-61 Haw.Stat. and H.R.Crim.P. 23(a) (waiver may be with consent of court and either defendant’s written consent filed in court or oral consent in open court entered on the record).
      We note that there was no oral waiver by defendant’s counsel in open court in Viggiani v. State, supra.


author: PER CURIAM. MOORE, Judge,

text:
    BROWARD COUNTY, Florida, Appellant, v. FROMBERG, FROMBERG & ROTH, P.A. on behalf of Fromberg, Fromberg & Roth, P.A. and Dermatology Associates, Green, Wilentz and Arena, P.A., on behalf of Dermatology Associates, Green, Wilentz and Arena, P.A., and all others similarly situated, Appellees.
    No. 80-234.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Rehearing Denied Nov. 13, 1981.

      Harry A. Stewart, General Counsel for Broward County, and John Franklin Wade, Asst. Gen. Counsel, Fort Lauderdale, for appellant.
    Arthur Halsey Rice of Fromberg, From-berg & Roth, P.A., Miami, and Robert L. Beals of Digiulian, Spellacy & Dichiara, Fort Lauderdale, for appellees.
   PER CURIAM.

The judgment entered below is reversed on the authority of Broward County v. R. W. Obermayr, 397 So.2d 1175 (Fla. 4th DCA 1980), and this cause is remanded for entry of judgment in favor of appellant.

ANSTEAD, J., and LEONARD RIVKIND, Associate Judge, concur.

MOORE, Judge,

concurring.

I specially concur only because of this Court’s opinion in the case cited by the majority, although I disagree with that case.


author: DAUKSCH, Chief Judge. COBB, Judge,

text:
    WALT DISNEY WORLD CO. and Insurance Company of North America, Appellants, v. Jacqueline MERRITT and Bill Merritt, her husband, Appellees.
    No. 80-1064.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    Rehearing Denied Sept. 29, 1981.
    John L. O’Donnell, Jr., and John W. Ward, of DeWolf, Ward, Morris, Wohlust, Jontz & O’Donnell, P. A., Orlando, for appellants.
    James O. Cunningham, of Billings, Durie & Morgan, Orlando, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from a plaintiff’s judgment in a personal injury action.

Although we agree with the appellant that there was little evidence to support the giving of the instruction to the jury regarding the State Fire Marshal’s Rules and Regulations, we do find enough such evidence to determine it was not reversible error to give the charge. The charge reads as follows:

Now, Ladies and Gentlemen, the following is a portion of the Rules and Regulations of the Florida Administrative Code as adopted by the State Fire Marshal and filed in the Office of the Secretary of State of the State of Florida which provides, among other things, as follows:
A place of assembly shall mean a room or space used for assembly or educational occupancy for 100 or more occupants or which has a floor area of 1500 square feet or more used for such purposes. Such room or space shall include any similar occupied connecting room or space in the same story, or in a story or stories above or below where entrance is common to the rooms or spaces.
In a place of assembly: In each room where chairs, or tables and chairs, are used, the arrangement shall be such as will provide for ready access by aisles to each exist doorway. Aisles leading directly to exit doorways shall have not less than 36 inches clear width which shall not be obstructed by chairs, tables or other objects.
Violation of this cited rule and cited regulation is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that a person alleged to have been negligent violated such a regulation, you may consider that fact, together with other facts and circumstances, in determining whether such person was negligent.

A jury could have found that the premises were not in a reasonably safe condition and that the aisles were blocked. The testimony of both the injured plaintiff and her husband was to the effect that the chairs in the restaurant were in such a jumbled disarray that there was no way she and her family could leave the area where they had been seated without pushing the chairs out of the way or climbing over them. Since she was leading the way she elected to clear a pathway by moving chairs out of her way. While so doing her legs became tangled in the chair she was moving at the moment and she fell. This is not a situation where one isolated chair is left in an aisle, but where a mass of chairs are pushed away from tables in a haphazard way and are completely blocking the egress of customers at other tables. The jury had a right to conclude that the premises were not maintained in a reasonably safe condition because a restaurant patron should have a right to leave the premises without running an obstacle course. What degree of negligence can be attributed to the property owner and to the patron, respectively, is also a jury question, and no issue of apportionment of negligence is raised here.

We find the exclusion of the tendered photographic evidence to not be harmful error since the photograph did not depict the area when the injury occurred.

We agree appellant that plaintiffs’ attorney’s remarks regarding his wife being an employee of Walt Disney World were wrong as were his remarks about the doctor and the insurance company. The trial judge adequately instructed the jury about these improprieties, thus no reversible error has been shown. As has been often said, it is up to the trier of the fact to determine the weight of the evidence; we only determine the legal sufficiency. It was legally sufficient so we cannot reverse the judgment as appellants would have us do.

AFFIRMED.

ORFINGER, J., concurs.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

In my view, the trial court erred in instructing the jury in regard to violation of an administrative rule of the State Fire Marshal. There are two reasons for this conclusion. First, the injury herein was not caused by a fire. Second, even if it had been, it did not occur in an aisle described by the instruction.

The plaintiffs’ instruction, to which there was timely objection, was:

Now, Ladies and Gentlemen, the following is a portion of the Rules and Regulations of the Florida Administrative Code as adopted by the State Fire Marshal and filed in the Office of the Secretary of State of the State of Florida which provides, among other things, as follows:
A place of assembly shall mean a room or space used for assembly or educational occupancy for 100 or more occupants or which has a floor area of 1500 square feet or more used for such purposes. Such room or space shall include any similar occupied connecting room or space in the same story, or in a story or stories above or below where entrance is common to the rooms or spaces.
In a place of assembly: In each room where chairs, or tables and chairs, are used, the arrangement shall be such as will provide for ready access by aisles to each exit doorway. Aisles leading directly to exit doorways shall have not less than 36 inches clear width which shall not be obstructed by chairs, tables or other objects.
Violation of this cited rule and cited regulation is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that a person alleged to have been negligent violated such a regulation, you may consider that fact, together with other facts and circumstances, in determining whether such person was negligent.

The above instruction is based upon Rules 4A — 27.01(2) and 4A-27.06 of the Rules of the State Fire Marshal. These rules were certified to be in effect on the date Mrs. Merritt fell while pushing a chair in a Disney restaurant. At the jury instruction conference, Disney objected to the giving of the charge on various grounds, one of which was that the fire code was inapplicable to the case.

On appeal, Disney’s first issue is whether the trial court erred by instructing the jury that violation of the Fire Marshal’s rule was evidence of negligence. The judicial act, the propriety of which has been brought before this court to review, was the giving of the instruction. On appeal, Disney argues the rule is inapplicable because Mrs. Merritt did not prove she fell in an “aisle,” to which the rule (Rule 4A-27.06) is directed. While this may be a valid argument, another, perhaps stronger, argument is that the rule is inapplicable because her injuries were not of a type the rule sought to prevent.

A preliminary question, then, is whether this court can utilize an argument (as distinguished from the issue or judicial act that was properly raised and brought before this court) not presented on appeal. Disney properly raised in this court the judicial act to be reviewed, i. e., the inclusion of the instruction. It specified, briefed, and argued the propriety of including the instruction. Additionally, the issue Disney has raised before this court was presented to the trial court, /. e., that the rule was inapplicable. The trial court therefore had an opportunity to rule and in fact did rule on the issue now presented to this court: whether the rule was inapplicable. This is not a situation where the appellant did not object and raise the issue in the trial court, only to raise the issue for the first time on appeal. Clearly Disney could not do that. St. Johns River Shipbuilding Co. v. Wells, 156 Fla. 67, 22 So.2d 632 (1945); Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973); Fla.R.Civ.P. 1.470(b). Nor is this a situation where the appellant waives or abandons the issue he raised in the trial court by not presenting it to this court. In this case, Disney has properly preserved the issue, but has failed to argue the strongest reason why the issue should be decided in its favor. Although it runs the risk, by such an omission in its brief, that the validity of the argument will not be discerned by an appellate court, the appellant is not foreclosed, ipso facto, from the benefit of that argument. Cf., Redditt v. State, 84 So.2d 317 (Fla.1955).

Accordingly, we should first consider whether or not the instruction from the Fire Marshal’s Rule was properly applied to this factual context — i. e., a situation wherein the injured plaintiff fell while •pushing a Disney restaurant chair out of her path in the absence of any fire or smoke.

The head of the Department of Insurance has been made State Fire Marshal pursuant to Chapter 633 of the Florida Statutes, entitled “Fire Prevention and Control.” As part of his statutory grant of authority, the Fire Marshal has been given the power to make “all rules and regulations necessary to effectuate the enforcement of his powers and duties.” § 633.05, Florida Statutes (1975). This includes the means and adequacy of exits from all buildings in the event of fire. Id.

The fire rules that form the basis for the jury instruction at issue in this appeal were promulgated pursuant to section 633.05. It is clear that the Fire Marshal’s grant of authority only extends to fire-related rules and regulations. Cf., Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla.3d DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977). The Fire Marshal has no power to enact rules that are not related to fire safety. Rule 4A-27.06, the basis for the jury instruction herein, is designed to provide ready access by aisles to each exit doorway in the event of fire. The rule seeks to accomplish this result by requiring “places of assembly,” as defined in Rule 4A-27.01, to maintain their premises so that “aisles leading directly to exit doorways shall not have less than 36 inches clear width which shall not be obstructed by chairs, tables or other objects.” Rule 4A-27.06. This rule was designed to facilitate the exit of excited masses in the event of fire, and not to ensure that restaurant operators will push chairs back under their respective seats so that customers will not have to push them out of their way upon finishing a meal.

For a statute or administrative rule to create a standard of conduct, the violation of which is either negligence per se or evidence of negligence, the injured person must (1) be a member of the class of persons the statute or rule was designed to protect, and must (2) suffer the type of injury the provision sought to prevent. W. Prosser, Law of Torts § 36 (4th Ed. 1971). The Florida Supreme Court has held that to violate a statute which establishes a duty to protect a particular class of persons from a particular type of injury is negligence per se. deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198 (Fla.1973). Violation of the administrative rule at issue would be negligence per se: it seeks to prevent occupants of “places of assembly” (the class of persons protected) from being trapped, trampled and burned or injured from fire or smoke (the type of injury the rule sees to prevent). But violation of such statute is not necessarily “actionable negligence.” deJesus at 201. In order to establish actionable negligence by the defendant, the plaintiff must show (1) that he is of the class the statute was intended to protect; (2) that he suffered injury of the type the statute was designed to prevent; and (3) that the violation of the statute was the proximate cause of his injury. Id. at 201.

In the instant case, there was no “actionable negligence.” While Mrs. Merritt was of the class sought to be protected (an occupant/user of a “place of assembly”), her injury, torn cartilages in her knee, was not the type the Fire Marshal’s Rule sought to prevent. See Stanage v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980), and Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978). It was therefore error for the trial court to instruct the jury regarding violation of the rule.

The error in this case was harmful. When the instruction was read, the jury only heard “a violation of State Fire Marshal Code is . . . negligence,” and Disney was irreparably prejudiced. Moreover, the jury had been primed for prejudice by counsel for plaintiffs in his closing argument, wherein the jury was beseeched to “pay particular attention” to the instruction dealing with the Fire Marshal’s Code.

The final judgment should also be reversed on the point Disney did urge on appeal: that the 36-inch width requirement applies only to aisles leading directly to an exit; the “aisle” in which Mrs. Merritt fell was not such an aisle. Rule 4A-27.06, the applicable rule, reads:

In each room where chairs, or tables and chairs, are used, the arrangement shall be such as will provide for ready access by aisles to each exit doorway. Aisles leading directly to exit doorways shall have not less than 36 inches clear width which shall not be obstructed by chairs, tables, or other objects. [Emphasis added].

Under the rule, there is a dichotomy of “aisles.” The first type lead directly to exit doorways. The second type are all aisles that do not lead directly to exit doorways. The requirement that there be no less than 36 inches clear width in aisles applies only to aisles leading directly to exit doorways. According to Mrs. Merritt’s own testimony, there was an aisle that led directly to an exit doorway. After entering the restaurant via this exit-entrance aisle, she turned left and sat down where there was an area of five or six tables. She was no longer on the aisle that led directly to the exit. The table area was to the side; it was in the table area where she fell. Since the incident occurred away from the aisle that led directly to the exit way, the Fire Code Regulation would not apply, even if Mrs. Merritt had satisfied all three deJesus requirements.

Because there was prejudicial error, the final judgment should be reversed. The question we must then address, and a difficult one, is whether or not there was sufficient evidence of negligence below, absent any code violation, to warrant denial of defendants’ motion for directed verdict and submission of this case to a jury. Such evidence would have to relate to the accumulation of chairs in the walkway in which plaintiff fell, length of time the condition had existed, adequacy of inspection, and those factors enumerated in premises liability cases.

A property owner has two duties to invitees: (1) to use reasonable care to maintain the premises in a reasonably safe condition, and (2) to warn of hidden dangers. Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980). There was no evidence that Disney violated either duty, and a verdict for it should have been directed.

There is absolutely no dispute about what happened in this case — Mrs. Merritt tripped over a chair that she saw, had in her hands, and was moving. She had complete control over the chair at the time of the fall. While it is true that employees of Disney were to replace chairs left out by guests, the controlling question is not whether or not they did that in this case, but whether or not they had a legal duty to do so. That duty depends upon whether a chair constitutes an unreasonable hazard to a person walking near it.

Of course, it is always possible to trip over a chair. Every piece of furniture in homes, offices, and restaurants, in this sense, is a tripping hazard for guests. The standard for liability, however, is whether it is an unreasonable hazard. In the absence of unusual circumstances (such as poor lighting, a defective chair or a defective floor), the presence of a chair in a place where it can be expected is not a failure to maintain the premises in a reasonably safe condition. There is no question but that the chair in this case was in a place where it could be expected, for, as argued by appellants, it is common knowledge that people eating in a restaurant push their chairs backward and leave them so when they exit. Clearly, there is no duty on the part of the operator of a public place to exercise individual supervision of a business invitee so as to insure his safety. Warner v. Flori da Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969), cert. dismissed, 235 So.2d 294 (1970).

While there may have been evidence that the standard operating procedure was not followed, there was no evidence that the premises were not in a reasonably safe condition. For that reason, it was error to deny Disney’s motion for a directed verdict. Accordingly, I would reverse the judgment and remand for entry of judgment for the defendants.

      . Disney and its insurer were co-defendants below and are co-appellants before this court. In the interest of simplicity, they will be referred to jointly as “Disney.”

      . Addressing inapplicability at trial, Disney argued in part that since she was not injured in a fire, Mrs. Merritt was not a member of the class of persons the rule sought to protect.


text:
    Raye Alan CARNIELLO, Appellant, v. STATE of Florida, Appellee.
    No. 80-238.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Rehearing Denied Nov. 12, 1981.
    J. David Bogenschutz of Varón & Stahl, P. A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Borden v. State, 402 So.2d 1176 (Fla. 1981).

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


text:
    Milton Ray GOSS, Appellant, v. STATE of Florida, Appellee.
    No. 81-577.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1981.
    Rehearing Denied Oct. 22, 1981.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler and Deborah A. Os-mond, Asst. Attys. Gen., Tampa, for appel-lee.
   PER CURIAM.

We affirm appellant’s judgment of guilt of attempted burglary and sentence of five years in prison. In addition, appellant was ordered to pay court costs. Appellant was adjudged insolvent and Cox v. State, 334 So.2d 568 (Fla. 1976) provides that imposition of court costs on a criminal defendant is improper where the defendant has been adjudicated insolvent. Accordingly, we remand so that the trial court can strike court costs.

BOARDMAN, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    Michael Loren HODAK, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1873.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 1981.
    Rehearing Denied Nov. 5, 1981.
    Bierman, Sonnett, Beiley & Shohat and Benedict P. Kuehne, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob and Steven Bolotin, Asst. Attys. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Schlanger v. State, 397 So.2d 1028 (Fla.3d DCA 1981).


author: COBB, Judge.

text:
    Daniel K. PAI, Appellant, v. Nicolette C. MOSCA and Rocco Mosca, Appellees.
    No. 81-59.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.
    Rehearing Denied Oct. 27, 1981.
    Edward A. Marod of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Orlando, for appellant.
    R. L. Russell of Van den Berg, Gay & Burke, P. A., Orlando, for appellees.
   COBB, Judge.

The Moscas sued Pai on two promissory notes. In a letter to the court that was construed as an answer, Pai raised the following defenses: (1) that he had signed the notes as agent for another entity; (2) duress; (3) extension of time; and (4) partial payment.

The Moscas moved for summary judgment and Pai filed an affidavit in opposition to their motion for summary judgment in which he claimed that he had made some payments towards the notes and for which he claimed entitlement to an accounting and a set-off.

We affirm that portion of the summary judgment on the issues of agency, duress, and extension of time. We reverse that portion of the summary judgment on the controverted issue of partial payment.

AFFIRMED in part; REVERSED in part.

DAUKSCH, C. J., and SHARP, J., concur.


author: COWART, Judge. SHARP, Judge,

text:
    William Paul JONES, as Personal Representative of the Estate of Merry Christine Jones, deceased, Appellant, v. The CITY OF LONGWOOD, FLORIDA, a municipal corporation, and Hartford Accident and Indemnity Company, a foreign insurance corporation, Appellees.
    No. 80-1234.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.
    Rehearing Denied Oct. 21, 1981.

      T. G. LaGrone and Robert J. Felice, Orlando, for appellant.
    Ashby L. Camp of Cooper & Rissman, P. A., Orlando, for appellees.
   COWART, Judge.

Merry Christine Jones, a 12 year old child, was playing with other children in an unoccupied privately owned building in the City of Longwood when a two thousand pound steel cabinet fell from an inside wall of the building, killing her. The deceased child’s estate sued the city for her wrongful death, alleging that the city knew or should have known that children were playing in this building, that the city was “charged with the responsibility of securing unsecure and abandoned commercial buildings existing within its city limits,” and that the negligence of the city, its employees and agents in enforcing “various city ordinances regarding securing and maintaining an abandoned building” was the proximate cause of this child’s death. From a summary judgment in favor of the city, the decedent’s estate appeals.

There is no general statutory or other duty on cities to inspect or secure privately owned abandoned buildings. The only city ordinance of the City of Longwood that has been suggested to be relevant is Ordinance No. 244 which provides:

SECTION 2: The Building Inspector and the Fire Chief of the City of Longwood, Florida, are hereby required to periodically inspect all buildings and structures within the City of Longwood, and if such officials find any building or structure to be in a delapidated [sic], unsanitary or unsafe condition, to report such fact in writing to the City Council specifying in detail the condition of said building or structure.

The ordinance further provides that, if the city council determines upon full hearing that such building should be condemned, that fact must be certified in writing to the property owner and the property owner given a reasonable time to correct the condition to conform to applicable city codes; in the event the property owner fails to correct said condition, the city council is to cause the building to be demolished or removed.

Appellant argues that the only basis for the trial court’s ruling was that the appellee city had sovereign immunity from liability for its neglect in performance of its duty under this ordinance and that the trial court erred because: (a) section 768.28(2), Florida Statutes (1979), expressly waives sovereign immunity for municipalities, and (b) the duty of the building inspector and fire chief under this ordinance was operational level activity for the neglect of which the city is liable under Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979).

The appellee city argues that all governmental duties to inspect should be held to be discretionary functions immune from tort liability citing Loger v. Washington Timber Products, Inc., 8 Wash.App. 921, 509 P.2d 1009 (1973), Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979), cert. denied, 446 U.S. 983, 100 S.Ct. 2963, 64 L.Ed.2d 839 (1980), Shelton v. Industrial Commission, 51 Ohio App.2d 125, 5 Ohio Ops.3d 286, 367 N.E.2d 51 (1976), Grogan v. Commonwealth, 577 S.W.2d 4 (Ky.), cert. denied, 444 U.S. 835, 100 S.Ct. 69, 62 L.Ed.2d 46 (1979), and Wallace v. Nationwide Mutual Fire Insurance Company, 376 So.2d 39 (Fla. 4th DCA 1979). Appellant suggests that the potential liability of the governmental entity making inspections will have the salutary effect of causing government to confine the scope of its inspection undertakings to its reasonable capability to perform these undertakings and would encourage greater responsibility in the discharge of undertaken duties in the same manner that private persons must do in order to avoid responsibility under general laws of the state for negligence in the performance of duties undertaken. We cannot agree with the city that all inspections undertaken by a governmental entity involve at every stage only discretionary or planning level activity or that the courts should, for policy reasons, carve out exceptions not contained in section 768.28, Florida Statutes (1979). Here the ordinance leaves no discretion in the building inspector or fire chief, but requires them to periodically inspect all buildings and structures within the City of Longwood. The word “periodically” does not leave sufficient discretion in those officials to elevate, to a planning level, their decisions as to when and how often to make inspections. Hence we hold that their acts and functions constitute operational level activity.

However, as a. matter of law the failure of these city officials to make an inspection and report their finding to the city council cannot be the proximate cause of the child’s death in this case. This ordinance requires only that the two named city officials report in detail their finding of an unsafe building to the city council. We do not decide whether the city council’s determination that a reported building should be condemned constitutes a planning or policy level decision. It does appear to involve quasi-judicial decision making activity. Once the determination is made by the city council, the ordinance leaves the city council no discretion but to notify the property owner and requires the city to demolish or remove the building only upon the failure or refusal of the property owner to act.

Under this ordinance the ultimate duty of the city to correct any such dangerous condition arises only after the city council has made its determination and the property owner has been given a reasonable time to take action and has failed to do so. All of these steps are conditions precedent to the city’s duty to itself abate a dangerous condition, and the complaint in this case does not allege the occurrence of such conditions precedent. Accordingly, the complaint is insufficient to allege a duty on the City of Longwood, the violation of which could have been the proximate cause of the child’s death in this case.

We also agree with the city’s contention before the trial court that its duty to inspect under this ordinance was necessarily qualified, since the building inspector and fire chief were not authorized to enter upon private property to make an inspection without a warrant. In Camara v. Municipal Court of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the Supreme Court held that the fourth amendment prohibited a building inspector from entering private property to conduct an investigation without a warrant issued upon probable cause. Accord, Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). See also Art. I, § 23, Fla.Const. (1980). There was no duty on the building inspector and the fire chief under the ordinance or otherwise to seek to obtain the owner’s consent to go upon this private property.

We hold that, while the duty of the city building inspector and fire chief to make inspections was an operational level activity concerning which sovereign immunity has been waived, the city’s ultimate duty under this ordinance to correct the dangerous condition was subject to the conditions precedent that the city council determine that the building was unsafe and that the property owner, after notice, failed to correct the condition of the building, which conditions were not alleged to have occurred. Also, the city’s duty to inspect private property under this ordinance is subject to the overriding constitutional prohibition against governmental agents entering such private property without a warrant based upon probable cause. For these reasons the complaint herein did not state a cause of action against the city and this deficiency was properly considered by the trial court in granting a summary judgment in this case. Accordingly the summary judgment is hereby

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I respectfully dissent. The City of Long-wood passed an ordinance requiring the building inspector and the fire chief to periodically inspect all buildings and structures within the city. If a building was found to be in a dilapidated, unsanitary or unsafe condition, this fact was to be reported in writing to the city council. The ordinance then states:

The City Council shall thereupon determine whether or not a public hearing shall be held to condemn such building or structure ....

The majority holds that the acts and functions of the building inspector and the fire chief in failing to make the inspection required by the ordinance fall within the operational level of the government — with this conclusion I fully concur. But the majority upholds the summary judgment because, as a matter of law, proximate cause could not be established because the operational level function of the inspector is just the first step in the chain of events which could ultimately culminate in the city’s condemning the property. Once the city is presented with a report of a dangerous building, subsequent determinations by the city regarding appropriate action are also operational level decisions. The necessity for other city officials to take further action could be used as an excuse to extend sovereign immunity to cities in numerous other situations not contemplated by Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979). Accordingly, I would reverse the summary judgment and allow the issue of proximate cause to go to a jury.

Generally, planning level functions are those requiring basic policy decisions. Commercial Carrier Corporation v. Indian River County. In deciding to adopt the ordinance the city made a basic policy decision. This policy was to ensure that the city would be free from unsafe and unsanitary buildings. It was implemented by requiring inspections of the city’s buildings and authorizing the city to remove or condemn unsafe buildings. The inspections and the decisions on whether to condemn constitute dual operational level functions. Commercial Carrier Corporation v. Indian River County. The decision on whether to condemn necessarily involves some discretion on the city’s part, however, many governmental functions involve the exercise of some discretion. Once a government decides to act, as the City of Longwood did here when it passed the ordinance, it must act responsibly and reasonably and in accordance with acceptable standards of care at all levels. Stairstep-ping duties and authority should not short circuit liability if it can otherwise be established.

        .Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), cited with approval in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

      . Collom v. City of St. Petersburg, 400 So.2d 507 (Fla.2d DCA 1981).

      . Mathews v. City of St. Petersburg, 400 So.2d 841 (Fla.2d DCA 1981).


text:
    WEBB GENERAL CONTRACTING, INC., a Florida corporation, and Fidelity and Deposit Company of Maryland, Appellants, v. BENSON ELECTRIC, INC., a Florida corporation, Appellee.
    No. 80-2372.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Rehearing Denied Nov. 4, 1981.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and John R. Kelso, Miami, for appellants.
    Kavanaugh & Leiby and Larry R. Leiby, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Bradford Builders, Inc. v. Department of Water and Sewers of the City of Miami, 142 So.2d 137 (Fla.3d DCA 1962).


author: NESBITT, Judge. SCHWARTZ, Judge

text:
    RUDY’S GLASS CONSTRUCTION COMPANY and Rodolfo Villanueva, Appellants, v. E. F. JOHNSON COMPANY, Appellee.
    No. 80-1119.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Rehearing Denied Nov. 4, 1981.

      Morales, Rudolph & Hevia and Nestor Morales, Miami, for appellants.
    Heitner & Rosenfeld and Allan Stein and Mindy Rodney, North Miami Beach, for ap-pellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The issue presented by this appeal is whether a disclaimer of warranty was conspicuous as defined by Section 671.201(10), Florida Statutes (1979) and therefore effective under Section 672.316, Florida Statutes (1979) to exclude or modify an implied warranty of fitness. We find that the disclaimer is conspicuous.

The pertinent provisions of Section 672.-316, supra, provide:

672.316 Exclusion or modification of warranties.—
(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”
(3) Notwithstanding subsection (2):
(a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is,” “with all faults” or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty;

“Conspicuous” is defined in Section 671.-201(10), supra, as follows:

(10) A term or clause is “conspicuous” when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NON-NEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is conspicuous if it is in larger or other contrasting type or color. But in a telegram any stated term is conspicuous. Whether a term or .clause is conspicuous or not is for decision by the court.

The contract in question is comprised of a single sheet of paper printed on both sides. The front side contained blank spaces on which the name of the parties, the quantity, model number and the price of the goods were filled in. The bottom of the front side of the contract stated in bold type “The Terms and Conditions are to be found on the reverse hereof and constitute a part of this contract.” The reverse side is headed, “TERMS AND CONDITIONS” and contains eleven separately numbered and titled paragraphs.

The last paragraph is titled, “Disclaimer of Warranties” and within it is the following disclaimer:

LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS.

It is clear that the words employed in the disclaimer are sufficient, to preclude express or implied warranties. Rehurek v. Chrysler Credit Corporation, 262 So.2d 452 (Fla. 2d DCA), cert. denied, 267 So.2d 833 (Fla.1972). The only question is whether the manner of communicating this disclaimer makes it conspicuous as required by Section 672.316, supra, and defined by Section 671.201(10), supra.

A variety of cases have discussed what constitutes a conspicuous disclaimer. A provision on the reverse side of a disclaimer is not per se inconspicuous. The court in Childers & Venters, Inc. v. Sowards, 460 S.W.2d 343 (Ky.1970) stated:

In their process of arriving at an appropriate definition of the word “conspicuous” we feel sure that the drafters of the Uniform Commercial Code were not unmindful that commercial institutions customarily use both sides of the paper in printing form contracts that cannot be conveniently compressed into one page. It would have been easy tó say, if they had so intended, that in order for language in a contract to be “conspicuous” it must appear on the front sheet or on the same sheet as the signatures. In the absence of such a provision we cannot reasonably construe it so.

Consequently, an examination of the circumstances of each particular case is necessary in order to determine whether a reverse side disclaimer is conspicuous.

Where there is nothing on the face of the writing to call attention to the back of the instrument, it is likely that the disclaimer is inconspicuous. See, e. g., Massey-Ferguson, Inc. v. Utley, 439 S.W.2d 57 (Ky.1969); Hunt v. Perkins Machinery Co., 352 Mass. 535, 226 N.E.2d 228 (1967). However, several courts have recognized that an otherwise conspicuous disclaimer located on the reverse side of a contract is not rendered inconspicuous if the front of the document contains a noticeable reference to terms or conditions which are located on the reverse side. See, Childers & Venters, Inc. v. Sowards, supra; Todd Equipment Leasing Co. v. Milligan, 395 A.2d 818 (Me.1978); Houck v. DeBonis, 38 Md.App. 85, 379 A.2d 765 (1977).

On the front of the contract immediately below the signature, was a reference to the terms and conditions of the contract contained on the reverse side of the document. This provided the purchaser/lessee with adequate notice that he was agreeing to other provisions which were on the back of the contract.

As indicated by the definition contained in 671.201(10), Florida Statutes (1979), lan guage in the body of a form is conspicuous if it is in larger or contrasting type or color. There must be more than a slight contrast against the balance of the instrument. Dorman v. International Harvester Co., 46 Cal.App.3d 11, 120 Cal.Rptr. 516 (1975). Here, the disclaimer appeared in all capital letters and was the only writing in capitals on the page. The disclaimer was set forth in a separate paragraph titled, “Disclaimer of Warranties.” Under similar facts, courts have found a disclaimer to be conspicuous. See, e. g., Billings v. Joseph Harris Company, Inc., 27 N.C.App. 689, 220 S.E.2d 361 (1975), aff’d, 290 N.C. 502, 226 S.E.2d 321 (1976); Collins Radio Co. of Dallas v. Bell, 623 P.2d 1039 (Okl.App.1980). The reference on the front of the document to terms and conditions stated on the back, when coupled with the separate paragraph titled, “Disclaimer of Warranties,” and the contrasting type, clearly causes this disclaimer to fall within the requirements of 672.316, supra.

For the foregoing reasons, the decision of the trial court is affirmed.

SCHWARTZ, Judge

(dissenting).

The appellee undoubtedly breached an implied warranty that the radio equipment it supplied the appellants was fit for the purpose intended. The trial judge presumably held, however, that the warranty was effectively excluded by a written disclaimer. The court agrees with this conclusion. I cannot.

Under Section 672.316, Fla.Stat. (1979), “to exclude or modify any implied warranty of fitness the exclusion must be . . . conspicuous.” See, Xerographic Supplies Corp. v. Hertz Commercial Leasing Corp., 386 So.2d 299 (Fla. 3d DCA 1980). The disclaimer involved here is on the reverse side of the two-page agreement between the parties, is contained among a mass of other provisions, and, most important, is in letters of which “fine print” is a highly understated description. It is true both that the exclusion is in all capital letters, as opposed to the even-tinier lower case printing which surrounds it, and that the definition of “conspicuous” in Sec. 671.201(10) includes the statement that “[ljanguage in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color.” But the provision states in its entirety:

(10) A term or clause is “conspicuous” when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NON — NEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color. But in a telegram any stated term is conspicuous. Whether a term or clause is conspicuous or not is for decision by the court, [e. s.]

Since the subsection specifically provides only that “all caps” in a heading are conspicuous, it seems clear by negative implication that capitals of the same size and color placed, as here, in the body, are not.

Moreover, as the Uniform Commercial Code comment to the definition states at 19A Fla.Stat.Ann. 62 (1966):

10. ‘Conspicuous’. New. This is intended to indicate some of the methods of making a term attention-calling. But the test is whether attention can reasonably be expected to be called to it. [e. s.]

Since, under all the circumstances which have been described, attention could not reasonably be expected to be called to the alleged exclusion, I would hold it inconspicuous as a matter of law. Williams v. College Dodge, Inc., 11 U.C.C.R.S. 958 (Mich. Dist.Ct.1972); Salov v. Don Allen Chevrolet Co., 55 Pa.D. & C.2d 180 (C.P. Allegheny County 1971); Sarnecki v. Al Johns Pontiac, 56 Luzerne Reg. 293 (C.P. Luzerne County 1971); see also, Dorman v. International Harvester Co., 46 Cal.App.3d 11, 120 Cal. Rptr. 516 (1975); Hunt v. Perkins Machinery Co., 352 Mass. 535, 226 N.E.2d 228 (1967); see, generally, Annot., Implied Warranty Disclaimer as “Conspicuous,” 73 A.L.R.3d 248 (1976). I do not believe that microscopic printing becomes conspicuous merely because it is placed next to submicroscopic printing, unless the consumer happens to have a microscope. Since the appellants did not, I would reverse.

      . The contract designates the parties as “Lessor” and “Lessee” and speaks of “Equipment and service being leased.” We note, however, that the contract has a “$100 buy out purchase option” and is in reality a financing device to pay for the equipment over a 5 year period. Additionally, a number of courts have recognized that the warranty provisions of the U.C.C. are applicable to transactions involving chattel leases. See, Xerographic Supplies Corporation v. Hertz Commercial Leasing Corporation, 386 So.2d 299 (Fla. 3d DCA 1980); Annot., Application of Warranty Provisions of Uniform Commercial Code to Bailments, 48 A.L.R.3d 668 (1973).

      . The lease has been reproduced in full in the accompanying appendix.