author: RYDER, Chief Judge.

text:
    In re ESTATE OF Sylvia M. ROBINS, Deceased. James CLARK, Personal Representative, Appellant, v. Rose ECKERT, Appellee.
    No. 83-2426.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1984.
    Raymond L. Bass, Jr. of Jones & Zelman, P.A., Naples, for appellant.
    Robert M. Buckel of McDonnell, Buckel & Berry, Naples, for appellee.
   RYDER, Chief Judge.

The personal representative for the estate of Sylvia M. Robins appeals an order requiring him to pay a claim on the estate and the denial of his motion for rehearing. We affirm.

On November 9, 1982, the court ordered the will of Sylvia Robins admitted to probate. The personal representative filed the notice of administration on November 29, 1982.

On January 27, 1983, Rose Eckert, a beneficiary under the will, filed a timely statement of claim. The claim alleged that she held a promissory note for $20,000.00 plus interest signed by the deceased, which was owed to her at the time of Sylvia Robins’ death.

Eckert met with the estate’s personal representative and his attorney on February 10, 1983 to discuss the disposition of the deceased’s personal effects. At that time, the parties for the estate informed her that there was an objection to her claim. During that same meeting, the parties came to an understanding regarding the disposition of the personal property and Eckert’s claim against the estate but no true agreement was ever reached.

On March 7, 1983, the personal representative formally filed his objection to Ec-kert’s claim with the court. The personal representative’s attorney certified on the objection that five days before filing he had sent a copy of the objection to Eckert by U.S. mail, using the address listed on her claim. That address was incorrect. Eckert later testified that she never received the objection, and that she first learned it had been filed at the end of March when she visited the probate office to look at the file.

Eckert filed a separate lawsuit on the disputed claim. She also petitioned the court to order the personal representative to pay the claim on the ground that she had not been served with the objection by certified or registered mail within ten days of filing as required by section 733.705(2), Florida Statutes (1981).

After a hearing on Eckert’s petition, the court ordered the personal representative to pay Eckert’s claim as soon as reasonably possible.

The personal representative filed a motion for rehearing, which the court granted after Eckert’s counsel failed to appear at the hearing on the motion. However, on Eckert’s motion, the court later set aside the order granting rehearing.

The appellant argues that the court should not strictly construe section 733.-705(2) and that the appellee received sufficient “notice” of the objection to her claim and did not claim any hardship or prejudice.

The pertinent portion of section 733.-705(2) reads:

If an objection is filed, the person filing it shall serve a copy of the objection by registered or certified mail to the address of the claimant as shown on the claim or delivery to the claimant to whose claim he objects or the claimant’s attorney of record, if any, not later than 10 days after it has been filed, and also on the personal representative if the objection is filed by any interested person other than the personal representative.

The appellant argues he mailed a copy of the objection to the appellee five days before he filed it in the court, as attested to on the certificate of service. He further argues that although the copy was mailed to an incorrect address and the appellee claimed to have never received it, she nevertheless knew of the objection and, therefore, had “notice” that an objection to her claim had been filed.

The language of the statute is clear. To fulfill the requirements for filing an objection to a claim under section 733.-705(2), “the person filing it shall serve a copy of the objection by registered or certified mail ... or delivery to the claimant ... or the claimant’s attorney of record.” (Emphasis added) The appellant neither served nor delivered a copy of the objection to the appellee within the meaning of the statute.

The appellant urges us to rely upon In re Estate of Brugh, 306 So.2d 599 (Fla. 2d DCA 1975), in which the court held that an objection sent by regular mail to the claimant’s attorney was sufficient notice despite noncompliance with the statute. Brugh is distinguishable from the case before us. In Brugh, the court was considering the sufficiency of service of an objection under section 733.18(2). That statute was the predecessor statute of section 733.705(2) and did not provide that service of an objection could be upon the claimant’s attorney. The court held that notice to the attorney, who is the agent for the claimant, was sufficient to fulfill the statute’s service upon the claimant requirement. The court noted that the objection had been timely filed and actually received and acknowledged by the claimant’s attorney.

In the case before us, the personal representative filed the objection in a timely manner, but failed to serve the claimant within ten days of filing as required by statute. Furthermore, the appellee testified that she never received the objection. We recognize that the time limitations operate as rules of judicial procedure rather than as statutes of nonclaim. In re Estate of Oxford, 372 So.2d 1129, 1132 (Fla. 2d DCA 1979), certdenied, 383 So.2d 1200 (Fla.1980). However, these rules are designed to foster an orderly and expeditious administration of estates and it is within the sound discretion of the probate judge whether to relax the time limitations. Id. at 1132 (citing In re Estate of Sale, 227 So.2d 199, 201 (Fla.1969)). In this case, the judge chose not to do so and we agree with his judgment. There is no competent, substantial evidence that the objection was ever served upon the appellee.

The indirect form of “notice” which the appellee received in this case was not sufficient to fulfill the requirements of the statute, nor does this manner of notice contribute to the orderly and expeditious administration of estates.

Affirmed.

SCHOONOVER and LEHAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Daniel HESELTON, Appellant, v. STATE of Florida, Appellee.
    No. 84-902.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1984.
    Jerry Hill, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant Daniel Heselton appeals an order placing him on probation for dealing in stolen property. In a motion to dismiss, he alleged that the property taken in a previous robbery was the same property involved in the dealing in stolen property charge. The trial court denied the defendant’s motion to dismiss. The defendant then pled nolo contendere, reserving the right to appeal the denial of his motion. The trial court withheld adjudication and placed Heselton on probation for three years.

On appeal defense counsel asked permission to withdraw pursuant to An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967). Defense counsel pointed out that the First District Court of Appeal has held that a defendant can be convicted of both robbery and dealing in stolen property even where the same property is involved in both charges. See Coley v. State, 391 So.2d 725 (Fla. 1st DCA 1980). We agree. Consequently, the trial court did not err in denying defendant’s motion to dismiss.

We affirm the defendant’s conviction and sentence.

SCHEB, A.C.J., CAMPBELL, J., and DENNIS P. MALONEY, Associate Judge, concur.


text:
    Goldwire ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-318.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Rehearing Denied March 5, 1985.
    Bennett H. Brummer, Public Defender and William A. Meadows, Jr., Mark Hektner and George T. Pallas, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The defendant Goldwire Anderson appeals his convictions and sentences entered below after a jury trial for the crimes of first degree murder and two counts of robbery. We have carefully reviewed the record and briefs in this case and find that no reversible error was committed below. We accordingly affirm.

The defendant raised five points on appeal in his initial brief, but abandoned one of these points at oral argument. His remaining points on appeal are as follows: (1) the trial court erred in denying the defendant’s motion to suppress a lineup identification and certain incriminating statements made by the defendant to the police; (2) the trial court erred in denying the defendant’s motion to challenge for cause two prospective jurors who were allegedly prejudiced; (3) the trial court erred in denying the defendant’s motion to challenge for cause a prospective juror who was allegedly prejudiced due to her views on capital punishment; and (4) the trial court erred in imposing a sentence on one of the robbery counts.

As to the first point, the basis of the defendant’s motion to suppress was that the police unlawfully arrested him, thereby tainting (a) his subsequent lineup identification by a witness, and (b) his subsequent incriminating statements which he made to the police. We disagree. The defendant was arrested pursuant to an arrest warrant supported by an affidavit which, in our view, stated ample probable cause for the defendant’s arrest. Consequently, no error was committed in denying the motion to suppress. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

As to the second and third points, we have examined the record and find that no reversible error was committed below. The trial court properly denied the defendant’s motion to challenge for cause the prospective jurors Ms. Zaldivar and Ms. Scherba; these jurors were subsequently challenged peremptorily by the defense and did not serve on the jury. No showing was made during the voir dire that these jurors could not be fair and impartial to the defendant. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Moore v. State, 299 So.2d 119 (Fla. 3d DCA 1974); Gavin v. State, 259 So.2d 544 (Fla. 3d DCA), cert, denied, 265 So.2d 370 (Fla. 1972); see United States v. Jimenez-Diaz, 659 F.2d 562 (5th Cir.1981), cert. den. sub nom., Salazar v. United States, 456 U.S. 907, 102 S.Ct. 1754, 72 L.Ed.2d 164 (1982).

Although we agree that the trial court erroneously denied the defendant’s motion to challenge for cause the prospective juror Mr. Carmichael, Leon v. State, 396 So.2d 203 (Fla. 3d DCA), pet. for review denied, 407 So.2d 1106 (Fla.1981), no reversible error is made to appear because (1) the defendant exercised a peremptory challenge on this juror and consequently the juror did not sit on this case as did the challenged juror in Leon v. State, supra, and (2) the defendant exhausted his peremptory challenges, but made no showing below, as required by Young v. State, 85 Fla. 348, 354, 96 So. 381, 383 (1923), “that the jury finally impanelled contained at least one juror objectionable to the defendant, who sought to excuse him [the juror] peremptorily but the challenge was overruled.” Stated differently, the defendant has failed to demonstrate that “he was prejudiced by being required to accept an objectionable juror because of the denial of the challenge for cause ... [which] he is required to do in order to show reversible error.” Rollins v. State, 148 So.2d 274, 276 (Fla.1963).

Indeed, under circumstances identical to those in the instant case, where the defendant exhausted his peremptory challenges but did not attempt to exercise and was never denied a peremptory challenge on a single member of the jury who actually served on the case, the Florida Supreme Court has held that the erroneous denial of a challenge for cause on a prospective juror who, in fact, did not serve on the jury, as here, cannot constitute reversible error. Rollins v. State, supra; Young v. State, supra; McRae v. State, 62 Fla. 74, 57 So. 348 (1911). The theory behind these cases is that a defendant has in no way been harmed by such a ruling where he makes no complaint below about, and in no way seeks to strike, any juror who actually served on his case. We are constrained to follow these controlling decisions and find no reversible error as to this point on appeal. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

Finally, we see no merit in the defendant’s final point on appeal. The defendant here attacks the sentence imposed for his conviction on count III of the information charging the defendant with the robbery of Aleli Puig. It is alleged that this robbery was the underlying felony on count I of the information charging the defendant with the murder of Fernando Puig and, therefore, was a lesser included offense thereunder. We disagree. The underlying felony, if any, under count I of the information was the robbery of Fernando Puig himself; consequently, the conviction and sentence imposed for the robbery of Aleli Puig was perfectly proper. See State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

Affirmed.


author: ZEHMER, Judge. ZEHMER, Judge.

text:
    VILLAGE SALOON, INC., d/b/a Village Saloon, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, Appellee. P.S.R. INVESTMENTS, INC., d/b/a Scottish Inn, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, Appellee.
    Nos. AY-335, AY-336.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1984.
    Rehearing Denied Jan. 29, 1985.

      Larry Smith and Daniel 0. Palmer of Smith & Palmer, Orange Park, for appellants.
    Thomas A. Klein, Staff Atty., Dept, of Business Regulation, Tallahassee, for ap-pellee.
   ZEHMER, Judge.

Each of the appellants holds an alcoholic beverages license issued under chapter 561, Florida Statutes, and operates a lounge in the town of Orange Park, Florida. They appeal final orders of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, assessing them with a civil penalty for selling alcoholic beverages after the legal hours of sale permitted by section 562.14, Florida Statutes. The two cases involve identical legal issues; therefore, we have consolidated them for purposes of disposition.

The factual circumstances giving rise to the administrative charges filed against appellants, as best we can discern from the informal, yet obviously inadequate record, are as follows. For many years, a state statute has regulated the hours of sale of alcoholic beverages “except as otherwise provided by county or municipal ordinance.” § 562.14(1), Fla.Stat. At least since 1968, ordinances of the town of Orange Park have regulated such hours of sale within its municipal limits pursuant to that exception and section 562.45(2), Florida Statutes. The ordinance adopted in 1968 prohibited the sale of alcoholic beverages between the hours of 2 a.m. each Sunday and 7 a.m. the following Monday, and between 2 a.m. and 7 a.m. on all other days of the week, with certain exceptions not pertinent here. From time to time, the ordinances were amended for reasons not material to this dispute; however, at all times until 1981 the prohibited hours of sale remained as described above, and at no time did the town look to the state statute to regulate hours of sale.

In 1981, Orange Park adopted ordinance 18-81, which amended the prior ordinance as follows by adding the underscored words and deleting the stricken words: Section 1. Code of Ordinances. Section 4-3 of the Code of Ordinances is amended to read as follows:

(a) No person shall sell, serve, cause or permit the selling, serving, drinking or consuming of any spiritous or intoxicating beverage including malt liquors, wines or beer, at or on the premises of any public place of business including stores, bars and restaurants or by such places or persons holding a license for the sale of the same, between the hours of 2:00 a.m. and -7:00 a.m.-on-each day of the week and between the-hours of 2:00 arxcy 1:00 p.m. on Sunday and between the hours of 11:00 p.m. on Sunday and 7:00 a.m. on the following Monday, except as otherwise provided in this section.

This amendment, read literally, prohibited alcoholic beverage sales only between 2 a.m. and 1 p.m. on Sunday and between 11 p.m. Sunday and 7 a.m. on the following Monday, and eliminated the prohibition on sales during week days between 2 a.m. and 7 a.m. Nevertheless, vendors of alcoholic beverages in Orange Park, including the appellants, continued to close their sales at 2 a.m. as in the past, and this practice apparently continued without objection or dispute until Friday, September 3, 1983. On that day, the city manager apparently learned that the ordinance, as amended in 1981, no longer prohibited sales after 2 a.m. on weekdays, so he held a press conference and issued a memorandum to all businesses serving alcoholic beverages in the town which stated:

TO: All Businesses Within The Town Limits of Orange Park Where Alcoholic Beverages Are Sold, Consumed, Served or Permitted To Be Served or Consumed Under A Permit Issued By The Division of Alcoholic Beverages and Tobacco.
FROM: .Town of Orange Park This is to advise you that no alcoholic beverages may be sold, consumed, served, or permitted to be served or consumed between the hours of midnight and 7:00 A.M. the following day, Monday thru (sic) Friday pursuant to Section 562.14, Florida Statutes. The Police Department of Orange Park has been instructed to enforce this statute beginning midnight, September 2, 1983. If necessary the State Division of Alcoholic Beverages and Tobacco will assist in the enforcement.
Further, pursuant to Section 4-3 of the Orange Park Code of Ordinances any person is prohibited from selling, serving, causing or permitting the selling, serving, drinking or consuming of any alcoholic beverages between the hours of 2:00 A.M. and 1:00 P.M. on Sunday and between the hours of 11:00 P.M. on Sunday and 7:00 A.M. on Monday.

Appellants received copies of this memorandum on September 3. They were warned several times by officers of the town police department not to sell alcoholic beverages after midnight that Friday. Appellants took the position that the hours of sale in Orange Park were regulated by the ordinance, not by the statute, and continued to sell alcoholic beverages after midnight. As a result, they were arrested and charged with violating section 562.14(1), Florida Statutes, a misdemeanor.

The following Monday, September 6, 1983, the town council met and duly adopted an emergency ordinance “amending section 4-3(a) ... to correct a scrivener’s error created by ordinance no. 18-81” so as to again prohibit sales between 2 a.m. and 7 a.m. on weekdays, declaring:

[An] emergency exists with regard to an error contained in previously adopted legislation of ordinance 18-81 resulting in some confusion in the town and inordinate law enforcement in the community to the potential risk of police officers and members of the town.

On October 4, 1983, the town council duly passed an ordinance making this emergency amendment permanent. Consequently, only on a single Friday night, September 3, 1983, did the town manager and town police attempt to enforce prohibited hours of sale in accordance with section 562.14(1). At all other times, such sales were deemed regulated by ordinance.

The Division filed charges against each appellant pursuant to section 561.29, Florida Statutes, alleging that on September 3, 1983, appellants sold alcoholic beverages after 12 midnight, contrary to section 562.-14, Florida Statutes. A notice to show cause was issued on October 24, 1983, advising appellants that “an informal conference regarding these charges has been scheduled at 10:30 a.m. on the 16th day of November, 1983 ... to determine if you desire a full and formal administrative hearing or if you wish to stipulate to the charges.” The notice also advised each appellant of the right to a formal hearing in accordance with section 120.57, Florida Statutes, and that if appellants wished such a hearing they should file a written request containing the following information: (1) The name and address of the party making the request, (2) a statement that the party is making a request for a formal hearing, (3) a reference to the notice to show cause that the party had received. Finally, the notice advised that if a request for hearing was not received within twenty-one (21) days after the scheduled date for the informal conference, “a final order will be entered against you,” which could result in the suspension or revocation of the appellant’s beverage license or imposition of a civil penalty. By letter dated October 27, 1983, appellants responded through their attorneys. They acknowledged receipt of the notice to show cause and confirmed a telephone conversation of that date in which counsel for the Division and counsel for appellants agreed to delay the informal conference until after the County Court for Clay County ruled on a motion to dismiss the pending criminal charges against appellants arising out of the same alleged illegal sale of alcoholic beverages.

By order of October 28, 1983, the county court dismissed the criminal charges against appellants on the grounds that in view of the exception stated in section 562.-14(1), the hours of sale prescribed by the statute were not applicable to appellants because there was in effect on September 3 a town ordinance which regulated the hours of sale within the town. The state attorney apparently declined to appeal this ruling. Appellants’ counsel advised the Division of this ruling, but the Division took the position that the outcome of the criminal matter had no bearing whatsoever on the administrative charges pending with the Division. The Division notified appellants that a preliminary hearing was reset for November 16, 1983, in Jacksonville and again advised that appellants had the right to a formal hearing.

Though the record is silent on the matter, it was represented during oral argument that a preliminary hearing was held as scheduled on November 16, without achieving any satisfactory resolution of the charges. As a result, appellants’ counsel made written request for a formal hearing pursuant to section 120.57(1), Florida Statutes. The request contained all the information required by the Division’s notice to show cause. The Division acknowledged receipt of this request and stated, “You will be granted a hearing and notified later of the exact date, time and place of the hearing.” Under date pf December 13, the general counsel for the Department of Business Regulation wrote appellants’ attorneys:

It does not appear from the correspondence accompanying the Notice to Show Cause that any disputed issue of material fact exists, i.e., it is not contested that the alcoholic beverages were sold as charged. Instead, the matter appears to center on the legal issue of the validity of enforcing the statutory closing hours.

Accordingly, the general counsel stated that the Division would set the matter for an informal hearing pursuant to section 120.57(2), Florida Statutes, unless “on or before December 27, 1983, a detailed statement of the disputed issues of material fact is submitted by you.” The record is silent as to why the December 27 hearing was not held as noticed.

The next item of information in the record is a letter of January 13, 1984, from appellants’ counsel to the general counsel of the Department acknowledging the general counsel’s December 13 letter and stating that while appellants did not contest that alcoholic beverages were served on September 3, 1983, at the hour alleged, appellants believed it was legal to sell alcoholic beverages during such time under the town ordinance in effect on September 3, 1983. The letter enclosed a copy of the county court’s opinion and order dismissing the criminal charges. The letter also stated appellants’ position that the administrative charges pending against them should be dismissed in view of the county court’s ruling that the closing hours specified in section 562.14 were not applicable, and concluded that if the Department did not agree, appellants were again requesting a hearing pursuant to section 120.57, Florida Statutes, “for the purpose of providing you with further written and oral evidence.”

No formal or informal hearing under section 120.57 was ever held. Instead, on March 14, 1984, the Division filed its final orders finding that appellants had violated section 562.14(1), Florida Statutes, and imposing a civil penalty of $250 each. Appellants filed a motion for stay, a motion for rehearing, and exceptions to the final order. The record contains no disposition of these pleadings by the Division, and on April 4, 1984, appellants filed their notice of appeal. Appellants directed the clerk to include in the record on appeal, in addition to the documents reviewed above:

... any and all information, evidence, memoranda, or any item submitted to and/or considered by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco ... whether or not such was determinative of the issuance of the final order entered by the Director of the Division of Alcoholic Beverages and Tobacco on March 13, 1984. If any of such information, evidence, memoranda, or other items consisted of oral, as opposed to written information, evidence, memoranda, or other items, the name and address of those supplying such information, evidence, memoranda, or other items.

Pursuant to this direction, the clerk of the Division added as an “appendix” to the record a document entitled “Case Report,” which contained the investigating officer’s narrative report of certain facts said to support the charge. Counsel for appellants deny ever seeing this document until they received the appellate record. No other evidence is included in the record.

On this appeal, appellants contend (1) that they have violated no law regarding the sale of alcoholic beverages which would support the civil penalty imposed; (2) that the entry of the final order without granting appellants a hearing at which they could present further written and oral evidence, as requested in writing, violates appellants’ rights under the federal and Florida constitutions, as well as chapter 120, Florida Statutes, and (3) that the final order is not supported by competent substantial evidence. We agree with appellants on all three points.

Had the foregoing facts been properly proven at the requested section 120.57 hearing, it would have been perfectly clear that the town of Orange Park, under the exception in section 562.14(1), has been regulating the hours of alcoholic beverage sales for many years and was doing so on September 3, 1983. At no time had the town repealed its regulatory ordinance and relied on the hours of sale in section 562.-14(1). The city manager had no authority to unilaterally take the action he did on September’ 3 as a result of his discovery that the ordinance permitted sales all night long on week days. No one disputes that the adoption, amendment, or classification of ordinances was a matter residing solely within the authority of the town council. Exercising that authority, the council met on September 6 and adopted an emergency ordinance which clarified a scrivener’s error in drafting ordinance 18-81 and amended the ordinance to conform the weekday hours of sale to those contained in the prior ordinance. Throughout this entire period, regulated licensees in Orange Park continued to honor the hours in the old ordinance. The council’s clarifying amendment cannot be ignored in determining whether the town had been regulating all hours of sales by ordinance rather than deferring to the state statute for that purpose.

Although not urged by the parties, a good argument could be made that this clarifying amendment should be given retroactive effect, at least to the extent that enforcement impairs no vested rights and does not penalize a licensee ex post facto. 82 C.J.S., Statutes, §§ 419, 431; Cf Ral-ston Purina Co. v. Byers, 457 So.2d 1138 (Fla. 1st DCA, 1984); Sasso v. Ram Property Management, 431 So.2d 204, 217-18 (Fla. 1st DCA 1983), affd 452 So.2d 932 (Fla.1984). But we need not decide this point because it is perfectly evident that the town had continuously preempted the operation of section 562.14(1) through its own ordinances for many years before and after September 3, 1983.

The Division primarily argues that its disciplinary order should be sustained because the town council intended that section 562.14(1) govern the hours of sale on weekdays, as announced by the city manager, and that the city “impliedly adopted” the statute as part of the ordinance even though the ordinance makes no reference to the statute. The record, however, contains no competent substantial evidence to support such a finding. On the contrary, the town council’s actions on September 6 belie any implied adoption of the statute for regulating hours of sale, as does the uncontested fact that licensees continued to close at 2 p.m. on weekdays after the adoption of ordinance 18-81 and town authorities never sought to otherwise enforce the statute. The Division cites no pertinent authority, and we know of none, which supports its argument that as a matter of law the agency and this court must conclude the town impliedly adopted the statute. At best, the question of the town council’s intention and “implied adoption” of the statute involved disputed issues of law and fact. The division, bearing the burden of proving that appellants should be disciplined, should have offered some proof of the factual circumstances relied on to support this theory. It simply did not do so.

Furthermore, it was clear error for the Division to refuse a section 120.57(1) formal hearing after appellants’ repeated requests to have one for the expressed purpose of affording them an opportunity to present evidence. Since the Division’s theory in this case required the presentation of competent evidence on its part to justify application of section 562.14(1) to appellants, the Division could not legally avoid such a hearing based on appellants’ honest admission that they sold alcoholic beverages after 12 midnight on September 3. The right to a formal hearing in this administrative disciplinary matter did not wholly depend upon appellants’ demonstration that they had evidence of disputed facts to present. Appellants’ denial of the charges raised sufficient issues of law and fact to require an evidentiary hearing at which the Division, and then appellants, could present evidence in support of their respective positions.

It is not our province to pass judgment on the wisdom of the Division’s persistence in prosecuting these charges against appellants under the circumstances described. We do have obvious difficulty, however, in comprehending a rational basis for prosecuting these charges of after-hour sales on the single night an official of Orange Park improperly insisted on early closure contrary to the city ordinance then in effect and contrary to the town’s practice of many years’ standing. A remand for the evidentiary hearing which was requested but never held would not save the Division’s invalid orders in this case. We conclude that the time has come for administrative and judicial labor in this case to end.

The appealed orders are reversed and vacated with directions to dismiss the charges against appellants.

ERVIN, C.J., and MILLS, J., concur.

ON MOTION FOR REHEARING

ZEHMER, Judge.

The Division of Alcoholic Beverages and Tobacco has filed a motion for rehearing contending that we have overlooked or miscomprehended the law and the facts in several particulars in reaching our decision. Two points raised in the motion for rehearing merit some discussion.

Primarily, the Division challenges our conclusion that appellants were entitled to a section 120.57(1) formal hearing, which was not afforded by the Division. The Division acknowledges that appellants initially requested a formal hearing. The Division refers to certain correspondence in the record indicating that appellants agreed to forego the formal hearing and submit the matter for decision pursuant to section 120.57(2) because it appeared that the principal disputed issue was one of law, i.e., whether the failure of the town’s ordinance to regulate hours of sale during the week caused the state statute to be applicable on week days. Accordingly, the Division draws our attention to correspondence and related telephone conversations in which appellants’ attorneys agreed to have the Division decide this question on the basis of the documents and information informally submitted to the Division. The Division states that is exactly what it did. Therefore, the Division contends that our opinion incorrectly criticizes it for not affording appellants a section 120.57(1) formal hearing because, in view of appellants’ agreement to proceed under section 120.57(2), “neither F.S. 120.57 nor Rules 28-5.01 and 28-5.02, F.A.C., mandate that a ‘face to face’ hearing be held but instead clearly contemplate that the informal proceeding may be effectuated pursuant to written submissions.”

Our decision that the Division erred in not affording appellants a section 120.57(1) formal hearing was predicated primarily upon our conclusion, based on arguments presented on appeal, that there remained disputed questions of fact, as well as law, between the parties. We did not, however, expressly discuss the impact of appellants’ agreement to proceed informally under section 120.57(2) informal proceedings.

Since the record unquestionably supports the Division’s contention that appellants agreed to forego a formal hearing and proceed informally under section 120.57(2), to this extent the Division was authorized to consider the matter on an informal basis. However, the portions of the record referred to by the Division also show that appellants always insisted that if, upon considering the material submitted with appellants’ correspondence, the Division remained convinced that appellants had violated the law, then appellants still wanted “a hearing” at which they could present additional evidence and argument. Thus, even though the Division was authorized by agreement to proceed informally under section 120.57(2), its contention that informal proceedings under that section did not require that appellants be given a “face to face hearing” is erroneous for the following reasons.

Fundamental to due process is the right to a fair hearing. The provisions of section 120.57 implement that right through the mechanism of formal proceedings or informal proceedings. Section 120.-57(1) governs formal proceedings and necessarily requires the holding of a hearing. Informal proceedings under section 120.-57(2), on the other hand, may proceed with or without a hearing. When the parties agree to proceed informally without a hearing, the agency decision may be based on informal submissions which are made part of the record. On the other hand, if a party qualifies the agreement to proceed informally by requesting a hearing at which to adduce additional evidence and argument, the Division is not at liberty to deny that party a hearing and proceed to decision on the basis of the informal submissions. While a party has the absolute right to a formal hearing under section 120.57(1) when material facts are in dispute, the absence of disputed issues of material fact, which authorizes informal proceedings under section 120.57(2), does not, ipso facto, eliminate the right to a hearing. Hearings, whether conducted under section 120.57(1) or (2), provide the essential mechanism whereby parties confront each other at a common time and situs and present evidence, legal authority, and argument in support of their respective positions. Hearings afford the parties an opportunity to review the information of record to be relied on by the agency and to rebut the opponent’s contentions. Hearings facilitate the preparation of a complete and adequate record containing information and evidence presented by the parties and, more importantly, relied on by the agency to support its decision. When material facts are not in dispute, an agency is not required to grant a formal proceeding, even though requested by the party, and is free to insist that the matter be handled by informal proceeding. If, however, during the progress of a section 120.57(2) informal proceeding, it becomes apparent that material facts are in dispute, a formal hearing may be convened, and evidence adduced during the informal hearing may be made part of the record in the formal proceeding. E.M. Watkins’ Co. v. Board of Regents, 414 So.2d 583 (Fla. 1st DCA 1982). See also United Telephone Co. of Florida v. Mann, 403 So.2d 962, 967, n. 5 (Fla. 1981).

In the instant cases, the Division did not afford appellants an informal hearing and did not fully inform appellants of all information being used by the agency in reaching its decision, as is pointed out in our opinion. Material facts concerning the circumstances of the enactment of the ordinances involved by the town of Orange Park were highly relevant to the ultimate issue before the agency, but remained in dispute. Had an informal face-to-face hearing been conducted, there is substantial probability that those disputes could have been identified and resolved on an informal basis and, in the absence of such resolution, the matter would have to proceed by way of a formal hearing on disputed facts. Since these material disputes were not identified and resolved before final decision by the Division, we held that a hearing was required.

The Division has also supplemented the record with copies of orders timely disposing of appellants’ respective motions for stay, rehearing, and exceptions to the final order, with the explanation that appellants’ directions for preparing the record, as construed by the Division, did not require that these orders be included in the record on appeal. In view of this additional information, we delete the statement in our opinion on page 7 that “the record contains no disposition of these pleadings by the Division.”

With the foregoing clarification and correction of our opinion, the motion for rehearing is DENIED.

MILLS and ERVIN, JJ., concur.

      . Appellants have filed an appendix with their reply brief containing copies of various ordinances of the town of Orange Park, certified by the town clerk, which relate to prohibited hours of sale of alcoholic beverages within the town limits. Included are the ordinances referred to in the Division’s investigative report and final order. In developing this summary of the facts, we have considered these ordinances along with the other "evidence" appearing in the "Record” and "Appendix to the Record" without regard to its competency or lack thereof, a matter we deal with in greater detail infra. We have also considered statements made at oral argument that are not disputed by opposing counsel.

      . Section 562.14 provides:
      Regulating the time for sale of alcoholic and intoxicating beverages.
      (1) Except as otherwise provided by county or municipal ordinance, no alcoholic beverages may be sold, consumed, served, or permitted to be served or consumed in any place holding a license under the division between the hours of midnight and 7 a.m. of the following day. This section shall not apply to railroads selling only to passengers for consumption on railroad cars.
      (2) The division shall not be responsible for the enforcement of the hours of sale established by county or municipal ordinance.
      (3) Any person violating this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

      . Rule 28-5.501(3), Florida Administrative Code, implements section 120.57(2) informal proceedings and provides in part:

        If a hearing is held, the agency may:
      (a) Administer oaths and affirmations;
      (b) Rule upon offers of proof and receive relevant evidence;
      (c) Regulate the course of the hearing;
      (d) Enter any order to carry out the purposes of chapter 120, F.S.; and
      (e) Make or receive offers of settlement, stipulation, and adjustment.
      (emphasis added)


author:
PER CURIAM.
     GLICKSTEIN, Judge,

text:
    Marc A. COWAN and Harvey Rosa, individually, and Cowan, Rosa and Associates, D.D.S., P.A., Petitioners, v. PEOPLE of the State of Florida, ex rel., FLORIDA DENTAL ASSOCIATION, INC., et al., Respondents.
    No. 84-956.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.
    Rehearing Denied Feb. 27, 1985.
    On Motion for Clarification Feb. 27, 1985.

      George L. Waas of Slepin, Slepin, Lambert & Waas, Tallahassee, and Deborah J. Miller, Coral Gables, for petitioners.
    William B. Taylor, IV, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for respondents.
   PER CURIAM.

The order from which this appeal arises is an order (a) modifying a prior order of abatement and (b) granting a motion for limited discovery and requiring compliance with a request to produce. Neither part of the order is the proper subject of appeal under Florida Rule of Appellate Procedure 9.130, which governs review of non-final orders, since it does not concern venue, an injunction, personal jurisdiction, possession of property, domestic relations, or determination of liability. Appellants’ amended notice of appeal attempts to characterize the order as a final order; however, judicial labor not having ended, the order is not final. Nor does the first part of the order fall under 9.130(a)(3)(C)(i), as appellants suggest. If it can be said to relate to jurisdiction, it would be subject matter, not personal, jurisdiction. We must therefore treat the notice of appeal as to the initial part of the order as petition for a writ of certiorari under Florida Rule of Appellate Procedure 9.040 and Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980), pets, for rev. denied, 397 So.2d 779 (Fla.), cert, denied, 454 U.S. 815, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981). Moreover, orders on abatements are reviewable through petitions for writs of certiorari. See Sachlas v. Sachlas, 440 So.2d 1289 (Fla. 4th DCA 1983). As for the remainder of the order, such “cat out of the bag” discovery orders are generally reviewed by this court by certiorari. See Greyhound Lines, Inc. v. Jackson, 445 So.2d 1107 (Fla. 4th DCA 1984). The alleged facts are that appellants Cowan and Rosa, who apparently practice dentistry together in a professional association, received letters from the Department of Professional Regulation on November 10, 1983, advising them of a complaint that their professional association (the P.A.) was engaging in an illegal kickback or fee-splitting scheme, and inviting each dentist to respond. There is nothing in the record reflecting further proceedings by the Department.

Two months later, the Florida Dental Association (FDA), a non-profit organization, and its president filed a complaint in the circuit court against both dentists individually and the P.A., alleging nuisance under Section 823.05, Florida Statutes (1983). The complaint was that the P.A. was maintaining a business injurious to community health and in violation of the law and sought a temporary injunction preventing the activities, to be converted into a permanent injunction after a decision on the merits. When Cowan and Rosa moved to dismiss the action, the trial court treated the motion as one to abate and granted it until such time as the plaintiffs could demonstrate that the court should hear further proceedings. However, FDA filed a motion for limited discovery, which resulted in the appealed order modifying the earlier order to abate and authorizing discovery limited with regard to who could see the information so produced.

Appellants first claim that the circuit court has no jurisdiction over a complaint bottomed on allegations allegedly governed by the Administrative Procedure Act. Their contention would be accurate if FDA were suing on the basis of Chapter 466, Florida Statutes (1983), to require compliance with the laws administered by the Department of Professional Regulation. However, this action is brought under the theory of “nuisance.”

Had the FDA stated a cause of action here for a recognized nuisance in which it sought to enjoin such nuisance rather than pursue administrative remedies, then the trial judge could have heard the action. FDA maintains that section 466.001 makes violations of section 466.-028(l)(n) a danger to the public health and safety as a matter of law, thus making places that violate the section automatic nuisances. In actuality, this section speaks of unskilled dentists and dental hygienists as dangers to the public, and neither implies nor says that every violation in the chapter is dangerous. While fee-splitting may be declared to be unethical and illegal, we do not perceive that it is a nuisance as meant in current American jurisprudence.

Moreover, allegations of fee-splitting can and should be resolved through efficient administrative proceedings. We see no reason to open the courtroom door for every voluntary professional association seeking to enjoin a myriad of disapproved practices by lawyers, doctors, architects, engineers or other professionals. It is the policing bodies which should be relied upon by the people of Florida to effectively and speedily investigate and, when appropriate, punish those violating the requirements of professional practice.

Accordingly, we grant the petition for writ of certiorari, and quash the contested order. Because the trial court should not have entertained the action, it was without authority to permit discovery as it did in the second part of the appealed order.

HURLEY and BARKETT, JJ., concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specially:

In the appealed order, the trial judge required discovery limited to those things requested in FDA’s notice to produce, which was amended to delete any records belonging to Drs. Cowan or Rosa individually and to include only those documents belonging to the P.A. The notice to produce requests the following information:

1. Incorporating documents, including articles of incorporation, minutes, and by-laws.
2. Minutes of P.A. meetings.
3. Employment contracts referral agreements.
4. Prospectus or other documents describing compensation for referral fees for referrals made by P.A. members.
5. Cowan/Rosa partnership agreement.
6. Documents between Cowan/Rosa partnership and the P.A., including referral fee arrangement and other compensation agreements.

FDA contends that because the request to produce is directed only at the P.A., the fifth amendment does not apply because of the corporation exception. Cowan and Rosa reply by pointing to State v. Dawson, 290 So.2d 79 (Fla. 1st DCA 1974), which held that the rule that self-incrimination does not apply to corporations is inapplicable to professional service corporations. Dawson’s holding was largely grounded upon Boyd v. United States, 116 U.S. 616, 6 S.Ct. 624, 29 L.Ed. 746 (1886), which held seizure of incriminating records and compelling incriminating testimony to be one and the same. Boyd, however, has been substantially overruled and discredited by the Court in cases such as Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). The more recent Supreme Court rulings are that purely eviden-tiary material may be obtained and used, and that the self-incrimination privilege applies only to compelled testimonial communication. In Beilis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974), the Court affirmed a rejection of a law firm partner’s assertion of the fifth amendment when he was asked to produce partnership financial records. Summarizing a line of decisions in the area, the opinion reiterated that “the privilege against compulsory self-incrimination should be ‘limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records.’ ” Id. at 89-90, 94 S.Ct. at 2184, 40 L.Ed.2d at 684, quoting United States v. White, 322 U.S. 694, 701, 64 S.Ct. 1248, 1252, 88 L.Ed. 1542, 1547 (1944) (emphasis added). We suggest that the discrediting of Boyd, in view of the Beilis case, which disallowed the self-incrimination privilege as applied to partnerships, a much more personal relationship, makes the earlier holding of our companion court with respect to a P.A. unsupportable.

ON MOTION FOR CLARIFICATION

PER CURIAM.

Doctors Cowan and Rosa request clarification of our earilier decision in their favor. They had noticed for appeal a trial court order modifying an order of abatement and granting limited discovery, these orders having been entered in an action against them for nuisance. Neither order was the proper subject of appeal, so we treated the notice as a petition for a writ of certiorari, and granted it. In so doing, we noted that nuisance is not the proper remedy for the practices allegedly committed by the doctors. This explanation was only that; we were not faced with and so had no jurisdiction to make a dispositive ruling on the complaint’s merits. If the doctors want the complaint dismissed, they must so move and obtain a ruling below before we will have jurisdiction to consider the merits of the action.

GLICKSTEIN, HURLEY and BARK-ETT, JJ., concur.

      . The opinion was prepared by Glickstein, J.

      . See Town of Surfside v. County Line Land Company, 340 So.2d 1287 (Fla. 3d DCA), cert. denied, 352 So.2d 175 (Fla.1977), in which the plaintiffs had succeeded in obtaining a temporary injunction to become permanent if the defendants had failed to comply with the rules of the Department of Environmental Regulation (DER) by a certain time. On appeal, one of the arguments was the failure to exhaust administrative remedies through the DER. Our companion court held, however, that the suit was not one to enforce the DER’s regulations, but rather a suit involving a nuisance; namely, a city dump, making it unnecessary for the DER to consider it first.

      . Doctors Cowan and Rosa argue that finding a nuisance is dependent upon finding a violation of section 466.028, Florida Statutes (1983), a determination best made by the department responsible for administration of the statute. The principle is well recognized, however, that an activity may be a nuisance despite its compliance with state or local law. State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3d DCA), cert. denied, 304 So.2d 453 (Fla.), cert. denied, 308 So.2d 111 (Fla.1974). Determination of a nuisance is not dependent upon agency determination of a law violation; so the FDA need not have proceeded under the Administrative Procedure Act before bringing a nuisance action.


author: CAMPBELL, Judge.

text:
    Jeffrey A. FISCHER, Petitioner, v. E.F. HUTTON & CO., INC., Respondent.
    No. 84-2127.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1984.

      Paul R. Golis of Russell L. Forkey, P.A., Fort Lauderdale, for petitioner.
    George Franjóla and Johnson S. Savary of Kirk, Pinkerton, Savary, Carr & Strode, P.A., Sarasota, for respondent.
   CAMPBELL, Judge.

Petitioner, Jeffrey A. Fischer, seeks review of the trial court’s order compelling him to answer deposition questions and to produce the documents requested by respondent, E.F. Hutton & Co., Inc. We deny certiorari.

Respondent served petitioner with a notice of deposition and a request to produce certain documents on July 5, 1984. No written response to the request to produce was filed.

At his deposition on August 14, 1984, petitioner responded to two questions by stating his name and by affirming that he is the defendant in the subject lawsuit filed by respondent. In response to a third question concerning his occupation, petitioner invoked his privilege against self-incrimination as secured by the fifth and fourteenth amendments to the United States Constitution. He stated that he would refuse to answer any questions relating to the allegations contained in the complaint. Respondent then asked petitioner to produce the documents which had been requested on July 5, 1984. Petitioner’s counsel stated that he was not aware of the request to produce and that there must have been “a mix-up” at his office. After reviewing a copy of the request to produce, petitioner’s counsel stated, “I believe most of this stuff is in the possession of the F.B.I.” Petitioner stated, “I’m not in possession of any of them.” The deposition was concluded immediately thereafter.

On August 15, 1984, a motion to compel discovery was filed by respondent. On September 17, 1984, the motion was granted. Petitioner was ordered to answer respondent’s questions at deposition and to produce those documents previously requested. The order provided for imposition of sanctions against petitioner if he failed to comply with the order.

Petitioner argues that the trial court improperly compelled him to answer based on the “sword and shield” doctrine. Under this doctrine, a party may not voluntarily seek affirmative relief in a civil suit and then invoke the fifth amendment to avoid discovery of matters pertinent to the litigation. See City of St. Petersburg v. Houghton, 362 So.2d 681 (Fla. 2d DCA 1978). Petitioner claims that contrary to the findings of the trial court, his affirmative defenses do not change his status from an involuntary party to a voluntary party, so as to preclude him from exercising his fifth amendment privileges. We agree with petitioner’s presentation of the law based on Delisi v. Banker’s Insurance Co., 436 So.2d 1099 (Fla. 4th DCA 1983). However, we cannot agree with its application in the case at bar because there is nothing in the trial court’s order indicating that it is based on the reasoning set forth by petitioner.

Petitioner also argues that following his assertion of his fifth amendment privilege, ⅛⅜ trial court failed to determine if the deposition questions and the resulting answers could lead to criminal conviction and, therefore, the trial court erred in ordering him to answer the deposition questions. Finally, petitioner seeks to invoke his fifth amendment privilege in regard to the documents requested.

We agree that in a civil proceeding, a person is exempt from answering questions which may constitute a link in a chain of evidence leading to his conviction in a criminal case. See Pillsbury Company v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983); Delisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982), pet. for rev. denied, 434 So.2d 887 (Fla.1983). However, regarding petitioner’s attempted exercise of his fifth amendment privilege as to the deposition questions, we find that the trial court did not err. Petitioner refused to answer any questions relating to the allegations of the lawsuit. Petitioner is required to make a specific objection to a particular question and, at that time, assert his fifth amendment privilege. At that point, the trial court should determine whether the answer could lead to criminal conviction as required by Delisi v. Smith and Delisi v. Banker’s Insurance Company.

We note that petitioner never exercised his fifth amendment privilege in response to the request to produce documents in the trial court. He did not raise this defense at the deposition, nor did he file a written response as required by Rule 1.350(b), Florida Rules of Civil Procedure. The failure to invoke the fifth amendment privilege before the trial court precludes us from considering this issue. Secrist v. National Service Industries, Inc., 395 So.2d 1280 (Fla. 2d DCA 1981). Accordingly, we find that petitioner must produce the documents as ordered by the trial court or demonstrate why he cannot produce the documents.

For the foregoing reasons, we deny cer-tiorari.

GRIMES, A.C.J., and SCHOONOVER, J., concur.


text:
    Cheryl Sue ALOFF, Appellant, v. NEFF-HARMON, INC., Appellee.
    No. AR-279.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.
    Rehearing Denied Feb. 7, 1985.

      Jeff Tomberg of Tomberg & Tomberg, Boynton Beach, and John R. Young of Hamilton, James, Merkle & Young, West Palm Beach, for appellant.
    Toby S. Monaco of Dell, Graham, Will-cox, Barber, Henderson, Monaco & Cates, Gainesville, and William Pierson, Gaines-ville, for appellee.
   ZEHMER, Judge.

Cheryl Sue Aloff, plaintiff in this personal injury action, appeals a summary judgment entered for her employer, Neff-Har-mon, Inc., on the grounds that the plaintiff’s exclusive remedy lies under the workers’ compensation law pursuant to section 440.11, Florida Statutes (1977). We reverse.

At the time of this incident, plaintiff was employed as a cocktail waitress at the Gainesville Sea Fox, a restaurant and lounge. She reported for the evening shift on December 10, 1977, punched in on the time clock around 7 p.m., and worked throughout the evening. Her normal working hours extended some fifteen to thirty minutes past the closing hour of 2 a.m. in order to permit her to finish accounting for customer checks and to put her station in order. She was not required to do any heavy cleaning after closing and was expected by the owner to be out of the premises by 2:30 a.m. It was customary for all cocktail waitresses, including plaintiff, to leave together once they had finished their duties. On the night in question, plaintiff completed her work and punched out around 2:30 a.m. The other cocktail waitresses left at that time to attend a party at plaintiffs house. The manager of the bar, a personal friend of plaintiff, asked her to remain behind to talk with him, and she did so. Occasionally, employees remained after finishing their work and punching out to have a drink or socialize with one another.

The manager and plaintiff were personal friends; and on this particular evening, they talked about matters ranging from his problems with his job to problems with his girlfriend. The members of the band which had been playing in the lounge completed packing and left about 4 a.m. The manager then set the alarm to the bar’s back door, turned out the lights, and handed plaintiff a key, asking her to put it in the door lock and open the door when the buzzer sounded about thirty seconds later. When told that plaintiff was unable to get the key into the lock in the dark, the manager went over and unlocked the door. Upon opening the door, the manager and plaintiff were surprised by five armed black men “right outside the door,” one of whom directed the manager and plaintiff to go back inside the lounge. Plaintiff was subsequently robbed of $150, assaulted, raped by three of the intruders, and suffered serious injuries. Plaintiff sued her employer, Neff-Harmon, and others, claiming negligence regarding the use and operation of the security system installed at the restaurant, which should have notified police — but did not — in time to prevent the assault and rape of plaintiff, which occurred some twenty to thirty minutes after the intruders first entered.

The trial court granted Neff-Harmon’s motion for summary judgment on the sole ground that the immunity provisions of section 440.11 limited plaintiffs remedy exclusively to benefits under the workers’ compensation law. In the order, the court expressly stated that “the issue of whether an injury falls under the protective cloak of the law relating to Workers’ Compensation is a question of law to be determined only by the Court, and not by a jury” (R. 591). The court concluded that there were no material disputed facts, and, relying upon Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980), granted summary judgment for the employer.

In order for an employee’s injury to be covered by the workers’ compensation act, “the injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something identical to it.” Evans v. Food Fair Stores, Inc., 313 So.2d 663, 664 (Fla.1975). In Grady v. Humana, Inc., 449 So.2d 984 (Fla. 1st DCA 1984), reversing summary judgment on the same issue as presented here, the pertinent law was summarized at page 985 as follows:

Whether an injured workman is an employee whose injury arose out of and in the scope of his employment is ordinarily a question of fact to be decided by the trier of fact, be that judge, jury, or deputy commissioner. E.g., Rogers v. Barrett, 46 So.2d 490 (Fla.1950); Adams v. Wagner, 129 So.2d 129 (Fla.1961). Accordingly, it is reversible error to grant a summary judgment in favor of an employer on grounds that chapter 440 provides the exclusive remedy to the employee where ‘an issue of fact exists as to whether plaintiff was in the course and scope of his employment at the time of the injury.’ Lemoine v. Flanigan’s Enterprises, Inc., 445 So.2d 414 (Fla. 4th DCA 1984). Genuine issues of fact may arise on undisputed facts where different inferences may reasonably be drawn therefrom. Aldridge v. Yellow Cab of Gainesville, Inc., 448 So.2d 1129 (Fla. 1st DCA 1984); Gravas v. The Mackle Company, 444 So.2d 1159 (Fla. 3d DCA 1984).

Furthermore, “where the evidence before the trial court is susceptible of more than one inference, one of which will support the plaintiff’s view of the facts, a summary judgment for the defendant should not be entered.” Burkett v. Parker, 410 So.2d 947, 948 (Fla. 1st DCA 1982). A summary judgment is appropriate only when “the facts are so crystalized that nothing remains but questions of law” and there is not the “slightest doubt” as to any issue of material fact. Harris v. Lewis State Bank, 436 So.2d 338, 340 (Fla. 1st DCA 1983).

Whether plaintiffs remaining at the lounge after completing her work and punching out on the time clock was in the scope and course of her employment, or whether her activity was, as she contends, purely a personal social undertaking beyond the course and scope of her employment, was a question of fact for the jury. Grady v. Humana, Inc., supra. In its order granting summary judgment, the trial court supported its conclusions of law by referring to portions of the evidence which indicated that plaintiff, after punching out, talked to the bar manager about “professional things that had to do with the lounge” and assisted the manager “in actually closing the business establishment” by attempting to insert the key into the door. The court apparently overlooked additional evidence showing that plaintiffs conversations with the manager primarily concerned personal matters — the manager’s personal problems with the business and with his girlfriend — and that after she had punched out the plaintiff did absolutely nothing for an hour and a half to assist in closing the business except attempt to insert the key into the door lock as they were ready to depart. Although the evidence might support an inference that plaintiff was attempting “to assist in actually closing the business” when she and the manager were accosted by the criminal intruders, the evidence also supports the inferences that she was merely accommodating her friend, that plaintiffs status as an employee had ended when she punched out on the time clock, and that her subsequent activities with the manager involved purely personal matters between them (rather than matters relating to her employment duties). Moreover, plaintiffs undisputed testimony that the employer expected all waitresses to leave together after closing supports the inference that the employer had a policy, if not a rule, that such employees were not to remain at the premises after punching out. There was no factual showing by the mov-ant that the terms of plaintiffs employment contemplated that she or other employees were authorized to remain on the premises in the course of employment after completing their work. Hence, it cannot be said as a matter of law that the plaintiffs social purpose in this case was necessarily incident to the fulfillment of the duties of her employment. These are but some of the reasonable but conflicting inferences that could be drawn from the evidence. Accordingly, it was error for the trial court to accept one of several conflicting inferences favorable to the defendant and enter summary judgment thereon against plaintiff.

The Supreme Court decision in Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980), is not inconsistent with our holding. In that workers’ compensation case, the claimant, a cafeteria cashier, had twice driven her car to the bank to deposit the day’s receipts although that was not part of her regular duties. On the occasion in question, she had driven directly home when she was assaulted and her purse taken. The perpetrator of the assault was one of two men the claimant had observed in the cafeteria both on the evening of the assault and two days before. The Judge of Industrial Claims, sitting as the trier of fact and law, concluded that the assault and resulting injury arose out of and in the course of claimant’s employment upon a finding that the assailants thought claimant was carrying cafeteria receipts. The judge reasoned that her injury was a com-pensable accident since her employment had exposed her to greater risk than that of a regular cashier. The Industrial Relations Commission reversed. On review, the Supreme Court reversed the Industrial Relations Commission and reinstated the order of the Judge of Industrial Claims. The Court concluded that one may prove the accident occurred in the course of employment by showing that causative factors occurred during the time and within the space limits of employment. Applying that test, the Court found no error in the trial judge’s conclusion that the injury arose out of claimant’s employment because claimant’s assailants had been on the premises “casing” the cafeteria and then followed claimant home, assaulted her, and robbed her of what they believed to be the cafeteria’s monetary receipts. Although the incident occurred off the cafeteria premises fifteen or twenty minutes after claimant left work, the court reasoned, claimant’s injuries were nonetheless com-pensable because the accident had its genesis on the business premises during working hours, which continued in an unbroken chain to the point of the assault.

The facts in Strother are distinguishable from the facts of this case. Here, the jury could find that the purpose of remaining after hours was personal to the plaintiff, in apparent controvention of her employee’s rule or policy. The attack on plaintiff was not shown to have had its genesis on the premises during working hours — or even before plaintiff was supposed to have left around 2:30 a.m. The record shows only that an assault was perpetrated some one and a half hours later. Since the requirements of the rule that both time and place must relate to the reasonable fulfillment of the duties of employment are conjunctive, the fact that the attack occurred at plaintiff’s place of employment is not sufficient to establish as a matter of law that plaintiff was in the course of her employment at that time. More importantly, the decision in Strother that claimant’s accident arose out of and in the course of her employment was a decision on the merits made by the Judge of Industrial Claims as the trier of disputed fact. For the reasons discussed in Grady v. Humana, Inc., supra, at 986, it was inappropriate to rely on Strother as controlling authority in deciding Neff-Har-mon’s motion for summary judgment.

Neff-Harmon also alleged as an additional ground for summary judgment that plaintiff’s injuries were the result of an unforeseeable intervening criminal act “for which appellee could not be held liable.” The employer urges that even if we find the ground relied on by the trial court insufficient, nevertheless we should affirm the summary judgment upon the rule that the trial court’s judgment will be upheld on any sufficient ground although the reasons given by the trial court are insufficient. Ordinarily, the question whether an intervening cause is foreseeable is for the trier of fact. Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980); Aldridge v. Yellow Cab of Gainesville, Inc., 448 So.2d 1129 (Fla. 1st DCA 1984). The plaintiff’s complaint is based in substantial part upon Neff-Harmon’s negligent use of a security system installed for the purpose of preventing the kind of criminal conduct that occurred in this case. The record does not justify the granting of summary judgment for appellee on this ground.

Accordingly, the judgment for appellee is REVERSED and the case REMANDED for further proceedings not inconsistent with this opinion.

ERVIN, C.J., and BOOTH, J„ concur.

ON MOTION FOR REHEARING

ZEHMER, Judge.

Appellee’s motion for rehearing contends that our decision is in direct conflict with the decision in Sosa v. Knight-Ridder Newspapers, Inc., 435 So.2d 821 (Fla.1983). Since we did not discuss that decision, we believe it would be helpful to explain why we see no conflict.

In Sosa, the plaintiff brought an action against Knight-Ridder Newspapers for the wrongful death of Jose Lanza. Jose was a news carrier for the Miami News and had executed a written contract that stated he was an employee of the newspaper under the terms of the contract. Jose was taken by a distribution manager for the newspaper to an area outside his assigned neighborhood to participate in a contest to solicit new subscriptions for the newspaper. The contest was voluntary and news carriers, such as Jose, did not have to participate as a requirement of their employment. Jose was killed while participating in the contest, allegedly as a result of the negligence of the distribution manager. The trial judge submitted two special interrogatories to the jury, one questioning whether Jose was an employee of the newspaper or an independent contractor, and the second questioning whether Jose, if an employee, was engaged in activities within the course and scope of his employment when injured. The jury found he was an employee injured in the course of his employment, and the trial court entered judgment for Knight-Ridder on the jury verdict. Thereafter, the court granted a new trial on grounds that it was error to submit the instructions on Jose’s status to the jury and because, in closing arguments, counsel for the defendants argued, over plaintiff’s objection, certain matters concerning workers’ compensation coverage that were not properly in evidence.

The District Court of Appeal for the Third District reversed. Knight-Ridder Newspapers, Inc. v. Sosa, 407 So.2d 916 (Fla. 3d DCA 1982). The Supreme Court quashed the district court opinion and remanded to the trial court for new trial upon its holding that under the particular circumstances of that case it was error for the trial court to submit Jose’s legal status as an employee to the jury rather than deciding it as a question of law. The Supreme Court stated:

The next issue concerns the trial court’s conclusion that it erred in failing to interpret the employment contract for the jury. The employment status of Jose, under the circumstances of this ease, was a question of law for judicial resolution. Although the district court stated that petitioner did not request an instruction concerning Jose’s status at the time of the accident, the petitioner had moved for a directed verdict on the issue of Jose’s status and the trial court reserved ruling and never specifically ruled on the motion. In the order granting a new trial, the trial court stated, ‘There was no issue ... concerning the fact that the minor plaintiff was an employee for the Miami Herald when the minor plaintiff was delivering newspapers,’ but determined that it was the court’s responsibility to instruct the jury concerning the contract and, in particular, to advise the jury that ‘at the time of the incident sued upon, the minor plaintiff was not within the sphere of the duties contained within the contract.’
The facts of how the accident occurred are not in dispute, and, therefore, the question of Jose’s status at the time of the accident requires only an interpretation and application of the known facts to the law. We hold that the question was a matter of law which should have been decided by the trial judge and should not have been submitted to the jury even with the more expansive instructions suggested by the trial judge in his order granting a new trial. It was a matter of law for judicial resolution and not a matter of fact for jury determination.

435 So.2d at 826.

In the instant case, quite unlike Sosa, several material facts are very much in dispute. As pointed out in our opinion, the evidence before the trial court on the motion for summary judgment supports conflicting inferences and findings of fact that must be resolved by the appropriate trier of fact in determining the contractual scope of appellant’s employment. No such conflicting inferences and disputes were present in the Sosa case. We do not believe that the Supreme Court’s opinion in Sosa should be read as requiring that scope and course of employment issues be decided as a matter of law in all cases and that the trial judge, in ruling on a motion for summary judgment, depart from the traditional role and act as a fact finder by selecting one among several conflicting inferences presented by the evidence in cases to be tried by jury.

The motion for rehearing is DENIED.

ERVIN, C.J., and BOOTH, J., concur.