text:
    Nelson P. DAVIS, Sr., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AY-67.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.

      John A. Barley of John A. Barley & Associates, P.A., Tallahassee, for appellant.
    Robert P. Daniti, Asst. Gen. Counsel, Tallahassee, and Maureen L. McGill, Dist. Legal Counsel, Pensacola, for appellee.
   MILLS, Judge.

Nelson P. Davis appeals from an order dismissing with, prejudice his second amended complaint for failure to state a cause of action.

On 8 March 1978, the Department of Health and Rehabilitative Services (HRS) published an advertisement soliciting competitive bids for construction of a new facility which would be constructed for lease to HRS to accommodate co-location of four HRS offices in the Ft. Walton Beach area. HRS distributed to interested bidders an Invitation to Propose.

HRS scheduled a pre-bid conference and invited all interested bidders to attend. The purpose of the pre-bid conference was to provide all bidders with a common understanding of the interpretation to be placed upon the Invitation to Propose and specifications, and to provide any additional information needed to enable the prospective bidders to develop a competitive bid.

During the pre-bid conference, appellant (Davis) asked to be informed of the extent to which the building was to be occupied and used by HRS so as to enable him to reasonably estimate the cost of providing air conditioning, utilities maintenance and other services. The HRS representatives present responded by stating that all bidders should assume that the facility would be used for HRS personnel only during normal working hours which they stated were 8:00 a.m. to 5:00 p.m., Monday through Friday, except holidays. Davis prepared his bid based on that understanding.

On 25 April 1978, Davis submitted his bid to HRS and was subsequently awarded the contract. Davis constructed the facility and leased it back to HRS, which began using the facility on or about 1 February 1979. Shortly thereafter, Davis was notified by HRS that it would, from time to time, be using the facility beyond the hours of 8:00 a.m. to 5:00 p.m., and that Davis would be expected to provide the air conditioning, heating, lighting and janitorial services necessary at no additional cost to HRS.

Davis informed HRS that if HRS used the facility beyond the hours of 8:00 a.m. to 5:00 p.m., it would exceed the use of the facility to which Davis and HRS agreed, and that such additional use of the facility would cause him to incur costs in excess of the rent that HRS had agreed to pay; and that it would be necessary for HRS to compensate him for his additional costs.

HRS then informed Davis that it interpreted the lease to mean that Davis was obligated to provide the services 24 hours per day, 365 days per year, and that HRS would not pay additional compensation. HRS has continued to use the facility beyond the hours 8:00 a.m. to 5:00 p.m. and has refused to pay additional compensation to Davis.

On 8 August 1983, Davis filed a complaint with the trial court. On 30 August 1983, HRS filed a motion to dismiss which was heard on 20 October 1983. Thereafter, on 26 October 1983, the trial court entered an order granting HRS’ motion to dismiss. On 30 November 1983, Davis filed an amended complaint. On 19 January 1984, the trial court conducted a hearing and granted HRS’ motion to dismiss amended complaint. Before concluding the hearing, the trial court granted Davis’ motion for leave to amend complaint and allowed the second amended complaint to be filed. The trial court then sua sponte dismissed with prejudice the second amended complaint for failure to state a cause of action, and on 9 February 1984 entered an order to such effect.

The second amended complaint set forth separate and alternative counts for: (1) fraudulent inducement; (2) breach of contract; (3) declaration of rights; and (4) unjust enrichment.

As to counts (1), (2), and (3) of the second amended complaint, each of the required elements is present. Each of the elements for each of these counts is pled with specificity and clarity.

The essence of HRS’ argument is that Davis could not prevail as to any of the counts because the lease is clear and unambiguous on its face. Davis was told that the facility would be used from 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding holidays. He reasonably and justifiably relied on that information in preparing his bid. He had no duty to further inquire, Bessett v. Basnett, 389 So.2d 995 (Fla.1980). Further regarding Counts (1), (2), and (3), the relevant tests of sufficiency are met.

Likewise the count as to unjust enrichment appears well founded. The law will not imply a contract where a valid express contract exists. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928); Solutec Corp. v. Young and Lawrence Associates, Inc., 243 So.2d 605 (Fla. 4th DCA 1971). But where a contract exists and changes or alterations are requested by the owner, the law does imply an obligation to “pay the reasonable costs thereof....” DeLotto v. Fennell, 56 So.2d 518 (Fla.1952). See Southern Bell Tel. & Tel. Co. v. Acme, etc., 418 So.2d 1187 (Fla. 4th DCA 1982). If the trial court finds that the lease terms incorporated the use limitation developed during the pre-bid conference, then Davis will be entitled to reasonable payment for use of the facility in excess of that agreed upon.

In order for Davis to be entitled to a trial on the merits, he need only have pled one cause of action adequately. The second amended complaint adequately states a cause of action for all counts. Davis is entitled to a trial on the merits.

Reversed and remanded for a trial on the merits as to all counts.

ERVIN, C.J., and ZEHMER, J., concur.


source: Caselaw Access Project

author: WIGGINTON, Judge.

license: Public Domain

text:
    William B. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. AY-195.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.

      F.T. Ratchford, Jr. of Merritt, Ratchford & Searcy, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Appellant appeals his convictions, after trial by jury, of criminal mischief and filing a false and fraudulent insurance claim. We find appellant’s arguments regarding sufficiency of the evidence and his allegations of use of improper “similar fact” evidence under Williams v. State, 110 So.2d 654 (Fla.1959) to be without merit and affirm as to those issues without discussion. However, our affirmance of appellant’s challenge of his conviction for criminal mischief warrants further explanation.

Appellant was charged with burning his own mobile home with the intent to defraud his insurer, second degree arson, and filing a false and fraudulent insurance claim. Pursuant to agreement of the defense counsel and the prosecutor, the judge inadvertently but erroneously instructed the jury that criminal mischief, committed in violation of section 806.13(l)(b), Florida Statutes, is a lesser included offense of second degree arson. The second degree arson charged in this case, in violation of section 806.01(2), involved appellant’s destruction of his own property whereas, pursuant to section 806.13(l)(a):

A person commits the offense of criminal mischief if he willfully and maliciously injures or damages by any means any real or personal property belonging to another. (Emphasis supplied.)

Thus, under the facts of this case, criminal mischief is not a proper lesser included offense of the second degree arson count since the element of damaging property of another was neither charged nor proven.

The jury returned a verdict of not guilty of burning the mobile home with the intent to defraud an insurer, but guilty of criminal mischief, and guilty of filing a false and fraudulent insurance claim. Thus, the jury relied upon the criminal mischief instruction in convicting appellant of that lesser offense rather than the greater offense of second degree arson.

Undisputedly, appellant did not object below to the giving of the lesser included offense instruction until the day after the jury’s verdict was returned. Later, appellant moved for an arrest of judgment under rule 3.610(a)(4), Florida Rules of Criminal Procedure, on the ground that criminal mischief is not a proper lesser included offense of second degree arson. That motion was denied. Relying upon Achin v. State, 436 So.2d 30 (Fla.1983), appellant asserts on appeal that denial of the motion was error.

In Achin, in accordance with the charge conference, and without objection, the trial court instructed the jury on extortion and attempted extortion. The jury found the defendant guilty on the asserted lesser included attempt charge. On appeal, the defendant argued that the court should vacate that conviction because “attempted extortion” is not a crime and one should not be convicted of a nonexistent crime. The district court agreed that attempted extortion is not a crime but held that in that case, “the error is not invariably fundamental and where the error is deliberately invited [by defense counsel] and the instruction not objected to, the defendant shall not be heard to complain about the result.” 436 So.2d at 31. The supreme court agreed with the district court that attempted extortion is a nonexistent offense but concluded that one may not be convicted of a nonexistent crime and therefore the defendant was entitled to remand for retrial. The Achin case is distinguishable from the case sub judice in that here we do not deal with conviction of a nonexistent crime. Criminal mischief is an existent crime, but in the instant case one element thereof, damage to the property of another, was neither charged nor proven.

The question before us is whether the error in giving that instruction, without objection, is fundamental so that the failure to object contemporaneously does not bar review on appeal. See McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971); Clark v. State, 363 So.2d 331 (Fla.1978); and Ray v. State, 403 So.2d 956 (Fla.1981). Ample evidence was presented to show that appellant committed the crime of second degree arson. After much consideration, we decline to find fundamental error in this case especially in light of the fact that defense counsel either requested or at least willingly acquiesced in the giving of the instruction that criminal mischief is a lesser included offense of second degree arson, and appellant apparently benefited in this case from the giving of that instruction since the jury obviously found the state’s evidence against him credible. Compare the decision in Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), in which the defendant did not object to the giving of an improper lesser included offense instruction and was then found guilty of that lesser included offense although the information filed against him had not alleged all of the elements thereof. The court concluded:

[I]t was not fundamental error to convict Torrence of the crime since he had opportunities to object on the record to the erroneous instruction as well as the verdict form and failed to do so and aggravated assault is lesser in degree and penalty than attempted robbery.

At 394. In reaching that conclusion, the court relied upon the supreme court’s decision in Ray, where, without objection, the jury was instructed on an improper lesser included offense. The court reversed the conviction only because the improper lesser included offense was not a crime of lesser degree or one subject to a lesser penalty than the charged offense, since both crimes were second degree felonies. However, the court, in Ray, went on to say:

If Ray’s counsel had requested the improper instruction, or had affirmatively relied on that charge as evidenced by argument to the jury or other affirmative action, we could uphold a finding of waiver absent an objection because constitutional error might not be fundamental error and because even constitutional rights can be waived if not timely presented. At trial, objecting to erroneous instructions is the responsibility of a defendant’s attorney, and the attorney’s failure to object to such instructions can properly constitute a waiver of any defects. ... [Footnotes omitted].
We hold, therefore, that it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction. ...

403 So.2d at 961.

In McPhee, the defendant was charged with illegal possession of a hallucinogenic drug, LSD. During the trial, defense counsel, on an incorrect conception of the law, had convinced the court to require the state to elect between the two counts of the information which had originally charged both illegal possession and illegal sale of the drug. The state elected to proceed under the illegal sale count. Defense counsel made no objection to the trial court’s charge to the jury on the law relating to the illegal sale and illegal possession of a hallucinogenic drug. The jury returned a conviction of illegal possession of the drug as a lesser included offense of the charge of illegal sale. On appeal, the court found that illegal possession of a hallucinogenic drug is not a necessarily lesser included offense of the charge of illegal sale of such a drug. However, the court concluded that under the circumstances of the case, the verdict did not constitute fundamental error. Therefore, the failure of defense counsel to object to the court’s instruction on that offense was not reviewable.

In light of the above authorities, we conclude that although the instruction to the jury regarding the crime of criminal mischief was error, the error was not fundamental and, in the absence of a contemporaneous objection by defense counsel, it cannot be grounds for reversal on appeal.

AFFIRMED.

JOANOS and NIMMONS, JJ., concur.


text:
    R.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. AY-204.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.
    Michael E. Allen, Public Defender, and Andrew Thomas, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

From a conditional nolo contendere plea to a charge of battery, R.C. brings this appeal to challenge the trial court’s denial of his motion to dismiss in which he argued that the delinquency petition was not filed within forty-five days from when he was allegedly “taken into custody,” within the meaning of section 39.05(6), Florida Statutes (1983). We affirm.

The issue of whether R.C. was taken into custody for purposes of triggering the “speedy petition” rule of section 39.05(6) calls for a factual determination to be made by the trial court. The phrase “taken into custody” is defined in section 39.01(32) as meaning

... the status of a child immediately when temporary physical control over the child is attained by a person authorized by law, pending the child’s release, detention, placement, or other disposition as authorized by law.

The key phrase within the definition for the purpose of resolving the issue is “temporary physical control,” and, based on the facts before it, the court concluded that R.C. was at all times in the custody of his mother. The record supports that conclusion.

On November 9, 1983, R.C. allegedly struck another child on a school bus and then threatened the child and his brother. That evening, R.C.’s mother received a telephone call from deputy sheriff Lowell McDonald, who requested that she be at the office at Leon High School the following morning with R.C.

On November 10, R.C. appeared at the office with his mother and was questioned as to the events of November 9. It was alleged at the hearing on the motion to dismiss that during the meeting deputy McDonald emphasized that if R.C. failed to tell the truth regarding the school bus incident, he would be transported to the jail and formally arrested.

When the interrogation ended, R.C. left the school with his mother. A confidential juvenile complaint and report form was immediately prepared charging R.C. with aggravated battery and indicating that R.C. had been released to his mother. The petition of delinquency was filed on January 9, 1984, and a motion to dismiss was filed on February 9, alleging the petition was untimely filed. The motion was argued on the basis of a violation of section 39.05(6).

Based on the above-recounted facts, we hold that the trial court did not err in finding that R.C. had not been taken into custody on November 10 for purposes of section 39.05(6). The brief period of interrogation conducted that morning simply did not rise to the level of “temporary physical control” contemplated by section 39.01(32). As noted by the trial court, R.C. was at all times in the custody of his mother; he voluntarily met with deputy McDonald, and there was no indication that he could not have voluntarily left. But cf. G.A. v. State, 391 So.2d 720 (Fla. 1st DCA 1980), quashed on other grounds, 417 So.2d 980 (Fla.1982). Consequently, the trial court did not err in denying the motion to dismiss.

AFFIRMED.

JOANOS and NIMMONS, JJ., concur.

      . Section 39.05(6) provides:
      On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 45 days from the date the child was taken into custody. The court may grant an extension of time, not to exceed an additional 15 days, upon such motion by the state attorney for good cause shown.

      . R.C. did not attend Leon High School, but we do not find that fact to have any relevant bearing on the issue herein presented.

      . There is some indication in the hearing transcript that R.C. waived his Miranda rights, but that waiver does not appear in the record.

      .It was discussed at the hearing that a police report was subsequently filed indicating the "date of the arrest" as being November 10, and that R.C. had been released to the custody of his mother. Again, that document does not appear in the record.


author: PER CURIAM.

text:
    James H. BARNES, Appellant, v. STATE of Florida, Appellee.
    No. AY-206.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.
    Michael E. Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Henri C. Cawthon, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant.appeals his sentence complaining that the trial court erred in relying upon an amendment to the sentencing guidelines which provides for “bumping up” a sentence range into the next higher “cell” when a defendant’s probation is revoked. See Rule 3.701(d)(14), Fla.R. Crim.P. This rule was not effective until July 1,1984, several months after appellant was sentenced. While this appeal was pending, this court decided Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984), which holds that this amended rule cannot be applied retroactively. See also Saunders v. State, 459 So.2d 1119 (Fla. 1st DCA 1984); and Randolph v. State, 458 So.2d 64 (Fla. 1st DCA 1984). Accordingly, appellant’s sentence is VACATED and the case is REMANDED for resentencing.

SMITH, ZEHMER and BARFIELD, JJ., concur.


text:
    Julia L. BARNES, as Personal Representative of the Estate of Linda Nell Shaw, Appellant, v. B.K. CREDIT SERVICE, INC., a corporation, and Katherine J. Lyon, d/b/a Electric Cowboy, Appellees.
    No. AY-364.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.
    Rehearing Denied Jan. 23, 1985.

      Albert Millar, of Albert Millar, P.A., Jacksonville, for appellant.
    Michael M. Naughton, Jacksonville, for appellees.
   WIGGINTON, Judge.

This cause is before us from the trial court’s final judgment granting the defendants’ motion for judgment on the pleadings and dismissing plaintiff’s complaint. In making its ruling, the court expressly relied on the provisions of section 768.125, Florida Statutes (1981), and rejected plaintiff’s contention that the statute is unconstitutional. We affirm.

Plaintiff (appellant), as representative of her daughter’s estate, brought an action for wrongful death against defendants (ap-pellees) as owners and operators of a bar, alleging that their negligence in serving alcohol to her obviously intoxicated daughter was the proximate cause of her daughter’s death. The facts as alleged in plaintiff’s complaint paint a tragic scenario. Her daughter left the bar in the early morning after several hours of drinking. Upon departing, her senses were so inundated with alcohol that she lost consciousness behind the wheel of her automobile, swerved from the road and collided with a tree. At the age of twenty, Linda Nell Shaw had become an all-too-familiar statistic.

Plaintiff’s complaint was premised on the allegation that defendants had owed a duty to her daughter to refuse to serve her alcoholic beverages once they became aware that her daughter’s faculties had become so impaired as to render her incapable of making a rational decision to discontinue ordering alcoholic beverages, and of safely driving a motor vehicle. Further, plaintiff alleged that since defendants had continued to serve her daughter, they breached that duty, which breach directly and proximately caused her daughter’s death. Plaintiff sought compensatory and punitive damages.

Defendants moved for entry of a judgment on the pleadings, arguing that Florida does not have a “dram shop” act imposing a duty on tavern owners to assure that patrons do not overimbibe, and in the absence of such an act, that Florida does not recognize the instant cause of action, citing to Reed v. Black Caesar’s Forge Gourmet Restaurant, Inc., 165 So.2d 787 (Fla. 3d DCA 1964), cert. denied, 172 So.2d 597 (Fla.1965). Defendants further cited to section 768.125, noting that that section allows a cause of action for injuries only where alcoholic beverages had been willfully provided to a minor. Plaintiff argued in return that section 768.125 is unconstitutional insofar as it purports to place a different duty or standard of care on tavern owners in their sale of alcoholic beverages to minors as compared to adults. The trial court rejected that notion. On appeal, plaintiff argues that section 768.125 is unreasonable, arbitrary, and capricious, and in violation of the equal protection and due process clauses of the Florida and United States Constitutions. We disagree.

We are acutely aware “of the terrible toll taken, both in personal injuries and property damage, by drivers who mix alcohol and gasoline,” Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 205 (1983), and grieve for those families, and for plaintiff, who have lost loved ones to the carnage caused by drunken drivers. But the law in Florida echoes the common law and has been one of non-liability where tavern owners are concerned.

At common law, no cause of action existed against one furnishing alcoholic beverages in favor of those injured by the intoxication of the person so furnished, the reason generally given for this rule being that the voluntary drinking of the alcohol, not the furnishing of it, was the proximate cause of the injury. Annot., 97 A.L.R.3d 528 (1980); 45 Am.Jur.2d Intoxicating Liquor § 553 (1969). Although several jurisdictions have abrogated the common law rule of non-liability either judicially or through civil damage legislation, see e.g., Nazareno v. Urie, 638 P.2d 671, 674 n. 3 (Alaska 1981), Florida has adhered to the rule as it relates to the sale of intoxicating liquor to adults. See Reed v. Black Caesar’s Forge Gourmet Restaurant, Inc.; but cf. Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963) (sale of intoxicating beverage to minor in violation of statute making it a crime to sell intoxicants to minors constitutes negligence per se).

In 1980, our legislature enacted section 768.125which provides:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

Plaintiff argues that the classificatory scheme created by the legislature in section 768.125denies her equal protection of the laws, as unreasonably discriminating between adult and minor imbibers of intoxicants. In response, defendants contend that section 562.11, which makes it unlawful to furnish alcoholic beverages to a minor, is actually the statute that sets forth the classificatory scheme, and that section 768.125essentially restates the common law rule of non-liability already recognized in Florida. We disagree with defendants, for section 768.125 clearly draws a distinction between minor and adult consumers. Consequently, we must determine whether the statute’s general rule of immunity, and the classifications drawn therefrom, rationally advance a legitimate legislative interest or goal. Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), approved, 452 So.2d 932 (Fla.1984).

However, before reviewing the exercise of legislative power, we must recall that it is not our prerogative “to explore the wisdom or advisability of the enactment.” Adams v. Sutton, 212 So.2d 1 (Fla.1968). As Justice Terrell observed forty years ago, “Courts are never permitted to strike down an act of the Legislature because it fails to square with their individual social or economic theories or what they deem to be sound public policy.” Ball v. Branch, 154 Fla. 57, 16 So.2d 524, 525 (1944). Further, it must ever be kept in mind that the legislature possesses broad discretion in determining what measures áre necessary for the public’s protection, and we may not substitute our judgment for that of the legislature “insofar as the wisdom or policy of the act is concerned.” Hamilton v. State, 366 So.2d 8, 10 (Fla.1979). Therefore, plaintiff has the burden of proving that section 768.125 is essentially arbitrary and without a rational basis. Id. We find that plaintiff failed to do so.

As noted earlier, Florida has traditionally adhered to the common law rule of non-liability. Again, the logic behind the rule is that the proximate cause of the injury was the intoxicated patron’s voluntary act of rendering himself or herself incapable of driving a vehicle. The tavern owner’s act of furnishing the alcohol was considered only to be a remote cause of the injury. However, when the legislature carved out an exception to this rule in favor of minors (and those known to be habitually addicted to alcohol) by enacting section 768.125, it was doubtless furthering the ultimate legitimate interest of safeguarding from harm one of immaturity imbibing intoxicants. Davis v. Shiappacos- see, 155 So.2d at 367. The basis of the distinction was recognized by the supreme court in Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978 (Fla.1984) when it observed that “[providing alcoholic beverages to minors involves the obvious foreseeable risk of the minor’s intoxication and injury to himself or a third person.” Id., at 980. Whether it would have been wiser for the legislature to also include under its protection obviously intoxicated adults is not an issue that we may resolve.

The California Supreme Court, in Cory v. Shierloh, 29 Cal.3d 430, 174 Cal.Rptr. 500, 629 P.2d 8 (1981), upheld the constitutionality of legislation similar to that involved in the instant case. As to the general rule of immunity and the classificatory scheme drawn in favor of minors, the court stated:

The Legislature’s decision to abrogate Vesely [v. Sager, 5 Cal.3d 153, 95 Cal. Rptr. 623, 486 P.2d 151 (1971)], Bernhard [v. Harrah’s Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719 (1976) ] and Coulter [v. Superior Court, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669 (1978) ], and thereby preclude or substantially limit the liability of a provider of alcoholic beverages, may have been based upon a premise that it is unfair to require the provider (and his insurer) to share both the supervisory responsibility and the legal blame with the consumer, whose voluntary consumption of alcoholic beverages is perhaps the more direct and immediate cause of any consequent injuries. We deem such a determination to be a rational one because for many years prior to Vesely the courts of this state (including ours) uniformly had followed such provider-immunity rule_ [¶] The Legislature also reasonably might have assumed that the imposition of sole and exclusive liability upon the consumer of alcoholic beverages would encourage some heightened sense of responsibility in the drinker for his acts, thereby ultimately reducing the frequency of alcohol-caused injuries ... [citation omitted]. For these reasons we conclude that the general rule of immunity announced in the 1978 amendments is both founded upon a possible rational basis and reasonably related to a legitimate state purpose ... [¶] As for limiting the class of protected consumers to minors, the Legislature might reasonably have deemed such persons more in need of safeguarding from intoxication than adults, because of the comparative inexperience of minors in both drinking and driving. Given society’s solicitous concern with minors ... the Legislature perhaps might reasonably suspend the sole theory otherwise advanced in justification of the subject legislation, namely, that it is the consumption alone, not the furnishing, of liquor which causes the resultant deaths and injuries.

174 Cal.Rptr. at 505-506, 629 P.2d at 13.

We agree with the rationale of the California Supreme Court' and find it equally applicable to the cause before us. We hold that the classificatory scheme embodied in section 768.125 is rationally related to a legitimate state purpose, and therefore does not deny plaintiff equal protection of the laws.

For similar reasons we hold that section 768.125 is not violative of the due process clauses of the Florida and United States Constitutions. It bears a reasonable relation to a permissible legislative objective and is not discriminatory, arbitrary, or oppressive. Johns v. May, 402 So.2d 1166, 1169 (Fla.1981); Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974).

Finally, plaintiff vaguely asserts that section 768.125 denies her access to courts. Whether the access to courts provision of Florida’s constitutional Declaration of Rights is violated by section 768.125 depends on whether a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights, or whether that right has become a part of Florida’s common law pursuant to section 2.01, Florida Statutes. Sasso v. Ram Property Management, 431 So.2d at 209. If either of the above is true, the legislature must authorize a reasonable alternative for the redress of injuries, or demonstrate an overpowering public necessity for abolishing such a right. Id. However, neither inquiry is applicable here. As stated earlier, Florida law has not recognized a cause of action against a furnisher of intoxicants for injuries sustained as a result of an intoxicated adult, because it has observed the common law rule of non-liability. By enacting section 768.125, the legislature did not abolish a right to redress for an injury, it created one. We therefore hold that section 768.125 does not deny access to courts.

For the above reasons, the trial court’s final judgment is AFFIRMED.

JOANOS and NIMMONS, JJ., concur.


author: DELL, Judge.

text:
    OSCAR KLEIN PLUMBING AND HEATING and Allstate Insurance Company, Appellants, v. Janet E. BOYD and Janet E. Boyd Co., Inc., Appellees.
    No. 83-2095.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    Rehearing and Certification Denied Jan. 23, 1985.
    K.P. Jones of Jones & Zaifert, Fort Laud-erdale, and Nancy Little Hoffmann of Hoffmann & Burris, P.A., Fort Lauderdale, for appellants.
    John R. Hargrove and G. Ware Cornell, Jr. of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appel-lees.
   DELL, Judge.

This appeal concerns the application of the “rescue doctrine” to personal injuries allegedly sustained by appellee, Janet Boyd, in her effort to save her personal property from damage caused by negligence of appellant Oscar Klein Plumbing and Heating.

Appellee operated a wholesale costume jewelry business in leased premises. Her landlord engaged appellant to install a water line. The work raised clouds of concrete dust in appellee’s premises. Since the dust would eventually damage the jewelry if permitted to remain, each piece of jewelry required cleaning. Appellee did not hire a cleaning service because she had some valuable items. She and her adult children worked constantly, almost around the clock, to clean the jewelry. After three months of continuous work, appellee had to stop cleaning because she developed a bilateral carpal tunnel disease as a result of her heavy labors. Appellee sued Klein and its insurer in negligence for property damage and for personal injuries. The trial court denied appellant’s motion for a directed verdict and granted appellee’s request for an instruction on the “rescue doctrine.” The court instructed the jury that:

As to the claims of Janet Boyd, individually, the plaintiff contends that as a result of the attempted rescue of her property, she sustained injuries. The rescue doctrine is based upon the fact that danger invites rescue as a normal, natural and probable consequence. Thus, one who is injured in reasonably undertaking a necessary rescue may recover for his personal injuries from the person whose negligence created the peril necessitating the rescue. This is because the law recognizes that a defendant who creates a situation of peril is deemed to have also caused any injury suffered by the rescuer.
For the rescue doctrine to apply, you must find three elements: (1) that the defendant was negligent; (2) that the property rescued was in imminent peril; and (3) that the rescuer, here the plaintiff, acted reasonably under the circumstances. The plaintiff must prove these elements by the greater weight of the evidence for you to find that the rescue doctrine applies.

The jury returned a verdict in favor of the corporate appellee for property damage, which is not at issue here, and found that appellee, Janet E. Boyd, individually, suffered $800,000 damages for her personal injuries, sixty-seven percent of which she caused by her comparative negligence. After reduction of the verdict for comparative negligence and setoff for prior settlements, the court entered judgment in favor of appellee Boyd individually in the amount of $82,000.

Appellants contend that the trial court erred by instructing the jury on the rescue doctrine, and further contend that absent the rescue doctrine, appellee failed to carry her burden to show that her injuries were a reasonably foreseeable consequence of appellant’s negligence. We agree.

For the rescue doctrine to come into play the defendant must have been negligent, the person (or property) to be rescued must have been in imminent peril, and the rescuer must have acted reasonably.

Newsome v. St. Paul Fire and Marine Insurance Co., 350 So.2d 825, 826 (Fla. 2d DCA 1977).

Appellee has cited no case, and we have found none, which eliminates the element of imminent peril from the rescue doctrine. See Caldwell v. Ford Motor Co., 619 S.W.2d 534 (Tenn.App.1981); Stewart v. Jefferson Plywood Co., 255 Or. 603, 469 P.2d 783 (1970); Moore v. Beard-Laney, Inc., 263 N.C. 601, 139 S.E.2d 879 (1965); Atlantic Coast Line Railroad Co. v. Street, 116 Ga.App. 465, 157 S.E.2d 793 (1967); Adams v. Rosemier, 39 Ill.App.3d 691, 350 N.E.2d 745 (1976). On the other hand, we have found cases which hold the doctrine inapplicable when the property sought to be saved is not in danger of immediate destruction. Kiamas v. MonKota, Inc., 639 P.2d 1155 (Mont.1982); Klunenberg v. Rottinghaus, 256 Iowa 731, 129 N.W.2d 68 (1964).

Appellee relies upon Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437 (1921) to support her contention that the existence of imminent peril creates a jury question. In Wagner, the rescuer had to walk approximately 400 feet to save the victim. The defendant argued that because it took time for the rescuer to reach the victim, the rescuer had time to think about what he was doing, and the rescuer’s act became an intervening cause rather than a spontaneous response to the peril. The court said

Continuity in such circumstances is not broken by the exercise of volition. So sweeping an exception, if recognized, would leave little of the rule. “The human mind,” as we have said “acts with celerity which it is sometimes impossible to measure.” The law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion.

Id. at 133 N.E. at 438 (citations omitted). We agree that “imminent” does not mean “instantaneous.” However, we would not agree that this language encompasses any attempted rescue, no matter how remote in time. Webster’s New Collegiate Dictionary (1980) defines “imminent” as “ready to take place; ... hanging threateningly over one’s head .... ” Here, the danger was so remote that appellee could afford to expend several months cleaning her jewelry. We hold that appellee’s property was not in imminent peril as a matter of law, and that the trial judge erred when he instructed the jury on the rescue doctrine. Without the rescue doctrine to bridge the gap of foreseeability, appellee’s cause must fail, for we have found nothing else in this record which tends to prove proximate cause, an essential element of a cause of action in negligence. Thus, the trial judge erred in denying appellant’s motion for directed verdict.

Accordingly, we affirm the judgment in favor of the appellee, Janet E. Boyd Co., Inc., on its property damage claim and we reverse the verdict and judgment in favor of Janet E. Boyd, individually, on her claim for personal injuries.

AFFIRMED IN PART, REVERSED IN PART.

LETTS and HURLEY, JJ., concur.


author: JOANOS, Judge.

text:
    MR. BUMBLE, INC., Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES & TOBACCO, Appellee.
    No. AV-99.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1984.

      Richard L. Wilson, Orlando, for appellant.
    Sandra P. Stockwell, Dept, of Business Regulation, Tallahassee, for appellee.
   JOANOS, Judge.

This is an appeal from an order of the Director of the Division of Alcoholic Beverages and Tobacco revoking appellant’s alcoholic beverage license. The issue before us is whether the delivery of an alcoholic beverage license to the Division of Alcoholic Beverages and Tobacco, accompanied by a letter which states that such delivery is for the purpose of cancellation rather than revocation, constitutes an “abandonment” of that license so as to justify revocation under Section 561.15(3)(a), Florida Statutes (1981). We conclude that under the circumstances of this case it does not and reverse.

On April 11, 1982, the Division of Alcoholic Beverages and Tobacco (Division) issued a citation informing appellant that formal administrative charges were to be brought against it for violations of Section 561.20(3), Florida Statutes (1981), and Florida Administrative Code Rule 7A-3.15(1). Thereafter appellant and the Orlando Supervisor for the Division held an informal conference. At the conference, appellant proposed a stipulation for settlement. This proposal for settlement was later disapproved by the Division. By letter dated August 4, 1982, appellant delivered its alcoholic beverage license to the Division, and advised that the corporation had ceased selling alcoholic beverages and would not seek to resume licensed operations in the future. The relevant paragraph of this letter reads as follows:

As you know, there are administrative charges pending against the licensee. This surrender is not for the purpose of revocation, which matter will be decided in the administrative proceeding. Rather, it is for the purpose of cancellation, which may be accomplished (according to the Division’s viewpoint) whenever those charges are disposed of.

Following receipt of the letter the Division filed an order revoking appellant’s alcoholic beverage license.

At an administrative hearing held on the license revocation, appellant’s attorney stipulated that it was the appellant’s intent that the license be disposed of only after resolution of the administrative charges. The Division took the position that the return of the license constituted an abandonment with license charges still pending. Therefore, under the purview of Section 561.15(3)(a), Florida Statutes (1981), the Division revoked appellant’s license. Appellant took the position that delivery of the license was not an absolute surrender — it was nothing more than the delivering of the license into the hands of the issuing agency to be held until such time as it could be lawfully cancelled.

In a memorandum of law, the Division contended that appellant had abandoned the license while there were still administrative charges pending against it. According to the Division, this action placed appellant in violation of Section 561.15(3)(a), Florida Statutes (1981). Pursuant to a formal finding that appellant was in violation of the statute, the Division issued a final order of revocation on August 16, 1983.

Section 561.15(3)(a), Florida Statutes (1981) provides:

(3) The division may suspend or revoke the license under the Beverage Law of, or may refuse to issue a license under the Beverage Law to:
(a) Any person, firm, or corporation the license of which under the Beverage Law has been revoked or has been abandoned after written notice that revocation or suspension proceedings had been or would be brought against the license;

The Division maintains that appellant abandoned its license after written notice that formal administrative charges were to be brought against it for violation of Section 561.20(3), Florida Statutes (1981), and Florida Administrative Code Rule 7A-3.15(1).

The parties to this appeal are in agreement that since the statute provides no definition of “abandon,” the term is to be given its ordinary meaning. See also: Moncrief v. State, Commissioner of Insurance, 415 So.2d 785, 790 (Fla. 1st DCA 1982). In Black’s Law Dictionary 2 (5th ed.1979), “abandon” is defined thusly:

Abandon. To desert, surrender, forsake, or cede. To relinquish or give up with intent of never again resuming one’s right or interest. To give up or cease to use. To give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to desert. It includes the intention, and also the external act by which it is carried into effect. (e.s.)

Of the two elements of abandon, i.e., the intention and the external act, “the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon.” Id.

A license revocation must be supported by competent substantial evidence. Jones v. State, Dept. of Business Regulation, 448 So.2d 1109 (Fla. 1st DCA 1984); Harvey v. State, Dept. of Business Regulation, 451 So.2d 1065 (Fla. 5th DCA 1984); Lash, Inc. v. State, Dept. of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982). In Holland v. State Beverage Dept., 213 So.2d 310, 311 (Fla. 1st DCA 1968), the court noted that although “administrative determinations will not be ordinarily interfered with, they will be interfered with if it is apparent that the exercise of the administrative power is arbitrary or unreasonable and constitutes an abuse of discretion.”

Revocation of an alcoholic beverage license has a far greater impact than does a cancellation of the license. When a license has been revoked by the Division, “it may prohibit ... a license to be issued for the location of the place of business formerly operated under such revoked license.” § 561.58, Fla.Stat. (1981). See also: § 561.20(3), Fla.Stat. (1981). Cancellation, on the other hand, preserves the license holder’s right to renew the license or to transfer the license as an incident- to the transfer of the licensed premises. See: Keating v. State, 173 So.2d 673 (Fla.1965).

The director’s final order held as a conclusion of law that paragraph two of the transmittal letter by which appellant returned its alcoholic beverage license constituted an “abandonment” as contemplated by Section 561.15(3)(a), Florida Statutes (1981). The director reached this conclusion by finding that appellant had performed the requisite elements of abandonment, i.e., the turning in of the beverage license was a voluntary, external action— the second element of abandonment. And the director held that the statement in the transmittal letter that “the corporation has ceased selling alcoholic beverages under this license, and will not seek to resume licensed operations in the future,” satisfied the “intent” element of abandonment.

By so holding, the director ignored the express statement to the contrary in paragraph three of appellant’s transmittal letter, which states unequivocally—

This surrender is not for the purpose of revocation, which matter will be decided in the administrative proceeding. Rather, it is for the purpose of cancellation, which may be accomplished (according to the Division’s viewpoint) whenever those charges are disposed of. (e.s.)

By this language, appellant demonstrated the intent to rely upon the safeguards of Section 561.27, Florida Statutes (1981). The fact that appellant will not seek to resume licensed operations in the future should not be read as the intention to renounce all property rights in the license. Should the pending charges be decided in appellant’s favor, the license could then be renewed and transferred.

We find that the director’s order revoking appellant’s alcoholic beverage license was not supported by competent substantial evidence. The director relied on paragraph two of the transmittal letter, taken out of context, as expressing the intention to abandon the license. The letter read in its entirety demonstrates that appellant sought cancellation of the license, with its potential for reinstatement. There was clearly no intention to abandon. If the Division felt it could not accept the license on the terms under which it was submitted, then the Division was obligated to notify appellant of this fact.

We reverse the order revoking appellant’s license, and remand for disposition of the license to be determined by the outcome of the administrative charges pending against it.

WIGGINTON and BARFIELD, JJ., concur.

      . Section 561.20(3), Florida Statutes, (1981) provides:
      (3) The limitation upon the number of such licenses to be issued as herein provided shall not apply to existing licenses or to the renewal or transfer of such licenses; but upon the revocation of any existing license, no renewal thereof or new license therefor shall be issued contrary to the limitation herein prescribed. However, the beverage director may reissue a license under s. 565.02(l)(b) to any qualified applicant within any municipality in which there is only one license, which formerly had an additional license which has heretofore been revoked, and which has sufficient population as shown by the last regular statewide federal census or, beginning July 1, 1983, population estimate to warrant the additional license. The transfer permitted herein shall not include the change in location of any licensed premises as provided in s. 561.33 of the Beverage Law when such change of location will increase the number of licenses contrary to the limitation upon the number of such licenses as herein provided.

      . Florida Administrative Code Rule 7A-3.15(1), provides:
      7A-3.15 Special Licenses, Hours of Service and Minimum Requirements.
      (1) All restaurants holding a special restaurant license, in addition to the quota limitation imposed by Section 561.20(1), Florida Statutes, must discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued. A hotel, motel or motor court holding a license issued under Section 561.20(2), Florida Statutes, or any applicable special act, must discontinue the sale of alcoholic beverages during periods when such hotel, motel or motor court is closed.


author: MILLS, Judge.

text:
    Byron K. GODWIN, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. AY-179.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1984.
    Rehearing Denied Jan. 22, 1985.

      Mary Ann Stiles of Stiles & Allen, P.A., Tampa, for appellant.
    Edward J. Hill, Tallahassee, for appellee.
   MILLS, Judge.

Godwin appeals from a final order of the Construction Industry Licensing Board (Board). He challenges the Board’s revocation of his plumbing contractor’s license. We affirm the revocation.

In December 1980, Godwin applied to take the certified contractor’s examination in order to become licensed as a plumbing contractor. He passed the examination and received his license.

Later, the Board filed an administrative complaint against Godwin alleging, among other things, that he gave an untruthful answer to a question on the application numbered 7(c). That question is:

Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in “(i) below” or any organization in which any such person was a member of the personnel?
If so, attach a detailed statement including the names and addresses of the litigants in current litigation, the names and addresses of persons who have filed liens or who have recorded judgments, and the monetary sums involved. (For the purpose of this question, an obligation is not satisfied by a discharge from bankruptcy of the bar of the statute of limitations.)

The reference in 7(c) to “(i) below” refers to 7(i) which states:

If an individual, the applicant; if a partnership, the applicant and the partner; if a corporation, the applicant, the president, vice-president and secretary.

The Board sought disciplinary action not only against Godwin’s plumbing license, but also against an air conditioning contractor’s license he also held. The case came up for a hearing pursuant to Section 120.57, Florida Statutes (1983).

At the hearing, Godwin admitted that at the time he filled out the application he had two money judgments against him personally. The judgments arose as a result of his former contracting partnership. God-win testified he was confused and did not understand that the information sought in 7(c) pertained to former partnerships or other previous business entities.

The hearing officer made several findings relevant to this appeal. First, he found Godwin “answered the question about the judgments in the negative, although he was aware of the judgments at the time he filled out the application, and intentionally withheld the information.” From this finding, the hearing officer concluded Godwin violated Section 489.-127(l)(d), Florida Statutes, and thereby Section 489.129(l)(j), Florida Statutes. However, the hearing officer also stated, “The evidence introduced at the hearing tends to show that the Respondent’s current business is financially responsible_ The Respondent is basically an honest contractor who is operating what appears to be a fiscally sound business.”

The hearing officer recommended the Board take no action against the air conditioning contractor’s license, but revoke the plumbing contractor’s license with leave for Godwin to file a complete and correct application for the Board’s consideration. The Board adopted the recommended order in full.

Godwin first contends the finding that he intentionally withheld information concerning judgments against him is not supported by competent substantial evidence. He argues the evidence only showed he was confused about question 7(c). Intent is normally a question of fact. In State v. West, 262 So.2d 457, at 458 (Fla. 4th DCA 1972), the court put it this way:

Being a state of mind, intent is usually a question of fact to be determined by the trier of fact. The trier of fact has the opportunity to observe the witnesses. From that observation, the trier of fact may determine the believability of that witness and the weight to be given his testimony. The demeanor of the witness, his frankness, or lack of frankness, his intelligence, his interest in the outcome of the case, and the reasonableness of the testimony presented, in the light of all the evidence in the case, are but a few of those factors which may play a part in making that determination.

Given the factfinder’s superior vantage point in determining intent, it is appropriate in the context of administrative law that the reviewing court be limited to determining whether a finding of intent is supported by competent substantial evidence. See, Section 120.68(10), Florida Statutes (1983).

There is evidence in the record that God-win is an experienced businessman who, at one time, was a certified public accountant. In addition, Godwin signed the application in the space provided for “signature of applicant,” and also signed as corporate president in a space provided for the signature of an officer of the qualifying corporation. The evidence of Godwin’s background indicates he was capable of understanding question 7(c); the evidence of his signatures indicates he in fact understood he was the applicant and an officer of the qualifying corporation as referred to in 7(i). Together, this evidence competently and substantially supports the finding that Godwin intentionally withheld the information sought by question 7(c).

Godwin reminds us that a reviewing court’s determination of what constitutes “competent substantial evidence” under the Administrative Procedure Act is not perfunctory, especially in license revocation proceedings. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). We acknowledge that the nature of the proceeding and the severity of the penalty influence the determination. Nevertheless, we find the evidence in this case competent and substantial.

Next, Godwin contends the Board exceeded its statutory authority when it revoked his license. He argues that given the findings concerning his honesty and the fiscal soundness of his business, license revocation is an exercise of power beyond the Board’s statutory authority since the Board’s function is to protect the public health, safety, and welfare by screening out incompetent or dishonest contractors. Section 489.101, Florida Statutes (1983).

The Board adopted the hearing officer’s findings that the evidence tends to show Godwin’s current business is financially responsible, that his business appears fiscally sound, and that he is basically an honest contractor. These general and qualified findings, however, do not prevent the Board from revoking a license where the Board also finds the licensee has violated a statute providing for license revocation.

The Board adopted the hearing officer’s conclusion that Godwin violated Section 489.127(l)(d) and thereby Section 489.-129(l)(j). Section 489.129(l)(j) allows the Board to revoke a contractor’s license for “failure in any material respect to comply with the provisions of this act.” Section 489.127(l)(d) prohibits giving “false or forged evidence to the board or a member thereof for the purpose of obtaining a certificate or registration.” Godwin does not argue that if he answered question 7(c) in the negative with the intent to withhold the information sought, he did not violate Section 489.127(l)(d). Neither does he argue that a violation of Section 489.127(l)(d) is not a material failure to comply within the meaning of Section 489.129(l)(j).

Because we have concluded that the finding that Godwin intentionally withheld information concerning judgments against him is supported by competent substantial evidence, and because the Board’s determination that such activity amounts to a violation of Section 489.127(l)(d) and thereby Section 489.129(l)(j) is unchallenged, we hold the Board did not exceed its statutory authority when it revoked Godwin’s license.

AFFIRMED.

ERVIN, C.J., and ZEHMER, J., concur.


text:
    William Richard MOYE, Appellant, v. BAYOU GRANDE VILLA ASSOCIATION, INC., Appellee.
    No. AV-365.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.
    Rehearing Denied Jan. 23, 1985.
    Ralph H. Atwell, Pensacola, for appellant.
    Mark R. Whittaker, of Hammons-, Roark & Whittaker, P.A., Pensacola, for appellee.
   PER CURIAM.

Appellant having failed to provide a transcript of the trial or statement of evidence prepared in accordance with rule 9.200(b)(3), Florida Rules of Appellate Procedure, the appealed judgment is affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Clayton v. Clayton, 442 So.2d 310 (Fla. 1st DCA 1983).

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


text:
    Nettie WALKER, Appellant, v. STATE of Florida, Appellee.
    No. AW-325.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.

      Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Henri C. Cawthon, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Walker appeals from an order of probation. She challenges the imposition of a special condition of probation. We reverse and remand for resentencing.

The State accused Walker of stealing approximately $160 worth of earrings from the Gayfers Department Store at the Tallahassee Mall. She pleaded no contest to grand retail theft.

The trial court withheld adjudication and placed Walker on two years probation. As a special condition of probation, Walker was required to purchase $160 worth of earrings from Gayfers and keep them in her possession during the period of probation. Walker’s counsel objected saying, “I don’t think this is a proper form of restitution.” The trial court responded, “I don’t look upon it as restitution. I look upon it as part of a rehabilitation step under probation.”

According to the presentence investigation report, Walker is a 20-year old unemployed mother of one with a total monthly income of $178 in welfare assistance. Walker was certified insolvent for purposes of appeal, and the challenged special condition was stayed pending appeal. The stolen earrings were returned to Gayfers undamaged.

Walker argues the special condition is not valid as a means of achieving restitution or rehabilitation. The State concedes it is invalid as restitution, but argues it is valid as a means of achieving rehabilitation because it is reasonably related to the crime and may help Walker acquire a greater respect for the rights of others.

Initially, we find this issue properly presented for consideration on the merits. To preserve the issue for review, the defendant must object when the condition is imposed or file a motion with the trial court to strike or correct the condition. Myers v. State, 426 So.2d 986 (Fla. 1st DCA 1983). Walker’s counsel made a specific objection when the trial court announced the condition.

The trial court has broad discretion to impose probation conditions which, in the trial court’s opinion, foster rehabilitation. Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982); Section 948.03(4), Florida Statutes (1983).

In Kominsky v. State, 330 So.2d 800 at 801 (Fla. 1st DCA 1976), however, this court said:

The trial court is vested with broad discretion in determining the conditions of probation; however, such discretion is not unbridled. The purpose of probation is primarily to rehabilitate and not primarily to punish. A special condition of probation which is so punitive that it is unrelated to rehabilitation cannot be imposed in lieu of a sentence.

In view of Walker’s financial circumstances, the effect of the challenged condition “is so punitive that it is unrelated to rehabilitation.” Imposition of the condition was therefore an abuse of discretion.

Reversed and remanded for resentenc-ing.

SHIVERS and WENTWORTH, JJ„ concur.


author: ZEHMER, Judge.

text:
    Paul E. HAVENER, Appellant, v. DIVISION OF RETIREMENT, Appellee.
    No. AX-422.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.
    Rehearing Denied Jan. 25, 1985.
    Leonard F. Mikul, Key West, for appellant.
    Stanley M. Danek, Division of Retirement, Tallahassee, for appellee.
   ZEHMER, Judge.

Appellant, Paul E. Havener, appeals the final order of the State Retirement Commission which denies his claim for in-line-of-duty disability retirement benefits under section 121.021(13), Florida Statutes (1983). The Division of Retirement cross-appeals the Commission’s denial of its motion to dismiss the section 121.23 administrative hearing because Havener failed to timely request a hearing. We reverse.

Havener was employed by the Florida Keys Aquaduct Authority as a welder/mechanic and maintenance supervisor for approximately nine and a half years. He was an “employee,” as defined by section 121.021(10), Florida Statutes (1983). When Havener could no longer physically perform the duties of his position, he applied for disability retirement benefits with the Division. The Division notified him that it had approved regular disability benefits but denied in-line-of-duty benefits, and Havener applied for and was granted an administrative hearing with the State Retirement Commission pursuant to section 121.23, Florida Statutes (1983). The Division’s motion to dismiss Havener’s petition as untimely filed was denied.

Medical testimony at the hearing revealed that Havener was totally and permanently disabled, primarily because he was afflicted with a degenerative joint disease (arthritis). Havener had been granted regular disability retirement by the Division, and the controlling issue at final hearing was whether an injury or illness arising out of or in the actual performance of duty required by Havener’s employment was the substantial producing cause or an aggravating cause of Havener’s total and permanent disability. § 121.091(4)(a) and § 121.-021(13), Florida Statutes (1983). Such finding is the essential predicate for in-line-of-duty benefits under section 121.021.

On November 22, 1974, Havener twisted his back when struck in the ribs by a pipe wrench thrown from a booster pump. He was hospitalized for two days and treated by Dr. Benavides. Dr. Benavides did not see Havener again until September 26, 1976, when Havener was injured on the job while lifting a steel beam. Havener was hospitalized after that accident for three to five days, examined after a week, and allowed to return to work on light-work status approximately two weeks after the accident. Dr. Benavides testified that the type of accident that occurred in 1976, i.e., one which produced sudden, unexpected stress, was a frequent initiator of back problems. After the 1976 accident, Havener attempted to continue working as before, but could not physically do so. In 1977, Havener again sought medical treatment from Dr. Benavides, who reported that Havener complained of frequent back problems, back pain, and inability to lift anything at all. Havener saw Dr. Benavides in 1977 and 1978, and in 1979, a degenerative disc disease was diagnosed. Benavides opined that there was a causal relationship within a reasonable medical probability between Havener’s low-back medical problems and the accident in 1976. Deposition testimony was given by Dr. Davidson, who examined Havener in 1980 and 1982 on behalf of the workers’ compensation carrier. Dr. Davidson’s diagnosis was severe degenerative joint disease. When asked if he could conclude whether Havener’s 1976 injury had anything to do with the permanent loss of function of the cervical spine, Dr. Davidson responded that he was unable to allocate the loss of function between Havener’s 1976 injury and the progressive degenerative disease, stating:

It’s known that trauma can make a degenerative disease flare up.... On the other hand, we sure can’t say this was all trauma because he obviously had a severe progressive degenerative disease going on. It was there before and kept on going and going afterwards too.

The Commission found that Havener’s disability resulted from degenerative back conditions that crystalized at some time between his last day on the job and the day of his formal termination of employment; that Havener’s degenerative disease became worse from the passage of time alone between 1972 and 1979; and that if Haven-er’s preexisting degenerative back condition was aggravated to any extent by either of his accidents, the aggravation was temporary in nature and he subsequently recovered from any back strain or sprain suffered in these job-related accidents. In short, the Commission found that:

[Havener] would have become totally and permanently disabled.. .at some time between August 17, 1979, and October 6, 1980, whether or not he suffered said back injuries on either November 22, 1974, or September 26, 1976, or on both said dates.... The petitioner was suffering no residual effects whatsoever from any injury that he may have sustained or suffered in either the accident on November 22, 1974, or on September 26, 1976. (Emphasis added.)

Based on these findings of fact, the final order concluded (1) that Havener failed to establish a prima facie case by a preponderance of competent, substantial evidence that he suffered any injury or illness arising out of and in the actual performance of duty required by his employment which was the substantial producing cause or an aggravating cause of his disability, and (2) that Havener’s duties of employment were not the substantial producing cause or an aggravating cause of Havener’s total and permanent disability, which was caused by any number of factors not related to Ha-vener’s employment.

Havener urges that the Commission erred in denying in-line-of-duty disability benefits because there was no competent, substantial evidence to support the Commission’s findings that his disability was not causally related to an injury which occurred in line of duty. The pertinent standard of appellate review in this case is whether the decision of the Commission was based on substantial evidence. We may not substitute our judgment for that of the Commission as to the weight of the evidence on any disputed findings of fact where the decision of the Commission is supported by substantial evidence. § 121.-23, Florida Statutes (1983). The test for an in-line-of-duty disability award is whether an injury or illness arises “out of and in the actual performance of duty required by a member’s employment.” § 121.021(13), Florida Statutes (1983). Section 121.-021(13) does not exclude disabilities which arise from the aggravation of a preexisting condition. Tingler v. City of Tampa, 400 So.2d 146 (Fla. 2d DCA 1981).

We believe this case is governed by our decision in Moore v. State of Florida, 368 So.2d 664 (Fla. 1st DCA 1979). In Moore, an applicant for in-line-of-duty benefits suffered a series of accidents, one being work-related, which, superimposed on his existing degenerative arthritis, resulted in total and permanent disability. This court held:

The uncontroverted facts are that appellant, whatever his prior physical condition, was able to, and did, perform his duties prior to the 1976 attack, and thereafter was permanently totally disabled by back injuries which are, as stated by the medical witnesses, related to the 1976 attack. We hold that the appellant proved the ‘in-line-of-duty’ injury he received was the substantial producing cause of his disability.

See also, Bolinger v. Division of Retirement, State Dept. of Administration, 335 So.2d 568 (Fla. 1st DCA 1976).

The evidence is undisputed that after the 1976 accident, Havener was unable to perform the physical activities he had performed prior to that time. The record contains performance evaluation reports made prior to Havener’s accident in 1976 that rank Havener’s on-the-job performance as outstanding. He had no job limitations on physical activity prior to the work-related injuries. After his injuries, he was on light-duty status and no longer performed heavy lifting. By 1979, Havener’s inability to adequately perform the physical requirements of his work was verified by medical testimony, so he was told by his superiors that if he couldn’t do the job to stop working. These circumstances are competent evidence that the 1974 and 1976 on-the-job injuries were at least an aggravating cause of his disability. The medical evidence does not dispute the fact of aggravation. The record contains no other competent, substantial evidence to support the Commission’s denial of the in-line-of-duty benefits.

We find no merit to the Division’s cross-appeal of the order denying its motion to dismiss the in-line-of-duty retirement proceedings before the Commission because of Havener’s untimeliness in requesting that hearing. The Commission did not abuse its discretion by extending the time available to Havener in which to file his appeal.

We reverse and remand with directions to award in-line-of-duty benefits retroactively to the date of the original award of regular section 121.091(4) benefits.

SMITH and BARFIELD, JJ., concur.

      . The final order of the State Retirement Commission awarded regular disability retirement benefits pursuant to section 121.091(4), Florida Statutes (1983), but denied his claim for in-line-of-duty disability retirement benefits pursuant to section 121.021(13), Florida Statutes (1983). The Division of Retirement does not question the propriety of the regular disability benefits.


text:
    Alton Ray THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. AW-424.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.
    Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Thomas appeals from two concurrent sentences of 48 months in prison. He contends the reasons given by the trial court for departing from the sentencing guidelines are not clear and convincing. We agree, vacate the sentences, and remand for resentencing within the guidelines.

Thomas was charged with burglary of a dwelling and grand theft, the crimes occurring on 30 August 1983. He pleaded guilty to both charges and affirmatively selected guidelines sentencing.

At the sentencing hearing, Thomas admitted breaking into Mr. and Mrs. Amos’ house in Jacksonville on the night of 30 August 1983, and stealing some coins. He denied being in the house when Mrs. Amos returned home, however.

Mrs. Amos testified she returned home around 9:00 p.m. on 30 August 1983. She heard a noise. Later, as she was preparing to go to bed, she noticed her bedspread had been pulled underneath the bed. Believing someone was hiding under the bed, she ran out of the house. Mrs. Amos testified some jewelry and her husband’s coin collection were stolen. Mr. Amos testified his coin collection was stolen.

The recommended range under the guidelines was 12 to 30 months incarceration. The trial court instead imposed two concurrent 48-month sentences. Defense counsel did not object to this departure after the sentence was pronounced.

The written reasons given by the trial court for departing from the guidelines are:

1) The defendant’s attitude as reflected in the attached Presentence Investigation indicates the defendant felt he could make a better living by stealing than by working.
2) The victims in this case were friends of the defendant.
3) The breaking into the dwelling was at night.
4) The items stolen belonged to an invaluable coin collection.
5) The defendant, during the course of the Burglary, concealed himself under the bed and fled after the victim had entered her home thereby terrorizing the citizen.

The State contends the question of whether the reasons for departure are clear and convincing is not preserved for review because Thomas did not object to departure at sentencing. This contention is without merit because this issue is appeala-ble as a matter of right. Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984).

Although none of the reasons for departure reflects facially impermissible considerations, neither are any of the reasons clear and convincing given the facts of the case before us. The record reflects a burglary and theft which, vile as they may be, were perpetrated in a quite common manner.

We are mindful that sentencing remains largely discretionary, and that the scope of our review is limited to a determination of whether the trial court abused its discretion. Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984). But where, as here, none of the reasons given by the trial court clearly and convincingly shows why the defendant should receive a more severe sentence than that recommended by the guidelines, we must conclude the trial court erred in departing from the sentencing guidelines.

The sentences are vacated, and the case remanded for resentencing within the guidelines.

SHIVERS and WENTWORTH, JJ., concur.


author: THOMPSON, Judge.

text:
    COUTURE FASHIONS, INC. and Chubb Group of Insurance Companies, Appellants, v. Edda ROMAY and Division of Workers’ Compensation, Appellees.
    No. AY-87.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.

      H. Jack Miller of Miller, Hodges & Ka-gan, Miami, for appellants.

      David H. Levine of Ser, DeCardenas, Levine, Busch & Schnepper, and Jay M. Levy of Hershoff & Levy, Miami, for appellees.
   THOMPSON, Judge.

In this appeal from an order awarding wage-loss benefits, the sole issue raised by the appellant employer/carrier (E/C) is whether the Deputy Commissioner (deputy) erred in finding that the claimant had made a good faith effort to obtain employment during the period for which benefits were claimed. Because there was an absence of competent substantial evidence to support the finding that the claimant conducted a good faith work search, we reverse.

In 1980, the claimant was involved in an industrial accident which left her with a 5% permanent impairment of her right leg and hip, and with physical limitations and restrictions which prevent her from engaging in physical labor which would involve the use of her right leg, or in any activity involving a great deal of walking. In a prior order entered in this cause on April 14, 1983, the deputy awarded wage-loss benefits for the period from the date of maximum medical improvement through February 28, 1982. On January 19, 1984 the E/C’s appeal from the prior order was affirmed by this court without written opinion. 444 So.2d 418. Accordingly, the findings of fact made by the deputy in his prior order have become the law of the case. Among the findings included in the prior order were that: (1) claimant is a native of Cuba who has only a limited command of the English language, (2) claimant was then only 45 years old, (3) claimant has a high school education plus vocational training both as a machine operator and in the secretarial field, and (4) since coming to the United States claimant has been employed only as a factory worker and a machine operator.

The claim at issue in this appeal was for wage-loss benefits for the period from March 1,1982 through March 1,1983. Evidence adduced in connection with this claim reveals that claimant’s work experience as a machine operator since her arrival in this country has been limited to work as a sewing machine operator in clothing factories, and that such work requires at least some use of the right leg. The evidence further reveals that at the hearing on the prior claim for wage-loss benefits, the claimant produced a list of the employers she had contacted in her effort to find suitable employment. The claimant produced no such list for the period after March 1, 1982. At various times during her deposition and at the hearing on the instant claim, the claimant testified that she “forgot” to continue to keep a record of employer contacts, that she “didn’t even know” or “didn’t remember why” she stopped keeping a work search list, and that her failure to keep such a record was “because of the nerves ... nerves, tensions, worries, I forget things .... ” When deposed on April 1, 1983, the claimant testified that she could not remember the names of any of the employers she had contacted after March 1, 1982. She further testified that the only type of work she sought during the period at issue was work as a sewing machine operator, and she admitted that she had made no effort to find work through the Florida State Employment Service. When questioned as to whether she thought she could successfully return to work as a sewing machine operator in view of the fact that the work would require at least some use of her right leg, she responded that she would not know whether she would be able to return to such work without trying it, and that none of the employers she had contacted had permitted her to attempt to operate a sewing machine.

At the hearing conducted on May 11, 1983, the claimant was able to remember the names of 11 of the factories she had visited looking for work, but she gave no testimony as to the dates when she had contacted the named employers. She did testify that she had sought work during each week of the period for which benefits were claimed, and she indicated, at different times while testifying, that she had sought work “once or twice a week” or “about eight or ten times” per week or “an average of eight or ten daily.” She testified that she sought work through the Spanish language newspaper, by telephoning the various clothing factories listed in the telephone book, and by making personal visits to the various factory districts in the Miami area to look for help wanted signs and to inquire in person whether help was needed.

The work search evidence adduced by claimant was entirely inadequate to support the deputy’s finding that she conducted an adequate, good faith work search. In Regency Inn v. Johnson, 422 So.2d 870, 877 (Fla. 1st DCA 1982) and in Conshor, Inc. v. Barnhart, 422 So.2d 946, 947, fn. 1 (Fla. 1st DCA 1982), this court indicated that the “minimum evidentiary standards for proof of an adequate and good faith work search ... should include the names of the businesses contaéted, the type of work sought, the number of contacts made, and the time frame within which work was sought.” Here, the claimant was able to name only 11 of the numerous businesses she claimed she had contacted during the course of an entire year. Her evidence as to the number of contacts made was inconsistent, and the only evidence concerning the time frame within which she sought work was that the described employer contacts had been made some time during the period from March 1, 1982 to March 1, 1983. Although there can be derived from Regency Inn and the other cases discussing the evidentiary predicate necessary to establish a good faith work search no inference or intimation that a claimant must state the precise date and hour of each employer contact, we conclude that a claimant who could do no better than to assert that her job search efforts were conducted some time during a 12 month period has failed to establish the time frame of the work search with sufficient specificity. Because requests for wage-loss benefits must be filed on a monthly basis, and because each request for wage-loss benefits filed constitutes a new and separate claim, Regency Inn v. Johnson; Deltona Corporation v. Morris, 418 So.2d 1274 (Fla. 1st DCA 1982), the claimant must, at the very least, adduce evidence that appropriate employer or placement agency contacts were made during each month for which benefits are claimed. A bare assertion that an unspecified number of unnamed potential employers were contacted over the course of a year does not constitute competent and substantial evidence of the “time frame” of the work search.

Although the claimant did provide evidence of the type of work she sought (sewing machine operator), there was some question as to her ability to perform such work given the injuries to her leg. A claimant who seeks only such types of work as he or she will be unable to perform has not conducted a good faith work search. Watkins Motor Lines, Inc. v. Private, 416 So.2d 850 (Fla. 1st DCA 1982). Also of significance is the fact that the record reveals claimant is qualified by education and training to perform at least some types of work other than operating a sewing machine. When questioned as to why she had not sought some other type of work, the claimant’s only responses were “I don’t know the language ...” and “I can’t find something to do which I don’t know how tó do.” The claimant acknowledged that she speaks Spanish fluently, and, as pointed out by counsel for the appellant in his brief, a Spanish speaking person who lives in the Miami area can hardly be said to be foreclosed, as a result of his or her inability to speak English, from performing any type of work other than as a sewing machine operator. Although it was perfectly appropriate for the claimant to attempt to return to the type of work with which she is most familiar, her failure to even attempt to find some other type work after unsuccessfully seeking a sewing machine operator’s position for over a year casts doubt, to say the least, on the sincerity of her assertion that she desires to reenter the work force. In view of the fact that the primary reason for the existence of the Florida State Employment Service is to provide free assistance in locating work for persons such as claimant, her failure to contact that agency also casts doubt on her sincerity.

Finally, we agree with and approve the deputy’s finding that “the claimant’s failure to keep a specific list or record of places she sought work should not result in a denial of her claim for wage-loss benefits.” Neither the provisions of Chapter 440, Fla.Stat. nor the case law impose any requirement that workers’ compensation claimants keep a written record of their efforts to obtain work. What is required, however, is that a claimant who wishes to receive wage-loss benefits adduce competent substantial evidence, in any form, that he or she has made a bona fide effort to obtain work commensurate with his or her post-accident abilities. Therefore, a claimant who fails to keep a written record of the work search does so at his or her peril, since an inability to adduce evidence which will support a finding that a good faith work search has been made will not be excused on grounds that the claimant can no longer remember the names of the employers she contacted and the approximate dates the contacts were made. Compare Alchar Wholesale Hardware Company v. Mason, 452 So.2d 127 (Fla. 1st DCA 1984), wherein this court held that the claimant had no obligation to file written job search forms as requested by the carrier, but nonetheless remained under an obligation to adduce competent and substantial evidence that a good faith work search was conducted.

REVERSED.

BOOTH and SMITH, JJ., concur.


text:
    Fred Lorenzo BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. AY-307.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.
    Michael E. Allen, Public Defender, Virginia Daire, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After reviewing the briefs and the record, we find no reversible error.

AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.