author: DOWNEY, Judge.

text:
    Darrell ARMBRUSTER, Fred Cunningham III, William McAllister Norrell, Adrian T. Perschl, Jr., James Lee Winberry, Gary Cawthorne and Michael Garth Manning, Appellants, v. STATE of Florida, Appellee.
    No. 82-2467.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Rehearings Denied Aug. 23, 1984.

      Charles I. Poole of Law Office of Charles I. Poole, Miami, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

On November 27, 1978, the State filed an information charging Jere D. Bell, Darrell Armbruster, Fred Cunningham, III, William M. Norrell, Adrian T. Perschl, Jr., James L. Winberry, Gary Cawthorne, and Michael G. Manning, with having committed the offense of having actual or constructive possession of more than 100 pounds of marijuana. On November 17, 1982, a jury returned verdicts finding each defendant guilty of “Possession of marijuana in excess of 100 lbs. as charged in the Information_” The circuit court adjudicated all defendants guilty pursuant to those verdicts and sentenced all except Bell, whom the court placed on probation, to prison terms. This is an appeal from those judgments and sentences by all defendants except Bell, whose appeal we decide in a separate decision filed this day. This is also the third appearance here of this cause, we having earlier reversed orders that suppressed evidence taken from the residence in which the defendants were arrested. See State v. Manning, 396 So.2d 219 (Fla. 4th DCA 1981), and State v. Bell, 417 So.2d 822 (Fla. 4th DCA 1982).

On this appeal the defendants seek reversal of their convictions on four grounds, three of which we treat summarily. The first two grounds were not preserved for appeal because the defendants did not object on illegal seizure grounds to the admission into evidence of four bales of marijuana weighing in excess of 100 pounds. Robertson v. State, 94 Fla. 770, 114 So. 534 (1927); Rodriguez v. State, 433 So.2d 1273, 1275 (Fla. 3d DCA 1983), and cases cited therein. The third point is properly here because the defendants objected on chain of custody grounds to the admission of the four bales into evidence, but it is without merit because the defendants made no showing of any tampering. Peek v. State, 395 So.2d 492 (Fla.1981); Helton v. State, 424 So.2d 137 (Fla. 1st DCA 1982); Beck v. State, 405 So.2d 1365 (Fla. 4th DCA 1981). See, too, United States v. Kubiak, 704 F.2d 1545 (11th Cir.1983) (failure to establish a chain of custody of a marijuana sample affects only the weight of the evidence, not the admissibility).

The last point warrants discussion. Defendants say that the evidence adduced at trial was insufficient to prove that each defendant had possession, either actual or constructive, of marijuana in excess of 100 pounds. That undisputed evidence is as follows.

At about 1 a.m. police, exercising surveillance, observed what appeared to be bales being unloaded from a boat at a dock behind a residence where the appellants were arrested. During the four hour period of surveillance a search warrant was obtained by one of the officers. The odor of marijuana could be smelled outside the residence. When the police entered the residence pursuant to the warrant they found: (a) the appellants sleeping fully clothed on the floors of two rooms; (b) 265 bales of marijuana weighing about 10,000 pounds in a bedroom; (c) a baking pan with marijuana and rolling papers in it; (d) a police radio scanner in the “on” position .and a paper that deciphered police numerical codes; (e) a countersurveillance nightscope device; and (f) two automobiles in the garage of the residence that had marijuana residue in their trunks.

Defendants argue that, because there is no evidence showing that any one defendant had control over the 265 bales of marijuana found inside the residence, including the four bales introduced into evidence, the verdicts have no basis. We do not agree. Possession of contraband, including illegal drugs, may be joint constructive possession. Smith v. State, 363 So.2d 21 (Fla. 3d DCA 1978). The prosecution may prove joint constructive possession by circumstantial evidence. United States v. Tamargo, 672 F.2d 887 (11th Cir. 1982). In addition, the prosecution may prove joint possession by two or more defendants without proving actual physical possession by any one defendant. Cooper v. State, 171 Ind.App. 350, 357 N.E.2d 260, 265 (1976); Russell v. State, 395 N.E.2d 791, 801 (Ind.App.1979). Cf. Latimer v. State, 134 Ga.App. 372, 214 S.E.2d 390 (1975); United States v. Morando-Alvarez, 520 F.2d 882 (9th Cir.1975). The evidence adduced, described above, was sufficient circumstantial evidence to permit the jury to find all the defendants guilty of joint constructive possession. Cf. Maisler v. State, 425 So.2d 107 (Fla. 1st DCA 1983).

For the foregoing reasons, we affirm the judgments and sentences appealed from.

AFFIRMED.

ANSTEAD, C.J., and HERSEY, J., concur.


source: Caselaw Access Project

author: DAUKSCH, Judge. COWART, Judge,

license: Public Domain

text:
    William D. HUGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 83-321.
    District Court of Appeal of Florida, Fifth District.
    June 7, 1984.
    Rehearing Denied July 11, 1984.
    Lawrence L. Lidfeldt, Maitland, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction of sexual battery. Because our disposition of the first point is decisive of the entire matter we do not treat the other two points on appeal.

Appellant was convicted of a sexual battery upon a seven year old girl. The offense occurred in a state park during daylight hours after the child and her mother became separated during a picnic and swimming outing.

While the child was walking across a boardwalk she encountered a man whom she followed a short way into the woods. After asking her name the man grabbed her, covered her mouth with his hand and took her further into the woods. He told her to lie down on her towel, performed sex acts on her, then allowed her to take her towel and leave. She found her mother and immediately reported the assault and the rangers and sheriff deputies were summoned.

Upon arrival at the park Deputy Kelley, the road patrol deputy assigned to the area, talked with the child and her mother and had the child lead him to the scene of the attack. At the scene a Marlboro cigarette pack was found and taken by the deputy. A latent fingerprint testing procedure conducted later on the pack proved negative. The child gave Deputy Kelley a description of the rapist and said he was a white male, approximately 145 pounds, 5'10", blond hair, blue eyes, possibly the beginning of a beard which the deputy interpreted as meaning he had not shaved for a couple of days, and a moustache. He was wearing a gray bathing suit, possibly had red stripes going down the side of the trunks or around the legs, either lateral or vertical. No shirt, no shoes. He had a round, dark spot, birthmark or mole underneath his lower lip with hair growing out of it but no other scars or tattoos. The victim did not speak of any speech impediments regarding the attacker.

The police converged on the area and approximately 20 of them and their bloodhound dogs tried to track down the assailant. No one could be found, so a systematic investigation over a period of months ensued. During this time a deputy met the appellant at the park and because he was an habitue of the park, and thus a suspect, a Field Interrogation Report Card was filled out. This card is filled out from information obtained from the interviewee and observations of the interviewer. This deputy testified at trial that the appellant was cooperative, seemed to be anxious to help out in any way he could and did not seem to be hiding anything from him. The description of the appellant was stocky, not thin, 175 pounds, not 145 pounds, dark brown almost black hair, not blond, brown eyes, not blue. No dark spot or mole under the lip. It was established at trial that appellant had burn scars on his arms and legs and prominent tattoos on his hands.

A detective later interviewed appellant and he was again cooperative and non-evasive. The detective had also interviewed the child and obtained a similar description of the perpetrator, including the brown spot under the lip, and medium blond hair.

The detective obtained a picture of appellant from the state division of driver licenses and sent it along with seven others to a detective in Cobb County, Georgia who took them to the child who now lived in Marietta, Georgia. She selected appellant from the array of photos. With that information and the fact that appellant smoked Marlboro cigarettes, the same as what was found at the scene, an indictment was obtained.

Although scientific tests were used to help build a case against appellant, the results were negative. The child testified that although she hadn’t seen it there before there was some “pure white and sick” substance on the towel when she took it from the scene. No semen was examined from the towel, but hair was. It was blond hair. It did not match either the child or appellant. The state crime lab technician testified the hair did not “originate from (appellant).” No fingerprints were gotten from the cigarette pack. There was no evidence regarding footprints in the record and although appellant had been previously convicted of crimes they involved marijuana and larceny, not sex or violence related crimes. Appellant was married for six or seven years at the time of trial and had two children with whom he and his wife lived. In summary, based upon the identification of appellant from the photograph and the fact that he smoked Marlboro cigarettes and a Marlboro pack was found at the scene, the jury found him guilty; this notwithstanding the fact that no identification of appellant was made at trial, no inculpa-tory scientific evidence of any kind was obtained, no one placed the accused at or near the scene at the time of the attack, no inculpatory statements, no past history. The jury found the appellant guilty also notwithstanding the fact that a much different description of the attacker was consistently given the police by the only eyewitness, who did not identify appellant at trial and said her attacker was not in-the courtroom. One other problem, not mentioned earlier, the accused has a pronounced lisp, the record says, and the child did not remember her attacker having any speech problem.

The question for us to decide is whether there was evidence legally sufficient to sustain the judgment; or, did the trial judge err in failing to grant a judgment of acquittal. The evidence was legally insufficient and the trial judge erred.

The eyewitness testimony was the only evidence against the accused, it was not an in court identification, was not corroborated by any other substantial-evidence and flew directly in the face of hard evidence to the contrary combined with a lack of investigative findings. Should a man be convicted of a crime which carries a mandatory 25 years minimum sentence without parole based only upon the selection of his photograph from amongst seven others? Perhaps, but should such a conviction stand where there is other evidence, such as the victim’s earlier, repeated and consistent descriptions contrary to a true one of the accused? Coupled with contrary scientific evidence — the non-matching, exclusionary blond hairs? And coupled with a lack of any other inculpatory evidence, circumstantially or inferentially? We think not and conclude that the law is clear that identity of the accused is not only an essential element of proof in a criminal proceeding but above all others the most crucial. That, above all others, is the fatal blow to an accused and the law should require substantial, competent, beyond all reasonable doubt proof.

Evidentiary sufficiency as distinguished from evidentiary weight is the standard to be applied by appellate courts reviewing evidence. Tibbs v. State, 397 So.2d 1120 (Fla.1981) is the most recent substantial treatment of the difference between weight and sufficiency. That opinion is not entirely dispositive and directive, perhaps because the subject does not permit it. When is a trial judge or an appellate court reweighing rather than testing legal sufficiency of evidence? In some cases it can be easily seen. In others, not so. It is simple, indeed simplistic, to say if there is any evidence,- no matter how little, no matter how well contradicted or disproved or impeached then it is sufficient. The simple formula, then, would be to say if the jury finds guilt then that’s it. That formula would prevent judicial intervention where a jury clearly has disregarded its duty and convicted by evidence not proved beyond a reasonable doubt. In Tibbs our supreme court said:

The weight and the sufficiency of evidence are, in theory, two distinct concepts most often relevant at the trial court level. Sufficiency is a test of adequacy. Sufficient evidence is “such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded.” Black’s Law Dictionary 1285 (5th ed. 1979). In the criminal law, a finding that the evidence is legally insufficient means that the prosecution has failed to prove the defendant’s guilt beyond a reasonable doubt. Burks v. United States, 437 U.S. 1, 16 n. 10, 98 S.Ct. 2141, 2150 n. 10, 57 L.Ed.2d 1 (1978). Weight, at least in theory, is a somewhat more subjective concept. The “weight of the evidence” is the “balance or preponderance of evidence.” Black’s Law Dictionary 1429 (5th ed. 1979). It is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. See In re Estate of Brackett, 109 So.2d 375 (Fla. 2d DCA 1959).
As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment. Legal sufficiency alone, as opposed to evi-dentiary weight, is the appropriate concern of an appellate tribunal, [footnotes omitted].

Tibbs, 397 So.2d at 1123.

The duty of the appellate court is to determine, when asked to do so, whether there is substantial, competent evidence to support the verdict and judgment. Tibbs. Here there is some evidence regarding the identity of the attacker; the child identified a photograph of the accused. But in face of the lack of any supporting evidence, the lack of courtroom identification and the unresolved conflict in the evidence, we are bound to say there was a lack of substantial, competent evidence to support the verdict and judgment.

REVERSED.

SHARP, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Because the eye-witness identification testimony of the victim of the sex crime in this case is uncorroborated and there is other, apparently conflicting, evidence, the majority finds the victim’s testimony is not sufficient to convince them beyond a reasonable doubt of the guilt of the accused, reverses the defendant’s conviction and sets him free.

Cases are legion holding that the eye-witness testimony of a sex victim is substantial competent identification evidence and, although contradicted, is legally sufficient to sustain a jury verdict and conviction. It is the province of the jury and not the trial or appellate court to weigh the total convincing force and effect (that is, to determine the strength of the probative value) of the entire evidence in the case and to determine if it meets the legal standard as to evidentiary weight (that is, whether it is adequate in quality to convince the jury beyond a reasonable doubt of the guilt of the accused). Accordingly, the majority opinion is consistent with the majority opinion in the classic case of Smith v. State, 239 So.2d 284 (Fla. 2d DCA 1970), and with the opinion in Tibbs v. State, 337 So.2d 788 (Fla.1976). However, it is in direct conflict with State v. Smith, 249 So.2d 16 (Fla. 1971), and violates the dictates of Tibbs v. State, 397 So.2d 1120 (Fla.1981).


author: GLICKSTEIN, Judge. WALDEN, Judge,

text:
    SPANISH OAKS CONDOMINIUM ASSOCIATION, INC., a Florida corporation not-for-profit, Appellant, v. COMPSON OF FLORIDA, INC., a Florida corporation, Appellee.
    No. 84-412.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Rehearing Denied Aug. 23, 1984.

      Mark B. Schorr of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellant.
    Guy W. Harrison of Mershon, Sawyer, Johnson, Dunwody & Cole, Miami, for ap-pellee.
   GLICKSTEIN, Judge.

This is an appeal from an order, denying appellant’s verified motion to vacate the final order. We reverse and remand.

It is uncontradieted from the verified motion that appellant’s counsel did not receive his conformed copy of the final order which the trial court signed on November 14, 1983; nor did he know of its entry until a telephone conversation with his opposing counsel on December 30, 1983.

The trial court was incorrect in contending that it had no discretion to vacate the final order under these circumstances; and it should have vacated the order in light of the absence of anything in the record to rebut the motion which appellant’s attorney swore to be true.

Rule 1.080(h)(1), Florida Rules of Civil Procedure, provides:

(h) Service of Orders
(1) A copy of all orders or judgments shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. No service need be made on parties against whom a default has been entered except orders setting an action for trial as prescribed in Rule 1.440(c) and final judgments that shall be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party, may require the party to furnish the court with stamped, addressed envelopes for service of the order or judgment, and may require that proposed orders and judgments be furnished to all parties before entry by the court of the order or judgment. [Emphasis added.]
The Committee note thereto states, in part:
Two changes have been made to subdivision (h)(1), which have resulted in a wholesale redrafting of the rule. First, the provision requiring the submission of proposed orders to all counsel prior to entry by the court has been deleted, any inaccuracies in an order submitted to the court being remediable either by the court’s own vigilance or later application by an interested party. Secondly, the rule now requires that conformed copies of any order entered by the court must be mailed to all parties of record in all instances (and to defaulted parties in two specified instances), for purposes of advising them of the date of the court’s action as well as the substance of such action. Nothing in this new rule is meant to limit the power of the court to delegate the ministerial function of preparing orders. [Emphasis added.]

We are unimpressed by the fact that appellant’s attorney received a copy of a proposed final order from his opponent on November 3, 1983, together with a copy of a cover letter to the trial court, which said:

Enclosed is a proposed Final Order which we believe reflects your rulings on Compson’s Motion for Summary Judgment in the above styled cause. Thank you.

Even if the trial judge had previously advised the attorneys that he would request such of the attorney in whose favor he decided, as he had, the notification contained in the letter of November 3, 1983, and the “proposed” final order did not satisfy the requirement of notice which Rule 1.080(h)(1) was re-designed to insure.

In footnote 1 of Cottone v. Broward County School Board, 431 So.2d 355 (Fla. 4th DCA 1983), this writer expressed his concern that trial judges not “rubber stamp” proposed judgments which involve findings of fact and conclusions of law. There was no reason to believe, in the present case, that the trial court would or did. Before seeing the trial court’s conformed copy, however, appellant’s attorney could not predict whether the trial court would sign the order as presented or change it. The attorney apparently had no complaint with its form, as he directed no exception to the trial court. This lack of complaint as to form is of no moment in determining whether there was notice of the date the final product was entered— whatever form that order took.

ANSTEAD, C.J., concurs.

WALDEN, J., concurs specially with opinion.

WALDEN, Judge,

concurring specially.

I would reverse and remand upon authority of Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971); Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980); and Gordon v. Green, 382 So.2d 1344 (Fla. 5th DCA 1980).

BY ORDER OF THE COURT:

The order on attorney’s fees of June 13, 1984, is vacated.

We grant appellee’s motion for clarification as to the award of attorney’s fees and conclude:

1. The fees incurred in this appeal shall be treated as part of the fees incurred in the plenary appeal.
2. All issues as to entitlement and amount shall be determined after plenary appeal and final resolution of this cause.

In all other respects, appellee’s motion for rehearing is denied.


author: WENTWORTH, Judge. PER CURIAM.

text:
    Richard A. CIGELSKI, Appellant, v. STATE of Florida, Appellee.
    No. AW-435.
    District Court of Appeal of Florida, First District.
    June 19, 1984.
    Rehearing Denied Aug. 8, 1984.

      David A. Davis, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

After pleading guilty to one count of burglary and one count of grand theft, appellant elected to be sentenced pursuant to the new sentencing guidelines, Fla.R. Crim.P. 3.701. Under the guidelines, the recommended sentence for both counts was twelve to thirty months in prison. Instead, the court withheld imposition of sentence and placed appellant on consecutive terms of probation; ten years for the burglary conviction to be followed by five years for the grand theft conviction. A twelvemonth period of incarceration was attached as a special condition of each probationary term. Appellant challenges this disposition as a deviation from the guidelines and as being in violation of the Supreme Court decision in Villery v. Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). We affirm.

Appellant contends that the total of 24 months’ incarceration violates the holding in Villery that the period of incarceration imposed as a special condition of probation may not exceed one year. However, when, as here, two separate and consecutive terms of probation are imposed, Vil-lery does not preclude the imposition of twelve months’ incarceration as a condition of each probation.

We also reject appellant’s contention that the trial court was precluded from imposing a combination of incarceration and probation totaling more than the 30 months recommended maximum sentence under the guidelines. Appellant’s position rests upon an erroneous assumption that the imposed probationary terms are sentences for guideline purposes. But the dispositions in this case were expressly pursuant to § 948.01(3) which provides in part that the trial court may “stay and withhold the imposition of sentence upon defendant and shall place him upon probation _” (e.s.) To hold, as appellant suggests, that probation is a “sentence” controlled by the guidelines would amount to judicial repeal of a legislative enactment. This of course we will not do.

That the framers of the guidelines did not intend that probation be treated as a sentence is further supported by the fact that Rule 3.701(d)(13) provides for placing the offender on community control “upon a finding that probation is an unsuitable disposition.” By providing for a special category when probation is inappropriate, the rule implicitly presumes the continued existence of probation as an alternative to sentencing.

Affirmed.

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

ON REHEARING DENIED

PER CURIAM.

We find no conflict between the decision in this case and that in Broxton v. State, 459 So.2d 98 (Fla. 1st DCA 1984), as urged by motion for rehearing. We note, however, that appellant’s attack upon the probationary orders in the present case was confined to the specific points stated in the opinion. Our disposition of the case does not, of course, determine other issues, if any, which may be raised with respect to the general propriety of such probationary orders. Rehearing is DENIED.

ERVIN, BOOTH and WENTWORTH, JJ., concur.


author: SMITH, Judge.

text:
    Donald J. CARROW, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. AW-454.
    District Court of Appeal of Florida, First District.
    June 19, 1984.
    As Corrected July 19, 1984.
    Karen Coolman Amlong of Holmes & Amlong, Fort Lauderdale, for appellant.
    Michael I. Schwartz, Gen. Counsel, and William M. Furlow, Atty., Dept, of Professional Regulation, Tallahassee, for appel-lee.
   SMITH, Judge.

Carrow, a licensed medical doctor, petitions for review of a non-final order of the Department refusing to quash an administrative subpoena duces tecum for certain patient records. We deny Carrow’s petition because he has failed to demonstrate grounds for immediate, preliminary review by this court. See Rule 9.100, Florida Rules of Appellate Procedure, and Section 120.68(1), Florida Statutes (1983).

In his petition, Carrow complains that the forced production of the records sought would violate his privilege against self-incrimination guaranteed by the United States and Florida Constitutions. Further, he contends that the Department has failed to comply with the requirements of Section 455.225, Florida Statutes (1983), governing the initiation of disciplinary investigations against licensees and thus he is excused from further compliance with Department directives. In particular, he urges that the Department is conducting an invalid investigation since it has failed to inform him of the nature of the complaint against him contrary to Subsection (1) of Section 455.-225, which provides that “When an investigation of any person is undertaken, the department shall notify him of the investigation and inform him of the substance of any complaint filed against him.”

Carrow relies on this court’s decision in Sheppard v. Florida State Board of Dentistry, 369 So.2d 629 (Fla. 1st DCA 1979), in support of his contention that his patient records are privileged and protected by the Fifth Amendment. In response, the Department cites Section 455.241(1) and (2) and Section 458.331(l)(n), Florida Statutes (1983), and contends this case falls within the “required records” exception, The Florida Bar v. White, 384 So.2d 1266 (Fla. 1980); Dr. John Doe, M.D. v. United States, 711 F.2d 1187 (2nd Cir.1983). More importantly, the Department urges that this appeal is premature and that Carrow should be required to wait until the Department seeks enforcement of the subpoena in circuit court, if it does, to raise his claim of constitutional privilege. We agree.

Section 455.223, Florida Statutes (1983), provides that enforcement of Department subpoenas shall be as provided in Section 120.58, Florida Statutes, which in turn provides that enforcement of a subpoena by the agency is by petition to the circuit court. See Section 120.58(3), Florida Statutes (1983). We think that under the facts of this case, the circuit court would be the exclusive forum for enforcement proceedings regarding this administrative subpoena.

Carrow’s apprehension that without the court’s immediate intervention he will be subjected to disciplinary proceedings for failure to comply with the subpoena pursuant to Section 458.331(l)(x) is unfounded. If he simply refused to comply, without more, he might well have cause for concern. However, Carrow clearly raised jus-ticiable issues concerning the validity of the questioned subpoena duces tecum in his request to the agency under Section 120.58(2) to quash the subpoena, and the Department may not charge him by administrative complaint with failure to comply with the subpoena until it has first sought enforcement in the circuit court under Section 120.58(3), the court has ruled adversely to him, and he has failed to comply with the subpoena within a reasonable period of time thereafter. See The Florida Bar v. White, 384 So.2d at 1268. We agree with the Department’s view that State ex rel Greenberg v. Florida State Board of Dentistry, 297 So.2d 628 (Fla. 1st DCA 1974), relied upon by appellant, is distinguishable, in that it involved the Board’s attempt to subpoena a non-licensed, non-party witness, who could refuse to comply only under pain of being adjudged in contempt of court under a statute then existing.

We have also noted Carrow’s argument that since the Department has failed to comply with Section 455.225(1), he should be excused from compliance with the subpoena. As an extension of this argument, Carrow urges this court to order that this present investigation be terminated because the Department has not proceeded in accordance with Section 455.225(1). We have determined that even if Carrow’s allegation concerning failure to comply with Section 455.225(1) is true, this error cannot be considered jurisdictional in any sense' and Carrow has not demonstrated a need for immediate non-final review at this time. Beckum v. State Department of Professional Regulation, Board of Optometry, 427 So.2d 276 (Fla. 1st DCA 1983). Should it subsequently be shown that this investigation was procedurally irregular, and that any irregularities were material and impaired the fairness of the proceedings, this court upon final review could vitiate the agency action and remand for new proceedings. Section 120.68(8), Florida Statutes (1983). In the meantime, should this investigation lead to a finding of probable cause by a probable cause panel of the Board of Medical Examiners, and an administrative hearing be requested, Carrow may urge to the appointed hearing officer that the administrative complaint should be dismissed for failure to comply with Section 455.-225(1).

The petition for review of non-final administrative action is DENIED.

JOANOS and ZEHMER, JJ., concur.

      . We note, although the Department’s brief fails to mention it, that after this court decided Sheppard in 1979, the Legislature repealed and re-enacted Chapter 458 adding the language in Section 458.331(l)(n) to the effect that physicians may be disciplined for failing to keep written medical records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results and test results. See Section 458.007(l)(n), Ch. 79-302, Section 1. Section 458.007(l)(n) was renumbered as Section 458.331(l)(n) in the 1979 Florida Statutes.

      . We note that Section 120.58 was amended by the 1984 legislature in Ch. 84-173, Section 3, and the amended statute became effective during the pendency of this appeal. However, we find nothing in these amendments, even if considered on this appeal, that would affect our disposition.


author: PER CURIAM.

text:
    Donald J. CARROW, M.D., Appellant, v. STATE of Florida, DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. AY-177.
    District Court of Appeal of Florida, First District.
    June 19, 1984.
    Karen Coolman Amlong of Holmes & Amlong, Fort Lauderdale, for appellant.
    Michael I. Schwartz, Gen. Counsel, and William M. Furlow, Atty., Dept, of Professional Regulation, Tallahassee, for appel-lee.
   PER CURIAM.

The Petition for Review of Non-Final Administrative Action is DENIED. See Carrow v. Department of Professional Regulation, 453 So.2d 842 (Fla. 1st DCA 1984), opinion filed this same day.

SMITH, JOANOS and ZEHMER, JJ., concur.


author: NIMMONS, Judge.

text:
    E.W. LAMBERT, E.W. Lambert, Jr., and Robert C. Seaver, Appellants, v. Brenda DOE, as Next Friend of Steven Doe, a minor, Appellee.
    No. AS-152.
    District Court of Appeal of Florida, First District.
    June 26, 1984.
    Rehearing Denied Aug. 1, 1984.

      Joe J. Harrell and Robert C. Palmer, III, Pensacola, for appellants.
    Robert J. Mayes and Richard E. Scher-ling, Pensacola, for appellee.
   NIMMONS, Judge.

This is an appeal by the owners of a Gulf Breeze apartment complex, Shoreline Apartments, from a verdict in favor of a 9-year-old male resident, Steven Doe (“Steven”), who was sexually molested by another tenant, 12-year-old Sean Roe (“Sean”). Steven, through his mother, Brenda Doe, alleged that the appellants, as landlords of the apartment complex, negligently failed to take adequate precautions to prevent the reasonably foreseeable conduct of Sean. We affirm the judgment for compensatory damages but reverse the award of punitive damages.

In August and September, 1980, Sean sexually molested Steven on two occasions at the apartment complex. A third incident occurred off the premises at a school grounds. One of the two incidents occurring at the complex took place at the Does’ apartment while Steven’s parents were in another part of the apartment. The second incident occurred at Sean’s apartment while Seans’ parents were situated in another area of the apartment.

The Does moved into the Shoreline Apartments in March, 1980. The Roes had lived there for some time prior thereto. Sean was large for his age, approximately 5'4" tall and weighed 150-155 pounds whereas Steven was about 4'6" tall and weighed only 75 pounds. After the Does moved to the Shoreline Apartments, Steven’s several encounters with Sean caused Steven to develop a fear of Sean. Sean threatened to beat him up, threatened to falsely accuse Steven of vandalism, threatened to shoot him with a gun, and Sean actually beat him up on one occasion. On other occasions, Sean twisted his arm and displayed a gun. Because of his fear of Sean and the various threats made by Sean, Steven was afraid to tell his parents what Sean had done.

Steven’s mother observed a marked change in his previously outgoing personality. He became more withdrawn and stayed indoors more than was usual for him. Eventually, on September 24, 1980, he told his mother of the incidents. Mrs. Doe reported these incidents to the management of Shoreline. The resident manager then notified Sean’s parents that they must vacate their apartment within three days. The manager’s letter stated, in part:

Several months ago we asked you to vacate your apartment because of your son’s behavior. Due to the hardship this would place on your family at that time, you were granted an extension.

Sean and his family moved out several days later.

There was substantial evidence presented to show that the management of Shoreline had received, several months prior to the subject incidents, reports of assaultive and bizarre conduct by Sean. We summarize the evidence. Sometime prior to June 1, 1979, according to Vicki Mann, the then resident manager of Shoreline, Sean made two little boys take down their pants and jump up and down in front of the window in his apartment. After that incident, Mrs. Mann told her own child to stay away from Sean. In August, 1979, a tenant, Mrs. Smith *, reported to Judy Wilburn, Shoreline’s project manager, that her three-year-old son had been sexually molested by Sean and that the tenant’s sister had been a witness to the incident. This tenant moved away from the Shoreline the following month because the Shoreline management did not require Sean’s family to move.

John Schmidt, a maintenance employee at Shoreline, testified that he heard Mr. Smith tell the resident manager, Vicki Mann, that Sean had molested his son and another young boy.

Judy Wilburn advised the owners of Shoreline (the appellants) of the report of the Smith molestation. The owners, who gave Wilburn wide latitude in handling problems since the owners resided in Tennessee, told her to consult with their attorney. She did and the attorney advised her there was not enough evidence to evict Sean’s family.

Approximately two months after the Smith incident, Wilburn employed Terry Hardy, a deputy sheriff with the Santa Rosa County Sheriff’s Office as a part-time security guard. He was a tenant at Shoreline. In November, 1979, Wilburn asked him to investigate reports that Sean had sexually molested younger boys in the complex. She did not specifically mention to him the Smith incident or give him the name of the witness to the Smith molestation. Hardy contacted the parents of several children and asked for permission to talk to the children. Although he was permitted to speak with only one child, he also requested the parents to speak with their children in an effort to determine what Sean had been doing. Hardy did not uncover any concrete information. He did file a report with the Sheriff’s Office, but he said the report did not reveal any facts showing misconduct on the part of Sean. He further testified, however, that he realized that some of the children were hesitant to talk to him because they were afraid of Sean and that Judy Wilburn was aware of this.

John Schmidt, the maintenance employee at Shoreline, testified that he had several problems with Sean beginning in 1979. He described an incident wherein Sean threw eggs at people from his apartment doorway and then slammed the door on Schmidt’s hand. He testified that on another occasion, Sean kicked in some air conditioners. Schmidt said that another time he found Sean’s pet hamster burned to death under Sean’s apartment window. When he asked Sean where his hamster was, Sean told him that the hamster had run away. Schmidt said that he had also seen Sean torturing his own cat. Schmidt also testified that he was aware of the fact that Sean had access to firearms. He described an incident in which Sean pointed a gun at a babysitter. On another occasion, a nine-year-old girl informed Schmidt that she had seen Sean and another boy in the woods engaged in sexual acts. Schmidt said that Sean was always hanging around younger children and instigating them to do things they should not. Schmidt testified that he informed Judy Wilburn and Connie Calhoun (the resident manager who succeeded Vicki Mann in September, 1979) that Sean posed a threat to small children at the Shoreline.

Connie Calhoun testified that- Sean told her one day, several months before the incidents involving Steven, that Sean had killed his cat and asked for a shovel to dig it up. She also said that one of the maintenance employees told her that Sean liked little boys rather than little girls which Mrs. Calhoun took to mean that Sean was prone to make sexual advances towards small children.

Judy Wilburn and Connie Calhoun discussed evicting the Roes because of Sean’s conduct but took no such action because they felt there was not sufficient evidence. Schmidt testified that Wilburn and Calhoun went to see the Roes and informed them that they would have to vacate but Mrs. Roe cried and Wilburn relented. Wilburn said that she saw Sean pester children in the complex and that she considered him a nuisance. Apparently, the only warning which Mrs. Doe received from the Shoreline management regarding Sean was Wilburn’s comment to Mrs. Doe one day that Sean was a “bully.” Mrs. Doe testified that after the revelation of Sean’s molestation of Steven, Wilburn told Mrs. Doe, “I knew why Sean was hanging around the courtyard where all the younger kids were, because he was looking for another victim.”

The.Roes’ lease had expired approximately seven months before the molestation incidents involving Steven Doe. After the lease expired, the Roes were permitted to remain on a month-to-month basis until the Shoreline management notified them to vacate after the revelation of the subject incidents in September, 1980.

Police Officer Ralph Barker testified that upon receiving the complaint of sexual battery against Sean Roe, he proceeded to the Shoreline Apartments and took Sean into custody. He said that he then took a statement from Sean. Over defense objections that such statement was inadmissible hearsay and inadmissible under Section 39.12(4), Florida Statutes (which objections we address later), Officer Barker was allowed to relate what Sean told him. Sean told Barker of instances where he had forced three young boys, including Steven Doe, and two young girls to perform fellatio upon him. Sean said there were two such incidents involving Steven, one at Sean’s apartment and one at Steven’s apartment. Sean said that he was able to get the children to do what he demanded by threatening them with bodily harm and threatening to accuse them of committing acts of vandalism. Sean also said that he told Steven that he would shoot Steven’s mother and father. Sean told Officer Barker that “his mind was busted into two different brains, and he always done (sic) what one or the other said to him.”

Mrs. Doe testified that before they moved to the Shoreline Apartments in March, 1980, she told the Shoreline management that she wanted to make sure that it was a nice, safe place for her family. The management assured her that it was a very nice place, that it had 24-hour security and that they did not have any trouble with any of the tenants.

A landlord, who as in this case recognizes and assumes the duty to protect his tenants from foreseeable criminal conduct, is required to take reasonable precautions to prevent injury from such conduct. Ten Associates v. McCutchen, 398 So.2d 860 (Fla.3rd DCA 1980); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3rd DCA 1980). It makes no difference, at least under the circumstances of this case, that the offender happens to be another tenant in the apartment complex.

Enough information was known by Shoreline management about Sean Roe such that it knew or should have known that it was reasonably foreseeable that Sean would continue to victimize young children in the complex. As is obvious from the above summary of facts, Sean’s behavior was not such as could be dismissed with a “boys-will-be-boys” attitude. His aberrant and bizarre conduct was in a different league and reflected what must be regarded, even to a layman, as at least a severe personality disorder. This unfortunate young man was a veritable time bomb ready to go off at any time.

Appellants point to the fact that the two incidents involving Steven at the complex occurred, respectively, in Steven’s apartment and Sean’s apartment while the parents were in the apartment. Although this argument has surface appeal, we do not believe that the landlord was any less obligated to take precautionary measures to prevent Sean from continuing to victimize young children in the complex simply because the molestations occurred inside, instead of outside, the apartments. The nature of the offensive acts perpetrated by Sean upon the younger children at the complex was such that they were done secretly and surreptitiously, and it was foreseeable that Sean would coerce his young victims into submission while in the privacy of an apartment bedroom. The fact that a parent or parents may have been present in another part of the apartment (oblivious to the events occurring in the bedroom) does not absolve the landlord from the duty of warning Steven's parents of the threat posed by Sean or taking other reasonably available precautions to avoid Steven and the other young children in the complex from continuing to be victimized by Sean.

Once a duty exists, the question of whether a landlord breached his duty to protect tenants from reasonably foreseeable criminal activity is usually a question for the jury, and it is for the jury to determine what precautions are reasonably required of the landlord in order to protect its tenants from further foreseeable criminal activity. Ten Associates v. McCutchen, supra, 398 So.2d at 862; Holley v. Mt. Zion Terrace Apartments, Inc., supra, 382 So.2d at 100; cf. Russell v. Jacksonville Gas Corp., 117 So.2d 29, 32 (Fla. 1st DCA 1960).

After the expiration of the Roes’ lease, the landlord could have required the Roes to vacate without having to give a reason. Indeed, the landlord started to do just that but relented in the face of the pleas by Mrs. Roe. Even before the lease’s expiration, the landlord surely would have had sufficient grounds to terminate the lease and require the Roes to vacate.

Since the landlord opted to allow Sean’s family to continue residing at the complex, the jury could have properly concluded that the landlord should reasonably have been expected to warn new tenants, such as the Does, of the potential threat posed by Sean Roe to young children in the complex, notwithstanding the landlord’s fear that such warning might have exposed it to a possible slander suit.

The jury’s verdict included an award of punitive damages in the sum of $25,000. Appellants contend that the trial court should not have allowed the issue of punitive damages to go to the jury as the evidence was not sufficient to support such an award. We agree with appellant. In order for appellants to be vicariously liable for punitive damages, their employees must have engaged in willful, wanton or outrageous conduct while acting within the scope of their employment and the appellants/employers must also have been guilty of some fault which foreseeably contributed to the injury. Mercury Motors Express, Inc. v. Smith, 393 So.2d 545, 549 (Fla.1981); Leon County Humane Society, Inc. v. DeGroat, 439 So.2d 949 (Fla. 1st DCA 1983). The conduct of appellants’ employees at the Shoreline Apartments was not such as will support punitive damages. In our view, their conduct constituted only simple negligence. We need not, therefore, address the appellants/employers’ “fault,” the other element necessary to support an award of punitive damages against an employer on the basis of vicarious liability.

Appellants also contend that the court erred in permitting Officer Barker to testify as to the statements made to him by Sean Roe. First, appellants say that such testimony was inadmissible hearsay. We disagree. It was conceded by counsel at trial that Sean was unavailable to testify. This testimony of Officer Barker qualified as a declaration against interest of an unavailable witness under Section 90.804(2)(e), Florida Statutes. The statements made by Sean were statements against penal interest and the statute’s reference to “pecuniary or proprietary interest” has been construed to encompass penal interest. See Peninsular Fire Insurance Co. v. Wells, 438 So.2d 46 (Fla. 1st DCA 1983); Baker v. State, 336 So.2d 364 (Fla.1976); Brinson v. State, 382 So.2d 322 (Fla. 2nd DCA 1979).

Appellants also contend that Sean’s statements were inadmissible by reason of the provisions of Section 39.12(4), Florida Statutes (1981), which provides:

(4) Except as provided in subsection (7), all information obtained pursuant to this chapter in the discharge of official duty by any judge, any employee of the court, any authorized agent of the department, the Parole and Probation Commission, the Department of Corrections, or any law enforcement agent shall be confidential and shall not be disclosed to anyone other than the authorized personnel of the court, the department and its desig-nees, the Department of Corrections, the Parole and Probation Commission, law enforcement agents, and others entitled under this chapter to receive that information, except upon order of the court.

Preliminarily, we would point out that no argument has been made, either at trial or on appeal, that Sean's statements were tainted by being involuntarily exacted or that such statements were inadmissible by reason of any failure to properly caution or advise Sean of his rights.

The purposes of Chapter 39, which are stated in Section 39.001 are, in summary, to protect society by substituting, whenever possible, methods of rehabilitation for retributive punishment; to assure proper home environment for those children whose conduct or status has caused them to be brought before the court; to preserve and strengthen the child’s family ties whenever possible; to provide procedures that will assure children of fair hearings; and to assure that the prosecution and disposition of children charged and found to have violated the law are conducted in such manner as meets constitutional standards of fundamental fairness. The confidentiality provisions of Section 39.12(4) are intended for the protection of juveniles and are not intended to be used by an allegedly negligent landlord as a shield against liability for damages arising from such negligence. The juvenile involved in the instant case, Sean Roe, was neither a party nor a witness and made no assertion that he was entitled to the benefits of the provisions of Section 39.12(4). We are not persuaded that the ends of justice would be served by interpreting this section in such a manner as to require that the trial court, notwithstanding the absence of any objection by or on behalf of the juvenile, exclude highly relevant and material testimony such as that elicited from Officer Barker.

We have examined the remaining points urged by appellants and find them to be without merit. The award of punitive damages is REVERSED. Otherwise, the final judgment is AFFIRMED and the case remanded for the entry of an amended final judgment reflecting the deletion of punitive damages.

THOMPSON and BARFIELD, JJ., concur.

       Due to the nature of the activities involved in this case and the fact that several children were affected by such activities, we have chosen to use fictitious last names for such children and their parents in order to avoid unnecessary publication of the identity of such children. An asterisk will indicate when a fictitious last name is used.

      . Apparently, this was the same incident described by John Imboden, another Shoreline maintenance employee. Imboden testified that he was present during a confrontation between a Mrs. Jones * and Judy Wilburn over an incident in which Sean had taken Mrs. Jones’ small child into the woods.

      . We note that the lease gave the landlord the right to terminate the lease "if Tenant or his guest carry on any activity which landlord or landlord’s agents deem to be a nuisance or annoyance to landlord or any other tenant...." Judy Wilburn admitted that they would have had no difficulty in showing Sean to be a nuisance to the landlord and other tenants.

      . There was testimony from Officer Barker that he advised both Sean and his father of Sean’s constitutional rights.

      . That is not to say that the trial court would have erred if it had seen fit to enforce Section 39.12(4) by precluding the testimony of Officer Barker. We are of the view that the court would be empowered sua sponte to raise on behalf of the absent juvenile the provisions of Section 39.12(4) and to preclude such testimony in the absence of an order of the court having juvenile jurisdiction. Cf. Holston v. State, 208 So.2d 98 (Fla.1968). We note, however, that there is a dearth of evidence in the record of this case establishing that there was, subsequent to his arrest, a prosecution of a juvenile case against Sean Roe with respect to the subject charges. In the absence of the prosecution of a Chapter 39 proceeding against the juvenile, the question arises as to whether the "order of the court” referred to in the last clause of Section 39.12(4) would necessarily have to be entered by a circuit judge presiding in a juvenile proceeding or could be entered by the circuit judge presiding over the civil trial. We need not answer that question in view of our disposition of appellants’ Section 39.12(4) point on other grounds.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    MIDLAND INSURANCE COMPANY, Appellant, v. Wallace G. FERRY, XRG International, Inc., et al., Appellees.
    No. 84-59.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied Aug. 22, 1984.
    Bernard A. Conko of Gibson & Adams, West Palm Beach, for appellant.
    Moss, Henderson & Lloyd, Vero Beach and Larry Klein, West Palm Beach, for appellee-Ferry.
   PER CURIAM.

AFFIRMED.

LETTS and WALDEN, JJ., concur.

ANSTEAD, C.J., specially concurs with opinion.

ANSTEAD, Chief Judge,

specially concurring:

I concur in the majority’s affirmance of the trial court’s order refusing to grant a motion filed pursuant to Florida Rule of Civil Procedure 1.540 to set aside a judgment. I write separately only to note that on the record before us we are in no position to second guess the trial judge on his apparent determination that no valid excuse or justification was shown for the appellant’s failure to timely object to the entry of final judgment, either by way of motion or appeal.


author: ANSTEAD, Chief Judge.

text:
    STATE of Florida, Appellant, v. Adelheid DEMARZO, Appellee.
    No. 83-842.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Aug. 23, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellant.
    Sheldon M. Schapiro of Law Offices of Sheldon M. Schapiro, Fort Lauderdale, for appellee.
   ANSTEAD, Chief Judge.

This is an appeal from an order dismissing driver’s license suspension proceedings against the appellee, Adelheid De-marzo, after she was charged with driving under the influence of alcohol and refused to take a breathalyzer test. In its order of April 11, 1983, the county court found that Sections 316.1932(l)(e) & (f), Florida Statutes (1981), violated provisions of the Florida Constitution which provide that only the Florida Supreme Court can promulgate court rules of practice and procedure.

The statutory scheme the court invalidated is now contained in Sections 322.261(2), (3) & (4), Florida Statutes (Supp.1982). Specifically the court found that those provisions mandating suspension of a defendant’s license when a court continuance requested by the defendant delays the hearing on the suspension beyond the statutory prescribed time constituted an unlawful encroachment upon the judicial rule-making authority. § 322.261(4).

Appellee argues that the rule in question affects the discretion of the court to grant a continuance, an innately procedural device to facilitate the disposition of cases in a proper manner. In our view, however, Section 322.261(4) does not attempt to deny to the courts power to grant a continuance; it merely limits the privileges of the defendant once such a continuance is sought and granted. In the present case Section 322.261(4) does not preclude nor require that the court grant a continuance. Rather, the statute imposes a twenty (20) day limit on the amount of time which a person who has refused to take a breath test can continue a case and retain their full driving privileges. The appellee’s real complaint is that if she chose to seek a continuance then her license would be suspended if the continuance went beyond the twenty (20) day limit set forth in the statute.

Here, the state contends that the obvious purpose of the statute is not to penalize the appellee; rather, the purpose is to preclude an end run around the statute; that is, delaying the hearing indeterminably while allowing the driver who refuses to take a breath test back onto the public highways. We tend to agree. It is clear that there is a compelling state interest in highway safety that justifies the legislature in allowing suspension of a driver’s license for failure to take a breathalyzer or blood alcohol test. State v. Bender, 382 So.2d 697 (Fla.1980). Since the legislature is attempting to provide maximum safety for all persons who use the public highways, and it is undisputed that this is a valid pursuit, we must allow the legislature a great degree of latitude in prescribing a course to insure such safety. Stewart v. DeLand-Lake Helen Special Road & Bridge District in Volusia County, 71 Fla. 158, 71 So. 42 (1916). Further, the Florida Supreme Court has held that a driver’s license is a privilege, subject to proper regulations and, on proper showing in accord with prevailing statutes, such a license may be revoked. Smith v. City of Gainesville, 93 So.2d 105 (Fla.1957). When that factor is considered together with the expressed legislative intent to “provide maximum safety for all persons who travel or otherwise use the public highways of the state,” Section 322.263(1), Florida Statutes (Supp.1982), the statutory scheme appears reasonable. In fact, the legislative scheme appears designed to balance the rights of the defendant and the safety interests of the state, by giving the defendant a prompt opportunity for a hearing in order to avoid the loss of his driving privileges. The decision to seek a continuance may leave the defendant with a difficult choice, but that, in our view, does not render the statute unconstitutional. See, e.g., South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

The appellee also contends that in denying the defendant the same privilege it offers the state (namely a continuance without the loss of a valuable privilege), the statute violates the equal protection clause. The equal protection clause requires that persons or classes in like circumstances be treated alike. In our view, this statute does not involve classifications; rather, the statute applies to all defendants who refuse a breath test. Accordingly, an equal protection argument is not appropriate. In any event, a reasonable basis for the distinction would be that of preventing parties in Demarzo’s situation from delaying the hearing for excessive periods while being able to return to the public streets.

The state also contests the trial court’s finding that the provisions of the statute are violative of the defendant’s due process rights because they limit the time within which the defendant can take discovery of the state’s evidence. In this case there has been no attempt made to demonstrate that appellee was actually handicapped in her discovery. Absent such a showing we do not believe that the issue is ripe for determination. Suffice it to say that in our view, the statute is not facially deficient on this score.

The trial court also held that the State Attorney was not the proper party to provide legal representation in the hearing since the Department of Motor Vehicles was the real party in interest. Although the statutory scheme does not specifically indicate who should provide legal representation in the hearing, it does provide that the proceedings be in the “court having trial jurisdiction of the offense for which he stands charged” and that notice of the proceedings be furnished to the state attorney. § 322.261(3). In addition, Section 27.02, Florida Statutes (1981), provides that the state attorney represent the state in all proceedings in the county court, the trial court involved. We think this is sufficient authorization for the state attorney to act here. Regardless of that, we do not believe the issue of representation would be a proper ground to invalidate the statute.

We conclude that the lower court erred in declaring Sections 316.1932(l)(e) & (f), Florida Statutes (1981), unconstitutional. Accordingly, this cause is reversed and remanded for further proceedings consistent herewith.

GLICKSTEIN and WALDEN, JJ., concur.

      . We have jurisdiction of an appeal from a county court order invalidating a state statute. See State v. Block, 428 So.2d 782 (Fla. 4th DCA 1983).

      . 322.261 Suspension of license for refusal to submit to test for impairment or intoxication.—

      (2) The department shall immediately send notification to such person, in writing by certified mail to his last known address furnished to the department, of the action taken and of his right to petition for hearing as hereinafter provided and to be represented at the hearing by legal counsel. Such mailing by the department will constitute notification as required by this section, and any failure by the person to receive such notification will not affect or stay such suspension order.
      (3) Upon his petition in writing, a copy of which he shall forward to the department, being filed within 10 days from the date of receipt of the notice, directed to the court having trial jurisdiction of the offense for which he stands charged, such person shall be afforded an opportunity for a hearing at a time to be set by the court, which hearing date shall be within 20 days of the filing of the petition with the court. It shall be the responsibility of the clerk of the court to schedule the hearing and to give proper notice to the petitioner and to the state attorney. If the person fails to appear for the hearing, the clerk of the court shall immediately notify the department, which shall suspend the person's license for a period of 3 months, or a period of 6 months if the driving privilege of such person have been previously suspended for a refusal to submit to such test or tests. For the purposes of this section, the question of whether such person lawfully refused to take a chemical test or tests, as provided for by this law, and the issues determinative shall be:
      (a) Whether the arresting law enforcement officer had reasonable cause to believe that the person had been driving or had been in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances;
      (b) Whether the person was placed under lawful arrest;
      (c) Whether the person refused to submit to any such test after being requested to do so by a law enforcement officer; and
      (d) Whether the person had been told that, if he refused to submit to such test, his privilege to operate a motor vehicle would be suspended for a period of 3 months, or for a period of 6 months if his driving privilege had been previously suspended for a refusal to submit to such test.
      (4)A petition for a hearing, as provided in subsection (3), filed by the affected person within 10 days of receiving notice of the action of the department shall operate to stay the suspension of the department for the period provided for the hearing. If the trial court fails to afford the hearing within such time, the suspension shall not take place until the person has been granted such hearing. If within the prescribed hearing period the person affected requests a continuance of the hearing to a date beyond the expiration of the prescribed hearing period, the suspension shall become effective on the day immediately following the prescribed period or immediately upon receipt of notice by the court that the request for continuance has been granted, whichever is the later. In every event, the court shall forthwith rule on the question herein prescribed and forward a copy of its decision to the department.

      . The defendant did not actually seek a continuance in the trial court so we are not presented with any issue as to the validity of the statute as applied to a particular situation.


author: DELL, Judge.

text:
    RELIANCE INSURANCE COMPANY and Bob Salmon, Inc., Appellants, v. MARYLAND CASUALTY COMPANY, B.A.T. Pipeline, Inc. and Sean Franklin Kingman, Appellees.
    Nos. 83-1616, 83-2725.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Aug. 9, 1984.

      Scott N. Richardson of Magill, Reid & Lewis, P.A., West Palm Beach, for appellants.
    Rosemary Cooney of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for appellees.
   DELL, Judge.

This appeal arises out of a coverage dispute between Reliance Insurance Company (Reliance) and Maryland Casualty Company (Maryland) in which the trial court entered summary judgment in favor of Maryland.

Appellant Bob Salmon, Inc. (Salmon) owned an automobile covered by a policy of insurance issued by Reliance. Salmon leased this automobile to appellee B.A.T. Pipeline, Inc. (BAT) by oral agreement. BAT had automobile coverage with appel-lee Maryland. Appellee Kingman, an employee of BAT, while driving the automobile during the course and scope of his employment, was involved in an accident causing personal injuries. The injured person sued the parties to this appeal who in turn cross-claimed against each other.

Each cross-claim asserted that the other’s policy provided primary insurance coverage and requested indemnification. Reliance concedes that its coverage is primary to the extent of the minimum coverage required by the Financial Responsibility Law ($10,000) but insists that Maryland’s policy covers amounts in excess of $10,000. Maryland claims that Reliance’s primary coverage extended to the full limit of its policy.

The parties do not dispute the facts. The only question presented concerns the proper interpretation of Section 627.7263, Florida Statutes (1981);

(1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the lessor of a motor vehicle for rent or lease shall be primary unless otherwise stated in bold type on the face of the rental or lease agreement. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by ss. 324.021(7) and 627.736.
(2) Each rental or lease agreement between the lessee and the lessor shall contain a provision on the face of the agreement, stated in bold type, informing the lessee of the provisions of subsection (1) and shall provide a space for the lessee’s insurance company’s name if the lessor’s insurance is not to be primary.

Reliance contends that the last sentence of subsection (1) requires the lessor to provide primary coverage for only $10,000, the minimum amount of liability insurance required by sections 324.021(7) and 627.736, Florida Statutes.

Section 627.7263, Florida Statutes (Supp.1976), provided that the lessee’s insurance would be primary unless shifted to the lessor by the means set forth in subsection (2) thereof. Chapter 77-468, Laws of Florida amended this section to its current form, providing for the lessor to supply the primary coverage unless the burden is properly shifted. We construe this statute as an attempt by the legislature to make certain that in a lease situation, one of the parties will be responsible for compliance with the personal injury protection coverage as required by Section 324.021(7), Florida Statutes, and the financial responsibility requirements of 627.736.

We join with the Second District Court of Appeal in Patton v. Lindo’s Rent-A-Car, Inc., 415 So.2d 43 (Fla. 2d DCA 1982), in its conclusion that

Once the requirements of the statute are satisfied by requiring the lessor to be responsible up to the limits of the financial responsibility law, or to properly shift the burden, the parties are free to contract between themselves as to any additional responsibility.

Id. at 45.

The plain language of the statute simply does not support Maryland’s contention that Reliance’s coverage is primary to the full extent of its policy limits. The statute clearly states: “Such insurance shall be primary for the limits and liability of personal injury protection as required by Section 324.021(7) and 627.736.” (emphasis added) Therefore, we hold that Reliance has primary liability under Section 627.-7263, Florida Statutes, limited to $10,000 and accordingly we reverse the final summary judgment in favor of Maryland and remand with directions to enter summary judgment in favor of Reliance.

REVERSED and REMANDED.

HURLEY and WALDEN, JJ., concur.

      . We recognize that our decision conflicts with Sunshine Dodge, Inc. v. Ketchem, 445 So.2d 395 (Fla. 5th DCA 1984).


text:
    T.D.D., Husband, Petitioner, v. M.J.D.D., Wife, Respondent.
    No. 83-2059.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.
    Rehearing Denied Aug. 29, 1984.

      John C. Guerriero, Fort Pierce, for petitioner.
    Ronald S. Fanaro of Bernard F. Grail, Jr., P.A., Yero Beach, for respondent.
   DELL, Judge.

This matter comes before us on petition for writ of certiorari to quash two orders of the circuit court. The first order denied the husband’s motion to strike the wife’s allegations challenging the legitimacy of a minor child born during the marriage of the parties. In the second order, the court compelled the husband to submit to HLA blood testing.

On June 16, 1978, before their marriage, the husband had sexual relations with the wife. Sometime later, the wife informed him that she was going to have his baby. She testified that she told the husband that she was having his baby in order to induce him to marry her. The parties married and lived alternately in Italy and the United States. The wife gave birth to the child on February 10, 1979, and cohabited with the husband until February 25, 1983, when she petitioned for dissolution of marriage. Among other things, she alleged that the minor child was born of the marriage and prayed for custody of the child and sole parental responsibility with reasonable Visitation rights to the husband. The wife swore to the facts alleged in the verified petition for dissolution. Thereafter, the parties entered into a stipulation settling custody, support, visitation rights and other matters.

When the parties appeared at the uncontested hearing, the wife indicated dissatisfaction with the visitation agreement. Her attorney moved for a continuance to give him time to research her right to challenge the legitimacy of her minor child. After various pleadings, the wife filed an amended petition for dissolution which challenged the husband’s paternity and moved to compel him to submit to HLA blood testing. The trial court denied the husband’s motion to strike the amended pleadings and granted the wife’s motion to compel him to submit to HLA blood testing. During the course of the proceedings, the wife or her counsel disclosed to the court that the putative father does not know that he is the father of the child, or that the wife claims that he is; and that he is a convicted drug dealer who, to the best of the wife’s knowledge and belief, is presently confined in jail. The wife did not disclose the putative father’s name.

On certiorari the husband contends that the wife is estopped to challenge paternity and further argues that this paternity proceeding is not in the best interest of the child. We grant certiorari as to the order compelling the husband to submit to HLA testing because the order is in the nature of a discovery order compelling a physical examination. Certiorari is appropriate when used to review orders compelling discovery. See Powell v. Wingard, 402 So.2d 532 (Fla. 5th DCA 1981). We dedline to review the order denying the husband’s motion to strike the wife’s allegations challenging paternity since this matter may be raised on plenary appeal.

Although the husband has vigorously argued the issue of estoppel on appeal, the partial record furnished on certiorari does not demonstrate that the issue was squarely presented to the trial judge. However, the evidence contained in the record does demonstrate sufficient unre-butted evidence to raise the issue of estop-pel. Here the wife represented to the husband that he was the father of the child; induced him to marry her; concealed the facts of her relations with an unidentified drug dealer; accepted the benefits of the marriage and the husband’s support and care, love and affection of the child; and swore in her petition for dissolution and reconfirmed in the stipulation for settlement that the husband was the child’s father. It also appears that the issue of paternity apparently only surfaced after the wife elected to challenge the husband’s right to visitation with the child. Under these circumstances, we hold that the trial court erred when it entered an order compelling the husband to submit to HLA blood testing without first determining whether or not the wife is estopped from challenging his paternity of the minor child.

We also note that an important issue exists as to whether the wife’s attempt to declare the child illegitimate is in the child’s best interest. It appears that the trial court considered this issue but withheld a determination of the question pending completion of the medical tests. Obviously if the trial court determines that the wife is estopped from raising the issue, this should be the end of the matter. In the alternative, should he determine that estop-pel does not lie, then the questions of parentage, custody, visitation and the best interests of the child must be decided. See Sacks v. Sacks, 254 So.2d 572 (Fla. 3d DCA 1971), quashed, 267 So.2d 73 (Fla.1972); Taylor v. Taylor, 279 So.2d 364 (Fla. 4th DCA 1973); Wills v. Wills, 399 So.2d 1130 (Fla. 4th DCA 1981); Marshall v. Marshall, 386 So.2d 11 (Fla. 5th DCA 1980).

Therefore we grant certiorari and quash the order compelling the husband to submit to HLA blood testing and remand this case to the trial court for further proceedings consistent herewith.

ANSTEAD, C.J., and BERANEK, J., concur.


author: HURLEY, Judge.

text:
    MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., a foreign corporation doing business in the State of Florida, and Brian Sheen, Petitioners, v. Helen MELAMED, Respondent.
    Nos. 83-2514, 83-2515.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.
    Rehearing Denied Aug. 22, 1984.

      Bennett Falk and Patricia E. Cowart, of Ruden, Barnett, McClosky, Schuster & Russell, P.A., Miami, for petitioner Merrill Lynch, Pierce, Fenner and Smith, Inc.
    H. Michael Easley of Easley, Massa & Willits, P.A., West Palm Beach, for petitioner Brian Sheen.
    F. Kendall Slinkman, West Palm Beach, for respondent.
   HURLEY, Judge.

Merrill Lynch Pierce Fenner & Smith, Inc. (Merrill Lynch) and its employee Brian Sheen petition this court for the third time to review a non-final order which denied a motion to compel arbitration. We grant the writ and order arbitration.

When this case was first before us, we held that the substantive portions of the Federal Arbitration Act supercede inconsistent provisions of state law, such that arbitration agreements which are valid and enforceable under federal law must be recognized and enforced in Florida courts. Thereafter, the United States Supreme Court announced the same rule in Southland Corp. v. Keating, — U.S. —, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). Also, subsequent to our decision in “Melamed I,” the United States Supreme Court concluded that the Federal Arbitration Act creates a body of federal substantive law which is applicable in both state and federal court. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

On remand, the trial court entered a second order denying arbitration. We reviewed this decision in “Melamed II” and quashed the order because the trial court had not held an evidentiary hearing as required by section 682.03(1), Florida Statutes (1983).

Pursuant to our mandate, the trial court held the requisite evidentiary hearing to determine whether there were disputed issues regarding the making of the agreement to arbitrate. It found no genuine issue as to the making of the agreement, but nevertheless entered a third order denying the motion to compel arbitration on ground that the statutory prerequisites for application of the Federal Arbitration Act were not established. We respectfully disagree.

THE SHEEN CLAIM

In May, 1980, the respondent, Helen Me-lamed, placed cash and securities with Merrill Lynch to be maintained in a cash management account. She opened the account through Brian Sheen, an account executive employed by Merrill Lynch. At that time she signed a contract which provided that “any controversy between us arising out of your business on this agreement shall be submitted to arbitration .... ” The trial court was of the view that Sheen was not entitled to arbitration because he was not a signatory to the contract.

We reverse that ruling because we find that the language of the contract is broad enough to include persons within the respondeat superior doctrine. See Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980); see also Paine, Webber, Jackson & Curtis, Inc. v. McNeal, 143 Ga.App. 579, 239 S.E.2d 401 (1977), aff'd, 161 Ga.App. 835, 288 S.E.2d 761, aff'd in part and rev’d in part, 249 Ga. 662, 293 S.E.2d 331 (1982); Berman v. Dean Witter & Co., 44 Cal.App.3d 999, 119 Cal.Rptr. 130 (Ct.App.1975).

THE FRAUD AND PUNITIVE DAMAGES CLAIMS

We further hold that the fraud claims are subject to arbitration, see Prima Paint Co. v. Flood & Conklin, 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Blumberg v. Berland, 678 F.2d 1068 (11th Cir.1982); Post Tensioned Engineering Corp., v. Fairways Plaza Associates, 412 So.2d 871 (Fla. 3d DCA 1982), as are the claims for punitive damages. Cf. Sabates v. International Medical Centers, Inc., 450 So.2d 514 (Fla. 3d DCA 1984) (holding claim under civil theft statute to be proper subject of arbitration, even though criminal violation is at its core and treble damages are available for violation thereof).

The factors cited by the trial court, ante, n. 5, are not sufficient to overcome the parties’ agreement to arbitrate on those claims,- particularly in view of the United States Supreme Court’s recent holding that any doubts concerning the scope of arbitra-ble issues under the' Federal Arbitration Act are to be resolved in favor of arbitration “whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or like defense to arbitrability.” Moses N. Cone Memorial Hospital, supra, 103 S.Ct. at 941-42. Cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Westwind Transportation, Inc., 442 So.2d 414 (Fla. 2d DCA 1983).

THE EFFECT OF THE FEDERAL

SECURITIES ACT CLAIM

A claim under § 12(2) of the Securities Act of 1933, 15 U.S.C. § 111 (1976) is presently pending in this suit. Merrill Lynch concedes the non-arbitrability of that claim, but argues that its pendency is no bar to arbitration on the other counts. We agree, and order that the federal claim be stayed pending the outcome of arbitration on the other claims. We order the stay because it appears that the federal claim is factually, although not legally, dependent on Melamed’s common law claim. Cf. Sibley v. Tandy Corp., 543 F.2d 540 (5th Cir.1976), cert. denied, 434 U.S. 824, 98 S.Ct. 71, 54 L.Ed.2d 82 (1977); Sabates v. International Medical Centers, Inc., supra, 450 So.2d at 516.

APPLICABILITY OF THE FEDERAL ARBITRATION ACT

The trial court clearly departed from essential requirements of law in concluding that Merrill Lynch failed to show that the arbitration agreement evidences a transaction involving commerce for purposes of the Federal Arbitration Act, 9 U.S.C. § 2 (1976). Melamed has previously conceded in oral argument before this court that the contract involves interstate commerce within the meaning of the federal act. Moreover, we note that Melamed placed securities listed on a national stock exchange with Merrill Lynch, and has pled a claim against it under the federal securities law which is applicable only to transactions involving interstate commerce. Against this background, the applicability of the Federal Arbitration Act to this case cannot seriously be questioned.

WAIVER OF THE FLORIDA SECURITIES ACT CLAIM

As an initial matter, we observe that arbitration agreements are binding and enforceable as to claims arising under the Florida Securities Law. See Raymond James & Associates, Inc. v. Maves, 384 So.2d 716 (Fla. 2d DCA 1980). But see Young v. Oppenheimer & Co., 434 So.2d 369 (Fla. 3d DCA 1983). We so conclude despite an express provision preserving the right to bring an action in court contained in the Florida Securities Act, section 517.-241(2), Florida Statutes (1983), because we find that provision to be in conflict with § 2 of the Federal Arbitration Act and therefore invalid under the Supremacy Clause of the federal constitution. See Southland Corp. v. Keating, supra.

Keating involved a suit between the owner/franchisor of 7-Eleven convenience stores, and several 7-Eleven franchisees. The contract between the parties contained a clause requiring arbitration of any controversy or claim arising out of or relating to the agreement or breach thereof. The franchisees sued the franchisor alleging, inter alia, violations of the California Franchise Investment Law, and the franchisor moved to compel arbitration of the claims pursuant to the contract. The California Supreme Court held that the claims asserted under the Franchise Investment Law were not arbitrable, interpreting section 31512 of the law — which renders void any provision purporting to bind a franchisee to waive compliance with any provision of the Law — to require judicial consideration of claims brought under the statute. The Supreme Court reversed, finding section 31512 of the California Statute to be in direct conflict with § 2 of the Federal Arbitration Act. In holding that section 31512 is invalid under the Supremacy Clause, the Court observed that “Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements” by passage of the federal arbitration act.” Id. at 861.

Thus, under the authority of Keating, we hold that section 517.241(2), Florida Statutes (1983) is constitutionally infirm. See also Kroog v. Mait, 712 F.2d 1148 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1001, 79 L.Ed.2d 233 (1984).

There is, however, some question as to whether waiver has occurred because of Merrill Lynch’s failure to promptly assert its intention to seek arbitration of the Chapter 517 claims. Merrill Lynch acknowledges that its initial Motion to Compel Arbitration stated that arbitration was not sought as to the Chapter 517 claim. However, at a hearing held less than a month after the filing of the Complaint, counsel for Merrill Lynch argued to the trial court that what purported to be a Chapter 517 count was really a claim under the Securities Exchange Act of 1934, but further maintained that if the court upheld the viability of the Chapter 517 claim, it should be submitted to arbitration.

Moreover, in its Answer to Melamed’s Second Amended Complaint, Merrill Lynch raised arbitration as an affirmative defense without specifying the counts to which it referred. Melamed obviously was aware of Merrill Lynch’s altered position, as evidenced by its memorandum of law in opposition to the defendants’ second motion to compel arbitration, wherein it stated “It now appears that the Defendant has changed its position and seeks arbitration with reference to all pending counts of the Amended Complaint.”

Viewing these facts in light of the Supreme Court’s recent admonition in Moses H. Cone Memorial Hospital, supra, that “any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay or a like defense to arbitrability,” 103 S.Ct. at 941-42, we conclude that the trial court departed from the essential requirements of law by finding waiver of Merrill Lynch’s right to arbitrate the Chapter 517 claim.

Mere delay in assertion of one’s right to arbitrate does not constitute waiver unless the delay has given the party seeking arbitration an undue advantage or has resulted in prejudice to another. See Graham Contracting, Inc. v. Flagler County, 444 So.2d 971 (Fla. 5th DCA 1983); cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Westwind Transportation, 442 So.2d 414 (Fla. 2d DCA 1983). As there are no allegations of undue advantage or prejudice in this case, we conclude that the trial court erred in finding waiver of petitioners’ entitlement to arbitration on the Florida Securities Law count. See Moses H. Cone Memorial Hospital, supra.

Accordingly, we grant the petition for Writ of Certiorari, quash the decision below, and remand with directions to enter an order compelling arbitration on all claims except the federal securities law count.

LETTS and BERANEK, JJ., concur.

      . The trial court presciently noted “that, like Jaws III and Rocky III, this case is destined to result in Melamed III." We earnestly hope that today’s decision will forestall the production of “Melamed IV.”

      . 9 U.S.C. §§ 1 to 14 (1976).

      . Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981) (“Melamed I”).

      . Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127 (Fla. 4th DCA 1982) ("Melamed II”).

      . The trial court made the following findings of fact and conclusions of law: (1) the claim against Brian Sheen is not arbitrable because he was not a party to the contract between Merrill Lynch and Melamed; (2) the claims for fraud and punitive damages should not be referred to arbitration under the federal act because (i) the issues and proceedings are complex and involve a third party (Sheen) not subject to arbitration; (ii) the court has already assumed jurisdiction in a substantial sense, and (iii) there have been acts of waiver and estoppel by Merrill Lynch on some of the issues; (3) the claim under the federal securities law is not arbitrable; (4) Merrill Lynch has not demonstrated that the agreement is evidence of a transaction involving interstate commerce; (5) Merrill Lynch has conceded that the claim under the state securities law (Chapter 517) is nonarbitrable, and therefore is deemed to have waived any right it may have had to arbitrate it; (6) Merrill Lynch has waived arbitration as to any claim by delaying its presentation of pertinent case citations to the court until after the resolution of two appeals, which actions are “contrary to the spirit and letter of the arbitration law” that is designed to promote speedy and effective disposition of disputes.

      . In Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the Supreme Court held that the provision of the federal securities act prohibiting arbitration controls over the more general Federal Arbitration Act, such that arbitration agreements are nonbinding as to claims under the federal securities act.

      . The common law fraud claim and the § 12(2) claim are factually dependent in the sense that if the arbitrators find that Mr. Sheen did not make any misstatement of fact or misleading 'omission in his transaction with Ms. Melamed, then he would not be liable for common law fraud or a § 12(2) violation. On the other hand, the fraud and § 12(2) claims are not legally dependent. Mr. Sheen and Merrill Lynch could be absolved of fraud liability in arbitration and yet still be found liable under § 12(2) for negligence (assuming that the arbitrators find that Mr. Sheen made a false statement or misleading omission).

      . The following colloquy between counsel for Merrill Lynch and the trial court occurred:
      MR. FALK: If the Court were to determine that the Federal Securities counts existed, then the Court would be without jurisdiction to hear those counts.
      COURT: Right.
      MR. FALK: If the Court determined that the Florida Securities count existed, that would be submitted to arbitration under the Federal Arbitration Act.


text:
    STATE ex rel. GAS KWICK, INC., Appellant, v. Doyle CONNER, Commissioner of Agriculture and Consumer Services, Appellee.
    No. AV-324.
    District Court of Appeal of Florida, First District.
    July 19, 1984.

      J. Michael Huey and Stephen A. Ecenia of Akerman, Senterfitt & Eidson, Tallahassee, for appellant Gas Kwick, Inc.
    Robert A. Chastain, Gen. Counsel, Fla. Dept, of Agriculture and Consumer Services, Tallahassee, for appellee.
   PER CURIAM.

This cause is before us on appeal from the judgment of the trial court denying petition for writ of mandamus, which petition alleged that Section 526.151, Florida Statutes is an unlawful exercise of the State’s police power, denies producers and refiners of petroleum products equal protection of the laws, and is unconstitutionally vague. The trial court, relying upon the court’s own 1975 decision declaring the statute unconstitutional for the above-stated reasons, summarily rejected appellant’s contention that the substantive due process issue was controlled by Exxon Corporation v. Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978). In Exxon, supra, the United States Supreme Court rejected a challenge on constitutional grounds to a substantially similar Maryland statute (Md.Code Ann. Art. 56 § 157E [Supp.1977]), holding that legislative enactment constituted a lawful exercise of the State’s police power. Appellee has failed to explain why that decision is not controlling of the same issue raised as to Florida’s statute.

We further conclude that the term “retail service station,” the language set forth in Subsection (2) of the Act requiring specified producers and refiners to “apply all equipment rental charges uniformly to all retail service station dealers which they supply” and the 90 percent requirement of Subsection (3) of the Act are not unconstitutionally vague or ambiguous in light of the legislative intent in enacting Section 526.151, Florida Statutes. The term “all classes of retail service stations” is construed to include all stations, whether providing full service or not, which supply gasoline at retail. Nor do the divestiture provisions of the Act constitute a denial of the equal protection since the challenged classification is rationally related to a legitimate State interest. Governor of Maryland v. Exxon Corporation, 279 Md. 410, 370 A.2d 1102, 1119 (1977), affirmed sub nom, Exxon Corporation v. Maryland, supra.

Accordingly, the judgment below is reversed.

The issues raised being of great public importance and the statute having apparently remained unenforced for almost a decade, we certify the following questions to the Florida Supreme Court:

1. DOES SECTION 526.151, FLORIDA STATUTES, VIOLATE THE SUBSTANTIVE DUE PROCESS CLAUSE OF THE FLORIDA AND UNITED STATES CONSTITUTIONS?
2. ARE THE TERM “RETAIL SERVICE STATION,” AS SET FORTH IN SUBSECTION (2) OF THE ACT REQUIRING SPECIFIED PRODUCERS AND REFINERS TO “APPLY ALL EQUIPMENT RENTAL CHARGES UNIFORMLY TO ALL RETAIL SERVICE STATION DEALERS WHICH THEY SUPPLY,” AND/OR THE 90 PERCENT REQUIREMENT OF SUBSECTION (3) OF THE ACT UNCONSTITUTIONALLY VAGUE AND/OR AMBIGUOUS?
3. DO THE DIVESTITURE PROVISIONS OF THE ACT CONSTITUTE A DENIAL OF EQUAL PROTECTION OF THE LAWS IN THAT THEY APPLY ONLY TO PRODUCERS AND REFINERS OF PETROLEUM PRODUCTS AND NOT TO OTHER MAJOR INTEGRATED COMPANIES?

BOOTH, SHIVERS and JOANOS, JJ., concur.

      . Section 526.151, Florida Statutes:
      Petroleum products dealers; restrictions.—
      (1) After October 1, 1974, no producer, refiner, or a subsidiary of any producer or refiner, shall operate, with company personnel, in excess of 3 percent of the total number of all classes of retail service stations selling its petroleum products, under its own brand or secondary brand.
      (2) Every producer or refiner of petroleum products supplying gasoline and special fuels to retail service station dealers shall apply all equipment rental charges uniformly to all retail service station dealers which they supply.
      (3) This section shall not apply to any service station operated by a producer or refiner of petroleum products who purchases or obtains more than 90 percent of the unrefined petroleum products to be so refined from another producer or refiner of petroleum products.
      (4)A circuit court or circuit judge shall have jurisdiction, upon hearing and for cause shown, to grant an injunction restraining any person from violating or continuing to violate any of the provisions of this section.

      . That decision (Exxon Corporation, Shell Oil Company, Union Oil Company of California, and Phillips Petroleum Company v. Conner, Cases No. 74-1449, 74-1577, and 74-1772, Circuit Court of the Second Judicial Circuit in and for Leon County [January 23, 1975]), holding the statute unconstitutional, is unreported and was never appealed.


author: WENTWORTH, Judge.

text:
    BROOKWOOD EXTENDED CARE CENTERS, INC., a Florida corporation, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellee.
    No. AV-443.
    District Court of Appeal of Florida, First District.
    July 24, 1984.
    Leonard A. Carson and Michael M. Parrish, of Carson & Linn, Tallahassee, for appellant.

      James Barclay and Kim Clayton, Department of Health and Rehabilitative Services, Tallahassee, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an administrative order by which its petition for a § 120.57(1), Florida Statutes, hearing was denied. We find that appellee Department of Health and Rehabilitative Services (HRS) erred by resolving disputed issues of material fact without affording appellant a hearing with regard thereto, and we therefore reverse the order appealed.

Appellant was issued a Certificate of Need by HRS for the construction of a nursing home. HRS subsequently determined that appellant’s Certificate should be revoked, and purported to so advise appellant by both certified letter and published notice. However, the certified letter was returned unclaimed and appellant did not request a revocation hearing until after further communications ensued several months later. HRS then denied appellant’s request for a hearing as untimely filed.

The published notice was deficient in that it failed to inform appellant of the right to request a hearing and the time limits applicable thereto, and it did not otherwise provide a “clear point of entry” into the administrative process; this oversight is a material error which precludes dismissal of a hearing request for untimeliness predicated upon such notice. See Sterman v. Florida State University, 414 So.2d 1102 (Fla. 1st DCA 1982); also see Henry v. State Department of Administration, 431 So.2d 677 (Fla. 1st DCA 1983); Wahlquist v. School Board of Liberty County, 423 So.2d 471 (Fla. 1st DCA 1982). And while the order denying appellant’s request for a hearing states that the unclaimed certified letter was properly mailed to appellant’s authorized representative, in requesting a hearing appellant alleged that the letter was never received. Appellant further alleged that the letter had been mailed to an incorrect address and that appellant’s proper address was in the possession of HRS and on file with the Secretary of State. In rejecting these allegations and finding to the contrary HRS made a disputed evidentiary determination for which a hearing should have been held. See Sterman, supra. HRS thereby erred in rendering a decision without affording appellant an opportunity to address the disputed material allegations of fact in a limited § 120.57(1) hearing.

The order appealed is reversed and the cause remanded for a § 120.57(1) hearing as above indicated, and thereafter for such further proceedings as may be necessary.

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

      . HRS published a notice of revocation in the Florida Administrative Law Weekly. Appellant argues that the revocation of a Certificate of Need is a licensing proceeding and therefore governed by the provisions of § 120.60(6), Florida Statutes. HRS acknowledges that § 120.-60(6) does not authorize the chosen method of publication, but contends that the present case does not involve licensing and that the published notice is authorized by Rule 10-5.10(8), Florida Administrative Code, relating to "the issuance or denial” of a Certificate of Need. But since even under Rule 10-5.10(8) the published notice is facially deficient the present case does not require a determination as to whether the proceeding below involved licensing. But see generally Westchester General Hospital v. State Department of Health and Rehabilitative Services, 419 So.2d 705 (Fla. 1st DCA 1982); cf., Capeletti Bros. v. State Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978).


text:
    Kenneth OLIVER, Appellant, v. STATE of Florida, Appellee.
    No. AY-147.
    District Court of Appeal of Florida, First District.
    July 31, 1984.

      Kenneth Oliver, pro se.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   L. SMITH, Judge.

Oliver urges on appeal that the trial court erred in denying his motion under Rule 3.850, Florida Rules of Criminal Procedure, claiming ineffective assistance of counsel. His earlier appeal from his robbery conviction was affirmed by this court without opinion. Oliver v. State, 453 So.2d 47 (Fla. 1st DCA 1984), Case No. AU-173, decision filed June 4, 1984.

Appellant’s contention that his trial counsel rendered ineffective assistance because he failed to assert Fourth Amendment, and Article I, Section 12, Florida Constitution, grounds in the motion to suppress evidence secured by means of his unlawful arrest is completely without merit. As the State urged below, although trial counsel’s written motion to suppress was based on Fifth, Sixth and Fourteenth Amendment grounds, at the suppression hearing appellant’s counsel orally moved to amend to include Fourth Amendment grounds, which were thereafter fully argued by counsel and considered by the trial court.

We have noted that the trial judge’s order denying appellant’s Rule 3.850 motion erroneously recites that the suppression motion was based only on the Fifth, Sixth and Fourteenth Amendments. However, this oversight is harmless, since we have the trial record before us (in Case No. AU-173) and have determined from our own independent examination that appellant’s counsel fully and adequately presented and argued the Fourth Amendment (and its Florida constitutional counterpart) in urging that appellant’s confession was obtained as the result of an unlawful arrest and seizure.

The order appealed from is AFFIRMED.

JOANOS and ZEHMER, JJ., concur.

      . We are permitted to take judicial notice of the record in prior appeals of the same case to this court. Hampton v. State, 403 So.2d 1154 (Fla. 1st DCA 1981).